Opinion
04-20-00309-CV
07-11-2022
PLANET HOME LENDING, LLC, Appellant v. Ronnie NUNN, individually and as the trustee for the 9707 Discovery Land Trust, Appellee
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2017-CI-22807 Honorable Martha Tanner, Judge Presiding
Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice
ORDER
PER CURIAM
On March 22, 2022, we abated this appeal to the trial court and instructed it to hold a hearing to determine whether the missing trial exhibits could be replaced by agreement of the parties or with accurate duplicate copies or whether the exhibits could not be replaced. See TEX. R. APP. P. 34.6(F)(4). WE ORDERED THE TRIAL COURT TO MAKE VERBAL FINDINGS ON THE RECORD WITH RESPECT TO REPLACEMENT OF THE MISSING EXHIBITS AND FURTHER ORDERED A SUPPLEMENTAL REPORTER'S RECORD TO BE FILED IN THIS COURT CONTAINING THE TRIAL COURT'S FINDINGS AND "ANY DOCUMENTS SUBMITTED AND ACCEPTED BY THE TRIAL COURT IN REPLACEMENT OF THE MISSING EXHIBITS." EVEN THOUGH THE PARTIES ATTACHED COPIES OF THE MISSING EXHIBITS TO THEIR BRIEFS, THIS COURT CANNOT CONSIDER DOCUMENTS ATTACHED AS EXHIBITS OR APPENDICES TO BRIEFS THAT ARE NOT CONTAINED IN THE RECORD. Myer v. Cuevas, 119 S.W.3d 830, 836 (Tex. App.-San Antonio 2003, no pet.).
The trial court held the hearing on May 19, 2022, and the transcript of the hearing was filed in this court on June 1, 2022. The hearing transcript contains the trial court's findings that the original exhibits admitted at trial were lost or misplaced due to issues related to the Covid-19 pandemic; the parties agreed to replace the missing exhibits with copies of the original documents; and the replacement exhibits are accurate duplicates of the original exhibits admitted at trial.
Pursuant to our order issued on March 22, 2022, a supplemental record containing the replacement exhibits was required to be filed in this court within seven days after the date of the hearing so the exhibits could be included in the appellate record before this court. To date, despite numerous phone calls and emails by this court's deputy clerk to counsel for the parties, the supplemental record with the replacement exhibits has not been filed in this court.
Accordingly, appellant is ORDERED to immediately: (1) file the replacement exhibits with the trial court clerk; (2) request and pay for preparation of a supplemental clerk's record containing the file-stamped replacement exhibits; and (3) cause the supplemental clerk's record containing the file-stamped replacement exhibits to be filed in this court within ten (10) days from the date of this order. If appellant fails to comply with this order, this appeal may be dismissed for failure to comply with a court order or considered on the merits without the exhibits. See TEX. R. APP. P. 42.3(C); see also We Deliver, Inc. v. Calderon, No. 04-19-00132-CV, 2020 WL 4218691, at *4-5 (Tex. App.-San Antonio July 22, 2020, pet. denied) (mem. op.).
It is so ORDERED on July 11, 2022.