Opinion
No. 08-16-00060-CV
05-08-2017
ARMANDO AVILA, Appellant, v. UNITED PARCEL SERVICE, INC., Appellee.
Appeal from the 419 District Court of Travis County, Texas (TC# D-1-GN-14-000743) ORDER
Appellant's reply brief is due to be filed on May 8, 2017. Appellant has filed a fourth motion requesting an extension of time in which to file his reply brief. Appellee is opposed to the motion.
The sole basis for this motion is that a document is missing from the clerk's record, namely, the "Modified Order Granting Motion for Summary Judgment" signed on May 6, 2016. A file-marked copy of this order is included in the appendix to Appellee's brief filed on February 17, 2017, but it was not included in the original clerk's record. A comparison of the original order signed by the trial court on February 9, 2016 with the modified order signed on May 6, 2016 shows that the only difference is that the modified order assesses all court costs against Appellant.
Appellant asserts that the Travis County District Clerk agreed at a hearing conducted on November 22, 2016 to include this document in a supplemental clerk's record. A review of the hearing record does not support Appellant's factual representation. The hearing record shows that two documents would be included the supplemental clerk's record: (1) a complete copy of the Response to Defendant's Motion for Traditional and No Evidence Summary Judgment, and (2) the order granting Defendant's Verified Motion to Extend Post-Judgment Deadlines. These documents have been included in supplemental clerk's records filed with the Court.
The Court has granted three previous extension requests, and our order granting the third extension motion expressly stated that the Court would not consider any further extension motions. Despite this admonishment, Appellant waited until three days before his reply brief is due to raise his complaint that the modified order granting summary judgment has been omitted from the clerk's record, and even though Appellant has been aware since at least February 17, 2017 that the modified order is not contained in the clerk's record, he has not made any effort to ask the Travis County District Clerk to supplement the record with the modified order. See TEX.R.APP.P. 34.5(c)(1)(permitting a party to, by letter, direct the trial court clerk to file a supplemental record containing an omitted item). Further, the sole reason given in the motion for the extension request is that Appellant intends to raise a new issue on appeal regarding the missing document. It is well established that Appellant is not permitted to raise a new issue or point of error in a reply brief. See TEX.R.APP.P. 38.3; Calvillo v. Carrington Mortgage Services, 487 S.W.3d 626, 630 n.2 (Tex.App.--El Paso 2015, pet. denied). Accordingly, Appellant's motion for a fourth extension of time to file his reply brief is denied. On our own motion and in a separate order, we have ordered the Travis County District Clerk to file a supplemental clerk's record containing the modified order granting summary judgment.
IT IS SO ORDERED this 8 day of May, 2017.
PER CURIAM Before McClure, C.J., Rodriguez, and Palafox, JJ.