Opinion
No. 06-17-00003-CV
05-11-2017
CAROLYN BARNES, Appellant v. MARIA SANTOS DONIHOO, Appellee
On Appeal from the 220th District Court Hamilton County, Texas
Trial Court No. CV10310 Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
Carolyn Barnes filed suit against her former client, Maria Santos Donihoo, to collect unpaid fees. The case was tried to a jury, which returned a take-nothing verdict against Barnes, and the trial court entered a judgment consistent with that verdict. This is Barnes' appeal from that judgment.
The clerk's record in this matter was filed December 28, 2016, and the final volume of the reporter's record was filed February 27, 2017, making Barnes' appellate brief originally due March 29. Barnes filed a motion to extend that deadline, which was granted, extending the deadline to April 28. Currently pending before this Court is Barnes' second motion for an extension of the briefing deadline.
In her motion, Barnes makes very broad claims (1) that she has not received certain portions of the record that she requested and (2) that the record she has received is somehow incomplete or inaccurate. We note that Barnes filed in this Court two separate mandamus petitions raising similar issues and that both of those petitions were dismissed for want of jurisdiction. We further note that Barnes subsequently filed a similar petition in the Tenth Court of Appeals and that our sister court recently denied that petition. In re Barnes, No. 10-17-00122-CV, 2017 WL 1452839, at *1 (Tex. App.—Waco Apr. 18, 2017, orig. proceeding).
Even a cursory review of the reporter's record reveals significant issues concerning its accuracy. Specifically, the Exhibits Volume of the record contains some glaring inaccuracies. By way of example, Plaintiff's Exhibit 6 is identified in the index and on the divider page preceding that exhibit as "Defendant's Response to Requests for Admission." The document that is actually in the record is a civil commitment renewal order that is marked as Defendant's Exhibit 6. Similarly, Plaintiff's Exhibit 7 is identified in the index and on the divider page preceding that exhibit as "Motion to Enter Judgment NOV." The document that is actually in the record is another civil commitment renewal order, this one marked as Defendant's Exhibit 7, as well as a physician's letter and a physician's certificate of mental health medical examination. Plaintiff's Exhibit 8 is identified in the index and on the divider page preceding that exhibit as "Letter, Barnes to Nueces County Clerk." The document that is actually in the record is a competency examination order that is marked as Defendant's Exhibit 8. Finally, Plaintiff's Exhibit 12 is identified in the index and on the divider page preceding that exhibit as "Invoice, letter and certified copy of records from Nueces County Clerk." The documents that are actually in the record are a receipt from the Nueces County District Clerk's Office and what appears to be Barnes' time records for the work for which she seeks compensation in this lawsuit.
Since Barnes has raised issues regarding the inaccuracy of the reporter's record after it has been filed in this Court, we will submit this dispute to the trial court for resolution under Rule 34.6(e)(3) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 34.6(e)(3). We hereby abate this matter to the trial court to conduct an evidentiary hearing pursuant to Rule 34.6(e), subsections (2) and (3), for the purposes of (1) determining whether all portions of the record to which Barnes is entitled have been provided to her and filed with this Court and (2) identifying and correcting, if possible, any inaccuracies in the reporter's record that has been filed and provided to Barnes. Because Barnes has never clearly and succinctly identified precisely what portions of the record she claims she has not been provided or what portions of the filed record she claims are inaccurate, resolution of this dispute will require the trial court to clearly identify Barnes' issues.
There may be inaccuracies in the record in addition to those we have identified. However, Barnes, and any other party who takes issue with the accuracy of the record, must raise any other claimed inaccuracies in the record at the time and in any appropriate manner specified by the trial court while this case is on abatement.
We instruct the trial court to conduct an evidentiary hearing within thirty days of the date of this order and to enter findings regarding the following:
1. Precisely what portions of the record Barnes (or any other party) claims is missing and/or what parts of the record Barnes (or any other party) claims is inaccurate (including every exhibit that she claims is incomplete or inaccurate);
2. For each error or omission identified in response to No. 1 above, whether the issue can be resolved by agreement as contemplated by Rule 34.6(e)(1) of the Texas Rules of Appellate Procedure;
3. If such error or omission can be corrected by agreement, then the trial court is instructed to take steps to ensure that the reporter's record is corrected in accordance with the parties' agreement;
4. If such error or omission cannot be corrected by agreement, then the trial court is instructed to take the steps outlined in Rule 34.6(e)(2) of the Texas Rules of Appellate Procedure to resolve the dispute and correct the record;
5. For each error or omission identified in response to No. 1 above, whether any missing exhibit or portion of the reporter's record has been lost or destroyed as contemplated by Rule 34.6(f) of the Texas Rules of Appellate Procedure;
6. For each exhibit or portion of the reporter's record that is determined to be lost or destroyed, if any, the trial court is instructed to take evidence on and enter findings regarding each of the four factors set out in Rule 34.6(f) of the Texas Rules of Appellate Procedure and to enter recommendations regarding whether Barnes is entitled to a new trial as a result of the lost or destroyed exhibit or portion of the record.
7. We also request that the trial court make any additional findings that it believes will be helpful to this Court in fully and finally resolving all issues related to the record in this matter.
The trial court's findings, as set forth above, shall be entered into the record of the case and filed with this Court as a supplemental clerk's record within fifteen days of the date of the hearing. The reporter's record of the hearing, and any certified corrections to the reporter's record under Rule 34.6(e)(2), shall be filed in the form of a supplemental reporter's records within fifteen days of the date of the hearing.
All appellate timetables are stayed and will resume on our receipt of the supplemental record. Consequently, Barnes' motion to extend the filing deadline is hereby overruled. We hereby withdraw the current briefing deadline and will establish a new briefing schedule once the case is returned to our jurisdiction from abatement.
IT IS SO ORDERED
BY THE COURT Date: May 11, 2017