Opinion
No. 04-13-00506-CV
2013-09-06
Robert G. CORONA, Christina M. Mozisek and all occupants, Appellant v. GREEN TREE SERVICING LLC, Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 385145
Honorable Jason Wolff, Judge Presiding
CORRECTED ORDER
In this appeal, appellants filed a designation of clerk's record, requesting that the trial court clerk include only the following in the clerk's record: (1) Order Granting Motion for Summary Judgment; and (2) Order Denying Defendant's Motion for Lack of Jurisdiction. The trial court clerk complied with appellants' request and filed a clerk's record that included only these two orders by the trial court. The trial court clerk later filed a supplemental clerk's record, which also included appellants' notice of appeal and trial court docket sheet. This appellate record is incomplete, however, as it does not comport with Texas Rule Appellate Procedure 34.5(a).
Pursuant to Texas Rule of Appellate Procedure 34.5(a), "[u]nless the parties designate the filings in the appellate record by agreement under Rule 34.2," the clerk's record in civil cases "must include" copies of the following:
(1) all pleadings on which the trial was held;
(2) the court's docket sheet,
(3) the court's charge and the jury's verdict, or the court's findings of fact and conclusions of law;
(4) the court's judgment or other order that is being appealed;
(5) any request for findings of fact and conclusions of law, any post-judgment motion, and the court's order on the motion;
(6) the notice of appeal;TEX. R. APP. P. 34.5(a) (emphasis added). There is no indication that the parties have designated filing in the appellate record by agreement under Rule 34.2. Thus, the clerk's record does not comport with Rule 34.5(a).
(7) any formal bill of exception;
(8) any request for a reporter's record, including any statement of points or issues under Texas Rule of Appellate Procedure 34.6(c);
(9) any request for preparation of the clerk's record;
(10) a certified bill of costs including the cost of preparing the clerk's record, showing credits for payments made; and
(11) any filing that a party designates to have included in the record.
We, therefore, ORDER the trial court clerk to file a supplemental clerk's record on or before September 26, 2013. In preparing the clerk's record, the trial court clerk is ORDERED to follow Texas Rule of Appellate Procedure 34.5(a).
Further, to date, appellants have failed to pay the applicable filing fee in this appeal. Texas Rule of Appellate Procedure 5 provides,
A party who is not excused by statute or these rules from paying costs must pay— at the time an item is presented for filing—whatever fees are required by statute or Supreme Court order. The appellate court may enforce this rule by any order that is just.TEX. R. APP. P. 5.
We, therefore, ORDER appellants, within ten (10) days of the date of this order, to either (1) pay the applicable filing fee in this appeal or (2) provide written proof to this court that they are excused by statute or these rules from paying the filing fee. See TEX. R. APP. P. 20.1 (providing that party who qualifies as indigent under Rule 20 may proceed without advance payment of costs). If appellants fail to respond within the time provided, this appeal will be dismissed. See TEX. R. APP. P. 42.3(c).
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Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 10th day of September, 2013.
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Keith E. Hottle
Clerk of Court