Opinion
No. 04-18-00747-CV
01-18-2019
Marcelo GALVAN Jr. and Analicia R. Galvan, Appellants v. Cledson Macedo de CARVALHO and Kristina Carvalho, Appellees
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2018CVH001835-D1
Honorable Jose A. Lopez, Judge Presiding
ORDER
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Liza A. Rodriguez, Justice
The clerk's record in this appeal was originally due November 19, 2018. On December 7, 2018, the trial court clerk filed a notification of late record, stating that the appellants had failed to pay or make arrangements to pay the fee for preparing the clerk's record and that the appellants were not entitled to appeal without paying the fee. Therefore, on December 7, 2018, we ordered the appellants to provide written proof to this Court on or before December 17, 2018 that either (1) the clerk's fee had been paid or arrangements had been made to pay the clerk's fee; or (2) the appellants were entitled to appeal without paying the clerk's fee. Our order notified appellants that failure to timely respond to our court order would result in dismissal. See TEX. R. APP. P. 37.3(b); 42.(c). When the appellants did not file a written response as ordered, this Court dismissed the appeal on January 16, 2019.
On Friday January 11, 2019, days before the Court's opinion issued, the trial court clerk filed a clerk's record. Because a clerk's record was filed before this Court's opinion issued, the Court sua sponte vacates the opinion and judgment of January 16, 2019, and reinstates this appeal.
In reviewing the clerk's record, we note that it does not comply with Texas Rule of Appellate Procedure 34.5(a) because it does not contain any pleadings. See TEX. R. APP. P. 34.5(a). We presume all of the pleadings are missing because the trial court clerk filed only the pleadings associated with the severed cause of action (Cause No. 2018-CVH001835-D1) and did not include the pleadings associated with the original cause of action (Cause No. 2016-CVF003081-D1) up until the date of severance. Without the plaintiffs' petitions, the defendants' answers, the parties' motions for summary judgment; the responses to the motions for summary judgment, and the motion to sever and any response filed, the Court cannot decide this appeal.
We ORDER the trial clerk to file a supplemental clerk's record complying with Texas Rule of Appellate Procedure 34.5(a) on or before February 7, 2019. It is so ORDERED on January 18, 2019.
PER CURIAM ATTESTED TO: /s/_________
KEITH E. HOTTLE,
Clerk of Court