Opinion
No. 04-13-00723-CV
03-05-2014
Jad P. HARPER and Juan Carlos Garcia, Appellants v. FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY and Aslam S. Gilani, Appellees
From the 293rd Judicial District Court, Maverick County, Texas
Trial Court No. 11-07-26624-MCV
Honorable Cynthia L. Muniz, Judge Presiding
ORDER
The clerk's record was filed October 18, 2013. The reporter's record was due October 4, 2013, but was not filed. Therefore, on October 22, 2013, this court sent a Rule 37.3 letter to the reporter, advising the reporter to inform us when the record would be filed or file the record within thirty (30) days of the date of the letter. In response, on October 30, 2013, the reporter filed a notice of late record stating that appellants had made payment arrangements with her, but she needed sixty (60) days to complete the record. On November 11, 2013, we issued an order to the reporter granting the reporter's request and ordering her to file the record on or before December 30, 2013 — thereby giving her eighty-seven (87) days from the original due date to file the record. However, the reporter's record was not filed.
On January 10, 2014, the reporter filed a second notice of late record. This time, the reporter advised that appellants had not followed through with the payment arrangements previously made, and she had therefore suspended work on the record. The reporter stated that once payment was received, she would complete and file the record within sixty (60) days of the date of payment. Therefore, on January 14, 2014, we issued an order to appellants telling them to provide written proof to this court on or before January 24, 2014, that they had paid the court reporter, or the brief would be due on February 13, 2014, and they could only raise issues not requiring a reporter's record for disposition. Appellant never responded to this court's order — no proof of payment, no motion, no brief.
Therefore, on February 21, 2014, we ordered appellants to file their brief without benefit of the reporter's record on or before March 3, 2014 or we would dismiss the appeal for want of prosecution. Instead of filing the brief as ordered, appellants filed a "First Amended Motion for Extension of Time to File Appellant's [sic] Brief, To Obtain Reporter's Record and to Retain New Counsel." In the motion, appellants ask this court for an extension of time to file the brief to June 16, 2014, which is four months beyond the February 13, 2014 due date set forth in our January order. Appellants contend they need another fourteen days to obtain the money to pay the court reporter ($8,000.00) and need time to find an appellate attorney who is more experienced than appellant Jad P. Harper, who is currently listed as counsel for appellants. Appellants contend they were unable to reach opposing counsel to determine his position on this motion.
After filing the original motion on February 28, 2014, appellants filed a first amended motion. We have reviewed and compared both motions and other than the inclusion of a cover page in the first amended motion, we can find no difference between the motions. However, as an amended pleading takes the place of the original, our ruling is directed to the first amended motion.
Given that appellants have either failed to respond to this court's orders or have waited to respond until just before their brief was due, we GRANT their first amended motion in part, and DENY it in part. We ORDER appellants to file their brief in this court on or before April 4, 2014 with or without the reporter's record. If appellants are able to persuade the court reporter to file the reporter's record in this court in an expeditious manner that would permit appellants to use the record in filing their brief within the deadline stated in this order, then we will permit appellants to raise issues requiring the reporter's record for disposition. However, if appellants are unable to persuade the court reporter to file the record in such time that it can be used by appellants for preparation of the brief, appellants must file their brief raising only those issues that do not require a reporter's record for disposition.
In sum, we ORDER appellants to file, on or before April 4, 2014, their appellants' brief. If appellants fail to file the brief by the date ordered, we will dismiss the appeal for want of prosecution. See TEX. R. APP. P. 42.3(b). Appellants are advised that no further extensions of time to file the brief will be granted.
We order the clerk of this court to serve a copy of this order on all parties, all counsel, and the court reporter.
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Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 5th day of March, 2014.
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Keith E. Hottle
Clerk of Court