Opinion
Appellate case number: 01-16-00206-CV
04-20-2016
In re Caroline Chikere
ORDER OF ABATEMENT Trial court case number: 14-DCV-214132 Trial court: 387th District Court of Fort Bend County
On April 11, 2016, the real party in interest, Oakley Chikere ("RPI"), filed a combined motion to abate and first motion for extension of time to file his response to the mandamus petition filed by the relator, Caroline Chikere. The RPI contends that a copy of the original written order granting the RPI's motion for new trial, purported to be signed on July 27, 2015 by then-Associate Judge Perwin, may be substituted by the trial court as the original after a hearing. The RPI seeks an abatement of this original proceeding for the trial court to consider ruling on the RPI's "Motion to Substit[ut]e Copy of Order Granting Motion for New Trial for Missing Original."
On April 12, 2016, this Court granted the RPI's extension of time to file his response until May 11, 2016, and requested a response to the RPI's motion to abate from the relator. On April 18, 2016, the relator filed a response to the RPI's motion to abate contending, among other things, that the copy of the order provided by the RPI proposed "for substitution is not a copy of the original or substantial copy of the alleged missing order" because it did not contain Associate Judge Perwin's signature and, instead, "was a reconstruction by the hands of Attorney Dennis Powell," the counsel for the RPI.
Accordingly, because there is a dispute as to the accuracy of the copy proposed to be substituted for the allegedly-missing order in question, the RPI's motion to abate is GRANTED, and this original proceeding is abated and remanded to the trial court to settle the parties' dispute. See TEX. R. CIV. P. 77 ("When any papers or records are lost or destroyed during the pendency of a suit, the parties may, with the approval of the judge, agree in writing on a brief statement of the matters contained therein; or either party may supply such lost records or papers. . . .").
If the trial court determines, after notice and a hearing to be recorded by a court reporter, that the RPI's proposed order is a substantial copy of the original order granting the RPI's motion for new trial, purported to be signed on July 27, 2015, by Associate Judge Perwin, the trial court shall sign a written order substituting such copy for the original and direct the trial clerk to have those orders filed with the trial clerk. See TEX. R. CIV. P. 77(b), (c). If the trial court determines that the RPI's proposed order is not a substantial copy of the original order, the trial court shall sign a written order denying the RPI's motion to substitute, along with any additional findings the trial court deems necessary.
The trial court clerk is directed to file a supplemental clerk's record containing the trial court's orders and any findings with the Clerk of this Court within 30 days of the date of this order. See TEX. R. APP. P. 34.5(e) ("If the parties cannot agree [on the missing item], the trial court must—on any party's motion or at the appellate court's request—determine what constitutes an accurate copy of the missing item and order it to be included in the clerk's record or a supplement."). The court reporter is further directed to file a supplemental reporter's record of the abatement hearing within 30 days of the date of this order. The court coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this Court of such date.
This original proceeding is abated, treated as a closed case, and removed from this Court's active docket. The original proceeding will be reinstated on this Court's active docket when the supplemental clerk's record and any supplemental reporter's record of the abatement hearing are filed in this Court.
It is so ORDERED. Judge's signature: /s/ Laura C. Higley
[v] Acting individually [ ] Acting for the Court Date: April 20, 2016