Opinion
No. 04-20-00554-CV
01-20-2021
KERRVILLE LODGING LLC, D/B/A Econolodge and Jayram LLC., Appellants v. GREAT AMERICAN INSURANCE GROUP, Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. 181053B
Honorable Rex Emerson, Judge Presiding
ORDER
A filing fee of $205.00 was due when appellant filed its notice of appeal, but it was not paid. See TEXAS SUPREME COURT ORDER REGARDING FEES CHARGED IN THE SUPREME COURT, IN CIVIL CASES IN THE COURTS OF APPEALS, AND BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION (Misc. Docket No. 159158, Aug. 28, 2015). The clerk of this court notified appellant of this deficiency in a letter dated November 17, 2020. The fee remains unpaid. Rule 5 of the Texas Rules of Appellate Procedure 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 appellant to, no later than February 1, 2021, either (1) pay the filing fee or (2) provide written proof to this court that it is entitled to appeal without paying appellate filing fees. See TEX. R. APP. P. 20.1. If appellant fails to respond satisfactorily within the time ordered, this appeal will be dismissed without further notice. See TEX. R. APP. P. 42.3.
The clerk's record in this appeal was due on November 30, 2020. On January 14, 2021, this court notified Ms. Dawn Lantz, Kerr County District Clerk, that the clerk's record was late. On January 19, 2021, Ms. Tammy Marquart, Deputy District Clerk, filed a Notification of Late Record stating (1) she had not received a designation of which documents to include in the clerk's record and (2) she anticipated the record would be completed upon designation of the record and payment for the record.
Texas Rule of Appellate Procedure 34.5 states the contents the clerk's record must contain:
(a) Contents. Unless the parties designate the filings in the appellate record by agreement under Rule 34.2, the record must include copies of the following:
(1) in civil cases, all pleadings on which the trial was held;
. . .
(3) the court's docket sheet;
(4) the court's charge and the jury's verdict, or the court's findings of fact and conclusions of law;
(5) the court's judgment or other order that is being appealed;
(6) any request for findings of fact and conclusions of law, any post-judgment motion, and the court's order on the motion;
(7) the notice of appeal;
(8) any formal bill of exception;
(9) any request for a reporter's record, including any statement of points or issues under Rule 34.6(c);
(10) any request for preparation of the clerk's record;
(11) in civil cases, a certified bill of costs, including the cost of preparing the clerk's record, showing credits for payments made;
. . . and
(13) subject to [subsection] (b), any filing that a party designates to have included in the record.TEX. R. APP. P. 34.5(a).
We, therefore, ORDER appellant to provide written proof to this court no later than February 1, 2021 that either (1) the clerk's fee for preparing the clerk's record has been paid or arrangements have been made to pay the clerk's fee; or (2) appellant is entitled to appeal without paying the clerk's fee. If appellant fails to respond within the time provided, this appeal will be dismissed for want of prosecution. See TEX. R. APP. P. 37.3(b) (allowing dismissal of appeal for want of prosecution if clerk's record is not filed due to appellant's fault); see also TEX. R. APP. P. 42.3(c) (allowing dismissal of appeal if appellant fails to comply with an order of this court).
The reporter's record was due on November 30, 2020. On January 14, 2021, this court notified Ms. Paula Beaver, the court reporter responsible for filing the reporter's record, that neither the record nor a notification of late record had been filed. On January 19, 2021, Ms. Beaver filed a notification of late record, stating appellant has not contacted her to tell her what should be included in the record.
We therefore ORDER appellant to provide written proof to this court no later than February 1, 2021 that (1) the record has been requested and what exhibits, if any, are to be included and (2) either (a) the reporter's fee has been paid or arrangements have been made to pay the reporter's fee; or (b) appellant is entitled to appeal without paying the reporter's fee. If appellant fails to respond within the time provided, this court will only consider those issues or points raised in appellant's brief that do not require a reporter's record for a decision. See TEX. R. APP. P. 37.3(c).
/s/_________
Rebeca C. Martinez, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 20th day of January, 2021.
/s/_________
Michael A. Cruz,
Clerk of Court