Opinion
04-23-00968-CV
07-31-2024
Herbert Lawrence POLINARD, Jr. and William Ian Malcomson, Appellants v. WOODLAWN CHRISTIAN CHURCH OF SAN ANTONIO, INC., James Paul Tisdel, Jr., Carolyn Tisdel, and George Alejos, Appellees
From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-10692 Honorable Tina Torres, Judge Presiding
ORDER
Irene Rios, Justice
This is an appeal of a July 3, 2023 order granting appellees' motion for summary judgment that became a final judgment when the trial court signed an August 4, 2023 order of nonsuit. Appellants filed their notices of appeal in November of 2023. The existing appellate record consists of: (1) reporter's records of hearings that occurred on May 11, 2023 and June 11, 2023, both of which were filed in this court on November 22, 2023; (2) a single-volume original clerk's record, which was filed on February 9, 2024; and (3) two supplemental clerk's records, which were filed on March 21, 2024 and April 9, 2024. The supplemental clerk's record filed on April 9, 2024 consists solely of a February 12, 2024 request for the inclusion of certain documents in the clerk's record, and appellants have never contended that the district clerk failed to fulfill that request. Accordingly, our records appeared to show the appellate record was substantively complete by March 21, 2024 at the latest.
Appellants' briefs were originally due on April 15, 2024, and this court's records show that the chief deputy clerk mailed appellants a CD containing a copy of the appellate record on that date. Between April 15, 2024 and June 20, 2024, appellants filed multiple motions seeking extensions of time to file their briefs. None of those motions represented that appellants had not received a copy of the appellate record, that they had been unable to review the record, or that the record was incomplete. On June 20, 2024, we issued an order extending the deadline to file appellants' briefs until July 15, 2024, for a total extension of 90 days. Our order noted, "No further requests for extensions of time will be considered absent extraordinary circumstances."
Both appellants' filings in this court bear the same mailing address.
On July 2, 2024, appellant William Ian Malcomson notified this court by letter that "the Disc sent to [Malcomson] via the Clerk concerning Clerks Records submitted to the 4th Court of Appeals, has in some manner become corrupted and is unreadable." This was the first time either appellant indicated to this court that they had not been able to review the record. This court's records show that in response to Mr. Malcomson's letter, the chief deputy clerk mailed him a second CD containing the appellate record on July 2, 2024. Mr. Malcomson's letter did not request an extension of time to file his brief.
On July 12, 2024, appellant Herbert Lawrence Polinard filed a document entitled "Motion for Court's Assistance with Reporters' Record and for Extension of Time to File Appellant's Brief." In his motion, Mr. Polinard asserts that he and Mr. Malcomson first "obtained a copy of the [appellate] record on a CD from the clerk's office in person last week," and he appears to contend that appellants did not receive either of the CDs this court previously mailed to them. Mr. Polinard further asserts that he has requested, but has been unable to obtain, reporter's records and/or exhibits from at least fourteen hearings that occurred between 2015 and 2023. The motion asks us to order various court reporters and/or the appellees in this case "to produce and file" the reporter's records Mr. Polinard seeks and to extend the deadline for Mr. Polinard's brief until after those records are filed. While transcripts of three December 2015 hearings are attached to Mr. Polinard's motion, the motion does not contain any proof that Mr. Polinard timely requested or paid for any additional records to be prepared and filed in this court in connection with this appeal. See Tex. R. App. P. 34.6(b) ("At or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter's record."); see also id. R. 35.3(b) (court reporter has responsibility to prepare and file reporter's record when appellant requests preparation of the record and pays reporter's fee to prepare it).
On July 15, 2024, Mr. Polinard filed an "Amended Request for Additional Documents for Inclusion Into Clerks Record of Proceedings." This document appears to request the filing of a supplemental clerk's record. Like his July 12 motion, Mr. Polinard's July 15 motion requests an extension of time to file his brief until after the purportedly omitted records are filed, but does not include any proof that he requested or paid for any supplemental clerk's records.
The trial and appellate courts have a duty to ensure the appellate record is timely filed. Tex.R.App.P. 35.3(c). Additionally, "[a]n appellate court must not refuse to file" a supplemental clerk's or reporter's record "because of a failure to timely request it." Id. R. 34.5(b)(4), 34.6(b)(3). However, "an appellant maintains the responsibility for requesting a complete record." Mitchell v. Burlington N. & Santa Fe R. Co., No. 02-03-00356-CV, 2004 WL 1119593, at *1 n.3 (Tex. App.-Fort Worth May 20, 2004, no pet.) (mem. op.); see also Aluminum Chems. (Bolivia), Inc. v. Bechtel Corp., 28 S.W.3d 49, 49-51 (Tex. App.-Texarkana 2000, order) (denying request to allow supplementation of reporter's record where appellant "filed a limited record, and only attempted to make preparations to file a complete record on the eve of oral argument"); Daniels v. Univ. of Tex. Health Sci. Ctr. of Tyler, 222 S.W.3d 4, 5-7 (Tex. App.-Tyler 2004, order) (concluding that Rule 34.6 did not require appellate court to permit supplementation of reporter's record where no reporter's record had previously been filed).
In light of the foregoing, we ORDER Mr. Polinard to file written proof with this court by August 15, 2024 that he has requested the preparation and filing of: (1) each of the additional clerk's and reporter's records identified in his July 12, 2024 and July 15, 2024 motions, including the three December 2015 transcripts attached to the July 12 motion; and (2) any other additional supplemental records that he believes are necessary for the disposition of this appeal. Mr. Polinard's proof must show:
(1) as to any omitted portions of the clerk's record, that Mr. Polinard sent a written request for a supplemental clerk's record to the Bexar County District Clerk and that his request complied with Texas Rule of Appellate Procedure 34.5(b)(2);
(2) as to any missing reporter's records, that Mr. Polinard sent written requests that complied with Texas Rule of Appellate Procedure 34.6(b) to each of to the individual court reporters responsible for preparing the records; and
(3) that Mr. Polinard paid or made arrangements to pay the district clerk's and court reporters' fees to prepare and file the supplemental records.A bare assertion that Mr. Polinard requested and/or paid for a record, without documentation to support that assertion, will not be sufficient to satisfy this order. Additionally, any requests for supplemental reporter's records that are filed in the trial court and/or this court but are not sent directly to the court reporter responsible for preparing the record will not be sufficient to satisfy this order. Given the length of time that this appeal has been pending, no extensions of Mr. Polinard's deadline to present proof that he has requested and paid for any supplemental records will be granted, and we will not consider any further representations by appellants that the record is incomplete.
If Mr. Polinard timely files the written proof required by this order by August 15, 2024, the supplemental clerk's and/or reporter's records he properly requested and paid for, if any, will be due by September 16, 2024, and Mr. Polinard's brief will be due 30 days after those records are filed. If any of the clerk's and/or reporter's records Mr. Polinard has properly requested and paid for have been lost or destroyed, we ORDER the deputy district clerk or court reporter responsible for preparing that record to notify the parties and this court of that fact within 10 days of receiving Mr. Polinard's request for the record.
Mr. Polinard's motion represents that at least one court reporter has told him the reporter's record he requested from her "is no longer available."
If Mr. Polinard does not file the written proof required by this order by August 15, 2024, his brief will be due by August 30, 2024, and no further extensions of that deadline will be granted.
We note that Mr. Polinard's July 12 and July 15 motions are not signed by Mr. Malcomson, and the motions do not request any relief on his behalf. However, in the interest of justice, we will permit Mr. Malcomson to file his brief in accordance with the deadlines set in this order.