Opinion
11-23-00019-CV
03-16-2023
MICHAEL A. RUFF, Appellant v. SUZANN RUFF, Appellee
On Appeal from the 29th District Court Palo Pinto County, Texas Trial Court Cause No. C46164
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
ORDER
JOHN M. BAILEY CHIEF JUSTICE
This is an accelerated appeal from the denial of a motion to dismiss under the Texas Citizens Participation Act. Appellant, Michael A. Ruff, filed the relevant motion to dismiss on October 7, 2022; the trial court heard the motion on December 22, 2022; and on January 20, 2023, the trial court entered an order denying the motion to dismiss. Appellant filed his notice of appeal on January 23, 2023.
Pending before this court is a "motion to require Appellant to pay for the entire clerk's record"; the motion was filed by Appellee, Suzann Ruff. Prior to Appellant filing a designation of matters to be included in the clerk's record, Appellee filed a designation of "additional matters" to be included in the clerk's record. Appellee designated fifty-four items to be included in the clerk's record, forty-six of which were filed in the trial court before the filing of the relevant motion to dismiss. By contrast, Appellant designated nineteen items to be included in the clerk's record, seven of which were filed before the filing of the relevant motion to dismiss.
A dispute subsequently arose as to which party should pay the initial cost for the documents requested by Appellee to be included in the clerk's record. The dispute involves 1) Appellant's desire not to pay for the inclusion of the documents designated by Appellee, and 2) Appellee's insistence that Appellant must pay the initial cost of the documents that she requested for inclusion in the clerk's record. The dispute resulted in calls being made to the trial court clerk's office and our clerk's office. Upon being dissatisfied with the responses that he received from the two clerk's offices, Appellee's counsel was advised to file a motion with this court to seek redress.
In the author's thirty-plus years' experience as an appellate practitioner, over twenty years as either an appellate court staff attorney or justice, he has never seen a motion filed by an appellate litigant with respect to which party should be required to pay the trial court clerk for documents requested by the appellee to be included in the clerk's record.
As things currently stand, a clerk's record has been filed in this cause containing only the matters designated by Appellant, the initial cost of which was paid by Appellant. In the motion filed by Appellee, she seeks an order from this court requiring Appellant to pay the trial court clerk the cost for the inclusion of the additional documents requested by Appellee to be included in the clerk's record. In support of this contention, Appellee cites a legal commentary for the following proposition:
The appellee can ask that additional documents be included in the record. See TRAP 34.5(b)(1) ("any party" can request that documents be included). The cost for the additional documents is charged to the appellant, but if the appellee requests unnecessary documents, the appellate court may tax the cost of these documents to the appellee. See TRAP 34.5(b)(3).
Appellant does not cite which version of the legal commentary upon which he relied.
However, the current version of the legal commentary upon which Appellee relies now provides as follows:
The appellee can ask that additional documents be included in the record. See Tex. R. App. P. 34.5(b)(1) ("any party" can request that documents be included). The cost for the additional documents is generally charged to the appellant, but if an appellee requests unnecessary documents, the appellate court may tax the cost of these documents to the appellee. See Tex. R. App. P. 34.5(b)(3).O'Connor's Texas Civil Appeals Chapter 6-B § 6.1(2) (2022 ed.) (Cost of clerk's record) (emphasis added). Thus, as per the current version of the commentary, it is generally understood that the appellant pays for the cost of the clerk's record, including documents designated by Appellee. Id. However, Tex.R.App.P. 34.5(b)(3) provides that the appellate court may tax the costs for additional documents requested by the appellee that are unnecessary. Appellant asserts that the items requested by Appellee are unnecessary for his appeal.
As noted previously, the responsibility for paying the initial cost for the preparation of the clerk's record is a matter that is rarely brought to the attention of this court in the form of a motion. Simply put, most litigants are able to resolve this matter either among themselves or with the trial court clerk without seeking intervention from this court.
Perhaps appellees in other cases have chosen to follow the general rule that "absent a complete record on appeal, [the appellate court] must presume the omitted [items] supported the trial court's judgment." See Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 371 (Tex. 1997) (second alteration in original) (quoting Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 122 (Tex. 1991) (per curiam)); see also Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 550 (Tex. 2004).
Here, Appellee seeks to include a broad range of documents in the clerk's record at the outset based upon her assertion that she does not know what arguments Appellant is going to raise on appeal. Conversely, Appellee could have waited until after Appellant filed his brief to determine what documents would be necessary for Appellee to rely upon in responding to the appeal. That practice would seem to be the more prudent approach in order to avoid the possibility of requesting unnecessary documents to be included in the clerk's record.
The parties now seek for us to determine if the additional documents designated by Appellee are necessary to this appeal. We are unable to do so at this juncture because we are also unable to determine what is necessary for this appeal. From a practical perspective, the resolution of the question of who should pay the initial cost of the additional documents designated by Appellee is unnecessary for us to answer at this point because most of the documents that Appellee seeks to be included in the clerk's record have already been filed with this court in other appeals from the same trial court case. In fact, numerous appeals have been filed in this court from the same trial court case from which this appeal arises. A cursory review of the clerk's records filed in Cause Nos. 11-20-00034-CV, 11-20-00115-CV, 11-20-00122-CV, and 11-19-00152-CV reveals that most, if not all, of the documents that Appellee seeks to be included in the clerk's record in this case from 2015 to 2020 have been previously filed with this court as a part of the clerk's record in the causes designated above.
In the interest of judicial economy, this court will permit both Appellee and Appellant to rely on any document that has previously been filed as a part of the clerk's record in other cases filed in this court and that originated from the underlying trial court case. This court will permit both parties to do so irrespective of the identity of the parties in the other appeals. Each party will be able to rely on a document filed as a part of a clerk's record in another case by referring to it in his or her brief by title, date of filing in the trial court, and the volume and page number in the clerk's record of the other appeal in which the appeal was filed. In light of this accommodation, with respect to the first forty-six documents identified in her designation of additional items to be included in the clerk's record, we deny Appellee's motion to require Appellant to pay for the entire clerk's record.
With respect to the last eight documents identified in Appellee's designation of additional items to be included in the clerk's record, item nos. forty-seven through fifty-four, Appellant also requested that item nos. forty-nine and fifty-one be included in the clerk's record and these documents have been filed in this court. Accordingly, Appellee's request for Appellant to pay the cost for these documents to be filed is dismissed in part as moot. Appellee's request for Appellant to be ordered to pay the cost for item nos. forty-seven, forty-eight, fifty, fifty-two, fifty-three, and fifty-four is granted. Upon Appellant's payment to the district clerk for these six items to be included in the clerk's record, the district clerk will file them in this cause as a supplemental clerk's record.
As set forth above, Appellee's motion to require Appellant to pay for the entire clerk's record is denied in part, dismissed in part as moot, and granted in part. Additionally, this court's ruling does not preclude either party from seeking the recovery of their costs on appeal upon this court's final determination of the issues raised. See Hosek v. Scott, No. 04-14-00655-CV, 2015 WL 6163385, at *5 (Tex. App.-San Antonio Oct. 21, 2015, no pet.) (mem. op.). It is so ordered.
We note that the facts in Hosek are similar to the facts in this case. 2015 WL 6163385, at *5. The appellee in Hosek, Scott, sought to add additional documents to the clerk's record. Id. The trial court ordered Scott to pay the trial court clerk for the cost to include the documents in the clerk's record. Id. However, the trial court made this order without prejudice to Scott seeking the recovery of those costs on appeal. Id. The San Antonio Court of Appeals determined that the appellant in Hosek was ultimately responsible for the documents designated by Scott. Unlike the parties in Hosek, the parties here did not seek a ruling from the trial court as to who bore the initial responsibility for the initial payment for the additional matters designated by Appellee for inclusion in the clerk's record.