Opinion
04-23-01016-CV
08-06-2024
Jill VLASEK-REED, Appellant v. Dennis Lee VLASEK, William Ed Vlasek, Jr., and Shaleah Hill, Appellees
From the 198th Judicial District Court, Kerr County, Texas Trial Court No. 23221B Honorable Rex Emerson, Judge Presiding
ORDER
Beth Watkins, Justice.
Appellant filed her notice of appeal on November 16, 2023. On December 11, 2023, appellees filed a motion to dismiss this appeal for want of jurisdiction, arguing appellant did not timely file her notice of appeal. Appellant filed a response to the motion to dismiss on December 21, 2023. On March 26, 2024, we issued an order carrying the motion with the appeal and directing the parties to address the jurisdictional issue in their briefs.
This court's records appeared to show the appellate record was complete by April 19, 2024, and appellant did not notify this court that the record was not complete at that time. Accordingly, appellant's brief was originally due on May 20, 2024. Tex.R.App.P. 38.6(a). Because appellant did not file either her brief or a motion for extension of time by that date, on May 28, 2024, we ordered her to file her brief on June 27, 2024. In our May 28 order, we cautioned her that if she did not file her brief by June 27, we would dismiss this appeal for want of prosecution.
Appellant filed a brief on June 27, 2024. On July 11, 2024-more than two weeks after appellant filed her brief, and 18 days before appellees' brief was due-appellant filed a motion seeking leave to amend her brief. The next day, she filed a motion seeking supplementation of the clerk's record, in which she asserted for the first time that the appellate record was not complete. We struck appellant's motions without prejudice to refiling because the motions did not certify that appellant had conferred with appellees "about the merits of the motion and whether those parties oppose the motion." Tex.R.App.P. 10.1(a)(5).
On July 22 and July 23, 2024, appellant filed amended motions showing that appellees opposed her requests to amend her brief and supplement the clerk's record. On July 23, 2024, appellees filed their brief. On July 24, 2024, appellees filed a written opposition to appellant's motion to amend her brief.
The Texas Rules of Appellate Procedure provide that "[a]n appellate court must not refuse to file" a supplemental clerk's record "because of a failure to timely request it." Tex.R.App.P. 34.5(b)(4). 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).
Here, appellant's amended motion for supplementation of the clerk's record does not represent that she has: (1) asked the Kerr County District Clerk's Office to prepare the purportedly missing portions of the clerk's record; or (2) paid for the preparation of the record. Tex.R.App.P. 34.5(b), 35.3(a)(2). Nor does she explain why she waited until after she filed her brief to review the record to ensure it was complete. Finally, as noted above, appellees filed their own brief the same day appellant filed her amended motion for supplementation of the record; accordingly, this case is now ready to be set for submission. See 4th Tex.App. (San Antonio) Internal Operating Procedures for the Handling of Cases, R. 8.h.i-ii. For these reasons, and in light of the circumstances described above, we DENY appellant's July 23, 2024 Amended Motion to Supplement the Clerk's Record.
"A brief may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe." Tex.R.App.P. 38.7. To the extent that appellant's July 22, 2024 Amended Motion for Leave to Amend Brief seeks permission to replace her existing brief with a wholly new amended brief, we DENY appellant's motion. However, appellant may file a supplemental brief of no more than 2,000 words by August 21, 2024. No requests for extensions of this deadline will be considered If appellant files a supplemental brief, appellees may file a responsive brief within 15 days.