Opinion
04-22-00252-CV
06-07-2022
WISESTAFF, LLC, Appellant v. MEDTRUST, LLC, Appellee
From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2021CI09614 Laura Salinas, Judge Presiding
ORDER
LORI I. VALENZUELA, JUSTICE
The clerk's record was due on May 9, 2022. On May 12, 2022, the trial court clerk filed a notification of late clerk's record, stating appellant is not entitled to appeal without paying the fee and has not paid or made arrangements to pay the fee for preparing the clerk's record. On May 13, 2022, this court ordered appellant to provide written proof to this court no later than May 23, 2022 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.
On May 23, 2022, appellant filed a Motion to Abate asking this court to order the trial court to sign a written order ruling on appellee's request for a temporary injunction. According to appellant, the trial court had conducted two hearings (on April 21, 2022 and May 5, 2022) on appellee's request, but had failed to sign a written order. Appellant contended that because there is no written order, a complete clerk's record cannot be filed in this appeal.
Texas Rule of Appellate Procedure 44.4 provides as follows:
(a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:
(1)the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and
(2)the trial court can correct its action or failure to act.
(b) Court of Appeals Direction if Error Remediable. If the circumstances described in (a) exist, the court of appeals must direct the trial court to correct the error. The court of appeals will then proceed as if the erroneous action or failure to act had not occurred.Tex. R. App. P. 44.4.
Based on appellant's representation to this court that the trial court had not signed a written order ruling on appellee's request for a temporary injunction, and because the lack of a complete clerk's record "prevents the proper presentation of a case to the court of appeals," on May 31, 2022, we ordered the trial court to file a signed, written order ruling on appellee's request for a temporary injunction with the trial court clerk no later than June 10, 2022. We further ordered appellant to provide written proof to this court no later than June 20, 2022 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. Our order cautioned appellant that if it failed to respond within the time provided, this appeal would 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).
On June 1, 2022, appellee filed an "Advisory" regarding our May 31st order attached to which was a signed written order denying appellee's application for a temporary injunction and ordering the deposit of certain funds into the court's registry. The trial court signed the order on May 9, 2022.
As directed in our May 31st order, we ORDER appellant to provide written proof to this court no later than June 20, 2022 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). Because the trial court signed its order on May 9th, requests by appellant for additional time in which to comply with this order will be disfavored