Summary
stating trial court must resolve any dispute concerning accuracy of items to be included in clerk's record
Summary of this case from Lewis v. AguirreOpinion
NO. 01-10-00286-CV
04-26-2012
LYNN LEVIT GOETZ, Appellant v. JOSEPH SAMUEL GOETZ, Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2006-35680
MEMORANDUM OPINION
Appellant, Lynn Levit Goetz, appeals the trial court's January 6, 2010 order dismissing the underlying case for lack of jurisdiction. The clerk's record was first due on May 6, 2010. Because appellant has, for two years, failed to file a clerk's record, we dismiss the appeal.
According to the district clerk, a written designation of items to be included in the clerk's record was received in April 2010 and the record was prepared. See TEX. R. APP. P. 34.5(a), (b). Appellant's counsel submitted payment, and appellant examined the record at the district clerk's office. Appellant decided that the record was insufficient, instructed the district clerk not to file the record with this Court, and took the record with her. In the months that followed, appellant filed additional designations of items to be included in the clerk's record, requesting documents in other cases and in other courts, including criminal, federal, and county civil courts. The district clerk provided appellant with a written copy of her designation, indicating which of the documents it did not have in its records.
Thereafter, based on correspondence with this court, appellant began asking the clerks of the various courts to search for records on appellant's behalf.
Appellant filed in this court a copy of her October 15, 2010 request for items to be included in the clerk's record. Her lengthy request involves civil and criminal cases in various state and federal courts, and includes broad categories of materials with vague dates or dates spanning a period of years. Requests for additional items must be specific. TEX. R. APP. P. 34.5(b)(2). In addition, the clerk's record may be supplemented if a "relevant item" has been omitted. TEX. R. APP. P. 34.5(c)(1). Appellant appeals the trial court's order dismissing her case for lack of jurisdiction.
On December 30, 2011, appellant filed a written request that the clerk of this Court "contact the office of the Trial Court Clerks to request from them a copy of the missing items," citing Texas Rule of Appellate Procedure 34.5(e).See TEX. R. APP. P. 34.5(e).
Appellant also cites Rule of Appellate Procedure 34.6(f) for support. See TEX. R. APP. P. 34.6(f). Rule 34.6(f), which governs lost or destroyed reporter's records, is not applicable to this discussion. See id.
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Rule 34.5(e), which governs lost or destroyed clerk's records, provides as follows:
If a filing designated for inclusion in the clerk's record has been lost or destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court clerk for inclusion in the clerk's record or a supplement. If the parties cannot agree, the trial court must—on any party's motion or at the appellate court's request—determine what constitutes an accurate copy of the missing item and order it to be included in the clerk's record or a supplement.TEX. R. APP. P. 34.5(e). Under the rule, the burden is on "the parties" to deliver a copy of a lost item "to the trial court clerk" for inclusion in the record. Id. Any dispute concerning the accuracy of the items to be included in the clerk's record is to be resolved by the trial court. See id.
Moreover, to the degree that appellant seeks to designate items filed in other cases and in other courts for inclusion in the record in this appeal, rule 34.5 allows the appellate record to be supplemented with additional items from the existing trial court record. See TEX. R. APP. P. 34.5(a)-(c). That is, "it does not allow the creation of a new trial court record." See Richards v. Comm'n for Lawyer Discipline., 35 S.W.3d 243, 251 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Disco Mach. of Liberal Co. v. Payton, 900 S.W.2d 71, 74-75 (Tex. App.—Amarillo 1995, writ denied).
On February 17, 2012, the district clerk informed the Court that it still had not received from appellant a final designation of items to be included in the clerk's record. On March 6, 2012, the Court notified appellant that, because she had, for two years, failed to file a clerk's record, the Court intended to dismiss the appeal if the clerk's record was not filed by March 15, 2012. See TEX. R. APP. P. 42.3(c) (allowing involuntary dismissal of appeal because appellant failed to comply with requirement of rules, court order, or notice from the clerk requiring response or other action within specified time). Appellant did not file the clerk's record within the specified time, as required; rather, appellant responded with another request that the clerk of this Court contact the clerk of another court "to request . . . on behalf of my client, Lynn Goetz, an accurate copy of the following missing records."
Accordingly, we dismiss the appeal. See id. We dismiss all pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Brown.