Opinion
04-23-00698-CV
11-22-2023
Herbert Lawrence POLINARD, Jr., Appellant v. Jo Ann KARAMBIS, Margaret Comparin, Ronaldo Dunagan, Lynda C. Spence and eXp Realty, LLC, Appellees
From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2018-CI-11887 Honorable Antonia Arteaga, Judge Presiding
ORDER
IRENE RIOS, JUSTICE.
On August 29, 2023, the trial court clerk filed a notification of late record stating that the appellant failed to pay or make arrangements to pay the fee for preparing the clerk's record and that appellant is not entitled to preparation of the clerk's record without paying the fee.
On August 30, 2023, we ordered appellant to provide written proof to this court that either: (1) the clerk's fee 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. We warned appellant that if he failed to respond within the time provided, this appeal would be dismissed for want of prosecution. See TEX. R. APP. P. 37.3(b); 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 September 20, 2023, appellant filed a letter with this court stating payment for the clerk's record was more expensive than anticipated and advised the court that appellant would designate portions of the clerk's record to be filed to reduce the cost of the clerk's record.
On October 13, 2023, appellant filed a motion requesting we transfer a copy of the clerk's record filed in appellate cause number 04-21-00251-CV into this current appeal, appellate cause number 04-23-00698-CV. Appellate cause number 04-21-00251-CV was a previously filed interlocutory appeal arising from the same underlying trial court proceedings as the current appeal.
Appellees filed a response opposing the motion. Appellees argue the clerk's record in the previous interlocutory appeal does not contain any documents filed after August 24, 2021. Therefore, appellees argue, it does not contain all the documents required by Rule 34.5 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 34.5.
We have considered appellant's motion to transfer a copy of the clerk's record from the previously filed interlocutory appeal and the appellees' response. The motion is GRANTED. We ORDER the clerk of this court to electronically transfer a copy of the clerk's record in appellate cause number 04-21-00251-CV into this current appeal, appellate cause number 04-23-00698-CV. The transferred portion of the record is ORDERED included in the record in cause number 04-23-00698-CV as though the original had been filed therein.
We agree with appellees that the transferred record does not contain all the documents required by Rule 34.5 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 34.5. We therefore ORDER appellant to supplement the clerk's record with the documents required by Rule 34.5-including but not limited to “the court's judgment or other order that is being appealed; . . . any requests for findings of fact and conclusions of law, any post-judgment motion, and the court's order on the motion; [and] the notice of appeal”-as well as any other documents filed after August 24, 2021 that may be necessary for the disposition of the appeal. See id.
We further ORDER appellant to provide written proof to this court, on or before December 6, 2023, that either: (1) the clerk's fee for the supplemental 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); see also TEX. R. APP. P. 42.3(c) (allowing dismissal of appeal if appellant fails to comply with an order of this court).
Appellant's September 14, 2023, opposed Motion for Extension of Time for Payment of Clerk's Fee is MOOT.