Patrick Olajide Akinwamide v. Transportation Insurance Company, CNA Insurance Company and Automatic Data Processing Inc. ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Patrick Olajide Akinwamide v. Transportation Insurance
Company, CNA Insurance Company, and Automatic Data
Processing Inc.
Appellate case number: 01-15-00066-CV
Trial court case number: 1997-48526
Trial court: 80th Judicial District Court of Harris County
On November 25, 2014, appellant, Patrick Olajide Akinwamide, proceeding pro
se, had filed a notice of appeal in the trial court intending to appeal from both the October
3, 2014 order denying his motion to set aside the final judgment, and the November 4,
2014 pre-filing order which declared appellant a vexatious litigant and imposed
sanctions. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.101(a) (West Supp. 2014). On
May 14, 2015, this Court’s Order on Motions resolved several of appellant’s pending
motions regarding the scope of his notice of appeal, supplementing the clerk’s record,
and abating for correcting the reporter’s record.
On May 27, 2015, appellant filed a “Request to Supplement the Clerk’s Record”
to attach Exhibits A-K to the appellant-plaintiff’s motion to set aside the final judgment,
filed in the trial court on August 6, 2014, that he claimed were not attached to the clerk’s
record filed in this Court on January 20, 2015. After a review of the clerk’s record, it
appears that Exhibits A-K were not attached to the appellant’s motion to set aside the
final judgment filed with this Court. Accordingly, appellant’s request to supplement the
clerk’s record is GRANTED and we ORDER the trial court clerk to prepare, certify, and
file a supplemental clerk’s record containing the complete “Plaintiff’s Motion to Set
Aside the Final Judgment,” including all Exhibits A-K, filed in the trial court on August
6, 2014, in trial court cause number 1997-48526, within 10 days of the date of this order.
See TEX. R. APP. P. 34.5(c)(1).
On May 27, 2015, appellant also filed an opposed “Amended Motion to the Court
to Submit the Dispute Over Inaccuracy of the Court Reporter’s Record Filed on March
26, 2015 to the Trial court For Resolution [Under] TRAP 34.6(E)(3).” Specifically,
appellant requests that this Court refer this case to the trial court to resolve a dispute
between the parties regarding the accuracy of the show cause hearing, held on October
24, 2014, because he claims that it was not a correct or full transcription of the
proceedings and exhibits offered in evidence since it did not contain: (1) the swearing
under oath of the attorney and appellant; (2) the testimony and arguments of the parties;
(3) the exhibits offered in evidence, such as Exhibit A attached to his motion to correct
the omission of the appellee; (4) any objections; and (5) the remarks made by the judge
with regard to the admissibility of testimony and arguments. Under Rule 34.6(e)(3), if
the parties cannot agree over the accuracy of the reporter’s record after it has been filed in
the appellate court, as here, this Court may submit the dispute to the trial court for
resolution. After a review of the reporter’s record of the show cause hearing, held on
October 24, 2014, because it appears that there was no testimony or argument by either
party, no indication that any exhibits were offered or admitted, and no exhibits were
attached, this motion is GRANTED. See TEX. R. APP. P. 34.6(e)(3).
On June 12, 2015, appellant similarly filed a motion to abate this appeal to allow
the trial court to settle the dispute over the show cause hearing reporter’s record and for
the trial clerk to file the supplemental clerk’s record containing appellant’s motion to set
aside the final judgment including all Exhibits A-K. As noted above, because this Court
is granting appellant’s request to supplement the clerk’s record, and because it appears
that there may be a dispute as to the accuracy of the show cause hearing reporter’s record,
both of which appear to be necessary for a complete record, this motion is GRANTED.
The appeal is abated and remanded to the trial court to settle the parties’ dispute
regarding the accuracy of the reporter’s record. See TEX. R. APP. P. 34.6(e)(2) (providing
for trial court to settle dispute about accuracy of appellate record after notice and
hearing). If the trial court determines, after notice and a hearing, that the reporter’s
record filed with this Court is inaccurate, the trial court shall direct the court reporter to
prepare a supplemental reporter’s record that conforms to what occurred in the trial court
and file the supplemental reporter’s record, including any exhibits submitted at that
hearing, with the Clerk of this Court. See id. If the trial court determines that the
reporter’s record of the show cause hearing, held on October 24, 2014, filed with this
Court is accurate, the trial court should sign a written order reflecting that determination,
along with any additional findings.
The trial court clerk is directed to file a supplemental clerk’s record containing the
trial court’s order and findings with the Clerk of this Court within 30 days of the date of
this order. The court reporter is directed to file a supplemental reporter’s record of the
show cause hearing, held on October 24, 2014, if any corrections are needed, and of the
abatement hearing, if any is held, within 30 days of the date of this order. The court
coordinator of the trial court shall set a hearing date and notify the parties and the Clerk
of this Court of such date.
This appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when the
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supplemental clerk’s record and any supplemental reporter’s records of the show cause
hearing and abatement hearing are filed in this Court.
Because the appellate record does not appear to be fully complete, appellant’s
brief is not yet due. See TEX. R. APP. P. 38.6(a). Appellant’s brief will be due no later
than 30 days after this appeal is reinstated. Accordingly, we dismiss appellant’s “Motion
to Reset Time to File Appellant’s Brief,” filed on June 12, 2015, as moot.
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes
 Acting individually  Acting for the Court
Date: July 9, 2015
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