Maxine Adams and Cecil Adams v. Rebecca Ross ( 2013 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Maxine Adams and Cecil Adams v. Rebecca Ross
Appellate case number: 01-11-00552-CV
Trial court case number: 2010-12207
Trial court: 269th District Court of Harris County
Appellant Cecil Adams has filed a letter-motion with the Court, informing the Court that
the “parties stipulate and agree” that there are errors in the appellate record. Appellant Cecil
Adams does not actually request that the Court take any action, although he styles his letter-
motion as a “2nd letter requesting correction of defects or inaccuracies in the appellate record.”
In addition to the lack of request for relief, the letter-motion also fails to include a certificate of
service or any evidence showing that the record is defective. See TEX. R. APP. P. 9.5(a), (b), (d),
10.1(a)(3), (4), 10.2.
Nevertheless, it appears that the documents marks Exhibit 1 — Exhibit 14, contained on
pages 81–150 of the clerk’s record filed in this Court on April 10, 2013, after the document
entitled “Cecil Adams and Maxine Adams Supplemental Response to Notice of Designation of
Next Friend and Motion to Correct Caption” and before the document entitled “Maxine Adams
and Cecil Adams’ Objection and Response to Ross’ No-Evidence Motion for Summary
Judgment,” are exhibits to the latter document, rather than the former. Therefore, because of the
extreme delays in this case, Cecil Adams’ representation that the parties agree to the alleged
errors, the attached email purporting to be from appellee’s counsel stipulating to the alleged
errors, and the fact that the record already contains all of the necessary and appropriate
documents, we will grant the motion in part and deny the motion in part.
Accordingly, to the extent that Cecil Adams requests that the documents labeled as
Exhibits 1–14 and currently included as exhibits to the document styled “Cecil Adams and
Maxine Adams Supplemental Response to Designation of Next Friend and Motion to Correct
Caption” should be included as exhibits to the document styled “Maxine Adams and Cecil
Adams Objection and Response to Ross’ No Evidence Summary Judgment,” we will treat the
exhibits as being exhibits to the latter document and not as exhibits to former document.1
1
In briefing, the parties should cite to the exhibits at issue with the page numbers as
assigned in the clerk’s record.
However, based on the excessive delays in this case, the ample opportunity for both
parties to have reviewed the numerous records filed in this appeal, the repeated attempts to
supplement, amend, or correct the record in this case, and the fact that all relevant documents are
presently in the record, we conclude that any abatement of this appeal to have the trial court clerk
“correct” the record would necessitate an unwarranted delay in this appeal. 2 See Crown Life Ins.
Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121–22 (Tex. 1991). Therefore, to the extent that
Cecil Adams moves the Court to abate these proceedings or otherwise delay these proceedings
for the purpose of having the trial court clerk correct the record, we deny the motion.3
Nothing in this order affects the briefing schedule previously established by this Court.
Appellants’ brief is still due on June 25, 2013.
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
 Acting individually  Acting for the Court
Date: June 21, 2013
2
Because this letter-motion was filed seven days before appellants’ current deadline for
filing their brief, any abatement of this appeal for “correction” of the clerk’s record by the
trial court clerk would necessarily entail additional delay in the filing of appellants’ brief.
3
To the extent that Rule 34.5(d) requires the Clerk of this Court to instruct the trial court
clerk to correct any error or defect in the appellate record pertaining to these exhibits, we
conclude that avoiding additional delay in the briefing of this appeal provides good cause
to suspend operation of the Rule. See TEX. R. APP. P. 2, 34.5(d). And any further
requests for amendment of the record must be accompanied by a stipulation signed by all
parties or by an explanation establishing the extraordinary circumstances that caused the
moving party to fail to discover the defect or inaccuracy in a timely fashion.