John and Sally Kosmatka v. Motostalgia, LLC Antonio Brunet And Motoreum, LLC ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00447-CV
John and Sally Kosmatka, Appellants
v.
Motostalgia, LLC; Antonio Brunet; and Motoreum, LLC, Appellees
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY,
NO. D-1-GN-19-008679, THE HONORABLE MARIA CANTÚ HEXSEL, JUDGE PRESIDING
ORDER
PER CURIAM
We withdraw the opinion and judgment in this appeal dated October 12, 2022,
and reinstate this appeal.
This Court dismissed John and Sally Kosmatka’s appeal because the trial court
clerk failed to file the clerk’s record due to Appellants’ failure to pay or make arrangements to
pay for the clerk’s fee for preparing the record and Appellants failed to timely submit a status
report. In their motion for rehearing, 1 they explain that a former paralegal mistakenly verified
the charges associated with the court reporter’s record—not the district court clerk’s record—had
been paid and, based on that error, represented that the issues raised in the Court’s previous
September 9, 2022 had been addressed. That paralegal thereafter left the law firm for
unrelated reasons, and therefore the error was not discovered until the entry of the Court’s
1 Though styled as Appellants’ Motion for Reconsideration, we treat the motion as one
for rehearing. See In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008) (orig.
proceeding); see also Tex. R. App. P. 49 (motions for rehearing).
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October 12, 2022 order dismissing the appeal for want of prosecution. Upon receipt of our
order, Appellants took the steps necessary to obtain a copy of the district court clerk’s record,
and the clerk’s record was filed with this Court as of October 14, 2022.
We grant Appellants’ motion for rehearing. The 30-day period for filing
appellant’s brief will run from the date of this Order.
It is ordered on November 2, 2022.
Before Chief Justice Byrne, Justices Triana and Smith
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