Floyd Kenneth Bailey, Jr. and Kenneth Camp Bailey v. Adam Peavy and Adam Peavy PC ( 2022 )

Order filed November 8, 2022
In The
Fourteenth Court of Appeals
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NO. 14-20-00777-CV
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FLOYD KENNETH BAILEY, JR. AND KENNETH CAMP BAILEY,
Appellants
V.
ADAM PEAVY AND ADAM PEAVY PC, Appellees
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2019-06454
ORDER
After a “sealed first supplemental clerk’s record” was filed in this court on
March 25, 2021, our review determined that three specific documents (the
unredacted version of “Defendants’ Motion to Dismiss Pursuant to the Texas
Citizens Participation Act” filed on August 31, 2020; “Exhibit 2 to Defendants’
Motion to Dismiss Pursuant to the Texas Citizens Participation Act” filed on
August 31, 2020; and “Exhibit 3 to Defendants’ Motion to Dismiss Pursuant to the
Texas Citizens Participation Act” filed August 31, 2020) contained in that filed
record were missing every other page. Therefore, this court issued an order on
July 26, 2022, requesting that the Harris County District Clerk file a supplemental
clerk’s record containing the missing pages. We instructed the clerk in the order,
that if the omitted pages were not part of the case file, to file a supplemental clerk’s
record certifying that those pages were not part of the case file. We further
instructed the parties that, if those missing pages were not part of the case file, “it
is incumbent on the parties to file a new motion to seal in the trial court with
complete copies of the documents to be included in the sealed supplemental
clerk’s record.” This is so the trial court can review the correct and complete
documents for the purpose of sealing.
On August 5, 2022, the Harris County District Clerk filed a third
supplemental clerk’s record certifying that the missing pages were not part of the
case file.
On September 22, 2022, a “‘sealed’ corrected supplemental clerk’s record
‘court ordered’” was filed in this court. That clerk’s record contained (1) the trial
court’s March 23, 2021 order granting the parties’ motion to permit sealed
documents to be filed under seal in this court; (2) defendants’ first supplemental
designation of the clerk’s record filed on May 18, 2021; (3) defendants’
supplemental designation of the sealed clerk’s record filed on February 15, 2021;
(4) “Defendants Motion to Dismiss Pursuant to the Texas Citizens Participation
Act” file-stamped September 19, 2022; (5) “Exhibit 2 to Defendants’ Motion to
Dismiss Pursuant to the Texas Citizens Participation Act” file-stamped September
19, 2022; and (6) “Exhibit 3 to Defendants’ Motion to Dismiss Pursuant to the
Texas Citizens Participation Act” file-stamped September 19, 2022.
It does not appear that the trial court reviewed the documents with the
missing pages pursuant to Texas Rule of Civil Procedure 76a. See Tex. R. Civ. P.
76a. There is no order from the trial court in compliance with Rule 76a(6). See id.
76a(6). There is no record of a hearing pursuant to Rule 76a(5). See id. 76a(5). If
the parties wish to seal and have this court review the correct and complete
documents, it is incumbent on the parties to (1) properly seal the documents in the
trial court pursuant to the procedures set forth in Rule 76a, i.e., file a new motion
to seal in the trial court with complete copies of the documents (containing all
pages) to be included in the sealed supplemental clerk’s record; and (2) ensure that
the Harris County District Clerk provides this court with a complete sealed
supplemental clerk’s record, including documents containing all pages and the trial
court’s order granting the parties’ motion to permit the complete sealed documents
to be filed under seal in this court within 60 days from this order.
The appeal remains 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 this court determines that the complete sealed supplemental clerk’s record is
filed in this court. The court will also consider an appropriate motion to reinstate
the appeal filed by either party, or the court may reinstate the appeal on its own
motion.
PER CURIAM
Panel Consists of Justices Wise, Spain, and Hassan.