Thomas Gunnar Kelly v. Sherry Marie Kelly ( 2020 )

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Thomas Gunnar Kelly v. Sherry Marie Kelly Appellate case number: 01-19-00580-CV Trial court case number: 2018-21540 Trial court: 246th District Court of Harris County Appellant, Thomas Gunnar Kelly, has filed a motion to abate this appeal until the complete record is filed, to correct the Clerk of this Court’s records to reflect the proper briefing deadlines, to supplement the reporter’s record, and, alternatively, to extend time. Appellant’s motion states that the reporter’s record is not complete even though he made three requests to the court reporter. Appellant’s motion further states that he received a late brief notice from the Clerk of this Court on January 10, 2020, despite an incomplete record. On January 14, 2020, the Clerk of this Court withdrew its January 10, 2020 late brief notice and advised the parties that the briefing schedule will not start until the record is complete. The reporter’s record was due to be filed in this Court by November 25, 2019, which is 120 days after the judgment was signed. TEX. R. APP. P. 35.1(a) (providing appellate record must be filed within 120 days after judgment is signed if motion for new trial filed in trial court); see also TEX. R. APP. P. 26.1(a)(1), 4.1(a) (extending time to following Monday when deadline falls on Saturday). Thus, the reporter’s record is late. According to appellant’s motion, appellant has requested—but the court reporter has not yet filed—the following records: 1. Temporary orders hearing on August 29, 2018; 2. Pretrial conference on November 30, 2018; and 3. Hearing on January 29, 2019. We order the court reporter to file the records of the above-listed hearings within 20 days of the date of this order. The Court will consider a motion to extend time filed by the court reporter, if necessary. We note that the official or deputy reporter is responsible for preparing, certifying, and timely filing the reporter’s record. TEX. R. APP. P. 35.3(b). Thus, if any court reporter other than the official or deputy reporter recorded any part of any hearing not yet filed in this Court, the official or deputy reporter shall ensure those parts of the reporter’s records are prepared, certified, and timely filed in accordance with this order. If the complete record is not filed in this Court within 20 days of the date of this order (or pursuant to an order extending time on the court reporter’s motion, as mentioned above), we may abate this appeal to the trial court to conduct a hearing with the court reporter and all parties’ counsel to resolve the issue of the late reporter’s record. Appellant’s brief will be due 30 days after the court reporter files the records listed above. See TEX. R. APP. P. 38.6(a). We dismiss as moot any relief requested by appellant that is not granted herein. It is so ORDERED. Judge’s signature: /s/ Evelyn V. Keyes  Acting individually Acting for the Court Date: ___January 28, 2020___________________ 2