Latrice Williams v. Dana Lee ( 2012 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Latrice Williams v. Dana Lee
Appellate case number: 01-10-00296-CV
Trial court case number: 2008-27802
Trial court: 309th District Court of Harris County, Texas
The district clerk has filed a supplemental clerk’s record indicating that five documents
requested by appellant to be included in the supplemental clerk’s record could not be located.
These documents include:
• Sworn Inventory and Appraisement of Latrice Williams-Respondent
• Sworn Inventory and Appraisement of Dana Lee-Petitioner
• Response To Motion For New Trial, filed February 24, 2010
• Judgment Final Divorce Decree, filed May 2, 2009
• Bill of Exception
A sixth document requested, “Iris Robinson Hefter, Intervenor Interrogatories to
Respondent Latrice Williams,” was included in the supplemental clerk’s record as an exhibit to
another motion.
We therefore abate this appeal and remove it from this Court’s active docket. We direct
the trial court to immediately conduct a hearing at which a representative of appellee and
appellant shall be present. Any party may appear at the hearing telephonically, if necessary. At
the hearing, the trial court shall make the following findings:
(1) The trial court shall determine whether each of the five requested documents
was ever offered for inclusion in the record. For each document, the trial
court shall make a written finding regarding whether the document was
offered for inclusion in the record.
(2) If a document was not offered for inclusion in the record, that document is not
part of the record and the district clerk has no obligation to include that
document in a supplemental clerk’s record, and the trial court shall so signify
in its written findings.
(3) If the trial court finds that a document was offered for inclusion in the record,
the trial court shall make a finding regarding whether that document has been
lost or destroyed and,
a. if the document has not been lost or destroyed, the trial court shall
order that the document be included in a supplemental clerk’s record
and filed with this Court;
b. if the document has been lost or destroyed, the trial court shall make a
finding regarding whether the parties can agree, by written stipulation,
to deliver a copy of the document for inclusion in a supplemental
clerk’s record; and,
i. if the parties can agree regarding what constitutes an accurate
copy of the document, the trial court shall set a deadline no
later than 10 days from the date of the hearing for the
submission of the written stipulation and copy to the district
clerk for inclusion in a supplemental clerk’s record; or,
ii. if the parties cannot agree regarding what constitutes an
accurate copy of the document, the trial court is required to
determine what constitutes an accurate copy of the document
and order that the document be included in a supplemental
clerk’s record.
See TEX. R. APP. P. 34.5(e).
The trial court’s findings regarding each of the five documents must be contained in a
written document, and not a docket sheet, because a docket sheet may not be considered by this
Court. See Rush v. Barrios, 56 S.W.3d 88, 95 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied) (an appellate court may not consider docket entries since they are only made for the
clerk’s convenience and are usually unreliable).
A supplemental clerk’s record containing the trial court’s written findings regarding each
of the five documents, and any documents that the trial court orders included in the record, must
be filed with the Clerk of this Court within 30 days of the date of this order.
The 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 supplemental
clerk’s record containing the trial court’s written findings regarding the five documents is filed in
this Court. The court coordinator of the trial court shall set a hearing date and notify the
parties of and the Clerk of this Court of such date.
It is so ORDERED.
Judge’s signature: /s/ Justice Evelyn V. Keyes
 Acting individually  Acting for the Court
Date: August 28, 2012