Tonya Parks v. Affiliated Bank, Affiliated Bank FSB, Affiliated Bank FSB, Inc., Bancaffiliated, Inc., Joshua Campbell and Katherine Campbell

DISMISS and Opinion Filed October 21, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00411-CV
TONYA PARKS, Appellant
V.
AFFILIATED BANK, AFFILIATED BANK FSB,
AFFILIATED BANK FSB, INC., BANCAFFILIATED,
JOSHUA CAMPBELL AND KATHERINE CAMPBELL, Appellees
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. CC-19-01614-B
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Pedersen, III
Opinion by Chief Justice Burns
In light of the recusal of Justice Bonnie Goldstein, an original panel member,
we GRANT rehearing on the Court’s own motion, VACATE our opinion and
judgment of September 14, 2022, and REINSTATE the appeal. This is now the
opinion of the Court.
Appellant’s brief in this appeal has not been filed despite the deadline being
extended five times. It was first due April 25, 2022 and last due August 26, 2022.
The primary reason appellant has sought the extensions is her dissatisfaction with
the accuracy of the reporter’s record, even though, prior to the brief deadline first
being set, the trial court held a hearing to determine the record’s accuracy and a
corrected record was filed as ordered by the trial court. See TEX. R. APP. P.
34.6(e)(2),(3) (together providing that disputes concerning accuracy of reporter’s
record arising after record has been filed may be submitted to trial court for
resolution, and, if trial court finds inaccuracies, reporter must correct record).
Our orders granting the second and third extensions cautioned appellant that
further extension requests would be disfavored, and our orders extending the
deadline the fourth and fifth times cautioned that failure to file the brief by the new
deadlines could result in the appeal being dismissed without further notice. Despite
the cautionary language, appellant has filed a sixth extension motion complaining
again about the reporter’s record but also asserting for the first time that the clerk’s
record, on file since August 5, 2021, is incomplete. Appellant requests the clerk’s
record be supplemented and seeks an extension of at least thirty days from the date
the supplemental record is filed to file her brief. For the reasons that follow, we
deny the motion and dismiss the appeal. See id. 38.8(a)(1), 42.3(b),(c).
Texas Rule of Appellate Procedure 38.6(d) allows an appellate court to extend
the time for filing a brief on motion reasonably explaining the need for an extension.
See id. 10.5(b), 38.6(d). A “reasonable explanation” is “any plausible statement of
circumstances indicating that failure to file within the [required] period was not
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deliberate or intentional, but was the result of inadvertence mistake, or mischance.”
Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989) (quoting Meshwert
v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)); see also Head v. Twelfth Court of
Appeals, 811 S.W.2d 570, 571 (Tex. 1991) (per curiam) (citing, in part, Kastner
Farms in concluding motion for leave to file late brief reasonably explained delay).
An incomplete record can be the basis for an extension of time to file the brief,
see TEX. R. APP. P. 38.6(a), and if the clerk’s record here had recently been filed, it
being incomplete might justify the extension. But the clerk’s record here has been
on file for over a year.
Acknowledging the substantial amount of time that has lapsed, appellant
explains in a reply to appellees’ opposition to the extension that she did not request
a supplemental clerk’s record sooner because she “did not feel the need to drive to
Dallas to pick up the clerk’s record because she was still waiting on the reporter’s
record[,]” the reporter “has caused multiple distractions,” she assumed the clerk
“would not omit” documents from the record, and she “wanted to trust the process
by not having to check every Dallas County Department to ensure she is not
being deprived of documents.” (emphasis in original) Our case management
system, however, reflects appellant was provided a copy of the clerk’s record on
August 6, 2021, the day after the record was filed. Further, at the time the April 25,
2022 deadline for the filing of the brief was set, the original deadline, appellant’s
concerns with the accuracy of the reporter’s record had been addressed in accordance
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with the rules of appellate procedure. See TEX. R. APP. P. 34.6(e). With the brief
being first due April 25 and appellant in possession of the clerk’s record for over
seven months by that point, review of the clerk’s record should have begun before
the original deadline, not four months later.
We conclude appellant has failed to reasonably explain the need for a sixth
extension to file her brief. See Brown v. Bryant, 181 S.W.3d 901, 902 (Tex. App.—
Dallas 2006, pet. denied) (per curiam) (noting, in dismissing appeal because
appellants failed to file their brief, that appellants’ third extension motion, which
complained that reporter’s record was incomplete, had been denied because
“appellants waited over six months (from date record was filed) to complain”); see
also Matter of Marriage of Barron, 13-21-00398-CV, 2022 WL 1415014, *1 (Tex.
App.—Corpus Christi-Edinburg May 5, 2022, no pet.) (mem. op.) (granting
appellee’s motion to dismiss, concluding, in part, that explanation appellant
provided in motion to extend time to file brief did not “satisfy the length of the
delay”); Green v. Grimes Cent. Appraisal Dist., No. 12-20-00179-CV, 2021 WL
126587, *1-2 (Tex. App.—Tyler Jan. 13, 2021, no pet.) (mem. op.) (per curiam)
(noting, in dismissing appeal when appellant failed to file brief after having about
four months to file, that appellant’s third motion seeking extension based on
“COVID-19 pandemic” was denied). Accordingly, we deny the motion. And,
having previously cautioned that failure to file the brief as ordered could result in
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the appeal being dismissed without further notice, we dismiss the appeal. See TEX.
R. APP. P. 38.8(a)(1), 42.3(b),(c).
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
210411F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TONYA PARKS, Appellant On Appeal from the County Court at
Law No. 2, Dallas County, Texas
No. 05-21-00411-CV V. Trial Court Cause No. CC-19-01614-
B.
AFFILIATED BANK, AFFILIATED Opinion delivered by Chief Justice
BANK FSB, AFFILIATED BANK Burns, Justices Molberg and
FSB, INC., BANCAFFILIATED, Pedersen, III participating.
JOSHUA CAMPBELL AND
KATHERINE CAMPBELL,
Appellees
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
Judgment entered October 21, 2022.
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