Brigetta D'Olivio A/K/A Brigetta Alix Anderson, Alix Brigetta v. Hilary Thompson Hutson

Opinion

Order entered May 11, 2021

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-20-00969-CV

BRIGETTA D'OLIVIO A/K/A BRIGETTA ALIX ANDERSON, ALIX BRIGETTA, Appellant

V.

HILARY THOMPSON HUTSON, Appellee

On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-04855-2019

ORDER

Before the Court are appellant’s April 19, 2021 motion to compel and

correct the clerk’s record and May 6, 2021 amended emergency motion to extend

time to file her brief. Appellant asserts in the motion concerning the clerk’s record

that the record is deficient in three ways. First, she asserts the record omits the

following documents which she requested and paid to have included in the record:

(1) defendant’s September 28, 2020 reply to plaintiff’s response to motion for

reconsideration, to set aside, and to dismiss, and accompanying certificate of service; (2) defendant’s October 2, 2020 supplemental reply to plaintiff’s response

to motion for reconsideration, to set aside, and to dismiss, and accompanying

certificate of service; (3) plaintiff’s October 13, 2020 response to supplemental

reply; and, (4) defendant’s October 13, 2020 reply to plaintiff’s response to

supplemental reply, and accompanying certificate of service. Second, she asserts

the record omits the documents required by Texas Rule of Appellate Procedure

34.5(a)(9) (requests for reporter’s record), 34.5(a)(10) (requests for clerk’s

records), and 34.5(a)(11) (certified bill of costs). Third, she asserts the August 11,

2020 final order included in the record is “not the same as the Certified Copy” she

obtained from the district clerk.

We note that on April 7, 2021, we ordered Collin County District Clerk

Lynne Finley to file a supplemental clerk’s record containing the four documents

appellant asserts were omitted and for which she has already paid. The Court has

since been informed the supplemental record has been prepared but is being held

for non-payment.

We also note that a review of the clerk’s and supplemental clerk’s records

that have been filed reveals the only documents required by the appellate rules that

appear to have been omitted are the request(s) for the reporter’s record and

plaintiff’s January 5, 2021 “request for designation of additional items for clerk’s

record.” Appellant does not assert she has paid for their inclusion. Because a dispute exists as to the total payment(s) appellant has made for the

clerk’s record and the accuracy of the final order, we ORDER the trial court to

conduct a hearing, no later than June 11, 2021, to determine (1) the total cost of

the complete clerk’s record, including the cost for inclusion of the omitted items,

(2) the total amount of fees paid by appellant for the clerk’s record, and (3) the

accuracy of the final order included in the record. The trial court shall give the

parties at least three days’ notice of the hearing.

The trial court shall make written findings and have the findings filed in a

supplemental clerk’s record no later than June 16, 2021. A supplemental

reporter’s record of the hearing shall also be filed no later than June 16, 2021.

Should the trial court determine that appellant requested and paid for documents

not included in the clerk’s record and/or determine the final order in the record is

not accurate, the trial court shall order Ms. Finley to file, within ten days of the

hearing, a supplemental clerk’s record containing the omitted documents and

corrected copy of the final order.

We GRANT appellant’s extension motion to the extent we SUSPEND the

briefing deadline pending resolution of the issues concerning the clerk’s record.

We DIRECT the Clerk of the Court to send a copy of this order to the

Honorable John Roach, Jr., Presiding Judge of the 296th Judicial District Court; Ms. Finley; Janet L. Dugger, Official Court Reporter for the 296th Judicial District

Court; and, the parties.

We ABATE the appeal to allow the trial court an opportunity to conduct the

requested hearing. The appeal shall be reinstated no later than June 25, 2021.

/s/ KEN MOLBERG JUSTICE