Cary Allen Simmang v. Standard Life and Casualty Insurance Company

• Court: Court of Appeals of Texas
• Decided: October 25, 2023
• Docket: 07-23-00248-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00248-CV

CARY ALLEN SIMMANG, APPELLANT

V.

STANDARD LIFE AND CASUALTY INSURANCE COMPANY, APPELLEE

On Appeal from the 47th District Court Potter County, Texas Trial Court No. 110014-A-CV, Honorable Dee Johnson, Presiding

October 25, 2023 ORDER OF ABATEMENT AND REMAND Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Appellant, Cary Allen Simmang, proceeding pro se, appeals from the trial court’s

Final Take Nothing Judgment. The clerk’s record has been filed. The reporter’s record

was due September 11, 2023, but was not filed. That day, the reporter notified the Court

that Simmang failed to request preparation and make payment arrangements for the record.1 On October 17, 2023, Simmang filed a letter with the Clerk of the Court

representing that he had both requested and “paid court reporter’s fees long ago.”

Under Rule of Appellate Procedure 35.3(b), it is the appellant’s responsibility to

request preparation and make payment arrangements for the reporter’s record. When an

appellant fails to do so, we may consider and decide an appeal without a reporter’s record,

unless appellant is entitled to proceed without payment of costs. See TEX. R. APP. P.

37.3(c).

Because we are unable to determine whether Simmang has complied with Rule of

Appellate Procedure 35.3(b), we abate the appeal and remand this cause to the trial court

to hold a hearing, by whatever means necessary, and determine (1) whether Simmang

requested preparation of the reporter’s record; (2) if so, what portions of the reporter’s

record were requested; (3) whether Simmang paid for the preparation of the requested

portions of the reporter’s record; and (4) if Simmang has not paid for the reporter’s record,

whether he is entitled to proceed without payment of costs. See TEX. R. APP. P. 35.3(c)

(providing that the trial and appellate courts are jointly responsible for ensuring that the

appellate record is timely filed); TEX. R. CIV. P. 145 (concerning indigence and payment

of costs). The trial court shall enter its findings in a written order and include the order in

a supplemental clerk’s record which it must cause to be filed with this Court by November

27, 2023.

Per Curiam

1 We subsequently notified Simmang of his responsibility to request and pay for the reporter’s

record. Simmang did not file a response. Thus, by letter of October 12, 2023, we set Simmang’s brief due without the benefit of a reporter’s record pursuant to Rule of Appellate Procedure 37.3(c). We now vacate Simmang’s current briefing deadline.