Colette Savage v. Mark Savage, Trustee and Fiduciary

• Court: Court of Appeals of Texas
• Decided: January 10, 2018
• Docket: 10-17-00139-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00139-CV

COLETTE SAVAGE, Appellant v.

MARK SAVAGE, TRUSTEE AND FIDUCIARY, Appellee

From the 66th District Court Hill County, Texas Trial Court No. 52,939

MEMORANDUM OPINION

Appellant, Collette Savage, appeals from a summary judgment entered on January

31, 2017, in favor of appellee, Mark Savage, trustee and fiduciary. The docketing

statement reflects that appellant filed a motion for new trial on February 24, 2017. See

TEX. R. CIV. P. 329b(a) (providing that a motion for new trial must be filed within thirty

days after the judgment or other order complained of is signed). Thereafter, on April 28,

2017, appellant filed her notice of appeal in this matter. See TEX. R. APP. P. 26.1(a) (stating that a notice of appeal must be filed within ninety days after the judgment is signed if

any party timely files, among other things, a motion for new trial). Pursuant to Texas

Rule of Appellate Procedure 35.1(a), the Clerk’s Record was due on May 31, 2017. See id.

at R. 35.1(a) (stating that the appellate record must be filed within 120 days after the

judgment is signed, if Rule 26.1(a) applies).

On October 13, 2017, the Clerk of this Court notified appellant that the Clerk’s

Record had not been filed in this Court because appellant “has failed to pay or make

arrangements to pay the clerk’s fee for preparation of the record.” The Clerk further

noted that appellant must pay or make arrangements to pay the clerk’s fees and notify

this Court of the actions taken within twenty-one days of October 13, 2017, or else “this

appeal may be dismissed for want of prosecution.”

On November 7, 2017, several days after the twenty-one-day deadline passed,

appellant filed an electronic response. In her pro se response, which included numerous

affidavits and other exhibits, appellant complained that she believed that the underlying

record is incomplete and unorganized. However, at no point in her response did

appellant express that she paid or made arrangements to pay the clerk’s fee for the

preparation and filing of the Clerk’s Record in this Court. Without a properly-filed

Clerk’s Record, we cannot discern the legitimacy of appellant’s complaints about the

record.

Savage v. Savage Page 2 Subsequently, on December 7, 2017, the Hill County District Clerk’s Office

informed this Court that appellant “has failed to pay or make arrangements to pay for

the clerk’s record. No designation of record has been filed as of this date.” Accordingly,

on December 14, 2017, we once again informed appellant of her failure to pay or make

arrangements to pay for the Clerk’s Record. In addition to warning appellant that this

appeal would be dismissed for want of prosecution without further warning if she failed

to pay or make arrangements to pay the clerk’s fees and notify this Court of the actions

taken within twenty-one days of December 14, 2017, we mentioned the following:

The failure to pay the clerk’s fee prevents the Clerk’s Record from being filed in this Court. The record that is in the Hill County District Clerk’s Office is not yet a part of the appellate record. And without a properly-filed Clerk’s Record in this Court, we cannot discern the legitimacy of appellant’s complaints about the record. Nevertheless, once the Clerk’s Record is filed with this court, any errors or omissions will be resolved under the rules.

Appellant responded by filing a letter stating the following: “I made arrangements

with Angela Orr and the 66th district regarding copying the transcript and have an

appointment on January 10, 2016 to post note what is needed. I would still appreciate

my motions to be heard.” However, the Hill County District Clerk’s Office has informed

this Court that appellant did not pay or make arrangements to pay the clerk’s fee within

twenty-one days of December 14, 2017.

Texas Rule of Appellate Procedure 37.3(b) provides that if an appellant fails to pay

or make arrangements to pay the clerk's fee for preparation of the record, the Court may

“dismiss the appeal for want of prosecution unless the appellant was entitled to proceed Savage v. Savage Page 3 without payment of costs. The court must give the appellant a reasonable opportunity

to cure before dismissal.” Id. at R. 37.3(b). To date, the record does not reflect that

appellant has paid or made arrangements to pay for the Clerk's Record or that appellant

is entitled to proceed without payment of costs. Therefore, pursuant to Rule 37.3(b), we

hereby dismiss this appeal for want of prosecution.1 See id.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal dismissed Opinion delivered and filed January 10, 2018 [CV06]

1 In light of our disposition, all pending motions are hereby dismissed as moot.

Savage v. Savage Page 4