Delores Rubio, as Personal Representative of the Estate of Willie Pedro Rubio, Jr. v. Excell Electrical Contractors, Inc.

Opinion

Order entered May 26, 2015

In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01448-CV

DELORES RUBIO, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIE PEDRO RUBIO, JR., Appellant

V.

EXCELL ELECTRICAL CONTRACTORS, INC., Appellee

On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-14-01239-D

ORDER Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart

On April 2, 2015, this appeal was dismissed for want of prosecution, specifically because

appellant failed to pay for or make arrangements to pay for the clerk’s record despite being

notified the case would be dismissed if she did not do so. On April 14, 2015, appellant filed a

motion for reinstatement and abatement. Attached to the motion to reinstate is proof of payment

for the clerk’s record. Appellant also seeks to have the appeal abated after reinstatement “to

allow the parties additional time to resolve their dispute via the administrative process” regarding

appellant’s right to certain workers’ compensation benefits. Specifically, appellant explained in

the motion that appellee was granted summary judgment in the trial court because the trial court

agreed with appellee that as “the parent—rather than a spouse or child—of the deceased, she could not recover exemplary damages for [her son’s] wrongful death. Workers’ compensation

death benefit—which appellee’s insurer Service Lloyd Insurance Co. had been ordered by the

Worker’s Compensation Division to pay—were her sole remedy.” Thereafter, Lloyd’s disputed

appellant’s entitlement to death benefits, so appellant filed a notice of appeal “out of an

abundance of caution.” After perfecting the appeal, appellant and Lloyd’s have engaged in a

series of administrative proceedings, which were likely to have been resolved at a contested case

hearing scheduled for May 7, 2015. According to appellant, the clerk’s record was not paid for

until the appeal was dismissed “in anticipation that an administrative resolution of the dispute

would render the appeal moot.”

After considering both appellant’s motion and appellee’s response, we GRANT

appellant’s motion, VACATE our dismissal opinion and judgment of April 2, 2015 and

REINSTATE this appeal.

The clerk’s record in this case was filed on May 5, 2015. The reporter’s record has not

been filed. By letter dated December 12, 2014, we informed appellant the Court Reporter had

notified us that the reporter’s record had not been filed because appellant had not (1) requested

the record; or (2) paid for or made arrangements to pay for the record. We directed appellant to

provide the Court with written verification the reporter’s record had been requested or to provide

written verification the reporter’s record had been paid for or that arrangements to pay for the

record had been made. We cautioned appellant that failure to provide the requested verification

might result in the Court ordering the appeal submitted without the reporter’s record. To date,

appellant has not provided the required verification. Accordingly, we ORDER appellant to

provide the verification requested by the Court on December 12, 2014 by 5:00 p.m. on Friday, May 29, 2015. Failure to do so WILL result in the appeal being ordered submitted without the

reporter’s record. See TEX. R. APP. P. 37.3(c).

Further, we ORDER appellant to file a status report regarding the May 7, 2015 contested

case hearing by 5:00 p.m. on Friday, June 5, 2015. Failure to do so WILL result in the

dismissal of this appeal without further notice. See TEX. R. APP. P. 42.3 (b)(c).

/s/ CAROLYN WRIGHT CHIEF JUSTICE