Edgar Duarte v. Brookaye Partnership Ltd D/B/A Huntington Brook Apartments, Dzien Nguyen D/B/A Huntington Brook Apartments, and Excel Real Estate & Management Co.

• Court: Court of Appeals of Texas
• Decided: June 28, 2022
• Docket: 09-20-00128-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00128-CV __________________

EDGAR DUARTE, Appellant

V.

BROOKAYE PARTNERSHIP LTD D/B/A/ HUNTINGTON BROOK APARTMENTS, DZIEN NGUYEN D/B/A HUNTINGTON BROOK APARTMENTS, AND EXCEL REAL ESTATE & MANAGEMENT CO., Appellees

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On Appeal from the 101st District Court Dallas County, Texas Trial Cause No. DC-18-03183 __________________________________________________________________

ORDER

When he was in the trial court, Edgar Duarte filed a notice of appeal

complaining about an order signed by an associate judge granting Brookaye

Partnership LTD d/b/a Huntington Brook Apartments’ no-evidence motion for

summary judgment and of the trial court’s denial of his motion for new trial. Duarte

then filed a brief in which he complains the trial court never conducted a de novo

1 hearing after he requested one following the associate judge’s ruling on the no-

evidence motion.

The record shows the trial court signed an order denying the de novo hearing

request, but then vacated that order and signed an order denying Duarte’s motion for

new trial. Duarte appealed from the ruling. 1 The appellate record does not contain

an order or judgment by the trial court adopting the associate judge’s ruling on the

motion for summary judgment. 2 The appellate record also does not include a record

showing the trial court conducted a de novo hearing on the ruling made by the

associate judge.3

A court of appeals must not affirm or reverse a judgment or dismiss an appeal

if the trial court’s failure to act prevents the proper presentation of a case to the

appellate court and the trial court can correct its failure to act.4 We abate the appeal

and remand the case to the trial court for a de novo hearing on the issue of whether

Duarte received notice of the October 31, 2019 summary judgment hearing before

the associate judge.5 We direct the trial court to sign a judgment or order. 6 A

1 The Texas Supreme Court transferred the appeal from the Fifth Court of Appeals to this Court pursuant to a docket equalization order. See Tex. Gov’t Code Ann. § 73.001. 2 See id. § 54A.116(b). 3 See id. § 54A.115(e). 4 See Tex. R. App. P. 44.4(a). 5 See id. 44.4(b). 6 See Tex. Govt. Code Ann. § 54A.116(b). 2 supplemental clerk’s record and a supplemental reporter’s record containing a

transcription of any hearings conducted while the case is before the trial court shall

be filed with the Court of Appeals on or before July 28, 2022.

The appeal will be reinstated without further order when the Court of Appeals

receives the supplemental record. Upon reinstatement, the parties may file

supplemental briefs. The appellant’s supplemental brief must be filed no later than

30 days after the supplemental record is filed. The appellee’s supplemental brief

must be filed no later than 30 days after the appellant files his supplemental brief.

Requests for briefing extensions will be strongly disfavored.

ORDER ENTERED June 28, 2022.

PER CURIAM

Before Kreger, Horton and Johnson, JJ.