in Re: Scott Fisher and Kristi Fisher

• Court: Court of Appeals of Texas
• Decided: November 2, 2021
• Docket: 05-21-00416-CV
• Status: Published

Opinion

Order entered November 2, 2021

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-21-00416-CV

IN RE SCOTT FISHER AND KRISTI FISHER, Relators

Original Proceeding from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-00653-2011

ORDER Before Justices Schenck, Nowell, and Garcia

Before the Court is relators’ June 4, 2021 petition for writ of mandamus. In

the petition, relators challenge the trial court’s May 26, 2021 order granting real

party in interest Christopher Fitzwater’s motion to compel turnover. Pursuant to

their interlocutory appeals pending under cause number 05-21-00696-CV, relators

also challenge the trial court’s July 26, 2021 orders (1) denying the emergency

motion to vacate the September 25, 2019 order appointing Fitzwater as receiver

and (2) granting the joint motion to strike the emergency motion to vacate. We

conclude that these proceedings should be decided together. Accordingly, on the Court’s own motion, we ORDER cause number 05-21-

00416-CV CONSOLIDATED into cause number 05-21-00696-CV. We DIRECT

the Clerk of this Court to remove all documents from cause number 05-21-00416-

CV and refile them in cause number 05-21-00696-CV and to treat cause number

05-21-00416-CV as a closed case. We ORDER that all future filings bear only

cause number 05-21-00696-CV.

We request that the real parties file a response to relators’ petition for writ of

mandamus on or before December 1, 2021. We also EXTEND the deadline for

appellees’ brief to December 1, 2021. All other current deadlines in cause number

05-21-00696-CV shall remain in place. The real parties may include the response

within their appellees’ brief or file the response as a separate brief in accordance

with Texas Rule of Appellate Procedure 52.4. TEX. R. APP. P. 52.4. In accordance

with this consolidation order, that response should be filed in cause number 05-21-

00696-CV.

Further, based on our review, the mandamus record is not adequately sworn

or certified under Texas Rule of Appellate Procedure 52. TEX. R. APP. P.

52.7(A)(1) (record); see TEX. R. APP. P. 52.3(k)(1)(A) (appendix); In re Hughes,

607 S.W.3d 136, 138 n.2 (Tex. App.—Houston [14th Dist.] 2020, orig.

proceeding) (noting that to qualify as sworn under Rule 52, relator must attach

documents to affidavit or unsworn declaration conforming to section 132.001 of the Texas Civil Practice and Remedies Code). We accordingly DIRECT relators

to file, by November 9, 2021, a sworn or certified copy of the mandamus record in

cause number 05-21-00696-CV. We caution relator that failure to file a properly

authenticated record by this deadline may result in the denial of this original

proceeding for non-compliance with Texas Rule of Appellate Procedure 52.

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

parties, the trial judge, and the Dallas District Court Clerk.

/s/ ERIN A. NOWELL JUSTICE