James Richardson v. Maria Torres

Opinion

ACCEPTED 03-14-00341-CV 4871565 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/13/2015 5:16:50 PM JEFFREY D. KYLE CLERK No. 03-14-00341-CV

FILED IN In the Third Court of Appeals 3rd COURT OF APPEALS AUSTIN, TEXAS 4/13/2015 5:16:50 PM James Richardson JEFFREY D. KYLE Appellant Clerk

v. Maria Torres, Individually and as Next Friend of John Marmolejo Torres, Daniela Tejeda, and Isabella Gonzales, Minors Appellees

Appeal from Cause No. C-1-CV-13-009448 County Court No. 2, Travis County, Texas Hon. David Phillips

APPELLANT’S UNOPPOSED MOTION TO SUPPLEMENT THE RECORD

KING LAW GROUP, PLLC Mary Ellen King Texas State Bar No. 24067219 meking@kinglitigationgroup.com Richard C. King Jr. Texas State Bar No. 24007491 rking@kinglitigationgroup.com 28515 Ranch Road 12 Dripping Springs, Texas 78620 512.263.8212 (phone) 512.900.2918 (fax)

Counsel for Appellant James J. Richardson, IV INTRODUCTION

For months, Appellant James J. Richardson, IV, has attempted to supplement

the appellate record with documents critical to this appeal that were filed with the

Travis County Clerk but inexplicably omitted from the lower court record. Having

now attempted on multiple occasions (to no avail) to have the Travis County Clerk

take the necessary action to supplement the record and correct its error, Richardson

respectfully moves this Court to either accept the attached documents in supplement

to the record or abate the case and order the lower court to take the appropriate steps

to supplement the record. Appellees do not oppose this Motion to Supplement the

Record (the “Motion”).

BACKGROUND

On September 25, 2014, Richardson filed his initial brief. Appellees filed

their responsive brief on December 18, 2014. Richardson then filed his reply brief

on February 27, 2015.

During the course of briefing this appeal, Richardson determined that

supporting exhibits to his underlying Motion to Set Aside Default Judgment and for

Sanctions (filed on March 13, 2014, with the Travis County Clerk’s office through

the electronic filing service company File and ServeXpress) were omitted from the

lower court docket and, apparently, simply discarded. The underlying motion was

accompanied by the following supporting exhibits: Exhibit A (Default Judgment),

2 Exhibit B (The Affidavit of W. James Nabholz III dated March 13, 2014), Exhibit

B-1 (Citation), Exhibit B-2 (Alias Citation), Exhibit B-3 (Affidavit of Service),

Exhibit B-4 (Letter to Jesus Tirrez dated February 12, 2014), Exhibit B-5 (Letter to

Jesus Tirrez dated March 12, 2014), and B-6 (Letter from Jesus Tirrez dated March

12, 2014).1 Nevertheless, through an error in the Travis County Clerk’s processing

of Richardson’s filing, the trial court docket inexplicably reflects the underlying

motion as having been filed without the affidavit or any of the six supporting

exhibits.

In order to correct this error, Richardson obtained from File and ServeXpress

a business records affidavit providing sworn evidence that the affidavit and

supporting exhibits accompanied the underlying motion were submitted by File and

ServeXpress as a single filing “Envelope” to the Travis County Clerk for filing on

March 13, 2014. However, for unknown reasons, the County Clerk docketed only a

portion of Richardson’s filing (aka the “Envelope”).

In the weeks leading up to the filing of Richardson’s Reply Brief, Richardson

repeatedly spoke with the Travis County Clerk’s office (by phone and in person)

attempting to correct this error and supplement the record. Up and until February

27, 2015, Richardson believed that the Travis County Clerk had agreed to and would

promptly supplement the record having received the above-referenced business

1 A copy of these materials is attached hereto as Exhibit A.

3 records affidavit and the missing documents – materials that the Travis County Clerk

specifically requested.

Now, however, Richardson has learned that the Travis County Clerk did not

supplement the record, and now is apparently institutionally incapable of

supplementing the record and correcting its error. Consequently, Richardson has

been forced to file this Motion so the Court will have a full and complete record

upon which to make its ruling.

CONCLUSION AND PRAYER

For the foregoing reasons, Richardson respectfully requests that this Court

grant his Motion and the supplement the appellate record with the attached

documentation that the Travis County Clerk failed to docket or later add to the

record. Alternatively, Richardson respectfully requests that the Court abate this case

and order the lower court clerk to supplement the record so that the Court will have

a full and complete record to consider.

4 Dated this 13th day of April, 2015.

Respectfully submitted,

KING LAW GROUP, PLLC

/s/ Mary Ellen King Mary Ellen King Texas Bar No. 24067219 meking@kinglitigationgroup.com Richard C. King Jr. Texas State Bar No. 24007491 rking@kinglitigationgroup.com 28515 Ranch Road 12 Dripping Springs, Texas 78620 512.263.8212 (phone) 512.900.2918 (fax)

Attorneys for Appellant James J. Richardson, IV

CERTIFICATE OF CONFERENCE

On April 2, 2015, conference was held with Appellees’ counsel regarding this

Motion and Appellees do not oppose this Motion.

/s/ Mary Ellen King Mary Ellen King

5 CERTIFICATE OF SERVICE

On April 13, 2015, in compliance with Texas Rule of Appellate Procedure

9.5, I served this document on the following counsel of record by e-service, e-mail,

facsimile, or mail to:

Jesus Tirrez JESUS TIRREZ & ASSOCIATES 1301 South IH-35, Suite 307 Austin, Texas 78741 (512) 326-1330 Telephone (512) 275-0075 Fax

Beth Watkins Shannon K. Dunn LAW OFFICE OF BETH WATKINS 926 Chulie Drive San Antonio, Texas 78216 (210) 225-6666 Telephone (210) 225-2300 Fax