McDonald's Restaurants of Texas, Inc., McDonald's USA, LLC, and McDonald's Corporation v. William Paul Crisp, Jr. and J. Nicole Crisp, Individually and as Representatives of the Estate of Lauren Bailey Crisp and Denise Whitaker, Individually and as Representative of the Estate of Denton James Ward

• Court: Court of Appeals of Texas
• Decided: October 22, 2015
• Docket: 10-15-00066-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-15-00066-CV

MCDONALD'S RESTAURANTS OF TEXAS, INC., MCDONALD'S USA, LLC, AND MCDONALD'S CORPORATION, Appellants V.

WILLIAM PAUL CRISP, JR. AND J. NICOLE CRISP, INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF LAUREN BAILEY CRISP AND DENISE WHITAKER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF DENTON JAMES WARD, Appellees

From the 361st District Court Brazos County, Texas Trial Court No. 12-003034-CV-361

ABATEMENT ORDER

The record in this appeal, originally due in March of 2015, is almost seven

months late. The trial court’s official court reporter, Felix Thompson, initially requested an extension of time to file the record to May, 4, 2015. That request was granted. On

May 4, 2015, citing his efforts to become current in several felony criminal appeals and

his habit of being overly optimistic in his estimates of how long it would take to

complete a record, Thompson requested an extension of time to June 22, 2015 to file the

record in this appeal. That request was also granted. By June 12, 2015, and citing

various reasons, Thompson filed a third request for an extension of time, this time until

July 20, 2015, to file the record. And again Thompson’s request was granted. This time,

however, Thompson was warned that “[a]bsent extraordinary circumstances, no further

request for extension of time to file the reporter’s record will be entertained.”

On July 12, the Court received an affidavit from Thompson informing the Court

that he could no longer keep up “the pace and rigor of demands of a court reporter in a

busy 361st District Court,” and was retiring as of September 30, 2015. Thompson also

informed the Court that he would “try diligently” to complete the record in this appeal

by August 7, 2015. This affidavit was followed on August 10, 2015 by a fourth request

for extension of time to file the record in this appeal. This time, Thompson cited this

Court’s threats of contempt for failure to file other records as the reason he could not

complete the reporter’s record in this case. He requested an extension until September

17, 2015. The parties in this appeal filed a joint motion agreeing to the extension until

September 17, 2015 but opposing any further extension beyond that date. Thompson’s

fourth request was also granted, and the record was ordered due by September 17,

McDonald's Restaurants of Texas, Inc. v. Crisp Page 2 2015.

No reporter’s record was filed and no extension was requested by September 17,

2015. A late record notice letter was sent to Thompson by the Court on September 28,

2015 requesting contact from Thompson within 10 days from the date of the letter. No

contact was made.

It is the joint responsibility of this Court and the trial court to ensure that the

appellate record is timely filed. TEX. R. APP. P. 35.3(c). Further, this Court may enter

any order necessary to ensure the timely filing of the appellate record. Id.

Accordingly, this appeal is ORDERED to be abated for the trial court, the

Honorable Steve Smith, Judge of the 361st District Court, to conduct a hearing within 14

days from the date of this Order to:

1. determine a date certain by which the reporter’s record will be filed and order it filed by that date; or

2. determine the record is lost or destroyed within the meaning of Texas Rule of Appellate Procedure 34.6(f).

Appellate counsel for all parties and Felix Thompson must be provided notice of the

hearing. The Court directs Thompson to appear at the hearing to provide testimony

relevant to the above matters. Counsel for the parties must determine if any other

witnesses are necessary to provide testimony relevant to the above matters and must

secure their attendance, if necessary, at the hearing. The hearing must be attended by a

certified court reporter (other than Felix Thompson) who must prepare a transcription

McDonald's Restaurants of Texas, Inc. v. Crisp Page 3 of the hearing and must file that transcription as a supplemental reporter’s record in

this appeal.

The trial court must take whatever actions it deems appropriate, including

holding the reporter in contempt until the record has been filed, to ensure that if it can

be prepared, the record is prepared and delivered to the Court of Appeals by the date

ordered by the trial court in item 1 above.

The trial court may also consider appointing a third-party certified court reporter

to review Thompson’s notes and/or recordings and prepare the record so that it can be

filed by the date ordered by the trial court in item 1 above.

The trial court must prepare and issue written findings of fact and conclusions of

law with regard to the issues identified in this abatement order within seven (7) days

after the date of the hearing. A supplemental clerk’s record and the supplemental

reporter’s record must be filed within 14 days after the date of the hearing.

If the trial court determines the record is lost or destroyed, the case will be

remanded for a new trial. If the trial court determines that the record is not lost or

destroyed, the record must be filed with the Clerk of this Court by 5 p.m. on the date

ordered by the trial court in item 1 above. If no record is filed by the date ordered by

the trial court in item 1 above, this case will be remanded for a new trial.

PER CURIAM

McDonald's Restaurants of Texas, Inc. v. Crisp Page 4 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal abated Order issued and filed October 22, 2015

McDonald's Restaurants of Texas, Inc. v. Crisp Page 5