Richard De Leon, Jr., Individually and D/B/A Survey Solutions of Texas, and Xavier Chapa v. James Baker and Connie Baker

• Court: Court of Appeals of Texas
• Decided: October 19, 2023
• Docket: 10-22-00378-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00378-CV

RICHARD DE LEON, JR., INDIVIDUALLY AND D/B/A SURVEY SOLUTIONS OF TEXAS AND XAVIER CHAPA, Appellants v.

JAMES BAKER AND CONNIE BAKER, Appellees

From the County Court at Law Walker County, Texas Trial Court No. 13897CV

DISSENT

My understanding of the Court’s opinion is that because the Court is not

considering the appendices utilized without objection by the parties, and because there

may be nothing in the existing appellate record which conclusively establishes either

defendant is a registered professional surveyor, that the interlocutory order denying the

motion to dismiss because no certificate of merit was attached to the plaintiff’s petition is

being affirmed. I have grave concerns about that route to a disposition of this appeal because not

only has no one argued that as a basis for affirming the trial court’s order, it seems to be

undisputed; and everyone seems to confess/assume/concede that at least one of the

named defendants is a registered professional land surveyor. Moreover, appendix Tab

14 is a copy of the appellees’ amended petition with a certificate of merit attached that

states that the affiant, Xavier Sandoval, is a registered professional land surveyor which is

the same professional license as Xavier Chapa. (Emphasis added). From the copy in the

appendix before us, it appears this document is in the clerk’s file but not the clerk’s

record.

A question remains whether we can, or should, be able to rely upon documents

filed after the trial court’s order that is the subject of an interlocutory appeal. If it was

jurisdictional we could, but I do not think that this is jurisdictional. But notwithstanding

the interlocutory appeal, the case proceeded in the trial court, and there are now things

in the clerk’s file which unquestionably negate the basis of the Court’s disposition of this

appeal. We do not know what else was already in the record at the time of the trial court’s

decision which would negate the basis of disposing of the interlocutory appeal raised

only by the Court.

If the Court wants to affirmatively address the issue, I think the proper way to do

it would be, pursuant to TEX. R. APP. P. 44.3, notify the parties of the defect in procedure

which is the attempted use of an appendix in lieu of a clerk’s record, identify the defect

in the appeal that we cannot rely upon documents outside the appellate record, and allow

the parties the opportunity to designate items to be included in a supplemental clerk’s

De Leon, Jr., et. al v. Baker Page 2 record which would then become part of the appellate record. The other issue will be

what discovery has been filed so that the clerk may also include it in the clerk’s record.

We could then require supplemental briefing, if necessary, and thereafter reach the merits

of the actual issues already raised in this appeal.

Because the Court, without complying with TEX. R. APP. P. 44.3, disposes of this

appeal on purely procedural grounds that could potentially be cured, I respectfully

dissent.

TOM GRAY Chief Justice

Dissent delivered and filed October 19, 2023

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