Theodore Simmons v. Midland Funding, LLC

Opinion

Order entered October 28, 2020

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-20-00143-CV

THEODORE SIMMONS, Appellant

V.

MIDLAND FUNDING, LLC, Appellee

On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-19-01681-C

ORDER

We REINSTATE this appeal which we abated to allow the trial court an

opportunity to conduct a hearing to determine why substitute court reporter

LaToya Young had not filed the reporter’s record of the September 19, 2019 bench

trial. The abatement followed five orders between March 3, 2020 and June 9, 2020

directing Ms. Young to file the record and a sixth order, entered August 10, 2020,

prohibiting her from sitting as a court reporter until the record was filed. Of the

orders between March 3rd and June 9th, only the June 9th order resulted from Ms.

1 Young requesting an extension, and the explanation she offered in support was that

she was “working diligently to complete” the record.

The trial court held a show cause hearing on October 19, 2020, after Ms.

Young failed to appear at a hearing the trial court scheduled for October 5, 2020.

Following testimony, the trial court found, in part, that Ms. Young had filed the

record that morning and Ms. Young’s failure to comply earlier was “without a

valid excuse.”

We note our records reflect Ms. Young attempted to file the record on

October 19th, but the record was rejected as incomplete because only page 5 was

uploaded. Ms. Young was directed to file the corrected record within three days,

but she has not filed it to date.

Ms. Young’s disregard for this Court’s and the trial court’s orders, lack of

communication, and misrepresentation to the trial court concerning the status of

the record have resulted in a delay in this appeal of over seven months and wasted

judicial resources. Because “[t]he neglect of the court reporter harms the

appellant, appellee, and the courts[,]” appellate courts are “expressly authorized to

‘enter any order necessary to ensure the timely filing of the appellate record.’” In

re Ryan, 993 S.W.2d 294, 297-98 (Tex. App.—San Antonio 1999, no pet.)

(quoting TEX. R. APP. P. 35.3(c); Wolters v. Wright, 623 S.W.2d 301, 306 (Tex.

1981)). Appellate courts may impose sanctions on the court reporter, hold the

2 reporter in contempt and impose a period of incarceration, and report the reporter

to the Judicial Branch Certification Commission for investigation. See Wolters,

623 S.W.2d at 306; In re Miles, 64 S.W.3d 445, 446 (Tex. App.—Houston [1st

Dist.] 2001, order) (per curiam); In re Ryan, 993 S.W.2d at 298.

While we do not rule out those options for the future, our task at this time is

to ensure the reporter’s record of the trial is filed. Given that Ms. Young has been

unable to file the record, we ORDER the trial court to conduct a hearing at which

both Ms. Young and Janet Wright, Official Court Reporter for County Court at

Law No. 3, shall be present. The trial court shall hold the hearing no later than

November 10, 2020 and shall determine if Ms. Young’s notes and records are

available for transcription by Ms. Wright. If the notes and records are available,

the trial court shall order Ms. Young to turn the notes and records over to Ms.

Wright by a date and time certain, but in no event any later than November 12,

2020 at 5:00 p.m. Ms. Wright SHALL prepare and file the record by November

30, 2020. The trial court shall make written findings, and those findings shall be

filed in a supplemental clerk’s record no later than November 13, 2020. A

reporter’s record of the hearing shall also be filed no later than November 13,

2020.

Our August 10th order prohibiting Ms. Young from sitting as a reporter until

the missing record is filed REMAINS IN EFFECT.

3 We note the reporter’s record of the October 19th hearing was to be filed by

October 22, 2020 but has yet to be filed. Accordingly, we ORDER the record be

filed no later than November 3, 2020.

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

Honorable Sally Montgomery, Presiding Judge of County Court at Law No. 3;

Dallas County Clerk John F. Warren; Ms. Wright; Ms. Young; the Dallas County

Auditor; and, the parties.

We again ABATE the appeal to allow the trial court an opportunity to

conduct the hearing. The appeal will be reinstated no later than November 20,

/s/ BILL WHITEHILL JUSTICE