Theodore Simmons v. Midland Funding, LLC

Opinion

Order entered December 22, 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

On December 8, 2020, we denied appellant’s motion to abate the appeal to

allow the trial court to sign findings of fact and conclusions of law, noting the

reporter’s record of the final trial reflected the judgment was not based on an

evidentiary hearing containing conflicting testimony. Before the Court are

appellant’s motion to reconsider that order, motion to correct inaccuracies and

omissions in the reporter’s record, and motion to reset the deadline for his opening

brief. We note none of these motions include the certificate of conference required

by Texas Rule of Appellate Procedure 10.1(a)(5). The motion to reconsider and

the motion to correct the reporter’s record, however, were filed more than ten days

ago and reflect they were served on appellee. In light of this and in the interest of

expediting this appeal, we address the motions.

We GRANT the motion to correct the reporter’s record to the extent we

ORDER the trial court to conduct a hearing, no later than January 8, 2021, to

determine if the reporter’s record contains inaccuracies and/or omissions as

asserted by appellant in the motion, which is attached. See TEX. R. APP. P.

34.6(e)(3). If the trial court finds any inaccuracies and/or omissions, the court

shall order the court reporter to conform the record, including text and any

exhibits, to what occurred in the trial court, and to file certified corrections in the

appellate court within ten days of the trial court hearing. See id. 34.6(e)(2).

The trial court shall make written findings of fact and have them included in a

supplemental clerk’s record to be filed no later than January 12, 2021. A

reporter’s record of the trial court hearing shall also be filed no later than

January 12, 2021.

Appellant’s motions for reconsideration and extension of time remain

pending. 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 Warren; Janet Wright, Official Court Reporter for

County Court at Law No. 3; LaToya Young, the reporter who prepared the record

at issue; and, the parties.

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

hearing. The appeal will be reinstated no later than January 18, 2021.

/s/ BILL WHITEHILL JUSTICE