Order entered January 16, 2014




                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-12-00857-CV

 HUMITECH DEVELOPMENT CORPORATION, AND EMIL LIPPE, JR., Appellants

                                               V.

               ALAN PERLMAN, MICHAEL PERLMAN, ET AL, Appellees

                      On Appeal from the 191st Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 09-9266-J

                                           ORDER
       This case involves an appeal from the trial court’s order denying appellants’ motion to
vacate an arbitration award and granting appellees’ motion to confirm an arbitration award. At
the January 15, 2010 hearing on the motions, appellants asked that the trial court admit into
evidence the record excerpts and exhibits from the arbitration proceeding attached to appellants’
motion to vacate as well as the entire arbitration record as tendered by Mr. Lippe to the trial
court. The trial court admitted those materials (the excerpts attached to the motion to vacate and
the “whole [arbitration] record” tendered by Mr. Lippe) into evidence:

       Mr. Lippe: . . . We ask the Court to admit into evidence all of the record excerpts
       and the specific exhibits attached to our motion to vacate, but we’re also tendering
       to the Court and have filed with the Court the whole record.

       The Court: Yeah, I got three boxes of stuff.

       Mr. Lippe: So to the extent—I’m not trying to limit the Court’s—

       The Court: I understand.

       Mr. Lippe: —perusal of the record. It is there for the Court, and we are not
       limiting the basis for the Court’s review, but specifically and respectfully
       directing the attention of the Court to the portions of the record that we’ve cited,
       we would ask that those be admitted into evidence and considered.

       The Court: Okay.

         On February 8, 2013, appellants moved to supplement the appellate record with the
arbitration record. On February 12, 2013, this Court ordered the district clerk “to file a
supplemental record consisting of the full and complete arbitration record consisting of all filings
in the arbitration and the court reporter’s record and exhibits from the arbitration proceeding.”
At submission of this cause on November 25, 2013, the parties stated that the record had not
been supplemented as ordered by this Court on February 12, 2013. On December 18, 2013, we
ordered the trial court “to conduct a hearing and determine which parts, if any, of the arbitration
record that were before the trial court are missing from the appellate record.” We further ordered
that if any part of those materials was missing from the appellate record, then the trial court was
to determine whether the appellate record could be supplemented from the trial court’s record or
by agreement of the parties. If the materials missing from the appellate record could not be
supplemented from the trial court’s record or agreement of the parties, then we ordered the trial
court to determine what constituted an accurate copy of the missing items.

        On January 13, 2014, the trial court notified this Court by letter that our December 18,
2013 order requires clarification. It appears from the trial court’s letter that the court believes we
required the trial court to make a determination of whether the materials were admitted into
evidence or were filed with the district clerk. Our order required the trial court “to . . . determine
which parts of the arbitration record that were before the trial court are missing from the
appellate record.” We meant for the trial court to determine whether all the materials tendered to
the trial court by Mr. Lippe at the hearing were contained in the appellate record. We did not
mean for the trial court to determine whether the materials were admitted into evidence or filed
with the clerk. Nor did we mean for the trial court to determine whether the materials tendered
constituted the complete arbitration record.

       The trial court also stated in the letter that “[t]he trial court is in physical possession of
(most) of the arbitration record (arbitration pleadings, arbitration transcript, claimant’s exhibits,
respondent’s exhibits).” It is unclear what the trial court means by “most.” This sentence is
subject to two interpretations: (1) the trial court is in physical possession of all the materials
tendered by Mr. Lippe at the hearing but those materials constitute “most” of the arbitration
record because Mr. Lippe did not tender the entire arbitration record or (2) the trial court is in
physical possession of “most” but not all of the materials tendered by Mr. Lippe.

        After reviewing our record, we conclude that none of the materials tendered by Mr. Lippe
to the trial court at the January 15, 2010 hearing as constituting the “whole” arbitration record
are currently part of the appellate record.

       Accordingly, we clarify our February 12, 2013 and December 18, 2013 orders as follows:

      We ORDER the trial court to file findings of fact with this Court by February 11, 2014,
on whether the trial court and/or the court reporter are in possession of all the materials tendered
by Mr. Lippe as constituting the “whole” arbitration record in the excerpt from the January 15,
2010 hearing set out above.

       If the trial court and/or the court reporter are in physical possession of all the materials
tendered by Mr. Lippe as constituting the “whole” arbitration record in the excerpt from the
January 15, 2010 hearing set out above, then we ORDER the court reporter to prepare a
supplemental reporter’s record containing those materials and to file it with this Court by
February 17, 2014.

        If the trial court and/or the court reporter are not in possession of all the materials
tendered by Mr. Lippe as constituting the “whole” arbitration record in the excerpt from the
January 15, 2010 hearing set out above, then we ORDER the trial court to conduct a hearing and
determine what materials are missing and whether the appellate record may be supplemented
from the trial court’s record or by agreement of the parties. If the materials cannot be
supplemented from the trial court’s record or agreement of the parties, then we ORDER the trial
court to determine what constitutes an accurate copy of the missing items. In that situation, we
order the trial court to file findings of fact on these matters with this Court by February 11, 2014,
and we ORDER the court reporter to file with this Court by February 17, 2014, a supplemental
reporter’s record containing the materials tendered by Mr. Lippe as constituting the “whole”
arbitration record at the January 15, 2010 hearing including any materials substituting for
missing materials as found by the trial court.

        We ABATE this appeal until February 11, 2014 or until the trial court’s findings of fact
are filed with this Court, whichever is sooner.

                                                      /s/     LANA MYERS
                                                              JUSTICE
