                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                            ORDER

Appellate case name:         In re Caroline Chikere

Appellate case number:       01-16-00206-CV

Trial court case number:     14-DCV-214132

Trial court:                 387th District Court of Fort Bend County

       On March 9, 2016, the relator, Caroline Chikere, filed a mandamus petition
seeking to vacate the respondent trial judge’s January 19, 2016 order granting motion for
new trial, and to reinstate the default final decree of divorce, signed on May 5, 2015, and
an emergency motion seeking a stay of the April 25, 2016 trial pending resolution of her
petition. On March 10, 2016, this Court granted the relator’s motion to stay the trial and
requested a response to the mandamus petition by the real party in interest (“RPI”),
Oakey Chikere, within thirty days of the date of that order.


        On April 11, 2016, the RPI filed a combined motion to abate and first motion for
extension of time to file his response to the mandamus petition. The RPI claims that
although the “sole basis for Relator[’s] Petition . . . is her contention that the trial judge
did not sign a written order granting a new trial while the trial court had plenary
jurisdiction,” the trial judge did sign a written order while it still had plenary jurisdiction,
but that order has since been lost or destroyed. The RPI contends that a copy of the
original written order, purported to be signed on July 27, 2015 by Associate Judge
Perwin, may be substituted by the trial court as the original after a hearing. See TEX. R.
CIV. P. 77 (“When any papers or records are lost or destroyed during the pendency of a
suit, the parties may, with the approval of the judge, agree in writing on a brief statement
of the matters contained therein; or either party may supply such lost records or papers. . .
.”); see also TEX. R. APP. P. 34.5(e) (“If the parties cannot agree [on the missing item],
the trial court must—on any party’s motion or at the appellate court’s request—determine
what constitutes an accurate copy of the missing item and order it to be included in the
clerk’s record or a supplement.”).
       Thus, the RPI seeks a thirty-day extension of time to file his response to the
petition until May 11, 2016, because he also seeks an abatement of this original
proceeding for the trial court to consider ruling on the RPI’s “Motion to Substit[ut]e
Copy of Order Granting Motion for New Trial for Missing Original.” The RPI further
asserts that, if the trial court grants the RPI’s motion to substitute, that would require this
Court to deny relator’s mandamus petition as meritless. See RPI’s Mot. to Abate and
First Mot. for Ext. of Time to File Resp. to Pet. for Writ of Mandamus at 10 (citing In re
Taylor, 113 S.W.3d 385, 390 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding)).


        Accordingly, the Court grants the RPI’s first motion for extension of time to file
his response to the mandamus petition until May 11, 2016. Because the RPI’s counsel’s
certificate of conference in his motion states that he was unable to reach counsel for the
relator regarding this motion, this Court requests a response to the RPI’s motion to abate
by the relator. The response, if any, shall be filed within 7 days from the date of this
order. See TEX. R. APP. P. 2, 10.1(a)(5), 10.3(a)(2).


       It is so ORDERED.

Judge’s signature: /s/ Laura Carter Higley
                     Acting individually

Date: April 12, 2016
