


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-10-00269-CV
 
Frederick Alongi and 
Sherry L. Alongi,
                                                                                    Appellants
 v.
 
Alexa Michelle Scott Mosteller, 
Bronwyn Suzette Scott Walker 
and Erik Shawn Scott,
                                                                                    Appellees
 
 

From the 82nd District Court
Robertson County, Texas
Trial Court No. 07-05-17,809-CV
 

ABATEMENT ORDER





 
            This order is an effort by this Court,
working with the trial court, under the current version of the rules of
appellate procedure to ensure that the appellate record is timely filed.  Tex. R. App. P. 35.3(c).  This order is
also a departure from previous orders of this Court and is our effort to
empower the trial court and parties with a procedure to obtain a timely record
by establishing a more formal and certain process for early intervention upon
the identification of potentially late filed records.  
            As stated above, the responsibility
for assuring the record is timely filed is now the responsibility of the
appellate court and the trial court, jointly.  Tex. R. App. P. 35.3(c).  Previously, prior to the current
rule, it was the responsibility of the litigants to ensure the timely filing of
the record.  Tex. R. App. P.
53(k), amended eff. Sept. 1, 1997.  This is not to say, however, litigants are
prohibited from participating in the process.  We believe the attorneys
representing the parties play a valuable role in assisting the Courts by
appearing at any hearing ordered and (1) making a record of the reason(s) the
record has not been timely filed and (2) making a record of the actual or
potential prejudice to the parties when a record is filed late.
Background
            The reporter’s record in this appeal
was originally due on August 10, 2010.  Two reporters, Judith Werlinger, the official court reporter for the 82nd District Court, and Susan Rainwater, were
responsible for the preparation of this record.  A late record notice was sent
by the Clerk of this Court to Werlinger on August 20, 2010.  In response to a telephone call on September 23, 2010 by a deputy clerk of this Court,
Werlinger informed the Court by letter dated October 20, 2010 that no formal written request for a record had been made.  However, Werlinger stated that she
had spoken with appellants’ counsel and that counsel was only interested in
proceedings related to attorney’s fees.  Werlinger informed the Court that
Susan Rainwater was the reporter for the January 11, 2010 hearing pertaining to attorney’s fees.  She also stated that counsel and Rainwater had had
telephonic communications concerning the January 11, 2010 hearing and that counsel planned to request a transcription of the hearing.  Werlinger noted
that she gave counsel Rainwater’s number and asked counsel to deal specifically
with Rainwater.  
            The Court received a letter from
counsel dated October 22, 2010 in which he confirmed that Rainwater was
transcribing the January 11, 2010 hearing but that because she was leaving to
go out of State, she could not complete the record until November 11, 2010.  We have not yet received the record of the hearing.  This is not the first time that
this Court has had difficulties in receiving records from Susan Rainwater.  
Order
            This appeal is ORDERED abated to the
trial court, the 82nd District Court, the Honorable Robert Stem, presiding, to
hold a hearing as soon as practicable but not later than 28 days after the date
of this Order to determine:
(1)        why Susan Rainwater’s portion of the
reporter’s record has not been filed;             and
 
(2)        a date certain by when Susan
Rainwater’s portion of the reporter's record   can reasonably be transcribed
into written form and filed in a manner that     does not further delay the
prosecution of this appeal or have the practical             effect of
depriving appellant of his right to appeal.
 
            Counsel for the parties are ordered to
assist the trial court in making its determinations through subpoena and
questioning of Susan Rainwater and any other necessary witnesses.  Susan
Rainwater shall closely examine her professional and personal schedules and
provide those schedules to the trial court in an effort to assist the trial court
with a determination of a date certain that her portion of the reporter’s
record will be filed.  The parties’ counsel shall also make the trial court
aware of any actual or potential prejudices to the parties by the lateness of
this reporter’s record.
            The trial court must order Susan
Rainwater to file the record by the date determined.  Further, the trial court
must inform Susan Rainwater of the consequences of failing to file the record
by the date determined and ordered.  Those consequences include:
            (1)        abating
the proceeding again to the trial court for a contempt of court                                 hearing;
 
            (2)        imposing
a lump sum monetary fine;
 
            (3)        imposing
a daily fine for each day the record is late beyond the date                                   previously
determined by the trial court; and
 
            (4) 
      confinement in jail until the record is completed.
 
            The trial court shall require the
hearing to be transcribed.  To the extent necessary or pertinent to obtaining
compliance with the rules regarding preparation of the reporter’s record, the
trial court must: (1) prepare findings of fact and conclusions of law
addressing the above issues; (2) require the preparation of a supplemental
clerk's record containing its findings of fact and conclusions of law and all
orders it may issue as a result of its hearing in the matter; and (3) require
the preparation of a reporter's record transcribing the evidence and arguments
presented at the aforementioned hearing. Additionally, the trial court’s
findings and orders must be provided to the trial court clerk within 7 days
from the date of the hearing.  
            The trial court clerk is ORDERED to
provide a supplemental clerk’s record, containing the written findings and
orders of the trial court, to this Court within 14 days from the date of the
hearing.  
            Further, the trial court’s official
reporter is ORDERED to provide a record of the hearing held to this Court
within 14 days from the date of the hearing.
 
                                                                        PER
CURIAM           
Before
Chief Justice Gray,
            Justice
Reyna, and
            Justice
Davis
Order
issued and filed December 15, 2010 
Publish

