Elliott S. Winfield v. Terry D. Kilpatrick ( 2010 )

Order filed November 12, 2010

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                           No. 11-10-00035-CV

                                                     __________

                                  ELLIOTT S. WINFIELD, Appellant

                                                             V.

                           TERRY D. KILPATRICK ET AL, Appellees

                                   On Appeal from the 259th District Court

                                                             Jones County, Texas

                                                     Trial Court Cause No. 021925

O R D E R

            Elliott S. Winfield sued Terry D. Kilpatrick, Kevin P. Pinney, Michael B. Baysinger, Tammi J. Sarhani, Richard A. Avants, Brandy M. Hooper, Bonnie I. Young, Richard Leal, Gilbert Campuzano, Susan Wilburn, Linda Richey, Jack Douglas, John Moriarty, Robert Eason, and Nathaniel Quarterman for damages he allegedly incurred while an inmate at the French Robertson Unit of the Texas Department of Criminal Justice – Institutional Division.  In an order dated September 16, 2010, we abated the appeal based on the omission of a final judgment pertaining to all parties, specifically Richey and Douglas.  The trial court clerk has now filed a supplemental clerk’s record containing an order from the trial court dated October 18, 2010, granting Richey and Douglas’s motion to dismiss.  The appeal is now reinstated.  In this regard, it appears the December 16, 2009 order coupled with the October 18, 2010 order constitute a final, appealable order. 

            Before this court are the following motions:  (1) appellant’s motion or request for the preparation of supplemental clerk’s record on appeal; (2) appellant’s motion for permission to file supplemental clerk’s record on appeal; (3) appellant’s motion for an extension of time for timely filing of preparation of the supplemented clerk’s record into appellate record on appeal; (4) appellant’s motion to abate the appeal; (5) appellant’s second motion for permission to file supplemental clerk’s record (filed on October 28, 2010); and (6) appellant’s motion to extend time for trial court to file designated clerk’s record proceedings filed during abated appeal by all parties (filed on October 28, 2010). 

            With respect to the first four motions, appellant filed these motions for the purpose of completing the clerk’s record as it existed prior to the September 16, 2010 order abating this appeal.  In this regard, he contends that portions of the documents that he filed with the trial clerk were omitted from the clerk’s record.  Specifically, he contends that the following documents were omitted from the clerk’s record:

1.         A “certified statement of [appellant’s] Inmate Trust Fund Account” allegedly filed in conjunction with his pauper’s affidavit on May 18, 2009, that is set out in pages 20 and 21 of the clerk’s record.

2.         Appellant’s “NOTICE OF LAWSUIT,” along with a “Cover Sheet”^[1]directed to the trial court clerk, allegedly filed on May 18, 2009.

3.         A “cover sheet” allegedly accompanying appellant’s “Motion for leave to File Interlocutory Judgment by Default” filed on August 24, 2009, and beginning on page 66 of the clerk’s record, as well as a proposed interlocutory judgment by default that accompanied this motion.

4.         Pages 18 and 19 and “index sheets listing EXHIBITS ‘A’ THRU ‘D2’” allegedly filed in conjunction with appellant’s “SECOND REQUEST FOR TEMPORARY RESTRAINING ORDER” beginning on page 193 of the clerk’s record, along with a proposed order granting the requested relief.

5.         A pleading to “AMEND BY MODIFYING, AND INSERTING [TO THE] AFFIDAVIT RELATING TO THE PREVIOUS LAWSUIT” and “Cover Sheet” allegedly filed in conjunction with “Plaintiff Winfield Response to Motion to Dismiss” beginning on page 225 of the clerk’s record.

6.         An “AFFIDAVIT OF ELLIOTT S. WINFIELD” allegedly filed in conjunction with “PLAINTIFF’S [MOTION FOR] SUMMARY JUDGMENT” beginning on page 236 of the clerk’s record.

7.         The affidavits of Robert Brown and Allen Thomas and “the Petition’s Cover Sheet” allegedly filed in conjunction with appellant’s “PETITION FOR TEMPORARY RESTRAINING ORDER” filed on October 5, 2009, and beginning on page 135 of the clerk’s record. 

            Appellant contends the requested documents are paramount to this appeal.^[2] Subsection (c)(1) of Tex. R. App. P. 34.5 states that, “[i]f a relevant item has been omitted from the clerk’s record, the trial court, the appellate court, or any party may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the omitted item,” and subsection (c)(3) of the rule states that “[a]ny supplemental clerk’s record will be part of the appellate record.”  Tex. R. App. P. 34.5(c)(1), (3). 

            Appellant’s “motion or request for the preparation of supplemental clerk’s record on appeal” and appellant’s “motion for permission to file supplemental clerk’s record on appeal” are conditionally granted.  To the extent that the items listed above were filed in the trial court below, we order the trial court clerk to supplement her record to contain these omitted items within thirty days of the date of this order.  If any of the items listed above were not filed in the trial court below or cannot be located, the trial court clerk is directed to file a written explanation in this court within thirty days of this order explaining why the omitted records cannot be supplemented.  Appellant’s “motion for an extension of time for timely filing of preparation of the supplemented clerk’s record into appellate record on appeal” is dismissed as moot.  Appellant’s motion to abate the appeal is overruled. 

            The two motions filed by appellant on October 28, 2010, concern matters filed in the trial court after the September 16, 2010 abatement order.  He contends that the most recently filed supplemental clerk’s record (designated as “Supplemental Clerk’s Record III”) omits various items necessary to our consideration of his appeal.  Appellant’s second motion for permission to file supplemental clerk’s record (filed on October 28, 2010) is conditionally granted.  Appellant lists eight items in his second motion for permission to file supplemental clerk’s record (filed on October 28, 2010) that he seeks to be included in an additional supplemental clerk’s record.  (A copy of appellant’s second motion for permission to file supplemental clerk’s record [filed on October 28, 2010] is attached to this order as reference.)  To the extent that the eight items listed in appellant’s second motion for permission to file supplemental clerk’s record (filed on October 28, 2010) were filed in the trial court below, we order the trial court clerk to supplement the record to contain these omitted items within thirty days of the date of this order.  If any of the items listed in appellant’s second motion for permission to file supplemental clerk’s record (filed on October 28, 2010) were not filed in the trial court below or cannot be located, the trial court clerk is directed to file a written explanation in this court within thirty days of this order explaining why the requested records cannot be supplemented.  Appellant’s motion to extend time for the trial court to file a designated clerk’s record proceedings filed during abated appeal by all parties (filed on October 28, 2010) is dismissed as moot in light of the relief granted in this order.

            Additionally, the court would note that the orderly processing of this appeal has become disrupted by an abundance of motions filed by appellant concerning the preparation of the clerk’s record in this appeal.  The court has considered these motions and has granted appellant’s requests to the extent that the trial court clerk is able to provide the documents requested by appellant.  In order to provide the trial court clerk with sufficient time to respond to appellant’s previous requests, appellant is ordered to not file any additional requests for documents to be included in the clerk’s record with either the trial court clerk or the clerk of this court.  In this regard, appellant has had ample time to identify and request the documents that he wishes to be included in the clerk’s record. 

PER CURIAM

November 12, 2010

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

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                ^[1]Appellant’s use of the term “cover sheet” may reference his transmittal letter directed to the trial court clerk that accompanied the relevant document.

                ^[2]We express no opinion regarding the relevance of the documents that appellant contends have been omitted from the clerk’s record to the outcome of this appeal.