Brigetta D’Olivio v. Greg Fox and Laura Fox

Summary

The Fifth District Court of Appeals of Texas granted Brigetta D’Olivio’s motions for additional time to file an amended brief and abated the appeal. The court ordered the trial court to investigate alleged deficiencies in the clerk’s and reporter’s records, make written findings, and arrange for supplemental or corrected records to be filed.

Holdings

1. When the clerk’s record is alleged to be incomplete or documents are missing, the trial court must determine why the requested documents have not been filed, whether documents are missing, and, if a designated document was lost or destroyed, what constitutes an accurate copy; the trial court must order an appropriate supplemental clerk’s record.
2. The trial court must determine whether the reporter’s record contains alleged errors or missing exhibits; if inaccuracies exist, the court reporter must conform the record to what occurred in the trial court and file certified corrections, and if an exhibit is missing, the trial court must determine whether the exhibit was lost without the appellant’s fault, is necessary to resolution of the appeal, and can be accurately replaced.
3. The appeal was abated to permit the trial court and court reporter to comply with the order concerning supplementation and correction of the record, with reinstatement scheduled in forty-five days.

Questions Presented

1. Whether the appellate record should be supplemented or corrected because documents were missing from the clerk’s record, the reporter’s record contained alleged inaccuracies, or exhibits were missing.
2. What procedures the trial court and court reporter were required to follow under Texas Rules of Appellate Procedure 34.5 and 34.6 to resolve alleged deficiencies in the appellate record.
3. Whether the appeal should be abated while the trial court conducted the required hearing and record-correction proceedings.

Disposition

other