Atom Nanoelectronics. Inc. and Kris Smolinski v. Applied Nanofluorescence, LLC

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Atom Nanoelectronics, Inc. and Kris Smolinski v. Applied
Nanofluorescence, LLC

Appellate case number: 01-15-00952-CV

Trial court case number: 1059909

Trial court: County Civil Court at Law No. 2 of Harris County

On December 31, 2015, this Court, among other things, granted the extension
request by the appellants, Atom Nanoelectronics, Inc. and Kris Smolinski, to file their
brief until January 19, 2016, in this interlocutory appeal from the trial court’s October 20,
2015 order denying their special appearance. See TEX. CIV. PRAC. & REM. CODE. §
51.014(a)(7) (West Supp. 2015); TEX. R. APP. P. 26.1(b), 28.1(a). In that Order, because
the reporter’s record had not yet been filed and there was a dispute over whether there
was such a record, this Court also ordered appellants to provide to the Clerk of this Court
written evidence from the reporter within 10 days of that order showing whether there is
a record and, if so, that appellants have requested and paid for the reporter’s record. See
TEX. R. APP. P. 34.6(b)(1), (2), 35.3(b)(2), (3), (c), 37.3(c)(1), (2).

On January 10, 2016, the court reporter filed an info sheet in this Court stating that
there is a reporter’s record and that appellants had paid for it on January 7, 2016. On
January 12, 2016, the reporter filed a second info sheet in this Court requesting an
extension of time until February 12, 2016, to file the reporter’s record, which the Clerk of
this Court granted. Because the Clerk of this Court granted the reporter’s extension
request to file the reporter’s record, the appellants’ brief deadline was automatically
suspended until after that record is filed. See TEX. R. APP. P. 38.6(a)(2).

However, on January 19, 2016, the Clerk of this Court received, but has not yet
filed, appellants’ brief and an appendix, which included references to the clerk’s record,
but did not include any references to the reporter’s record or excerpts of that record. See
TEX. R. APP. P. 38.1(k)(2). Appellants’ brief, therefore, is a prematurely-filed brief
because it did not contain any references or citations to the reporter’s record, which was
just filed on January 26, 2016. See TEX. R. APP. P. 38.1(g), (i), 38.6(a)(2). Thus, the
Court sua sponte STRIKES appellants’ brief because it does not comply with Rule 38.1.
See id. 38.1, 38.9(a).

Accordingly, because the reporter’s record has now been filed, the Court
ORDERS appellants to file their amended appellate brief, within 20 days of the date of
this Order, containing all necessary references to both the clerk’s and reporter’s records
and conforming with Rule 38.1. See TEX. R. APP. P. 2, 38.1(a)-(k), 38.6(a)(2).
Appellee’s brief will be due within 20 days of the filing of appellants’ amended brief.
See id. 38.6(b).

It is so ORDERED.

Judge’s signature: /s/ Laura C. Higley
 Acting for the Court

Date: January 28, 2016