COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTIONS
Appellate case name: Patrick Olajide Akinwamide v. Transportation Insurance
Company, CNA Insurance Company, and Automatic Data
Processing Inc.
Appellate case number: 01-15-00066-CV
Trial court case number: 1997-48526
Trial court: 80th District Court of Harris County
On November 25, 2014, appellant, Patrick Olajide Akinwamide, proceeding pro
se, filed a notice of appeal in the trial court from both the October 3, 2014 order denying
his motion to set aside the final judgment, and the November 4, 2014 pre-filing order
which declared appellant a vexatious litigant and imposed sanctions. See TEX. CIV.
PRAC. & REM. CODE ANN. § 11.101(a) (West Supp. 2014). After several motions were
filed by appellant regarding the appellate record, this Court abated the case, on July 9,
2015, to settle the dispute over inaccuracies in the reporter’s record for the October 24,
2014 show cause hearing. See TEX. R. APP. P. 34.5(c)(1), (3), 34.6(e)(3).
A compliant supplemental clerk’s record with all Exhibits A-K to “Plaintiff’s
Motion to Set Aside the Final Judgment,” was filed in this Court on July 23, 2015. On
October 5, 2015, a compliant supplemental reporter’s record containing the complete
show cause hearing and a separate exhibit volume for that hearing were filed in this
Court. See TEX. R. APP. P. 34.6(d), (e)(2), (3). Thus, on October 20, 2015, this Court’s
Order reinstated this case, and ordered appellant’s brief to be filed within 30 days of the
date of that Order, or by November 19, 2015. See id. 2, 38.6(a)(2), (d).
However, following that October 20, 2015 Order, appellant has failed to timely
file his brief by November 19, 2015, and instead has filed five more motions complaining
about the accuracy of the show cause hearing and clerk’s records and one notification.
Accordingly, this Court resolves all of the pending motions as follows:
(1) Appellant’s “Motion to Request to Certified Court Reporter’s Record of the
Abatement Hearing,” filed on November 6, 2015, pursuant to this Court’s July
9, 2015 Order, is DISMISSED AS MOOT, and
(2) Appellant’s similar “Motion to Declare The Court Reporter’s Records Filed
With the First Court of Appeals on March 26, 2015 and October 5, 2015 as
Inadequate, Inaccurate and Falsified and the Court to Take Appropriate Action
Against the Individuals Involved in Filing the Falsified Court Reporter’s
Record with the Court,” filed on November 17, 2015, because, among other
reasons, those reporter’s records were not agreed to by the parties, under Rule
34.6(e)(1), (2), or (3), is also DISMISSED AS MOOT, for the following
reasons:
a. As noted above, this Court already granted appellant’s prior motions to
abate for the filing of the corrected or complete reporter’s record and
exhibit volume for the show cause hearing, held on October 24, 2014.
b. Under Rule 34.6(e)(3), once the dispute arises after the reporter’s record
has been filed in the appellate court, as here, this Court may submit the
dispute to the trial court for resolution. See TEX. R. APP. P. 34.6(e)(3).
c. Although Rule 34.6(e)(2) states that the trial court should hold a hearing
to resolve the inaccuracy, it also states that if there is any inaccuracy, it
must order the court reporter to file certified corrections in the appellate
court. See TEX. R. APP. P. 34.6(e)(2).
d. While this Court’s July 9, 2015 Order directed the trial court to hold a
hearing, it also directed the court reporter “to file a supplemental
reporter’s record of the show cause hearing, held on October 24, 2014,
if any corrections are needed, and of the abatement hearing, if any is
held, within 30 days of the date of this order.” Order of Abatement,
issued July 9, 2015, at 2 (emphasis added).
e. Because the reporter complied with the second part of the Court’s July
9th Order by filing a compliant supplemental reporter’s record
containing the complete show cause hearing and a separate exhibit
volume for that hearing in this Court on October 5, 2015, apparently no
abatement hearing was held, nor was one necessary.
f. The court reporter also complied with Rule 34.6(e)(2) by filing
certifications that the supplemental reporter’s record for the show cause
hearing, held on October 24, 2014, was true and correct, dated October
2, 2015, and that the exhibit volume for that show cause hearing was
true and correct, dated October 5, 2015, together with the supplemental
reporter’s record filed in this Court on October 5, 2015. See TEX. R.
APP. P. 34.6(e)(2).
(3) Next, appellant’s “Motion to Supplement the Clerk’s Record,” filed on
November 6, 2015, seeking eight more items to be included in the clerk’s
record, is DISMISSED AS MOOT as follows, with the paragraph number of
each item identified below:
a. Appellant’s request No. 1 for “[a]ny written stipulation filed with the
[trial clerk] that the parties . . . agreed on the contents of the Appellate
record,” under Rule 34.2, that request is DISMISSED AS MOOT.
i. Rule 34.2 regarding an “Agreed Record” only applies if the
parties have already agreed upon the record and are not
proceeding under the standard Rule 34.5 for the designation of
the clerk’s record.
ii. Here, because the original clerk’s record was filed on January 20,
2015, Rule 34.5 applies. See TEX. R. APP. P. 34.2, 34.5(a)
(“Unless the parties designate the filings in the appellate record
by agreement under Rule 34.2, the record must include copies of
the following: . . . . ”) (emphasis added).
b. With respect to appellant’s request No. 2 for “[a]ny written requests for
a Court Reporter’s record, including any statements of points or issues
under Rule 34.6(c) filed with the [trial clerk],” that request is
DISMISSED AS MOOT.
i. Rule 34.6(c) only applies “[i]f the appellant requests a partial
reporter’s record, the appellant must include in the request a
statement of the points or issues to be presented on appeal and
then will be limited to those points or issues.” TEX. R. APP. P.
34.6(c)(1) (emphasis added).
ii. Here, the appellant filed his “Request for Court Reporter’s
Record,” on February 2, 2015, in this Court, and noted that he
had made his initial request for a complete reporter’s record on
November 25, 2014, to the trial clerk and, thus, Rule 34.6(b)(1)
applies. TEX. R. APP. P. 34.6(b)(1)(“At or before the time for
perfecting the appeal, the appellant must request in writing that
the official reporter prepare the reporter’s record.”).
c. As for appellant’s request No. 3 for “[a] certified copy of the court
reporter’s notes including evidence offered and admitted during the”
show cause hearing is DISMISSED AS MOOT.
i. Generally, the court reporter’s transcription of the proceeding
and any of the exhibits used at that proceeding are the only items
required for the reporter’s record. See TEX. R. APP. P. 34.6(a)(1).
ii. As noted above, the reporter already filed a compliant
supplemental reporter’s record containing the complete show
cause hearing and a separate exhibit volume for that hearing in
this Court on October 5, 2015.
iii. The supplemental reporter’s record and exhibit volume were the
only relevant items ordered by this Court on July 9, 2015. Thus,
any “reporter’s notes including evidence offered” are irrelevant.
TEX. R. APP. P. 34.6(d) (“If anything relevant is omitted from the
reporter’s record, . . . the appellate court, or any party may by
letter direct the official court reporter to . . . file in the appellate
court a supplemental reporter’s record containing the omitted
items.”).
d. Appellant’s request No. 4 for “Plaintiff’s objections to the Trial Court’s
Proposed order or order sanctioning Plaintiff and declaring Plaintiff a
vexatious litigant filed . . . on or about November 7, 2014,” is
DISMISSED AS MOOT because that document was already filed with
the clerk’s record on January 20, 2015. (C.R. at 206-211).
e. Appellant’s requests No. 5 (the notice of the abatement hearing) and No.
6 (the trial court’s written order reflecting that the supplemental
reporter’s record of the show cause hearing is accurate) are
DISMISSED AS MOOT.
i. As noted above, once the reporter complied with the second part
of the Court’s July 9th Order by filing a compliant supplemental
reporter’s record containing the complete show cause hearing
and a separate exhibit volume for that hearing in this Court on
October 5, 2015, apparently no abatement hearing was held nor
was one necessary.
f. Appellant’s request No. 7 (the supplemental clerk’s record containing
the trial court’s order and findings of fact for the abatement hearing
pursuant to this Court’s July 9, 2015 Order) is DISMISSED AS
MOOT because the Clerk of this Court already requested, on December
10, 2015, that the trial clerk file the findings of fact and conclusions of
law, signed by the trial court on November 12, 2015, and the third
supplemental clerk’s record was filed in this Court on December 15,
2015.
g. Appellant’s request No. 8 for the “District Clerk’s note to the Trial
Court Clerk to file the clerk’s record by the original due date, dated
September 29, 2015, October 2, 2015 and October 21, 2015,” is
DISMISSED AS MOOT because those exact information sheet
documents were already filed with the Clerk of this Court on September
29, 2015, twice on October 2, 2015, and once on October 22, 2015,
respectively.
i. In any event, these information sheets are used by the trial clerk
as status updates or to request extensions regarding filing of the
clerk’s or supplemental clerk’s records. See TEX. R. APP. P.
37.3(a)(1).
ii. Thus, these information sheets are not listed in the items
generally included in the clerk’s record, were not requested by
this Court for any supplemental clerk’s record, and are not part of
the appellate record. See TEX. R. APP. P. 34.5(a)(1), (3)-(13),
(c)(1).
(4) Similarly, appellant’s second “Motion to Supplement the Clerk’s Record,”
filed on December 16, 2015, seeking four more items to be included in the
clerk’s record, is DISMISSED AS MOOT, as follows:
a. With respect to requests Nos. 1 and 2 (regarding any party’s request for
the findings and conclusions and notice of past due findings and
conclusions), these findings of fact and conclusions of law were filed in
this Court on December 15, 2015 in response to the notice by the Clerk
of this Court sent on December 10, 2015, and thus, not in response to
any party’s request or notice of past due findings and conclusions.
b. With respect to request No. 3 (the trial court’s written order that the
reporter’s record of the show cause hearing filed in this Court on March
26, 2015, is accurate), as noted above, the court reporter complied with
this Court’s July 9th Order by filing a complete supplemental reporter’s
record on October 5, 2015, with certifications that the show cause
hearing, held on October 24, 2014, and exhibit volume were true and
correct.
c. Thus, the complete supplemental reporter’s record and exhibit volume
filed in this Court on October 5, 2015, replaces the March 26, 2015
partial supplemental record, precluding the need for the trial court to
determine the accuracy of the March 26, 2015 record.
d. With respect to request No. 4 (appellant’s motion to challenge these
findings and conclusions, filed with the trial clerk), that motion
apparently deals with the merits of this appeal and those arguments can
be incorporated into appellant’s brief on the merits.
(5) Appellant’s “Notification,” filed on December 1, 2015, states that when he
attempted to serve appellees’ counsel, Jeffrey L. Diamond, via certified mail
with copies of the above motions, they were returned and marked as “Returned
to Sender[,] Vacant[,] Unable to Forward.”
a. Although appellant’s “Notification” does not request any relief from this
Court, the lack of a current mailing address for appellees’ counsel may
prevent the pro se appellant from properly serving his appellate brief via
mail on appellees. See TEX. R. APP. P. 9.5(b)(2).
b. Thus, appellee’s counsel, Jeffrey L. Diamond, or other lead counsel for
appellees, is ORDERED to file a notice of change of mailing address
with the Clerk of this Court within 10 days of the date of this order
with a certificate of service on appellant. See TEX. R. APP. P. 6.1(b),
(c), 9.5(d).
(6) Finally, appellant’s “Motion to Reset Time to File Appellant’s Brief,” filed
November 17, 2015, seeking an indefinite extension of time to file his brief
until after the resolution of his above motions regarding the inaccuracies of the
supplemental reporter’s and clerk’s records, is GRANTED, in part, as
follows:
a. Although appellant’s four motions are being dismissed as moot or
denied above, his appellate brief deadline of November 19, 2015, passed
due to the length of time and amount of judicial resources expended to
resolve those motions and the notification above.
b. Accordingly, appellant’s brief is ORDERED to be filed no later than 30
days from the date of this order. See TEX. R. APP. P. 2, 38.6(a), (d).
c. Appellant is warned that no further extensions of time to file his
brief or motions regarding the appellate record will be granted
absent extraordinary circumstances.
d. Appellee’s brief, if any, is ORDERED to be filed no later than 30 days
from the filing of appellant’s brief. See TEX. R. APP. P. 38.6(b).
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes
Acting individually Acting for the Court
Date: December 22, 2015