Order entered March 26, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00057-CV
NOVO POINT, LLC, QUANTEC, LLC, RPV, LTD., AND JEFFREY
BARON, Appellants
V.
ELISSA KATZ, ET AL., Appellees
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-19-01898-D
ORDER
This is an accelerated appeal from the trial court’s order denying appellants’
request for a temporary injunction. On February 25, 2021, after being notified by
Dallas County Clerk John F. Warren that the clerk’s record had been prepared but
would not be filed because appellants had not paid the fee for the record, we
ordered appellants to file by March 8th written verification they had paid or made
arrangements to pay for the record.
Appellants did not pay or make payment arrangements for the record.
Instead, appellant Jeffrey Baron filed a twenty-one volume sworn record, later
supplemented by an additional volume, that total over 9,000 pages. The filing
followed consultation with this Court’s clerk’s office and purported to be in
accordance with Texas Rule of Appellate Procedure 28.1(e). That rule allows an
appellate court to dispense with the requirement of a formal clerk’s record in an
accelerated appeal and hear the appeal “on the original papers forwarded by the
trial court or on sworn and uncontroverted copies of those papers.” See TEX. R.
APP. P. 28.1(e).
Before the Court are (1) appellants Novo Point, LLC, Quantec, LLC, and
RPV, Ltd.’s (collectively, Novo Point) motion for clarification of our February
25th order in light of the sworn record filed by Baron and for permission to join in
the sworn record; (2) appellees’ objection to the sworn record; and, (3) Novo
Point’s response.
We note rule 28.1(e) is a discretionary rule and its purpose is to allow an
appellate court the opportunity to reach the merits of an accelerated appeal as soon
as possible by dispensing with the time required for the trial court clerk to prepare
the record. See In Re J.S., 136 S.W.3d 716, 717 (Tex. App.—El Paso 2004, order).
We also note that a party wishing to avail itself of rule 28.1(e) must file a motion
in accordance with Texas Rule of Appellate Procedure 10.1(a) and demonstrate
why proceeding under rule 28.1(e) would be proper. See id. Baron did not file a
motion, and the sworn record was filed almost a month after the deadline for the
formal clerk’s record as set out in rule of appellate procedure 35.1(b).
We decline to exercise our discretion to proceed without a formal record.
Accordingly, we DENY Novo Point’s motion to join in the sworn record and
STRIKE the sworn record and supplement. We again ORDER appellants to file
written verification of payment or payment arrangements for the clerk’s record.
We caution appellants that failure to file the requested verification by April 5,
2021 will result in the appeal being dismissed without further notice. See TEX. R.
APP. P. 37.3(b).
We DIRECT the Clerk of the Court to send a copy of this order to Mr.
Warren and the parties.
/s/ CRAIG SMITH
JUSTICE