Jfourtfj Court of Appeals; gntonio, June 19,2013

No. 04-13-00201-CV

BANK OF AMERICAN, N.A. as Trustee of Bettye Baker Brown Trust, u/w, f/b/o William David Deiss, Bettye Baker Brown Trust u/w, f/b/o Diane Elizabeth Mysliweic, Bettye Baker Brown Trust u/w/, f/b/o Paula Jane Roberts, Dorothy Baker Shaw 1966 Trust, Baker E., Appellants

v.

PRIZE ENERGY RESOURCES, L.P., Prize Operating Company, Gruy Petroleum Management Company n/k/a Cimarex Energy Co. of Colorado, Magnum Hunter Resources, Inc., Cimarex Energy Co., Hunter Gas Gathering, Inc., Pat R. Rutherford Jr., Michael G. Rutherford, Rut, Appellees

From the 343rd Judicial District Court, McMullen County, Texas Trial Court No. M05-0002-CV-C Honorable Michael E. Welborn, Judge Presiding

ORDER The clerk's record was originally due March 16, 2013. When neither the record nor a notice of late record was filed, this court sent the clerk a letter advising the clerk to file, within ten days of the date of the letter, a notice of late record or file the record within thirty days of the date of the letter. The clerk did not file a notice of late record, and therefore, the clerk's record was due May 2, 2013. On May 8, 2013, the clerk filed a partial record in this court; two volumes of the clerk's record were missing. When this court called to inquire on May 8. 2013. the clerk's office advised us that two volumes had been lost and the clerk was waiting for the trial court to sign an order authenticating copies of the lost documents supplied by the parties. The clerk did not indicate how long this might take. Accordingly, we advised the clerk to file a notice of late record. The notice of late record was filed May 13, 2013, and stated:

During the preparation of the above captioned cause, the court [sic] realized the Supplemental Master Appendix in Support of Plaintiffs Summary Judgment and Response Motions was missing from our files. In response, we requested a file stamped copy from the filing attorney of this Supplement. As a result, we are in the process of getting the approval from all the attorneys participating in this appeal. Once this is done we will forward the missing bate stamped pages 255- as part of the clerk's record.

Based on the notice, and the absence of a stated extension date, we granted the request to extend time to file the record and ordered the clerk to file the remaining portions of the clerk's record in this court on or before June 13, 2013. On June 12, 2013, the clerk filed a letter in this court advising us that the documents missing from the clerk's record are contained within the clerk's record in another appeal that was previously filed in this court. The clerk advised that the parties intended to file a motion to transfer a portion of the clerk's record from the previous appeal into the record in this appeal.

In accordance with the clerk's letter, on June 17, 2013, appellants filed their "Unopposed Motion to Transfer a Portion of the Clerk's Record from Prior Appeal.'' In that motion, appellants advise that a final judgment was first entered in the suit underlying the present appeal in 2009. That judgment was appealed to this court in appeal number 04-09-00603-CV, styled Prize Energy Resources, et al. v. Cliff Hoskins, Inc., Bank of America, N.A., el al. That appeal resulted in an opinion that remanded a portion of the case to the trial court for further proceedings. Now, a final judgment has been rendered in the remanded portion of the suit and the current appeal is pending. The clerk's record from the first appeal, No. 04-09-00603-CV, contains the documents that are missing from the current clerk's record. Accordingly, appellants ask that we transfer a portion of the clerk's record from the previous appeal into the record in the current appeal, which would complete the clerk's record in the pending appeal. As noted, the motion is unopposed.

Based on the foregoing, we GRANT the unopposed motion to transfer and ORDER the clerk of this court to transfer volumes 5 through 9 and volume 11 from the supplemental clerk's record in appeal number 04-09-00603-CV, which was filed in this court on or about January 25, 2013, into the current appeal, which is appeal number 04-13-00201-CV. The transferred portion of the record is ORDERED included in the record in appeal number 04-13-00201-CV as though the original had been filed therein.

We ORDER the clerk's record deemed filed in full in this court as of the date of this order. Accordingly, appellants" brief is due July 19, 2013.

We further ORDER the clerk of this court to serve a copy of this order on all counsel and the district clerk.

Marialyn Barnard, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of June, 2013.

Keit Clerk of Court