Appellate case number: 01-18-00366-CV
Trial court case number: 2011-24016-A Trial court: 152nd District Court of Harris County
In this appeal, appellants Pankaj Shah, M.D., and Krishna Financial, Ltd., appealed the summary judgment granted in favor of appellee Keith Remels on all of appellants' claims against Remels. Appellants' live pleading in the trial court was their "Plaintiffs' Fifth Amended Petition and Requests for Disclosure Against Defendant Remels." See 3 CR 974-89. The copy of appellants' live pleading appearing at volume 3, pages 974-89, of the Clerk's Record bears a filestamp from the Harris County District Clerk's Office. See 3 CR 974.
When appellants responded to appellee's motion for summary judgment, they attached to their response several exhibits. See 3 CR 990-1066 (appellants' summary-judgment response and exhibits and attachments thereto); 4 CR 1067-1207 (remaining exhibits and attachments to appellants' summary-judgment response). One of those exhibits was a document also styled "Plaintiffs' Fifth Amended Petition and Requests for Disclosure Against Defendant Remels." See 3 CR 1031-46. This exhibit bears the same style as appellants' live pleading, comprises the same number of pages as the live pleading, and bears other resemblances to the content of the live pleading. However, this exhibit does not bear a filestamp and contains material that is not contained within the live pleading. Specifically, several pages of the live pleading contain blank spaces that the apparently analogous pages from the summary-judgment exhibit "fill in" with text. Compare 3 CR 974, 982-85 (pages from live pleading), with 3 CR 1031, 1039-42 (apparently analogous pages from summary-judgment exhibit). The Court is considering whether appellants effectively pleaded the fraud and other claims (listed in the summary-judgment exhibit at 3 CR 1039-42) in the trial court and whether they are part of the appellate record.
Appellants Shah and Krishna Financial, and appellee Remels, are ordered to file in this Court, no later than 14 days from the date of this order, respective briefs explaining the above-described discrepancies between the two purported versions of "Plaintiffs' Fifth Amended Petition and Requests for Disclosure Against Defendant Remels" and the resulting effect or effects on this appeal, if any. Each side's brief is not to exceed 3,000 words if computer-generated, or 10 pages if not, and is otherwise subject to Rule of Appellate Procedure 9.4.
The respective briefs should also address:
(1) whether any claims that were pleaded in the summary-judgment exhibit, but are missing in the live pleading, were effectively pleaded and a part of the appellate record;
(2) whether this issue was raised before the trial court, and if so how and when; and
(3) what action or actions, if any, the trial court took that bear on these issues.
If, in order to support a position that a party takes in the requested briefs, a party must supplement the appellate record, the party should so supplement no later than 14 days from the date that the respective briefs are due under the terms of this order.
It is so ORDERED.
PER CURIAM The panel consists of Chief Justice Radack and Justices Higley and Hightower. Date: June 11, 2019