Opinion
05-21-00185-CV
11-04-2022
IN THE INTEREST OF D.M., A MINOR CHILD
On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-19-03631
ORDER
KEN MOLBERG JUSTICE
The underlying proceedings were stenographically recorded by Yolanda Atkins, who, at the time, was the official court reporter for the trial court. Ms. Atkins filed the record September 2, 2022, but failed to include certain exhibits that were admitted at trial.
The missing exhibits are (1) Wife's Exhibit 1 (Text message); (2) Wife's Exhibit 5 (Deed of Trust); (3) Wife's Exhibit 9 (First International Bank Statement); (4) Respondent's Exhibit 2 (Response); (5) Respondent's Exhibit 3 (Marriage License Application); (6) Respondent's Exhibit 4 (Marriage License); (7) Respondent's Exhibit 5 (Tax Return 2014); (8) Respondent's Exhibit 11 (Response to Interrogatories); and (9) Respondent's Exhibit 12 (Response to Admissions).
After being informed by appellants, in a motion for extension of time to file their brief, that Ms. Atkins had informed them that she had electronically filed the missing exhibits with the trial court when she resigned as official reporter and could not access them, we ordered LaToya Young-Martinez, the current official reporter for the trial court, to file a supplemental reporter's record containing the exhibits or written verification they could not be located, no later than October 17, 2022. Ms. Young-Martinez missed that deadline and, when she had not filed the record by October 31, 2022, we ordered that she comply by November 7, 2022.
In a letter filed November 2, 2022, Ms. Young-Martinez informs the Court that she is "unable to access the exhibits because they were sent electronically to Ms. Atkins" and she suggests that Ms. Atkins can "complete the exhibit volume" by either "check[ing] them out" or having the parties' attorneys "resend the exhibits to Ms. Atkins."
When, as here, a dispute exists as to the record, we may submit the dispute to the trial court for resolution. Accordingly, we ORDER the trial court to conduct a hearing, no later than November 30, 2022, to determine whether the exhibits can be accessed and, if they can, which reporter, Ms. Atkins or Ms. Young-Martinez, can access them. The reporter who is able to access the exhibits shall file a supplemental reporter's record containing the exhibits no later than December 2, 2022. If the exhibits cannot be accessed, the trial court shall determine whether the exhibits can be replaced by agreement of the parties and if they can, the trial court shall order the parties to tender the agreed copies of the exhibits to Ms. Young-Martinez, as the official reporter, no later than December 2, 2022. Ms. Young-Martinez shall then file the exhibits in a supplemental reporter's record no later than December 5, 2022. If the exhibits cannot be replaced by agreement of the parties, the trial court shall determine if the exhibits are necessary to the appeal's resolution. The trial court shall make written findings and shall have the findings filed in a supplemental clerk's record no later than December 5, 2022.
The trial court shall provide at least three days' notice of the hearing to Ms. Young-Martinez, Ms. Atkins, and the parties, and attendance by Ms. Young-Martinez, Ms. Atkins, and the parties shall be mandatory.
We DIRECT the Clerk of the Court to send a copy of this order to the Honorable Kim Cooks, Presiding Judge of the 255th Judicial District Court; Ms. Young-Martinez; Ms. Atkins; and, the parties.
We ABATE the appeal to allow the trial court an opportunity to comply with this order. The appeal shall be reinstated no later than December 9, 2022.