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Thomson v. Riley

Court of Appeals of Texas, First District, Houston
Dec 29, 2005
No. 01-05-00421-CV (Tex. App. Dec. 29, 2005)

Summary

reversing and remanding for new trial after finding the four prongs of Rule 34.6(f) were satisfied

Summary of this case from Estate of J.T. v. River

Opinion

No. 01-05-00421-CV

Opinion issued December 29, 2005.

On Appeal from the 245th District Court, Harris County, Texas, Trial Court Cause No. 98-40300.

Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.


MEMORANDUM OPINION


This appeal involves enforcement of a divorce decree and property settlement agreement. Appellants, Rogers Thomson and Billie J. Collie, independent co-executors for the estate of Patrick Edward Kintz, ask that we reverse and remand for a new trial because the court reporter lost a portion of the record. We grant the motion, reverse the judgment, and remand for a new trial.

The trial in this case commenced on January 3, 2005. As the trial court's official court reporter, Lisa Moody, was unable to attend court on that day, the trial court asked Walter Johnson to act as deputy reporter during her absence. Moody returned the following day to transcribe the remainder of the trial.

After the Court Reporters Certification Board notified us that Johnson's certification had lapsed on December 31, 2004, we ordered the parties to attempt to obtain an uncertified copy of the reporter's record. Johnson subsequently wrote to us that he is unable to produce a transcript, whether certified or not, because his shorthand machine notes were destroyed during the move to his current residence, and he did not use a tape-recorder backup. The missing transcript contains one full day of testimony from the two-day trial. On appeal, we will be asked to evaluate the sufficiency of the evidence to support the trial court's judgment.

Under Texas Rule of Appellate Procedure 35.3(b), it is the responsibility of the court reporter — not the appellant — to file the reporter's record.

Appellants contend that because a complete reporter's record is necessary to their appeal, we should reverse and remand for a new trial under Texas Rule of Appellate Procedure 34.6(f), which provides as follows:

Reporter's Record Lost or Destroyed. An appellant is entitled to a new trial under the following circumstances:

(1) if the appellant has timely requested a reporter's record;

(2) if, without the appellant's fault, . . . a significant portion of the court reporter's notes and records has been lost or destroyed . . .;

(3) if the lost [or] destroyed . . . portion of the reporter's record . . . is necessary to the appeal's resolution; and

(4) if the lost [or] destroyed . . . portion of the reporter's record cannot be replaced by agreement of the parties. . . .

TEX. R. APP. P. 34.6(f)(1) — (4).

After reviewing the record and considering appellee's response, we determine that the four prongs of Rule 34.6(f) are satisfied. Given the nature of the potential points of error on appeal, and the complete absence of any record of the first full day of trial testimony, we conclude that appellants have met their burden of showing that the lost portion of the record is necessary to the appeal's resolution and cannot be replaced by agreement of the parties. Accordingly, we reverse the judgment and remand for a new trial.


Summaries of

Thomson v. Riley

Court of Appeals of Texas, First District, Houston
Dec 29, 2005
No. 01-05-00421-CV (Tex. App. Dec. 29, 2005)

reversing and remanding for new trial after finding the four prongs of Rule 34.6(f) were satisfied

Summary of this case from Estate of J.T. v. River
Case details for

Thomson v. Riley

Case Details

Full title:ROGERS THOMSON AND BILLIE J. COLLIE, INDEPENDENT CO-EXECUTORS FOR THE…

Court:Court of Appeals of Texas, First District, Houston

Date published: Dec 29, 2005

Citations

No. 01-05-00421-CV (Tex. App. Dec. 29, 2005)

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