Opinion
08-23-00326-CV
11-12-2024
YOUSIF H. ALAZZAWI, Appellant, v. SHROOQ F. M. ALGHARRAWI, Appellee.
Appeal from the 45th District Court of Bexar County, Texas (TC# 2019-CI-01827)
Before Alley, C.J., Palafox and Soto, JJ.
ORDER
Pursuant to Texas Rule of Appellate Procedure 10.4 (a) the motion ruled on through this Order may have been decided by a single Justice sitting on the panel.
Before the Court is Appellant's motion for new trial based on a lost or destroyed record. Before disposing of the motion, we provide a summary of the various orders and filings related to the reporter's record in this appeal.
Yousif H. Alazzawi appeals from a protective order signed on July 9, 2021, and a final decree of divorce signed on September 26, 2023. The reporter's record was originally due on January 24, 2024. On that date, the Court granted court reporter David Laurel a first extension of time to file the reporter's record until February 23, 2024. On February 28, 2024, Mr. Laurel requested a second extension, which this Court granted until March 22, 2024. Mr. Laurel requested a third extension seeking 30 additional days on March 29, 2024. Because the third request did not provide any reason to support the request, the Court granted a 10-day extension on April 2, 2024, ordering the record due on April 12, 2024.
After being granted three extensions, Mr. Laurel filed a letter on April 16, 2024, informing the Court that no financial arrangements had been made for the preparation of the reporter's record. In response, we abated the appeal for a hearing in the trial court to determine whether proper request and financial arrangements were made for the reporter's record and when Mr. Laurel expected to complete and file the reporter's record in this Court. Before the trial court could hold the hearing as requested, Appellant filed a motion to reinstate the appeal, notifying the Court that he was able to confer with Mr. Laurel regarding payment arrangements. In the motion, Appellant represented that there was a misunderstanding between the parties and advised the Court that the reporter's record would be filed "within 10-14 days." We reinstated the appeal and ordered the reporter's record due on or before May 22, 2024.
On May 31, 2024, Mr. Laurel requested a fourth extension in which he represented that he anticipated the record would be complete by June 10, 2024. Because arrangements had recently been made for payment, the Court granted Mr. Laurel's request and ordered the record due on June 10, 2024. Mr. Laurel attempted to untimely file a portion of the reporter's record on June 12, 2024. The Court reviewed the filings and directed the Clerk of this Court to reject them for corrections because the volumes were improperly formatted and improperly labeled. A week after the deadline, on June 17, 2024, Mr. Laurel had not filed a corrected version of the reporter's record or a request for an extension. The Clerk of this Court made multiple attempts to contact Mr. Laurel with no success.
With no record filed, we issued an order on June 17, 2024, giving Mr. Laurel until July 8, 2024, to file the reporter's record and admonishing him that if no record was received by that date, an order would be issued requiring him to appear before this Court and show cause as to why he should not be held in contempt for failing to file the reporter's record and violating multiple orders of this Court.
On July 9, 2024, Appellant filed a notice regarding the status of the reporter's record. The notice informed the Court that Mr. Laurel had contacted Appellant to notify him that two volumes of the reporter's record were corrupt. The notice further represented that Appellant attempted to confirm which volumes were corrupt but was unable to reach Mr. Laurel to confer about the status of the volumes.
On September 26, 2024, Mr. Laurel untimely filed seventeen volumes of the reporter's record. Along with this submission, Mr. Laurel filed a letter notifying the Court that the "records from 6/25/21 and 6/28/21 are unable to be opened by [his] stenographic software to be transcribed." Appellant responded on October 14, 2024, by filing a combined motion for new trial, motion to vacate final judgment, and motion to dismiss. The motion asks this Court to grant Appellant a new trial on the basis that the reporter's record in this appeal has been lost or destroyed. In the alternative, Appellant asks that we remand the cause to the trial court for an evidentiary hearing on the issue. Appellee responded, contending that a new trial is inappropriate, but agreeing that Appellant's alternative relief requesting an evidentiary hearing is appropriate under the current circumstances of the appeal. Tex.R.App.P. 34.6(f)(2).
The Rules of Procedure provide that, when the reporter's record is 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 exhibit or significant portion of the court reporter's notes and records has been lost or destroyed or-if the proceedings were electronically recorded-a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed or inaudible portion of the reporter's record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original document.Tex. R. App. P. 34.6(f). The Court recognizes the long and difficult history associated with procuring the reporter's record in this appeal. Based on the representations of Mr. Laurel and of Appellant in the motion now pending before the Court, it appears that portions of the reporter's record in this appeal may be lost or destroyed as contemplated by Rule 34.6(f). Therefore, we conclude that an evidentiary hearing is necessary.
Accordingly, we GRANT Appellant's motion and provide the relief pleaded in the alternative and ORDER this appeal ABATED. It is further ORDERED that the trial court conduct a hearing on or before December 12, 2024, pursuant to Texas Rule of Appellate Procedure 34.6(e)(2) to determine the status of the reporter's record and whether any portion is lost or destroyed.
Included with this Order to the trial court is a copy of Appellant's motion containing specific allegations of what portions of the record may be lost or destroyed which should be addressed by the trial court at the evidentiary hearing.
Specifically, the trial court shall make written findings of fact as to whether any portion of the record has been lost or destroyed. If the trial court finds that portions of the record have been lost or destroyed, the trial court shall specify what portions, and shall make additional findings as to the following: (1) whether, without Appellant's fault, a significant portion of the record has been lost or destroyed, and if so, whether the missing portions are necessary to the resolution of the appeal; (2) whether the missing portion can be replaced by stipulation or agreement of the parties; and (3) whether Appellant is entitled to a new trial pursuant to Rule 34. 5(f). The trial court shall forward its findings to the district clerk for inclusion in a supplemental clerk's record that shall be filed in this Court on or before December 22, 2024.
The hearing shall be recorded, and the court reporter shall prepare, certify, and file the transcript of the hearing as a supplemental reporter's record on or before December 22, 2024. All appellate deadlines shall be suspended during the abatement. The appeal will be reinstated when both the trial court's findings and the transcript of the hearing are filed in this Court.
IT IS SO ORDERED