Opinion
No. 05-09-01068-CV
02-22-2016
DONALD CARDWELL AND 121 INVESTMENTS, L.L.C., Appellants v. BILL GURLEY, Appellee
On Appeal from the 134th Judicial District Court Dallas County, Texas
Trial Court Cause No. 06-03299
ORDER
The record in this appeal was due on November 9, 2009. In an order dated October 6, 2009, we abated this appeal due to the bankruptcy petition filed by appellant Donald Cardwell. We reinstated the appeal on August 7, 2015. Although the record had not been filed, appellant Donald Cardwell filed a brief on October 13, 2015.
In an order dated October 27, 2015, we ordered Felicia Pitre, Dallas County District Clerk, and Vielica Dobbins, Official Court Reporter for the 134th Judicial District Court, to file their respective records by November 30, 2015. Ms. Dobbins filed a letter with this Court on November 20, 2015 stating that Gina Udall was the official court reporter when the case was tried the first time. Ms. Dobbins also stated: "I did report the bench trial held on October 1, 2015. There was also a motion held to sever the most recent bench trial held on October 1, 2015 since there was a final judgment in the original case."
Neither the clerk's nor reporter's record was filed by November 30, 2015. Accordingly, on December 9, 2015 we again ordered Ms. Pitre to file the clerk's record by December 21, 2015 and Ms. Dobbins, as the current official court reporter, to coordinate with Ms. Udall and ensure that all records requested by appellant were filed by January 4, 2016. Following an abatement for a hearing concerning missing documents from the clerk's record, in an order dated January 22, 2016, we again ordered Ms. Dobbins to file all requested reporter's records by February 15, 2016. As of today's date, the reporter's record has not been filed.
On February 5, 2016, appellee filed an amended motion for involuntary dismissal and for damages for frivolous appeal. In his motion, appellee directs this Court's attention to the brief appellant filed on October 13, 2015. Appellant's brief states, in pertinent part, as follows:
Through no fault of the Appellant, the Reporter's notes and records have been lost or destroyed. The timeline set forth by the Government Code for maintenance of Reporter's notes and records for a set amount of time (three years) governed the Reporter's actions; the loss or destruction of the notes and records occurred independent of the tolling of appeal timelines resulting from the Appellant's bankruptcy filing and the application of the automatic stay. TEX. GOV. CODE 52.046(4); TEX. R. APP. P. 8.2.In light of the above noted statements in appellant's brief and pursuant to Texas Rule of Appellate Procedure 34.6(f), we ORDER the trial court to conduct a hearing with all counsel, Ms. Dobbins, and Ms. Udall and make findings of fact regarding:
The focus of the appeal arises from the outcome of the trial on the merits before the 134h Judicial District. The judgment resulting from that trial is the heart of the case. Without the appropriate materials and record, marshalling an appeal is difficult and ineffective, at best. While Appellant has attempted to gather a record sufficient to form an appeal, the reality is that the loss of the reporter's notes and records of the trial transcript make this task close to impossible. The resolution of the current appeal requires a trial transcript.
1. if appellant timely requested a reporter's record;
2. if, without appellant's fault, a significant exhibit or a 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, or the lost or destroyed exhibit is necessary to the appeal's resolution; and
4. 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 exhibit. See TEX. R. APP. P. 34.6(f)(1)-(4).
We ORDER the trial court to transmit a supplemental clerk's record containing its written findings, any supporting documentation, and any orders to this Court within THIRTY DAYS of the date of this order. We ORDER Ms. Dobbins to file the reporter's record from the hearing within FORTY-FIVE DAYS of the date of this order.
We DIRECT the Clerk of this Court to send a copy of this order to the Honorable Dale Tillery, Presiding Judge, 134th Judicial District Court, Ms. Pitre, Ms. Dobbins, Ms. Udall, and counsel for all parties.
We ABATE this appeal to allow the trial court to comply with this order. The appeal will be reinstated thirty days from the date of this order or when the supplemental clerk's record containing the trial court's findings is received, whichever occurs sooner.
/s/ ELIZABETH LANG-MIERS
JUSTICE