Opinion
04-23-00379-CV
03-18-2024
Melanie Lynn HAGNER, Appellant v. Juan Antonio VALDEZ Jr., Appellee
From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2023-CI-01683 Honorable Rosie Alvarado, Judge Presiding
ORDER
LUZ ELENA D. CHAPA, JUSTICE.
On February 26, 2024, appellee Juan Antonio Valdez, Jr. filed a "Motion to Abate Appeal Pending Supplementation." In his motion, he explained the reporter's record is incomplete because we have no reporter's record for February 3, 2023 when "a different court reporter" heard testimony. He explains that without the February 3, 2023 transcript, he "is unable to properly prepare his brief because he can currently only cite to a portion of the record." As relief, he seeks an order from this court that the trial court reporter prepare and file a supplemental reporter's record containing the second court reporter's record from the second day of testimony, and that this Court enter an order to abate this appeal pending the reporter's submission of its supplemental reporter's record. He requests, in the alternative, a thirty-day extension on his brief.
Appellant Melanie Hagner filed a response to the motion and a "Motion to Vacate the Trial Court Order or to Remand for New Trial." Appellant argues she is harmed by the failure of the trial court to render findings of fact and conclusions of law. She further argues she is entitled to a new trial because of the unavailability of the complete reporter's record, citing Texas Rule of Appellate Procedure 34.6(f). She explains that to the best of her recollection Debra Jimenez was the court reporter for a February 3, 2023 hearing, and Jimenez's "presence was confirmed [by phone] to [her] on December 20th, 2023 by the Bexar County Civil District Clerk's office," among other reasons. Appellant requests as relief that we "vacate the judgement and remand the case with instructions to dismiss."
As appellant also observes, she filed a December 6, 2023 motion to hold the trial court reporter in contempt for failure to deliver the February 3, 2023 transcript. In response to the motion, we ordered Jimenez to file a response to the motion confirming there is no such transcript or a copy of the February 3, 2023 reporter's record in lieu of a response. On December 11, 2023, Jimenez filed a response stating she filed the only record she took-the February 2, 2023 hearing transcript Thereafter, we denied appellant's motion and ordered briefing.
In order to proceed with this appeal, this court must determine whether the hearing was reported, whether the record is lost or destroyed and not capable of being replaced, and whether the record is necessary to the resolution of this appeal. See Tex. R. App. P. 34.6(f). We therefore abate this appeal and remand the case to the trial court to make the necessary factual determinations We order the trial court to hold a hearing by April 17, 2024 and to make findings of fact addressing the following questions:
1) Whether there was a February 3, 2023 hearing;
2) Whether the February 3, 2023 hearing was reported;
3 If the hearing was reported, what is the name and last known contact information of the court reporter;
4) Whether the court reporter's notes and records have been lost or destroyed;
5 Whether the lost or destroyed reporter's record can be replaced by agreement of the parties;
6) Whether any testimony was taken and whether any exhibits were offered or admitted into evidence at the hearing;
7) Whether the original exhibits, if any, have been lost or destroyed;
8) Whether any lost or destroyed exhibits may 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 exhibits, if any; and
9) Whether Hagner timely requested a reporter's record from the reporter of the February 3, 2023 hearing, if any;
The trial court may, in its discretion, receive evidence on these questions by sworn affidavit from the court reporters who transcribed the hearings in question, including Ms. Debra Jimenez. The trial court shall, however, order Ms. Melanie Hagner, Mr. Juan Antonio Valdez, Jr., and counsel for both parties, if any, to be present at the hearing.
We further order the trial court clerk to file the court's findings of fact in a supplemental clerk's record within five days of the hearing. All appellate deadlines are suspended until further order of the court.
All other relief requested in the motions is denied. In addition, appellant's "Motion Requesting Clarification of opposing counsel" is denied.