Opinion
10-22-00041-CV
06-07-2024
MARVIN W. HAWKINS, Appellant v. SENTRY CASUALTY COMPANY, Appellee
From the 414th District Court McLennan County, Texas Trial Court No. 2019-572-5
Before Chief Justice Gray, Justice Johnson, and Justice Smith
THIRD REINSTATEMENT AND ABATEMENT ORDER
PER CURIAM
This appeal was abated and remanded to the trial court for the second time on January 30, 2024, at which time the Court ordered the trial court to conduct a hearing and to make written findings relating to the existence of the reporter's record for two dates, October 8, 2021 and December 3, 2021. The trial court conducted a hearing on March 5, 2024, and a reporter's record of that hearing has been filed with this Court.
However, the trial court was also ordered "to determine whether or not a reporter's record was taken for the portion of the trial held on October 8, 2021, and the hearing on the motion for new trial held on December 3, 2021." We also ordered that "[i]f no reporter's record exists, the trial court is ORDERED to determine why no reporter's record was made or whether it was lost, destroyed, or is inaudible."
Further, the January 30, 2024 Order included the following:
After the hearing, the trial court is ORDERED to render and sign a written order as to whether or not a record was made of the portion of the trial which occurred on October 8, 2021 and the December 3, 2021 hearing on the motion for new trial. If the record exists, the trial court is ORDERED to ascertain the identity and current address for the reporter responsible for the preparation of the reporter's record for each stated date and include it in the written order and to render and sign any orders appropriate to ensure the prompt preparation of the reporter's record for these dates. If the record for either date does not exist, the trial court is ORDERED to make written findings as to why the record does not exist including whether it was not made or whether it was lost, destroyed, or is inaudible and to make the findings required by Rule of Appellate Procedure 34.6(f) within seven days of the hearing conducted pursuant to this Order. The trial court is ORDERED to deliver to the trial court clerk all orders and written findings made pursuant to this Order within seven days of the hearing conducted pursuant to this Order.
The trial court clerk was further ordered to file a supplemental clerk's record within 7 days of receiving the findings from the trial court. We have not received a clerk's record containing the required findings.
This proceeding is REINSTATED for the purpose of entering this Order.
This proceeding is also ABATED again until further order of this Court and this proceeding is REMANDED to the trial court to comply with this Order.
The Court makes the following orders:
1. If the trial court entered written findings pursuant to this Order that were not forwarded to this Court by the trial court clerk, the trial court clerk is
ORDERED to file a supplemental clerk's record containing the written findings within 7 days of this Order.
2. The trial court is ORDERED to make a written finding in a signed order as to whether or not a reporter's record was taken for the portion of the trial held on October 8, 2021, and the hearing on the motion for new trial held on December 3, 2021 based on the information before the trial court.
3. If the trial court finds that no reporter's record exists for either or both of those dates, the trial court is ORDERED to make a written finding as to (a) why no reporter's record was made, or (b) whether it was lost, destroyed, or is inaudible.
4. If the trial court finds that the reporter's record for either date was lost, missing, or destroyed, the trial court's written order must include the findings required by Rule of Appellate Procedure 34.6(f).
The trial court is ORDERED to enter its written order within 7 days of this Order and deliver the signed order to the trial court clerk.
As stated in our prior abatement order, we recognize that the elected judge of the 414th District Court who rendered judgment in this proceeding left office on November 30, 2023, which makes these determinations more complicated than otherwise. We note that it appears that there is a conflict regarding especially the hearing on October 8, 2021 where the official court reporter indicated to the visiting court reporter that she had taken the transcription of that hearing and a docket sheet in the prior trial judge's handwriting that indicates that a record was made by the official court reporter, yet the official court reporter stated that she did not make a record of the hearing on that date. Because the trial court is in the best position to make findings of fact in this matter, the trial court needs to make the findings that the rules of appellate procedure require in order to determine how to proceed. The absence of any findings by the trial court may require a new trial.
The trial court clerk is ORDERED to file a supplemental clerk's record with this Court that contains the written order pursuant to this Order within 7 days after the entry of the written order by the trial court.