Opinion
14-22-00893-CV
03-12-2024
MAGGY HORGAN, Appellant v. JOHN HORGAN, Appellee
On Appeal from the 328th District Court Fort Bend County, Texas Trial Court Cause No. 19-DCV-258949
Panel Consists of Justices Jewell, Bourliot, and Zimmerer.
CONTINUING ABATEMENT ORDER
PER CURIAM
Appellant has notified this court that she believes portions of the reporter's record have been lost or destroyed. Appellee contests this assertion. The court has independently communicated with the court reporter in an attempt to ensure a complete and accurate reporter's record is filed. See Tex. R. App. P. 35.3(c). Notwithstanding these efforts, viewable copies of exhibits R-48, R-50, R-51, R-52, R-61, and R-62 have not been filed with this court.
Rule 34.6(f) of the Texas Rules of Appellate Procedure provides that an appellant is entitled to a new trial when the reporter's record or exhibits are lost or destroyed, under the following circumstances:
(1) if the appellant timely requested a reporter's record;
(2) if, without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed;
(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.Tex. R. App. P. 34.6(f).
Accordingly, the trial court is directed to conduct a hearing, after providing notice, at which the court reporter(s), appellant's counsel, and appellee's counsel shall participate, either in person or by video teleconference, to determine the following: (1) whether appellant timely requested a reporter's record; (2) whether without the appellant's fault, significant exhibits have been lost or destroyed; (3) whether any lost or destroyed exhibits are necessary to appellant's appeal; and (4) whether the parties can agree on replacement of any missing exhibits with copies, or (5) if the trial court can determine that copies accurately duplicate any missing exhibits with reasonable certainty. The judge shall see that a record of the hearing is made. The court is directed to reduce its findings to writing and to have a supplemental clerk's record containing those findings filed with the clerk of this court, together with a reporter's record from the hearing, within 30 days of the date of this order.
The appeal remains abated, treated as a closed case, and removed from this court's active docket. The appeal will be reinstated on this court's active docket when the trial court's findings and the reporter's record of the hearing are filed in this court. The court will also consider an appropriate motion to reinstate the appeal filed by either party, or the court may reinstate the appeal on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing in compliance with this court's order. If the parties do not request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date.