Opinion
01-23-00786-CV
05-14-2024
Elizabeth Spruell v. Nathaniel Roger Martinez
Trial court: 247th District Court of Harris County Trial court case number: 2019-82583.
ORDER
Gordon Goodman, Judge.
Appellant, Elizabeth Spruell, has filed a Motion for New Trial or, Alternatively, Motion for Abatement asserting that there are deficiencies in the Court Reporter's Record-specifically, the exhibits included in the record. Asserting that a significant portion of the reporter's record has been lost or destroyed, appellant requests a new trial pursuant to Texas Rule of Appellate Procedure 34.6(f). Alternatively, appellant requests that our Court abate the appeal and remand the proceeding to the trial court to determine if the record can be corrected.
Appellee filed a response opposing the request for a new trial because appellant has not attempted to reach an agreement to replace the exhibits at issue. See Tex. R. App. P. 34.6(f)(4) (to be entitled to new trial, appellant must demonstrate that "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."). Appellee, however, is unopposed to abating the appeal to permit the parties to address the issues with the Court Reporter's Record. Appellee requests that, in the event that the parties are unable to agree to replace the lost exhibits and correct the Court Reporter's record, our Court submit the dispute to the trial court for resolution in accordance with Texas Rules of Appellate Procedure 34.6(e)(2) and (3).
Upon consideration of appellant's motion and appellee's response, we DENY appellant's request for a new trial but GRANT the request to abate this appeal. We abate the appeal for the parties to address the issues with the Court Reporter's Record and, in the event that the parties are unable to reach agreement, for the dispute to be submitted to the trial court for resolution. See Tex. R. App. P. 34.6(e)(2), (3).
This appeal is abated, treated as a closed case, and removed from the Court's active docket. This appeal will be reinstated on the Court's active docket when a motion stating the grounds for reinstatement is filed with the Court by any party to the appeal and sustained by the Court.
It is so ORDERED.