Opinion
Appellate case number: 01-14-00539-CV
12-17-2015
Tan Due USA v. Jimmy Tran
ORDER Trial court case number: 2010-48243 Trial court: 309th District Court of Harris County
The clerk's record was filed on July 28, 2015. On November 9, 2015, appellee and conditional cross-appellant, Jimmy Tran, filed a motion to abate pending the trial court clerk's search for tendered, but rejected, jury questions and instructions. Tran stated that his, as well as Tan Duc Construction Company and Hoang-Yen Thi Dang's, tendered and refused jury questions and instructions are missing from the clerk's record. Tran states that the district court and clerk reported to him that "they had diligently searched but not found the tendered/rejected jury questions and instructions." Tran contends it would be difficult to reconstruct these, but that they are the basis for his conditional cross-appeal.
Rule 34.5(e) of the Texas Rules of Appellate Procedure provides:
If a filing designated for inclusion in the clerk's record has been lost or destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court clerk for inclusion in the clerk's record or a supplement. If the parties cannot agree, the trial court must--on any party's motion or at the appellate court's request--determine what constitutes an accurate copy of the missing item and order it to be included in the clerk's record or a supplement.
Accordingly, the trial court is directed to conduct a hearing to determine whether the parties can agree on what constitutes an accurate copy of the missing item or items. 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 an accurate copy of the missing items, if any, within 30 days of the date of this order.
The appeal is 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 supplemental clerk's record is 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 so ORDERED. Judge's signature: /s/ Rebeca Huddle
[×] Acting individually [ ] Acting for the Court Date: December 17, 2015