Angelia Smith, Kelvin Smith and All OCC v. Snug Owner, LLC. D/B/A the Brooklyn@9590

Opinion

Order entered October 10, 2022

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-22-00171-CV

ANGELIA SMITH, KELVIN SMITH AND ALL OCC, Appellants

V.

SNUG OWNER, LLC. D/B/A THE BROOKLYN@9590, Appellee

On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-21-05552-D

ORDER

On September 27, 2022, we set the deadline for appellants to file their brief

after court reporter Coral L. Wahlen informed us that no record was made of a

March 8, 2022 status conference, a record appellants requested, and the reporter’s

record was complete. By notice filed October 6, 2022, appellants dispute Ms.

Wahlen’s assertion and also contend the record of the February 8, 2022 trial has

“discrepancies.” Appellants note the status conference was held via Zoom and

request they be allowed to view the Zoom recording. They also renew a request they made in a September 6, 2022 motion for access to the “YouTube tape” of the

February 8 trial.

We DENY appellants’ request. As we stated in our order on appellants’

September 6 motion, audio and video recordings of trial court proceedings are not

part of the reporter’s record under the rules of appellate procedure. See TEX. R.

APP. P. 34.6(a)(1). However, because appellants dispute the accuracy of the

record, we ORDER the trial court to conduct a hearing, no later than November

10, 2022, to determine whether the reporter’s record of the February 8 trial

accurately discloses what occurred at trial and whether a record was made of the

March 8 status conference. See id. 34.6(e)(3) (when dispute about accuracy of

record arises after reporter’s record has been filed, appellate court may submit

dispute to trial court for resolution). If the trial court determines the record of the

February 8 trial is inaccurate, the court must order the court reporter to conform the

record to what occurred in the trial court and to file certified corrections in this

Court no later than November 21, 2022. See id. 34.6(e)(2). If the trial court

determines a record was made of the March 8 status conference, the trial court

shall determine if the record has been lost or destroyed through no fault of

appellants. See id. 34.6(f)(2). If the trial court determines the record has been lost

or destroyed through no fault of appellants, the trial court shall determine if the

record is necessary to the appeal’s resolution and if the record can be replaced by agreement of the parties. See id. 34.6(f)(3),(4). The trial court shall make written

findings of fact which shall be filed in a supplemental clerk’s record no later than

November 15, 2022. A reporter’s record of the hearing shall also be filed no later

than November 15, 2022.

The deadline for filing appellant’s brief is SUSPENDED. The Court will

set a new date for the filing of the brief once the concern regarding the reporter’s

record has been addressed.

We DIRECT the Clerk of the Court to send a copy of this order to the

Honorable Paula M. Rosales, Presiding Judge of County Court at Law No. 4;

Dallas County Clerk John F. Warren; Ms. Wahlen; and, the parties.

We ABATE the appeal to allow the trial court an opportunity to comply

with this order. The appeal shall be reinstated no later than November 30, 2022.

/s/ BONNIE LEE GOLDSTEIN JUSTICE