C & C Road Construction, Inc./SAAB Site Contractors, L.P. v. SAAB Site Contractors, L.P./C & C Road Construction, Inc.

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS §

C & C Road Construction, Inc./SAAB Site § No. 08-17-00056-CV Contractors, L.P., § Appeal from the Appellants, § County Court at Law No. 6 v. § of El Paso County, Texas SAAB Site Contractors, L.P./C & C Road Construction, Inc., § (TC# 2014DCV2960)

Appellees. §

§ ORDER

The reporter’s record has been filed except for one day of trial reported by Ms. Lisa

DeMello. On June 12, 2017, the Court issued an order to Ms. DeMello regarding the past-due

reporter’s record. The order required Ms. DeMello to communicate immediately with Appellant’s

counsel, John Mobbs, and notify him regarding the cost of the reporter’s record so that payment

could be made. Additionally, we ordered Ms. DeMello to prepare and file her portion of the

reporter’s record with the Court on or before July 14, 2017. The reporter’s record has not been

filed and Ms. DeMello has not filed an extension request or otherwise communicated with the

Court regarding her failure to file the record. Further, Mr. Mobbs has informed the Court that Ms.

DeMello has not provided him with the cost of the reporter’s record so that his client could make

financial arrangements to pay for the record. According to a letter filed by Mr. Mobbs, he spoke

1 directly with Ms. DeMello on July 18, 2017, and she indicated that she was working on other

transcripts. When Mr. Mobbs volunteered to pay whatever deposit she required for preparation of

the record, Ms. DeMello told him that was none was required at this time. Ms. DeMello’s failure

to file the record as ordered, request an extension, or communicate with the Court about the past-

due record raises a question whether the court reporter’s notes exist.

It is therefore ORDERED that the trial court conduct a hearing to determine why Ms.

DeMello has not filed her portion of the reporter’s record and whether the reporter’s record has

been lost or destroyed, such that Appellant might be entitled to a new trial pursuant to

TEX.R.APP.P. 34.6(f). The hearing should be conducted within thirty days if possible. A court

reporter shall attend and transcribe the hearing. Additionally, Ms. DeMello is ordered to attend

the hearing and state whether the court reporter’s notes exist and explain why she has not filed the

record of the hearing.

At the hearing, the trial court shall determine the following issues:

1. whether a significant portion of the court reporter’s notes and exhibits have been lost or

destroyed, and if so, whether the loss or destruction occurred without any fault of the Appellant;

2. if the reporter’s record has been lost or destroyed, whether the lost or destroyed portion is

necessary to the appeal’s resolution;

3. if the reporter’s record has been lost or destroyed, whether it can be replaced by agreement of

the parties; and

4. if the reporter’s record has not been lost or destroyed, the trial court shall determine whether

Ms. DeMello can prepare the record within a reasonable period of time so that this appeal can

proceed, and if not, whether another court reporter can utilize the notes to prepare and file the

reporter’s record.

The trial court is authorized to hear evidence and to determine any additional matters it

2 deems relevant to these inquiries. The court is also authorized to enter any orders to ensure that

the reporter’s record is filed at the earliest date possible. Such orders could include the

appointment of another court reporter to prepare and file the record.

The trial court is directed to make findings of fact and conclusions of law regarding these

matters and file same with the trial court clerk for inclusion in a supplemental clerk’s record. The

supplemental clerk’s record containing any orders and the findings entered by the trial court shall

be forwarded to this Court within 15 days after the trial court files its findings and conclusions.

Additionally, the court reporter shall prepare the transcription of the hearing and forward it to this

Court within fifteen days after the hearing.

IT IS SO ORDERED this 3rd day of August, 2017.

PER CURIAM

Before McClure, C.J., Rodriguez and Palafox, JJ.