in Re: James Dondero

• Court: Court of Appeals of Texas
• Decided: August 18, 2020
• Docket: 05-20-00066-CV
• Status: Published

Opinion

Order entered August 18, 2020

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-20-00066-CV

IN RE JAMES DONDERO, Relator

On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-11-16417

ORDER Before Justices Schenck, Partida-Kipness, and Nowell

Before the Court are relator’s January 16, 2020 petition for writ of

mandamus and real party’s March 25, 2020 response. In his petition, relator

challenges the trial court’s October 21, 2019 Order Granting Payment of Debt

Collections Attorney’s Fees, in which the trial court refers to a hearing conducted

on October 18, 2019. The Court determined that the transcript of the October 18,

2019 hearing would aid its disposition of this matter and directed relator to

supplement the mandamus record with a copy of that transcript and any evidence

or exhibits presented at that hearing on or before June 24, 2020. See TEX. R. APP.

P. 52.7(b). By order dated June 30, 2020, this Court ordered relator to respond to this Court on or before July 6, 2020, explaining why this Court should not deny his

writ. See TEX. R. APP. P. 52.7(a).

By letter dated July 1, 2020, relator responded to this Court, asserting that he

had requested the transcript before filing the instant petition, but he did not include

a copy of the transcript because the court reporter did not have it. Relator further

responded that he again requested the transcript after receiving this Court’s June

30, 2020 order and received a response from the court reporter that her equipment

had malfunctioned such that she is unable to produce a record of that hearing.

By order dated July 8, 2020, this Court ordered relator to respond whether he

and real party in interest were able to replace the transcript and any admitted

exhibits by agreement of the parties and further ordered any agreed record and

related exhibits to be filed on or before July 22, 2020. To date, neither relator nor

real party in interest has filed any agreed record or related exhibits.

Under our appellate rules, an appellant is entitled to a new trial under the

following circumstances:

(1) if the appellant has 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 or--if the proceedings were electronically recorded--a significant portion of the recording has been lost or destroyed or is inaudible;

(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).

We REMAND this case to the trial court and ORDER the trial court to

conduct a new hearing on real party in interest’s October 3, 2018 Motion To

Reconsider Debt Collections Attorney’s Fees within TWENTY DAYS from the

date of this order. We further ORDER relator to file a properly authenticated

transcript of any relevant testimony from that hearing, including any exhibits

offered in evidence, or a statement that no testimony was adduced in connection

with the matter complained. See TEX. R. APP. P. 52.7 (a)(2).

We ABATE this appeal. We will automatically reinstate this appeal

THIRTY DAYS from the date of this order or upon receipt of the supplemental

record, whichever is sooner.

/s/ DAVID J. SCHENCK JUSTICE