Maria Arevalos v. Raul R. Alvarez

Opinion

NUMBER 13-17-00523-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MARIA AREVALOS, Appellant,

v.

RAUL R. ALVAREZ, Appellee.

On appeal from the County Court at Law No. 4 of Hidalgo County, Texas.

MEMORANDUM OPINION Before Justices Longoria, Hinojosa, and Tijerina Memorandum Opinion by Justice Tijerina

This cause is before the Court, on the court reporter’s failure to timely file the

reporter’s record. We handed down our memorandum opinion and judgment on August

12, 2021. Upon further review of the cause, we sua sponte withdraw our memorandum

opinion and judgment, and we substitute the following memorandum opinion and accompanying judgment in their place. See Kennamer v. Estate of Noblitt, 332 S.W.3d

559, 561 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

On March 29, 2021, we ordered the trial court to conduct a hearing in accordance

with Texas Rule of Appellate Procedure 34.6(f)(4). We ordered the trial court to determine

if: (1) the appellant has timely requested a reporter’s record; (2) 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) the lost,

destroyed, or inaudible portion of the reporter’s record, or the lost and destroyed exhibit,

is necessary to the appeal’s resolution; and (4) 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. See TEX. R. APP. P. 34.6(f).

On April 6, 2021, the trial court notified us that the reporter had passed away, that

neither the appellee Raul Alvarez nor appellant Maria Arevalos had a copy of the record,

that Arevalos wanted to continue with her appeal, and that both Alvarez and Arevalos

agree that the reporter’s record is missing. On July 6, 2021, we issued a supplemental

order of abatement wherein we directed the trial court to conduct a hearing to determine

if: (1) “The lost, missing, or destroyed record is necessary for the appeal to proceed”; (2)

“If the record is necessary, whether the parties can reach an agreement about the

substance of the record that is lost, missing, or destroyed”; and/or, (3) “If the record is

2 necessary and the parties cannot reach an agreement about the substance of the needed

portions of the record, whether the trial court shall retry the case.” See id. R. 34.6(f)(4).

On July 22, 2021, the trial court conducted the hearing and determined that: (1)

“the lost missing, or destroyed record is necessary for the appeal to proceed”; (2) “the

parties cannot agree on the substance of the record because a record was never

produced”; and (3) “a new trial on the merits is necessary because the record is missing

and the parties cannot reach an agreement on the substance of the said record.”

The trial court determined that Arevalos met the requirements of rule 34.6 and is

entitled to a new trial. See id. Accordingly, because a significant portion of the timely

requested record necessary to the appeal’s resolution has been lost through no fault of

Arevalos and cannot be replaced by agreement of the parties, we reverse the judgment

of the trial court and remand for a new trial. See TEX. R. APP. P. 34.6(f); Coplin v. Mann,

622 S.W.3d 586, 591 (Tex. App.—Texarkana 2021, no pet.).

JAIME TIJERINA Justice

Delivered and filed on the 8th day of October, 2021.