Angelia Smith, Kelvin Smith and All OCC v. Snug Owner, LLC. D/B/A the Brooklyn@9590 ( 2022 )

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