Fermin Garza, Jr. v. Estalfo Vargas and Esperaza Vargas , 2014 Tex. App. LEXIS 5868 ( 2014 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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FERMIN GARZA, JR., No. 08-13-00116-CV
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Appellant, Appeal from
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v. 112th District Court
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ESTAKFI VARGAS AND of Crockett County, Texas
ESPERANZA VARGAS, §
(TC # 98-08-006120-CV)
Appellees. §
OPINION
Fermin Garza, Jr. appeals from a judgment awarding Estalfo Vargas and Esperanza
Vargas title to certain real property by adverse possession. Finding that the reporter’s notes of
the entire trial have been lost or destroyed, we reverse the trial court’s judgment and remand the
cause for a new trial.
LOST OR DESTROYED RECORD
This case is before us to determine whether the trial court’s judgment should be reversed
and the cause remanded for a new trial because the reporter’s record has been lost or destroyed.
Rule 34.6(f) of the Rules of Appellate Procedure provides that an appellant is entitled to a new
trial (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; (3) if the lost or destroyed portion of the reporter’s record or exhibit is
necessary to the appeal’s resolution; and (4) if the lost or destroyed portion of the reporter’s
record cannot be replaced by agreement of the parties, or the lost or destroyed exhibits 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).
The parties tried the case to the court on February 12, 2013 and the court signed the
judgment on February 15, 2013. It is undisputed that Appellant timely requested the court
reporter, Mel Power, to prepare the reporter’s record and paid the sum of money requested by
Mr. Power for the deposit. Mr. Power did not, however, file the reporter’s record by the due date
in this case and other unrelated appeals. At this Court’s request, the trial court has conducted
three different hearings to determine when the record would be completed and filed and Mr.
Power represented to the court that he would file the reporter’s record but did not do so. The
most recent hearing occurred on February 26, 2014. The trial court filed its written findings of
facts on March 27, 2014.
Mr. Power testified for the first time at the February 26, 2014 hearing that he is unable to
locate the computer files containing his notes and the audio recording of the trial. He has
searched through two of his three computers and could not find the computer files containing his
notes or the audio recording. Mr. Power surmised that the files had been accidentally deleted or
perhaps had been misnamed and he requested the opportunity to finish searching all of his
computers and storage devices. Mr. Power believed he could complete the search in “half a
day.” When asked by the trial court when he could have the record completed if he found the
files, Mr. Power added: “If I can locate it, it will be done this week.” Mr. Power notified the
Clerk of the Court on March 26, 2014 that the files are lost. Further, the trial court entered
written findings on March 27, 2014 and expressly found that the reporter’s notes no longer exist
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and have been lost. The parties agreed at the hearing and the trial court found that the reporter’s
record of the trial is necessary to the resolution of this appeal and cannot be replaced by
agreement of the parties. We conclude that Appellant is entitled to a new trial pursuant to Rule
34.6(f). See TEX.R.APP.P. 34.6(f); Villagomez Investments, L.L.C. v. Magee, 294 S.W.3d 687,
688-90 (Tex.App.--Houston [1st Dist.] 2009, no pet.)(granting a new trial under Rule 34.6(f)
where the entire record of the trial had been lost or destroyed during Hurricane Ike and through
no fault of the appellant). We reverse the trial court’s judgment and remand the cause for a new
trial.
May 30, 2014
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
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