Rogers Thomson and Billie C. Collie v. Augustine Scoma Riley ( 2005 )

Opinion issued

Opinion issued December 29, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00421-CV

ROGERS THOMSON AND BILLIE J. COLLIE, INDEPENDENT CO-EXECUTORS FOR THE ESTATE OF PATRICK EDWARD KINTZ, Appellants

V.

RHONDA RILEY, INDEPENDENT EXECUTRIX FOR THE ESTATE OF AUGUSTINE SCOMA RILEY, Appellee

On Appeal from the 245th District Court

Harris County, Texas

Trial Court Cause No. 98-40300

MEMORANDUM OPINION

          This appeal involves enforcement of a divorce decree and property settlement agreement.  Appellants, Rogers Thomson and Billie J. Collie, independent co-executors for the estate of Patrick Edward Kintz, ask that we reverse and remand for a new trial because the court reporter lost a portion of the record. We grant the motion, reverse the judgment, and remand for a new trial.

          The trial in this case commenced on January 3, 2005.  As the trial court’s official court reporter, Lisa Moody, was unable to attend court on that day, the trial court asked Walter Johnson to act as deputy reporter during her absence.  Moody returned the following day to transcribe the remainder of the trial.

After the Court Reporters Certification Board notified us that Johnson’s certification had lapsed on December 31, 2004, we ordered the parties to attempt to obtain an uncertified copy of the reporter’s record.  Johnson subsequently wrote to us that he is unable to produce a transcript, whether certified or not, because his shorthand machine notes were destroyed during the move to his current residence, and he did not use a tape-recorder backup.[1]  The missing transcript contains one full day of testimony from the two-day trial.  On appeal, we will be asked to evaluate the sufficiency of the evidence to support the trial court’s judgment.

          Appellants contend that because a complete reporter’s record is necessary to their appeal, we should reverse and remand for a new trial under Texas Rule of Appellate Procedure 34.6(f), which provides as follows:

Reporter’s Record Lost or Destroyed.  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 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 . . . 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 . . . .

Tex. R. App. P. 34.6(f)(1)–(4).

          After reviewing the record and considering appellee’s response, we determine that the four prongs of Rule 34.6(f) are satisfied. Given the nature of the potential points of error on appeal, and the complete absence of any record of the first full day of trial testimony, we conclude that appellants have met their burden of showing that the lost portion of the record is necessary to the appeal’s resolution and cannot be replaced by agreement of the parties.  Accordingly, we reverse the judgment and remand for a new trial.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

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[1] Under Texas Rule of Appellate Procedure 35.3(b), it is the responsibility of the court reporter—not the appellant—to file the reporter’s record.