Markowitz, Avi Bart v. Markowitz, Bridget Mary

Appellant's Motion for Rehearing Overruled; Opinion of April 17, 2003, Withdrawn; Affirmed and Majority and Concurring Opinion

Appellant's Motion for Rehearing Overruled; Opinion of April 17, 2003, Withdrawn; Affirmed and Majority and Concurring Opinions on Rehearing filed September 11, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-00-01505-CV

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AVI BART MARKOWITZ, Appellant

V.

BRIDGET MARY MARKOWITZ, Appellee

On Appeal from the 272nd District Court

Brazos County, Texas

Trial Court Cause No. 35,930A-272

C O N C U R R I N G   O P I N I O N   O N R E H E A R I N G

            I concur with the majority’s disposition of Avi’s first issue regarding the missing pretrial reporter’s record. However, I would hold that Avi also failed to meet the second and third requisites of Texas Rule of Appellate Procedure 34.6(f).  When a reporter’s record is lost or destroyed, a party is entitled to a new trial if four requirements are met.  Tex. R. App. P. 34.6(f)(1)–(4).  First, the appellant must timely request a record.  Id.  Second, for proceedings electronically recorded, a significant portion of the recording must be lost, destroyed, or inaudible through no fault of the appellant. Id.  Third, the lost or destroyed

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portion must be necessary to the appeal’s resolution. Id.  Fourth, the parties must be unable to agree on a complete reporter’s record.  Id.

            Most significantly, Avi fails to show that the record of pretrial proceedings is “necessary to the appeal’s resolution.” Id.; see Young v. Neatherlin, 102 S.W.3d 415, 423 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (appellant failed to demonstrate that missing portion of record was necessary to resolution of the appeal); Palmer v. Espey Huston & Assoc., Inc., 84 S.W.3d 345, 351–52 (Tex. App.—Corpus Christi 2002, pet denied).  In pretrial proceedings, the trial court addressed temporary orders, enforcement of those orders, and discovery disputes.  Avi’s issue on appeal is whether he received a fair and impartial trial on the merits, not error in the pretrial proceedings.  I believe that the reporter’s record of pretrial proceedings is not absolutely necessary to determine whether appellant received a fair and impartial trial on the merits.  As the court addressed in the opinion on rehearing, we examined the trial record and found Avi was not denied a fair or impartial trial on the merits.

            Further, Avi has not completely fulfilled the second requirement of Rule 34.6(f).  He must show that the pretrial record is lost, destroyed, or inaudible.  Tex. R. App. P. 34.6(f)(2).  Avi admits in his brief that he “is unaware of whether these recordings and their log notes have been lost or destroyed.”  Lastly, I agree with the majority that Avi failed to show that “the parties cannot agree on a complete reporter’s record.”  Tex. R. App. P. 34.6(f)(4). 

            I would hold that Avi has failed to fulfill three requisites of Rule 34.6(f).  Accordingly, Avi is not entitled to a new trial because of the reporter’s failure to file the record of pretrial proceedings.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Judgment rendered and Majority and Concurring Opinions on Rehearing filed September 11, 2003.

Panel consists of Justices Yates, Fowler, and Seymore.  (Seymore, J. majority.)