IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 17, 2001
______________________________
IN RE TRINITY UNIVERSAL INSURANCE COMPANY, RELATOR
_________________________________
ORDER
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Pending before this Court is a petition for writ of mandamus filed by Trinity Universal Insurance Company, relator, and a motion for emergency stay. By its motion, relator requests that the trial of the underlying action now set for September 24, 2001, be stayed pending disposition by this Court of its petition for writ of mandamus filed September 17, 2001. Because the Certificate of Compliance required by Rule 52.10(a) of the Texas Rules of Appellate Procedure does not certify to this Court that relator has complied with the rule, the motion is dismissed without prejudice to the refiling of a second motion.
Counsel for real party in interest in the underlying action, entitled Lilith Brainard, Sally Brainard Wicker, E. Swasey F. Brainard, II, Amy Brainard, Berklee Brainard Clements, Sena Brainard, and the Estate of Edward H. Brainard, II, v. Premier Well Service, Inc., cause number 31,677, 31st Judicial District Court, Gray County, is requested to file a response to the petition for writ of mandamus pursuant to Rule 52.4 of the Texas Rules of Appellate Procedure on or before October 1, 2001.
It is so ordered.
Per Curiam
Do not publish.
>
NO. 07-10-00071-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 11, 2010
CITY OF LUBBOCK, APPELLANT
v.
LARRY ACKERS, APPELLEE
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-533,594; HONORABLE RUBEN GONZALES REYES, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, City of Lubbock, appeals from a Final Judgment declaring a practice of the City to be unconstitutional and void, finding that the City took appellees, Larry Ackers, property in violation of the Texas Constitution, and awarding Ackers $116,000 in attorneys fees. While the trial of this cause was duly recorded by the Official Court Reporter for the 72nd District Court of Lubbock County, the reporter has attested that, due to a computer malfunction, a large portion of the transcript of the trial has been lost. According to Texas Rule of Appellate Procedure 34.6(f), an appellant is entitled to a new trial if (1) the appellant has timely requested a reporters record, (2) without the appellant's fault, a significant portion of the recording has been lost or destroyed or is inaudible, (3) the lost, destroyed, or inaudible portion of the record is necessary to the appeal's resolution, and (4) the parties cannot agree on a replacement for the lost, destroyed, or inaudible portion of the reporter's record. See Tex. R. App. P. 34.6(f).
On June 2, 2010, this Court informed the parties of the affidavit received from the official court reporter and directed appellant to certify whether the lost or destroyed portion of the reporters record is necessary to the appeals resolution and whether the parties have been able to reach an agreement concerning a replacement for the lost or destroyed portion of the reporters record. In response, the City filed a Motion to Remand for New Trial in which it certifies that the lost portions of the reporters record are necessary to the appeals resolution and that the parties are unable to agree on a complete reporters record.
In view of the circumstances present in this case, we conclude that the elements of Rule 34.6(f) exist at bar. Consequently, we grant the Citys motion, reverse the judgment, and remand the cause for a new trial.
Mackey K. Hancock
Justice