Motion Granted; Abatement Order filed November 12, 2013
In The
Fourteenth Court of Appeals
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NO. 14-13-00707-CV
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DON E. KILPATRICK, Appellant
V.
ADRIANA POTOCZNIAK, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1033021
ABATEMENT ORDER
Appellant has notified this court that portions of the reporter’s record may be
missing or inaccurate. Rule 34.6(f) of the Texas Rules of Appellate Procedure
provides that an appellant is entitled to a new trial when the reporter’s record or
exhibits are lost, under the following circumstances:
(1) if the appellant timely requested a reporters record;
(2) if, without the appellants fault, a significant exhibit or a significant
portion of the court reporters notes and records has been lost or
destroyed . . . ;
(3) if the lost, destroyed, or inaudible portion of the reporters record,
or the lost or destroyed exhibit, is necessary to the appeals resolution;
and
(4) if the lost, destroyed or inaudible portion of the reporters record
cannot be replaced by agreement of the parties, or the lost or
destroyed exhibit cannot be replace either by agreement or 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).
Accordingly, the trial court is directed to conduct a hearing to determine the
following: (1) whether appellant timely requested a reporter’s record; (2) whether
without the appellant’s fault, significant portions of the record have been lost or
destroyed; (3) whether the missing portions of the record are necessary to
appellant’s appeal; and (4) whether the parties can agree on replacement of the
missing exhibits with copies, or (5) if the trial court can determine that the missing
portions of the reporter’s record can be replaced by agreement. The court is
directed to reduce its findings to writing and to have a supplemental clerk’s record
containing those findings filed with the clerk of this court, together with a
reporter’s record from the hearing, on or before December 10, 2013.
The appeal is abated, treated as a closed case, and removed from this court’s
active docket. The appeal will be reinstated on this court’s active docket when the
trial court’s findings and recommendations are filed in this court. The court will
also consider an appropriate motion to reinstate the appeal filed by either party, or
the court may reinstate the appeal on its own motion. It is the responsibility of any
party seeking reinstatement to request a hearing date from the trial court and to
schedule a hearing in compliance with this court’s order. If the parties do not
request a hearing, the court coordinator of the trial court shall set a hearing date
and notify the parties of such date.
PER CURIAM
Panel consists of Justices Christopher, Donovan, and Brown. (Justice Christopher
would deny the motion).