Sonia Bauserman and TMMAA Line Houston, Inc. v. Unimax Express, Inc.--Appeal from 133rd District Court of Harris County

Reversed and Remanded and Memorandum Opinion filed October 26, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00077-CV

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SONIA BAUSERMAN and TMMAA LINE HOUSTON, INC., Appellants

V.

UNIMAX EXPRESS, INC., Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 05-35263

M E M O R A N D U M O P I N I O N

This is an appeal from a judgment signed October 24, 2005. The clerk=s record was filed on April 18, 2006. The reporter=s record was filed on April 24, 2006. On May 24, 2006, appellants filed a motion for new trial, asserting that they had timely requested the reporter=s record, but that the court reporter noted in the reporter=s record that the exhibits were tendered to the District Clerk on October 24,2005, and were file-stamped received on October 25, 2006, but that as of March 7, 2006, the District Clerk was unable to locate the exhibits from the default judgment hearing held on October 24, 2005. Appellants stated in their motion that the missing exhibits were relevant and that they could not properly prosecute their appeal without these lost or missing exhibits. No response to this motion was filed.

Rule 34.6 provides that an appellant is entitled to a new trial under the following circumstances: (1) if the appellant timely requested a reporter=s record; (2) if, without appellant=s fault, a significant exhibit or significant portion of the reporter=s record has been lost or destroyed; (3) if the lost or destroyed exhibit is necessary to the appeal=s resolution; and (4) if the lost or destroyed exhibit 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).

On June 22, 2006, this court issued an order, abating the appeal, and directing the trial court to hold a hearing to make findings under Rule 34.6. We asked the trial court to reduce its findings to writing and to forward a supplemental clerk=s record containing those findings to our court on or before July 24, 2006. On October 11, 2006, the supplemental clerk=s record containing the trial court=s findings was filed in this court.

In its findings, the trial court found that appellants timely requested the record and paid for it on February 15, 2006, that the District Clerk misplaced the exhibits, that the missing exhibits were pertinent to the issue of financial damages, the missing exhibits were necessary for appellants= appeal on the issue of damages, and that the parties were unable to agree on a complete reporter=s record. Based on the trial court=s findings and conclusions, we find that appellants are entitled to a new trial. See Tex. R. App. P. 34.6(f). We grant appellants= motion.

Accordingly, the judgment of the trial court is reversed and the cause is remanded for further proceedings.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 26, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman.