Michael Kennedy v. Allan Polunsky, et al.--Appeal from 218th Judicial District Court of Karnes County

MEMORANDUM OPINION

No. 04-04-00562-CV

Michael KENNEDY,

Appellant

v.

Allan POLUNKSY, et al,

Appellees

From the 218th Judicial District Court, Karnes County, Texas

Trial Court No. 98-07-00114-CVK

Honorable Ron Carr, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Rebecca Simmons, Justice

Delivered and Filed: September 28, 2005

AFFIRMED

Michael Kennedy appeals from a May 25, 1999 order dismissing his lawsuit as frivolous. Kennedy argues that because the records of an evidentiary hearing have been lost or destroyed, he is entitled to a new hearing. We have previously stated, in an order dated September 15, 2004, that no reporter s record exists for the May 25 hearing.

Texas Rule of Appellate Procedure 34.6(f) provides that an appellant is entitled to a new trial if a significant and necessary part of the reporter s record is lost or destroyed through no fault of his own, the appellant timely requested the record and the parties cannot agree to a record. Tex. R. App. Proc. 34.6(f). The rule, by its plain wording, clearly applies only in situations in which a portion of the proceedings was recorded, but was later lost or destroyed. Kennedy cannot show that a court reporter ever recorded the hearing, and therefore he is not entitled to a new hearing.

In his brief, Kennedy references an evidentiary hearing held in October 2001. Even if a reporter s record exists for the October 2001 hearing, that record is not relevant to the May 25, 1999 hearing, and cannot be considered necessary to the resolution of this appeal.

The judgment of the trial court is affirmed.

Alma L. L pez, Chief Justice