Chase Oil and Gas Ltd. - Hill Pipeline, et al v. Mexia Gas Company--Appeal from 13th District Court of Navarro County

NO. 10-90-009-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

CHASE OIL AND GAS LTD. - HILL PIPELINE,

ET AL,

Appellants

v.

MEXIA GAS COMPANY,

Appellee

* * * * * * * * * * * * *

From 13th Judicial District Court

Navarro County, Texas

Trial Court #108-89

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

Appellants, Chase Oil and Gas Ltd.-Hill Pipeline and Eli Rebich, have filed motions to remand this case for a new trial based upon the affidavit of Sherry Dearen, the former official court reporter for the 13th District Court, that the documents and exhibits introduced into evidence at trial have been lost and cannot be located despite a diligent search. Dearen filed the affidavit after this court granted a writ of mandamus directing her to prepare and deliver a statement of facts. The District Clerk of Navarro County also filed an affidavit stating that neither she nor her staff were able to locate the exhibits after a diligent search.

In the event of a lost or destroyed record and the parties cannot agree on a statement of facts, an appellant is entitled to a new trial if the statement of facts was timely requested and the records have been lost or destroyed without appellant's fault. Tex. R. Civ. App. 50(e).

Neither Chase Oil nor Rebich has agreed to the reproduction of any trial exhibits or to the submission of substitute exhibits to this court. The record reveals that the exhibits have been lost or destroyed through no fault of Chase Oil or Rebich. Appellants timely requested the preparation of the statement of facts. The pre-conditions of Rule 50(e) having been met, Appellants' motions for remand are granted. See id.; Hidalgo, Chambers & Co. v. FDIC, 790 S.W.2d 700, 701-703 (Tex. App.--Waco 1990, writ denied). The judgment is reversed and the cause is remanded for a new trial. See Vickers v. Sunrise Lumber Co., 759 S.W.2d 747, 748 (Tex. App.--El Paso 1988, writ denied).

BILL VANCE

Justice

Before Chief Justice Thomas, Justice Cummings

and Justice Vance

Reversed and Remanded

Opinion delivered and filed January 31, 1991

Do not publish