Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 298th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-04-01100
Justices Bridges, Fillmore, and Stoddart
a jury trial and entry of final judgment, Joseph Geeting,
Richard Geeting, and Lauri Geeting filed this appeal in which
they argue two issues: they are entitled to a new trial
because significant portions of the reporter's record are
missing or have been destroyed and because appellee Craig
Dyer presented evidence and arguments supporting his
now-disallowed cause of action for shareholder
oppression. We affirm the trial court's judgment.
uncontested that significant portions of the reporter's
record from the trial in this case have been lost or
destroyed. After the appeal was filed, this Court abated the
appeal and ordered the trial court to conduct a hearing and
enter findings of fact regarding, among other things,
whether, without appellants' fault, a significant exhibit
or other portion of the court reporter's notes and record
were lost or destroyed or a significant portion of the
electronic recording, if any, was lost or destroyed.
to this Court's order, the trial court conducted a
hearing and entered findings of fact. The trial court found
the case was tried before a jury on June 21, 22, 23, 24, 28,
29, and 30, 2010, and July 6, 7, 8, 12, and 13, 2010. The
jury returned its verdict on July 19, 2010. The trial
court's official court reporter was absent on July 6, 7,
and 8, 2010, but she engaged another court reporter, Shelley
Etheridge, to attend and take the trial proceedings on those
dates and Etheridge did so. On August 8, 2012, before the
entry of a final judgment, the trial court received a Notice
of Bankruptcy, which resulted in an immediate automatic stay.
The record shows the case was reinstated and a final judgment
was entered on November 13, 2015, more than five years after
the trial ended.
testified at the trial court's hearing. She stated she no
longer has notes or transcripts from the trial. She testified
that in the summer of 2015, she did some
"housecleaning" and destroyed the "notes,
paper notes, audio recordings - - I used back then cassette
tapes - - floppy discs, any paperwork that I had" that
were more than three years old. She then was asked whether
she kept "all that" on a computer and she replied:
" I had a computer and I'm assuming, if I can
elaborate, that that's what happened . . . because I had
a computer stolen, among other things. . . And I had not
backed up . . ." Her computer was stolen in 2012 or
2013, and she believed the three days of missing testimony
was on that computer. At the time of the hearing, there were
no remaining records of the proceedings from July 6, 7, and 8
from which she could prepare a transcript. Etheridge later
reiterated she had old notes and recordings as late as the
summer of 2015, until she did her "housecleaning."
Etheridge had no recollection of the appellants or their
counsel contacting her and asking her to preserve the record.
trial court found Etheridge's computer was stolen in 2012
or 2013, sometime during 2015-but before any notice of appeal
in this case was filed-Etheridge destroyed her notes of the
trial proceedings in this case, the notes were not backed up,
no transcript exists of most of the testimony of the
witnesses from July 6, 7, or 8, 2010, and there is no
recording from which the record could be reconstructed or
recovered. Further, the record cannot be replaced by
agreement of the parties or with a copy the trial court finds
reasonably similar to the original proceeding. The trial
court's findings state: "A substantial portion of
the record is missing without any fault" of appellants.
The trial court also determined the missing portion of the
record is necessary to the appeal.
their first issue, appellants argue they are entitled to a
new trial under rule 34.6(f), which addresses reporter's
records that are lost or destroyed. See Tex. R. App.
P. 34.6(f). We review a trial court's findings under
appellate rule 34.6(f) for an abuse of discretion. In
Interest of S.V., No. 05-16-00519-CV, 2017 WL 3725981,
at *3 (Tex. App.-Dallas Aug. 30, 2017, no pet. h.)
(collecting cases). A trial court abuses its discretion when
it acts without reference to any guiding rules or principles.
Rule of Appellate Procedure 34.6(f) entitles appellants to a
new trial if, as relevant to this case, they timely requested
a reporter's record; a portion of the court
reporter's notes and records have been lost or destroyed
through no fault of their own; the lost or destroyed record
is necessary to the resolution of their appeal; and the lost
or destroyed portion of the reporter's record cannot be
replaced by agreement of the parties. See Tex. R.
App. P. 34.6(f); see also In Interest of S.V., 2017
WL 3725981, at *3. The resolution of appellants' first
issue turns on whether the reporter's record was lost or
destroyed through no fault of their own.
request, an official court reporter shall, among other
things, take full shorthand notes of oral testimony offered
before the trial court and "preserve the notes for
future reference for three years from the date on which they
were taken." See Tex. Gov't Code Ann.
§ 52.046(a)(2), (4). The Texas Supreme Court discussed
this provision in its opinion in Piotrowski v.
Minns, 873 S.W.2d 368 (Tex. 1993). After citing the
government code, the supreme court stated:
By negative implication, the statute authorizes reporters to
cull stale notes from their records after three years when no
party has requested otherwise. If a litigant has not
requested the reporter to prepare a statement of facts within
three years, nor specifically requested that the notes of a
proceeding be preserved beyond three years, then the ...