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Geeting v. Craig Dyer

Court of Appeals of Texas, Fifth District, Dallas

November 7, 2017

JOSEPH GEETING, RICHARD GEETING, AND LAURI GEETING, Appellants
v.
CRAIG DYER INDIVIDUALLY AND ON BEHALF OF DYER CUSTOM INSTALLATION, INC., Appellee

         On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-04-01100

          Before Justices Bridges, Fillmore, and Stoddart

          MEMORANDUM OPINION

          CRAIG STODDART, JUSTICE.

         Following 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.[1] We affirm the trial court's judgment.

         Procedural Background

         It is 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.

         Pursuant 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.

         Etheridge 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.

         The 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.

         Law & Analysis

         In 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. Id.

         Texas 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.

         On 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 ...

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