                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-15-00392-CV

                                          Joyce Ann SARRO,
                                               Appellant

                                                   v.

                                         Michael A. SARRO,
                                              Appellee

                      From the 73rd Judicial District Court, Bexar County, Texas
                                   Trial Court No. 1998-CI-03821
                        Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: June 15, 2016

AFFIRMED

           Joyce Ann Sarro appeals a final divorce decree asserting she is entitled to a new trial

because the court reporter’s notes from a 2004 trial proceeding were destroyed. We affirm the

final divorce decree.

                                             BACKGROUND

           Michael A. Sarro filed a petition for divorce in March of 1998. On July 17, 1998, the trial

court judicially pronounced and rendered the divorce. The trial court subsequently signed a

divorce decree on August 20, 1998; however, on October 23, 1998, the trial court granted a new
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trial “as to property.” On August 17, 2004, a trial was held regarding property issues, but the final

divorce decree was not signed until April 1, 2015. In a separate letter order, the trial court

concluded the date of the divorce was August 17, 2004.

         On May 1, 2015, Joyce filed a motion for new trial stating she wanted to appeal the division

of the marital estate as to Michael’s retirement benefits and pension; 1 however, the court reporter

informed her that the reporter’s notes from the 2004 trial had been destroyed. Joyce attached to

her motion for new trial email correspondence from the court reporter informing Joyce’s attorney

that she was only required to keep her notes for three years, and the notes no longer existed. The

trial court denied the motion for new trial, and Joyce appeals.

                                                  DISCUSSION

         As previously noted, Joyce contends she is entitled to a new trial because the reporter’s

notes from the 2004 trial have been destroyed. Joyce relies on rule 34.6(f) of the Texas Rules of

Appellate Procedure which provides:

                 (f) Reporter’s Record Lost or Destroyed. An appellant is entitled to a new
         trial under the following circumstances:
                 (1) if the appellant has timely requested a reporter’s record;
                 (2) if, without the appellant’s fault, a significant exhibit or a significant
         portion of the court reporter’s notes and records has been lost or destroyed or — if
         the proceedings were electronically recorded — a significant portion of the
         recording has been lost or destroyed or is inaudible;
                 (3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the
         lost or destroyed exhibit, is necessary to the appeal’s resolution; and
                 (4) if the lost, destroyed or inaudible portion of the reporter’s record cannot
         be replaced by agreement of the parties, or 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.




1
  The divorce decree awards Joyce a “50% portion of Michael A. Sarro’s retirement benefits in (a) the income and
principal accrued from June 6, 1993 until July 17, 1998, of the VIA Metropolitan Transit Retirement Plan; and (b) a
50% portion of the income accrued from June 6, 1993 until July 17, 1998, of the Public Sector Service Center Deferred
Compensation account no. [XXX], arising out of Michael A. Sarro’s employment with VIA Metropolitan Transit,
more particularly defined in the Qualified Domestic Relations Order signed by the Court.”

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TEX. R. APP. P. 34.6(f). Michael responds that Joyce is not entitled to a new trial because she failed

to timely request the reporter’s record, and Joyce was at fault regarding the destruction of the

reporter’s notes.

       In Piotrowski v. Minns, the Texas Supreme Court addressed an issue similar to the issue

presented by Joyce in the instant case. 873 S.W.2d 368 (Tex. 1993). In Piotrowski, assailants shot

Barbara Piotrowski in 1980, paralyzing her from the waist down. 873 S.W.2d at 369. In 1982,

Piotrowski filed a petition to divorce Richard Minns, alleging a common-law marriage. Id. A few

months later, Piotrowski filed a separate lawsuit against Minns for the injuries she sustained in the

shooting, alleging Minns hired the three gunman to kill her. Id. Minns filed a special appearance

in the divorce action. Id. Although the trial court initially granted the special appearance, it

changed its ruling on rehearing and denied the special appearance in August of 1982. Id. After

the trial court consolidated the two lawsuits, the trial court imposed death penalty sanctions and

entered a default judgment against Minns on the personal injury claim. Id. Piotrowski nonsuited

the divorce claim, and the parties tried the issue of damages to a jury. Id. The jury awarded

Piotrowski $18,100,000.00 in actual damages and $14,000,000.00 in punitive damages. Id.

       After filing his notice of appeal, Minns requested the court reporter to prepare reporter’s

records of all pretrial hearings. Id. The court reporter responded that no reporter’s record was

available for the 1982 special appearance hearing because she did not retain records after three

years. Id. Minns filed a motion in the court of appeals seeking a new trial based on the loss of the

record. Id. The court of appeals reversed the trial court’s judgment based on the missing record

and remanded the cause for a new trial. Id. at 370.




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         The Texas Supreme Court held Minns failed to satisfy the appellate rule’s requirements

that would entitle him to a new trial and reversed the intermediate appellate court’s judgment. 2 Id.

at 370-71. The court reasoned:

                 We are not persuaded that Minns satisfied the Rule’s requirement that he
         show he was without fault in the loss of the notes and records. The duty to protect
         the record does not spring into being only at the conclusion of trial, when the
         appellant begins the steps to perfect an appeal. At every stage of the proceedings
         in the trial court, litigants must exercise some diligence to ensure that a record of
         any error will be available in the event that an appeal will be necessary. . . . .
                 We conclude that in order to obtain the benefit of [the rule], an appellant
         must have taken steps to ensure that stale notes are not destroyed as permitted by
         statute. The Government Code requires the reporter, upon request, to “preserve the
         notes for future reference for three years from the date on which they were taken....”
         TEX. GOV’T CODE § 52.046(a)(4) (1988). 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 litigant is not free from fault
         if the notes are destroyed as the statute authorizes. Any other construction of [the
         rule] leads to untenable results.

Id. The court concluded, “it is the party aggrieved by a ruling who must take the steps to ensure

proper review.” Id. at 371. Because Minns did not inquire about the notes until nine years after

the hearing, the court held he “failed to establish that he exercised diligence such that he was

without fault in the destruction or loss of records.” Id.; see also Ganesan v. Vallabhaneni, 96

S.W.3d 345, 349 (Tex. App.—Austin 2002, pet. denied) (holding appellant was not free from fault

under rule 34.6(f) because he “could have requested the reporter to prepare the record within three

years of the proceeding, or at minimum requested that the record be preserved”); Alvear v. State,

25 S.W.3d 241, 245 (Tex. App.—San Antonio 2000, no pet.) (holding appellant not entitled to a




2
  The rule in effect at that time was similar to the current rule and provided, “If the appellant has made a timely request
for a statement of facts, but the court reporter’s notes and records have been lost or destroyed without appellant’s fault,
the appellant is entitled to a new trial unless the parties agree on a statement of facts.” Piotrowski, 873 S.W.2d at 370
(quoting TEX. R. APP. P. 50(e)).

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new trial under rule 34.6(f) because he took no action to preserve the reporter’s record from a

hearing that occurred fifteen years prior to the appeal).

        In this case, the record does not show that Joyce took any action to preserve the reporter’s

record from the 2004 trial. Accordingly, she is not free from fault under rule 34.6(f) and, therefore,

is not entitled to a new trial.

                                           CONCLUSION

        The final decree of divorce is affirmed.

                                                    Karen Angelini, Justice




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