Appeal Reinstated and Order filed October 13, 2011.




                                          In The

                      Fourteenth Court of Appeals
                                      ____________

                                  NO. 14-06-00976-CV
                                    ____________

                             LOUIS COGNATA, Appellant

                                            V.

                     DOWN HOLE INJECTION, INC., Appellee


                         On Appeal from the 127th District Court
                                 Harris County, Texas
                           Trial Court Cause No. 2005-78272


                                         ORDER
       On July 19, 2011, appellant filed a motion to determine the status of the reporter’s
record in this appeal.     In his motion, appellant provided copies of emails between
appellant’s counsel and Scotty Baldwin, the former official court reporter for the 127th
District Court. In one of the emails, Baldwin acknowledged that he had informed this
court that there is no reporter’s record for this appeal. He further wrote that “[t]here may
have been some hearings earlier but I know the ruling itself was by submission.”
Appellant asserts that it is unclear whether there was no record was taken or whether a
record was made but cannot be located.
         Rule 34.6(f) of the Texas Rules of Appellate Procedure provides that an appellant is
entitled to a new trial when the reporter’s record or exhibits are lost, under the following
circumstances:

        (1) if the appellant 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 . . . ;
        (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
        replace either by agreement or the parties or with a copy determined by the trial court
        to accurately duplicate with reasonable certainty the original exhibit.
Tex. R. App. P. 34.6(f).

Accordingly, we granted appellant’s motion, ordered the appeal abated, and directed the
trial court to conduct a hearing and to make findings pursuant to Rule 34.6(f). The hearing
record and the trial court’s findings have now been filed. The court found the following:
        1. Appellant, Louis Cognata did timely request a reporter's record;
        2. Significant portions of the reporter’s record have been lost or destroyed with no
        fault of the Appellant;
        3. The lost portions of the reporter’s record are not necessary to the Appellant’s
        appeal; and
        4. This Court finds that the Parties could agree on replacement of any exhibits with
        copies; however, Appellant is unwilling to agree to the same.

         The trial court found that the missing reporter’s record is not necessary to the appeal. We
order the appeal REINSTATED. Appellant’s brief shall be due on or before November 14,
2011.



                                          PER CURIAM

Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.


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