                                      COURT OF APPEALS
                                   EIGHTH DISTRICT OF TEXAS
                                        EL PASO, TEXAS

                                                     §
    ROSA SERRANO,                                                    No. 08-15-000290-CV
                                                     §
                          Appellant,                                      Appeal from
                                                     §
    v.                                                            County Court at Law No. 7
                                                     §
    PELLICANO BUSINESS PARK, LLC,                                  of El Paso County, Texas
                                                     §
                          Appellee.                                 (TC # 2012-DCV-0641)
                                                    §

                                       OPINION ON MOTION

         This appeal is before the Court to determine whether Appellant, Rosa Serrano, is entitled

to reversal and remand for a new trial pursuant to TEX.R.APP.P. 34.6(f) because the court

reporter and substitute court reporter are unable to produce a record of the hearing on the

temporary injunction. Serrano’s motion for sanctions is also under consideration.

                                       FACTUAL SUMMARY

         On September 16-18, 2015, the trial court conducted a hearing on Appellee’s request for

a temporary injunction. Leticia Dittmar was the official court reporter of the County Court at

Law No. 7, and she transcribed the hearing. The trial court entered a temporary injunction order

against Serrano on September 18, 2015.1 Serrano timely filed her notice of interlocutory appeal

on September 25, 2015, and the appellate record was due to be filed on or before October 5,

1
  The trial court also held Serrano in contempt, but a contempt order cannot be challenged by direct appeal.
Consequently, our factual summary focuses on the facts pertinent to the temporary injunction.
2015. TEX.R.APP.P. 35.1. The clerk’s record was filed on October 6, 2015. Dittmar filed an

extension request on October 9, 2015. In the extension request, she explained that she was

unaware of the appeal until October 7, 2015 when Serrano provided her with a copy of the notice

of appeal. We granted Dittmar’s request and extended the deadline for filing the reporter’s

record to October 25, 2015.

       On October 28, 2015, Dittmar requested a second extension. In support of her extension

request, Dittmar explained that Serrano had asked her to stop working on the record for this

appeal. We granted the request and extended the deadline to November 14, 2015. When the

reporter’s record was not filed, Serrano filed a motion requesting an extension of time. On

November 30, 2015, Dittmar requested an extension of ninety days to prepare the reporter’s

record. Dittmar explained that she was on medical leave for a condition that prevented her from

preparing the reporter’s record. The Court granted the request and extended the deadline for

filing the record to February 29, 2016, but we informed Dittmar and the parties that it was a final

extension.

       Shortly before 5:00 p.m. on the day the record was due to be filed, Dittmar filed a letter

informing the Court that she had retired that same date due to a medical condition and she was

unable to prepare or file the reporter’s record. We ordered the trial court to conduct a hearing to

determine whether Serrano had timely requested the record, whether the court reporter’s notes

existed, and whether another court reporter could prepare the reporter’s record from those notes.

       At the hearing, Dittmar testified that she had the stenographic notes and exhibits from the

temporary injunction hearing. She also testified that Serrano had made a request for preparation

of the reporter’s record. When asked whether another court reporter could prepare the record




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from her stenographic notes, Dittmar answered in the affirmative but she added that her

assistance would be required.

       The trial court made the following findings: (1) the reporter’s record of the September

16, 17, and 18, 2015 hearing is necessary to the appeal; (2) Serrano requested that Dittmar

prepare the record but there is no evidence that Serrano made a timely request; (3) Dittmar is

physically unable to prepare the record due to a medical condition; (4) her notes and the exhibits

from the temporary injunction hearing have not been lost or destroyed; and (5) the reporter’s

record for the hearing could be completed in ninety days by another court reporter with the

assistance of Dittmar. The trial court subsequently appointed Cecilia Looney to prepare and file

the reporter’s record.

       On July 13, 2016, Dittmar filed a letter with the Court explaining that her medical

condition has rendered her unable to assist Looney with interpreting her stenographic notes and

there are no audio recordings that Looney could utilize to prepare the record of the temporary

injunction hearing. A little over a week later, Looney filed a letter stating that she cannot

transcribe the record without the audio recording. Looney also offered her opinion that no court

reporter could prepare the record from the stenographic notes alone.

       The Court gave the parties an opportunity to file responses to the court reporters’ letters.

In her response, Serrano argues that she is entitled to a new trial because the reporter’s record has

been lost without any fault on her part. Pellicano Business Park contends that Serrano did not

timely request preparation of the record and she is at fault for the loss of the reporter’s record.

                          SERRANO’S MOTION FOR SANCTIONS

       We begin by addressing Serrano’s motion for sanctions. She asks that we impose

sanctions against Pellicano Business Park because it “intentionally misapplied” Rule 34.6 of the



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Texas Rules of Appellate Procedure in their responses.            We have reviewed the response

submitted by Pellicano Business Park and do not find that it has misrepresented or misapplied

the elements of Rule 34.6. Serrano’s motion for sanctions is denied.

                        EVIDENTIARY HEARING NOT REQUIRED

       The next issue we must address is whether it is necessary to order the trial court to

conduct another evidentiary hearing. At the prior hearing, the evidence indicated that the record

had not been lost because the court reporter’s stenographic notes still existed, and Dittmar

testified that another court reporter could prepare the record from those notes with her assistance.

Unfortunately, Dittmar’s condition has worsened and she is unable to assist to Looney. Further,

Looney is unable to prepare the record without Dittmar’s assistance because there is no audio

recording of the temporary injunction hearing.           Because these facts are undisputed, it is

unnecessary for the trial court to conduct an evidentiary hearing.

                           LOSS OF THE REPORTER’S RECORD

       Under Rule 34.6(f), a party 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.

TEX.R.APP.P. 34.6(f). Serrano focuses on the second element, but she is not entitled to a new

trial unless all four circumstances are present.

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           Rule 34.6(b) requires the appellant to make a written request for preparation of the

reporter’s record at or before the time for perfecting the appeal. TEX.R.APP.P. 34.6(b)(1). In this

written request, the appellant must designate both the exhibits and the portion of the proceedings

to be included in the record. Id. Further, the appellant must file a copy of the written request

with the trial court clerk. TEX.R.APP.P. 34.6(b)(2). Because this is an accelerated appeal,

Serrano was required to make a written request for the record no later than October 8, 2015. See

TEX.R.APP.P. 26.1(b), 34.6(b)(1). Based on the evidence presented at the Rule 34.6(f) hearing,

the trial court found that Serrano had made a request for the court reporter to prepare the record,

but there was no evidence that her request was timely. A written designation is critical in this

case because the only portion of the trial court’s order that can be addressed in this interlocutory

appeal is the temporary injunction. In his written findings of fact and conclusions of law, the

trial court ordered Serrano to file with the district clerk true and correct copies of all written

requests made by her for the reporter’s record for the temporary injunction hearing.

           We ordered the district clerk to file a supplemental clerk’s record containing any written

requests by Serrano for the reporter’s record. The supplemental clerk’s record does not show

that Serrano made a written request for preparation of the reporter’s record in 2015 when she

filed the notice of appeal. It contains what appears to be a new written request filed by Serrano

on August 22, 2016.2 To the extent Serrano’s failure to make a timely written request and

designation of the record delayed Dittmar’s preparation of the record, it will be considered in our

analysis of the second element.

           Serrano maintains that the record has been lost without any fault on her part. It is

undisputed that Dittmar is physically unable to work on the record, and Looney has informed the

Court that she is unable to prepare the record from the stenographic notes. Given the absence of
2
    The certificate of service reflects that Serrano served it on August 22, 2016.

                                                           -5-
an audio recording of the hearing, we conclude that the reporter’s record is lost. See Johnson v.

State, 151 S.W.3d 193, 196 (Tex.Crim.App. 2004)(holding that court reporter’s notes are lost for

purposes of Rule 34.6 when the missing portions of record are irretrievable).

       The only remaining issue is whether the record has been lost without any fault on the part

of Serrano. The evidence shows that Dittmar was unaware of the appeal until Serrano provided

her with a copy of the notice of appeal on October 7, 2015. In her second extension request filed

on October 28, 2015, Dittmar explained that she had not completed the record because Serrano

had asked her to stop working on the record. Dittmar testified that she began experiencing

symptoms of the medical condition in October 2015, and other evidence showed that Dittmar

was on medical leave for that condition on November 30, 2015. If Serrano had timely filed her

written request and designation of the record, and if she had not asked Dittmar to stop working

on the record, Dittmar could have begun preparation of the record at a time when she was not

suffering from the medical condition that forced her retirement a few months later. Serrano,

however, specifically instructed her to stop working on the record. While the loss of the record

is not entirely the fault of Serrano, we cannot ignore that she did not file a designation of the

record and she intentionally stopped the court reporter’s preparation of the record at a point in

time when the court reporter still had the physical ability to prepare the record. The resulting

delay directly contributed to the loss of the record. We are unable to find that the record has

been lost without any fault on the part of Serrano. Consequently, Serrano is not entitled to

reversal of the temporary injunction order and remand for a new trial. The appeal will be

determined on the clerk’s record and the parties’ briefs. Serrano’s brief is due to be filed no later

than thirty days from the date of this opinion.




                                                  -6-
                                       PER CURIAM

August 25, 2016

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating




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