
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-05-00704-CV




Appellants, Dennis White and Karen Hamlett f/k/a Karen Baugh//
Cross-Appellant, Larry Baugh

v.

Appellee, Larry Baugh//Cross-Appellees, Dennis White and
Karen Hamlett f/k/a Karen Baugh




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 487,260, HONORABLE PETER M. LOWRY, JUDGE PRESIDING 




M E M O R A N D U M   O P I N I O N


                        Appellants/cross-appellees Dennis White and Karen Hamlett f/k/a Karen Baugh filed
their notice of appeal on October 20, 2005.  Appellee/cross-appellant Larry Baugh filed his notice
of cross appeal on November 2, 2005.  On March 21, 2006, a court reporter who sat for a portion of
the underlying trial in the district court notified the parties that the trial exhibits were “missing and/or
lost.”  Because of the missing exhibits, on April 19, 2006, and May 12, 2006, this Court set new
deadlines for filing the reporter’s record and White and Hamlett’s brief.  The final volume of the
reporter’s record was filed on June 16, 2006, without the trial exhibits.  White and Hamlett have not
filed their brief. 
                        Baugh filed a motion to dismiss, alleging that White and Hamlett have failed to
respond to a notice from the clerk requiring action within a certain time and failed to prosecute their
 appeal.  See Tex. R. App. P. 42.3(b), (c).  Baugh further asserted that he had made two unsuccessful
attempts to reach an agreement on replacement of the missing exhibits by identifying the trial
exhibits.
                        White and Hamlett, who have new counsel on appeal, respond that Baugh has not
provided them with actual copies of the trial exhibits that he identified.  They state that their trial
counsel have only provided their appellate counsel with three documents.  They also state that they
are unwilling to stipulate to the validity of the exhibits Baugh identified until they determine whether
the exhibits Baugh identified actually represent all of the trial exhibits.
                        Because the parties are unable to agree on the replacement of the trial exhibits for 
inclusion in the reporter’s record, we deny Baugh’s motion to dismiss, abate this appeal, and order
the district court to conduct a hearing to determine whether the missing exhibits may be replaced
with copies that “accurately duplicate with reasonable certainty the original exhibit[s].”  See Tex.
R. App. P. 34.6(f)(4).
 
 
                                                                        __________________________________________
                                                                        Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed:   September 1, 2006
