




Reversed and Remanded and Memorandum Opinion filed October 26, 2006







Reversed
and Remanded and Memorandum Opinion filed October 26, 2006.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-06-00077-CV
____________
 
SONIA BAUSERMAN and TMMAA LINE HOUSTON, INC., Appellants
 
V.
 
UNIMAX EXPRESS, INC., Appellee
 

 
On Appeal from the 133rd District Court
Harris County,
Texas
Trial Court Cause
No. 05-35263
 

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




This is
an appeal from a judgment signed October 24, 2005.  The clerk=s record was filed on April 18,
2006.  The reporter=s record was filed on April 24, 2006.  On May 24, 2006,
appellants filed a motion for new trial, asserting that they had timely
requested the reporter=s record, but that the court reporter noted in the reporter=s record that the exhibits were
tendered to the District Clerk on October 24,2005, and were file-stamped
received on October 25, 2006, but that as of March 7, 2006, the District Clerk
was unable to locate the exhibits from the default judgment hearing held on
October 24, 2005.  Appellants stated in their motion that the missing exhibits
were relevant and that they could not properly prosecute their appeal without
these lost or missing exhibits.  No response to this motion was filed.
Rule
34.6 provides that an appellant is entitled to a new trial under the following
circumstances:  (1) if the appellant timely requested a reporter=s record; (2) if, without appellant=s fault, a significant exhibit or
significant portion of the reporter=s record has been lost or destroyed;
(3) if the lost or destroyed exhibit is necessary to the appeal=s resolution; and (4) if 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).
On June
22, 2006, this court issued an order, abating the appeal, and directing the
trial court to hold a hearing to make findings under Rule 34.6.  We asked the
trial court to reduce its findings to writing and to forward a supplemental
clerk=s record containing those findings to
our court on or before July 24, 2006.  On October 11, 2006, the supplemental
clerk=s record containing the trial court=s findings was filed in this court.
In its
findings, the trial court found that appellants timely requested the record and
paid for it on February 15, 2006, that the District Clerk misplaced the
exhibits, that the missing exhibits were pertinent to the issue of financial
damages, the missing exhibits were necessary for appellants= appeal on the issue of damages, and
that the parties were unable to agree on a complete reporter=s record.  Based on the trial court=s findings and conclusions, we find
that appellants are entitled to a new trial.  See Tex. R. App. P. 34.6(f).  We grant
appellants= motion. 
Accordingly,
the judgment of the trial court is reversed and the cause is remanded for
further proceedings.
PER CURIAM
 
Judgment rendered and Memorandum Opinion filed October
26, 2006.
Panel consists of Justices Anderson, Hudson, and
Guzman.  

