### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00615- CV

Jaim e Cor tez , Appellan t

v. Mann Bracken, LL P ; and Travelers Casualty and S urety C om pany

of Ame rica, Appellees

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY NO. C-1 -CV- 09- 0013 95, H ONO RAB LE J. DAVID P HI LLIP S, JUDGE P RESIDING

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

Appellant J aime Cortez has filed notice of appea l from the trial court’s judgme nt on J une 24, 2009, awa

rding attorney ’s fee s to A ppellees Mann Br acke n, L L P, a nd Trave lers Casualty and Surety

Company

of Amer ica. The cler

k of t his Court rec eived a nd filed the trial c ourt cler k’s
rec ord on November 18, 2009. The court repor ter tender ed the repor

ter’s rec ord to the cler

k of this Court for filing on J anuar

y 5, 2010, including a transcript of the hearing and copies of exhibi ts from that hear ing that the court re porter obta ined from the a ppellees. The court re porter’ s cer tification repr esents that the complete repor ter’s rec ord consists of the transcript of the hearing on appellee s’
m o t ion for attorney ’s fee s and costs held befor e the trial court on J une 24, 2009, and the ex h i b i t s admitted into evidenc e at that h ea ri n g. Ho weve r, the court repor ter and the trial court cler k have informed this Court that, afte r a diligent sear ch, the cler k’s office h as b ee n u n ab le to locate theorig inal exhibi ts that wer e rec eived into evidenc e at the J une 24th hearing and filed of rec ord in the

trial court on J une 25, 2009. As a re s u l t , this Court is unable to file the repor ter’s rec ord as tender ed. SeeTex. R. App. P . 34.6(a)
.

1 Acc ording ly , we abate this appea l and rema nd this cause to the trial court for further proce eding s. See Tex. R. App. P. 34. 6 (f )( 4 ). Up o n rema

nd, the trial court is direc ted to conduct further proce eding s, including a hear ing if nece ssary , to deter mine if the lost exhibi ts can be repla ced either by agree ment of the parties or with copies that the trial court deter mines with rea sonable
cer tainty to be accur ate duplicates of t he original ex hibits. See id. The trial court is thus direc ted to: (1) conduct any nece ssary hea ri n gs ; (2 ) order the court repor ter to file a corr ecte d repor ter’s
rec ord of the trial proce eding s, including copies of any exhibi ts admitted into evidenc e, to the extent
corr ection is ne cessa

ry ; ( 3) make and file appropr iate finding s of fac t a nd conclusions of law to be included in a supplemental cler k’s rec ord; and (4) cause any hearing to be transcribed and included in a supplemental repor

ter’s rec ord. In the absenc e of a reque st for extension of time from the trial court, the corr ecte d repor ter’s rec ord of the J un e 2 4 , 2 009, hearing on appellee s’ motion for attorney ’s fee s, the supplemental cle rk’s re cord, a nd supplemental re porter’ s rec ord of the hearing and proc eeding s pursuant to this order, and any additional rec ords, includingany order s, findings, and conclusions, shall be sent to the cler k of this Court no later than F ebrua ry 26, 2010. See Tex. R. App. P. 35.3(c).

On J anuar y 5, 2010, this Court filed the transcript of the J une 24, 2009, hearing as a partial 1 repor ter’s r ecor d. 2Be fore J ustices Patterson, Puryear and He nson Abated Filed: January

29, 2010

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