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Mid-Continent Group v. Goode

Under the Texas Rules of Appellate Procedure �34.6(f) an appellant is entitled to a new trial if the appellant has timely requested a reporter's record; if, without the appellant's fault, a significant portion of the court reporter's notes and records has been lost; if the lost portion of the record is necessary to the appeal's resolution; and if the lost portion of the reporter's record cannot be replaced by agreement of the parties. The issues of significance, necessity and replaceability are matters that the court could not fully determine from the record presently before it. Amarillo Court of Appeals, No. 07-09-0181-CV, 10-16-2009

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Before QUINN, C. J., and CAMPBELL and PIRTLE, JJ.

ORDER OF ABATEMENT AND REMAND

Appellant, Mid-Continent Group, d/b/a Mid-Continent Casualty and Mid-Continent Insurance, appeals an adverse judgment rendered in favor of Appellee, Kenneth Goode, on March 6, 2009. Appellant timely filed notice of appeal on June 4, 2009. The Clerk’s Record was filed on August 4, 2009. On August 28, 2009, Susan Myatt, CSR, filed seven of eight volumes of the Reporter’s Record. Volumes one through six consists of a Master Index (Volume 1), pretrial proceedings on September 14 and 19, 2007, (Volumes 2 and 3 respectively), as well as trial proceedings on September 22, 23, and 24, 2007, (Volumes 4, 5, and 6 respectively). Volume 6 concludes with the return of the jury’s verdict and discharge of the jury by the court. Volume 8 is a record of exhibits. At the time of the filing of the Reporter’s Record, this Court was informed that Volume 7 would be prepared by a different court reporter, Lindi Reeves, who had substituted for the original court reporter during a post-trial proceeding on November 7, 2008. We have now received a sworn affidavit from Lindi Reeves, entitled Affidavit Regarding Lost/Stolen Notes, wherein she states that the entire record of proceedings for November 7, 2008, was lost when her vehicle was broken into and her stenography machine stolen. Her affidavit is supported by a police report.

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