State Farm Fire and Casualty Insurance Company v. Sandra Sue Vandiver

State Farm Fire & Casualty v. Vandiver IN THE TENTH COURT OF APPEALS No. 10-96-092-CV STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Appellant v. SANDRA SUE VANDIVER, Appellee From the 40th District Court Ellis County, Texas Trial Court # 46,056 OPINION ABATING APPEAL ON STATE FARM'S MOTION TO REVERSE AND REMAND OR TO CORRECT THE STATEMENT OF FACTS By its "Motion to Reverse and Remand and Alternative Motion for Correction and Supplementation of Statement Of Facts", State Farm Fire and Casualty Insurance Company complains that the statement of facts does not accurately reflect the proceedings in the trial court. Specifically, State Farm complains that the court reporter failed to make a contemporaneous verbatim record of excerpts from depositions and exhibits read before the jury, has failed to include several exhibits admitted at trial, and has submitted a statement of facts that contains numerous other omissions and inaccuracies. Attached to State Farm's motion is an affidavit from its lead trial attorney accompanied by an exhibit listing 74 specific instances where State Farm claims the statement of facts does not accurately reflect what actually happened at trial, and portions of the depositions which were read to the jury. Because resolution of State Farm's complaints involves a fact question, we abate this appeal and remand the cause to the trial court for a hearing. Tex. R. App. P. 55(a); see also Home Ins. Co. v. Hambric, 906 S.W.2d 956, 958 (Tex. App.—Waco 1995, no writ). The trial court shall, after notice to the parties, hold a hearing to settle the dispute and, if necessary, make the statement of facts conform to what occurred in the trial court. Tex. R. App. P. 55(a). The court shall make findings of fact and conclusions of law determining (1) if State Farm requested the court reporter to record the proceedings, (2) specifically which proceedings the court reporter was requested to record, (3) which proceedings and testimony were actually recorded, (4) what became of the court reporter's notes from any omitted recorded proceedings, and (5) specifically, what steps were taken by the trial court to ensure that our instructions in Hambric were complied with in this case. See Hambric, 906 S.W.2d at 958-61. Additionally, the court is directed to resolve any dispute between the parties as to the accuracy of the text of the statement of facts previously transcribed, so that the transcription conforms to what occurred in the trial court. Tex. R. App. P. 55(a). The court shall cause its findings and conclusions to be certified and transmitted to this court as a supplemental record within thirty days of this order. If anything material to either party is omitted from the statement of facts, we may direct that a supplemental record be certified and transmitted to us supplying such omitted matter. Id. 55(b). However, depending on the volume of corrections, if any, the court finds should be made to the statement of facts, we may instead order amended volumes be filed to replace those volumes already on file rather than accepting numerous supplemental corrections. Because State Farm's motion to reverse and remand may change, depending upon the proceedings in the trial court as a result of this order, we deny the motion currently pending before this court without prejudice to refile after the hearing in the trial court. PER CURIAM Before Chief Justice Davis, Justice Cummings, and Justice Vance Motion to reverse denied, appeal abated Order issued and filed August 21, 1996 Do not publish