In the Interest of K.M., I.M., & K.M., No. 13-17-00083-CV (Memorandum Opinion by Justice Contreras; Panel Members: Chief Justice Valdez and Justice Hinojosa)
In this appeal, the Thirteenth Court discussed the procedure that applies when a court reporter loses or damages his stenographic notes from the proceedings challenged in the appeal.
Jesus Mendoza appealed from an Order in Suit for Modification of Support Order and to Confirm Support Arrearage, signed January 6, 2017. The court reporter then filed an affidavit with the court of appeals, stating that the hard drive containing his stenographic notes had been dropped, and he could not provide a full transcript of the proceedings. The court of appeals remanded the case to the trial court for a hearing under Texas Rule of Appellate Procedure 34.6(f). Texas Rule of Appellate Procedure 34.6(f) provides that an appellant is entitled to a new trial if (a) the appellant timely requests a reporter’s record, (b) a significant portion of the court reporter’s notes is lost or destroyed without the appellant’s fault, (c) the lost or destroyed portion is necessary to the appeal, and (d) the lost or destroyed portion cannot be replaced by agreement of the parties or by a copy deemed by the trial court to accurately duplicate the original.
The trial court held a Rule 34.6(f) hearing and made findings on each of the four factors. Regarding the last factor—whether the lost or destroyed portion could be replaced—the court found as follows: “The Court therefore conducted a hearing, and by agreement of the parties to accurately duplicate with reasonable certainty the findings and orders previously rendered in the prior hearing of December, 2016, and order signed January 6, 2017.” The Thirteenth Court of Appeals construed this ambiguous language to mean that the record could not be replaced by agreement of the parties. The court vacated the judgment of the trial court and remanded the case for a new trial.
Held: Mendoza was entitled to a new trial since the reporter’s record of his first trial could not be provided or replaced and was necessary to the appeal. The trial court’s judgment was vacated and the case remanded for a new trial.
Juan Angel Guerra v. Raul P. Flores, No. 13-15-00533-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Contreras and Hinojosa)
In this direct appeal, the Thirteenth Court of Appeals reiterated the need for a complete record when ruling on legal sufficiency challenges.
Raul P. Flores performed engineering services for Juan Angel Guerra, but Guerra failed to provide payment. Flores filed suit, and a bench trial resulted in a $20,000 judgment for Flores. Guerra appealed. Guerra filed a partial reporter’s record reflecting only his own trial testimony.
Held: The Thirteenth Court of Appeals could not review Guerra’s legal sufficiency complaints because he did not submit a complete appellate record. The trial court’s judgment was affirmed.
Guerra first argued that Flores’s claim was barred by the statute of limitations, which the Thirteenth Court construed as a challenge to the legal sufficiency of the evidence to support the trial court’s implied finding that the suit was not barred. The court noted that, to succeed on appeal, Guerra was required to show that the evidence conclusively established that Flores’s claim was barred. This required the court to consider the entire record. However, Guerra provided only a partial reporter’s record. Guerra did not file and serve a request for a partial record. When the record is incomplete, the appellate court must presume that the missing portions support the trial court’s judgment. Guerra’s statute of limitations issue was overruled.
In a footnote, the court noted that Guerra’s other issues were also challenges to the legal sufficiency of the evidence. Again, since Guerra did not submit a complete appellate record, the court could not meaningfully review Guerra’s challenges.
The trial court’s judgment was thus affirmed.