Wednesday, November 16, 2011

Caveat Appellant: Don't appeal a judgment without a Reporter's Record (unless its a summary judgment)

Court of Appeals concludes that Appellant-Defendant did not preserve his objection to the trial court’s lack of a court reporter for appeal. In the absence of a record of the trial proceedings (a bench trial), appellant could not show that the trial court judge committed reversible error by denying his motion for new trial or in awarding attorney’s fees. Judgment for Plaintiff in sworn-account suit is accordingly affirmed 
   
BACKGROUND
   
In September 2010, E&R Generation sued [Defendant] on a sworn account to recover unpaid invoices from a series of shoe shipments. Tex. R. Civ. P. 185. [Defendant] answered by an unverified general denial. [Defendant] also counterclaimed against E&R Generation for storage costs. Id. In January 2010, the trial court entered judgment in favor of E&R Generation for $89,396.10, plus $29,790.00 in attorney’s fees. [Defendant] timely filed a motion for new trial. In his motion for new trial, [Defendant] contended that he was unable to obtain competent counsel to properly defend his case. The motion was overruled by operation of law. Tex. R. Civ. P. 329b.

The appellate record does not contain a reporter’s record from the bench trial. A letter from the Official Court Reporter confirms that there is no record of any portion of the trial.


DISCUSSION
    
Failure to employ a court reporter
  
[Defendant] first asserts that the trial court erred, because it did not employ a court reporter during the trial as the law requires. Specifically, [Defendant] observes that Texas Government Code section 52.046 requires the court to appoint a court reporter to record the proceedings. Tex. Gov’t Code Ann. § 52.046(a) (West 2005).

A court reporter must transcribe court proceedings. Tex. Gov’t Code Ann. § 52.046(a). However, the parties may waive their right to a record. Tex. R. App. P. 13(a). In the absence of an express waiver, the failure to transcribe trial proceedings is error. In re Estate of Arrendell, 213 S.W.3d 496, 502 (Tex. App.—Texarkana 2006, no pet.) (court reporter’s failure to record proceedings constitutes error in the absence of an express waiver by parties); Reyes v. Credit Based Asset Serv. & Securitization, 190 S.W.3d 736, 740 (Tex. App.—San Antonio 2005, no pet.) (court reporter’s failure to transcribe the proceedings in accordance with Tex. R. App. P. 33.1(a) is error). Nonetheless, to preserve this issue for appeal, the complaining party must object to the court reporter’s failure to record the proceedings. Tex. R. App. P. 33.1(a); Reyes, 190 S.W.3d at 740 ("[I]n order to preserve the error for appeal, a party has the burden of objecting to the court reporter’s failure to record the proceedings"); see Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 582 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (presuming sufficient evidence supporting judgment where defendant failed to request court reporter record county court bench trial).

[Defendant] contends that the trial court erred because his bench trial was not recorded, but raises this issue for the first time on appeal. He did not, for example, complain about the lack of a court reporter in his motion for new trial. In a similar case, this Court affirmed a trial court’s judgment—after a bench trial on the merits—because the party seeking reversal had not complained about the lack of a reporter in the trial court. Nicholson, 226 S.W.3d at 583. Because [Defendant] did not object to the absence of a court reporter either by motion or written objection in the trial court, we hold that he has failed to properly preserve the error. See Reyes, 190 S.W.3d at 740 (error not preserved without objection in the trial court); In re Estate of Arrendell, 213 S.W.3d at 502 (same).

Motion for New Trial

[Defendant] next asserts that the trial court abused its discretion when it overruled his motion for new trial. We review a trial court’s denial of a motion for a new trial for abuse of discretion. See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Imkie v. Methodist Hosp., 326 S.W.3d 339, 344 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The trial court abuses its discretion if it acts without reference to any guiding principles or acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Under the abuse-of-discretion standard, we view the evidence in the light most favorable to the trial court’s actions. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied).

When no reporter’s record exists and the trial court has made no findings of fact, we presume that sufficient evidence supports the trial court’s judgment. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (holding that absent record, reviewing court must presume that evidence before trial court was adequate to support decision); Nicholson, 226 S.W.3d at 583 (assuming sufficient evidence supporting judgment in absence of reporter’s record). Without a reporter’s record, [Defendant] has not shown that the trial court abused its discretion in overruling the motion by operation of law. Moreover, with rare exception, a defendant is not entitled to court-appointed counsel in a civil case. Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003). Accordingly, we hold that the trial court did not abuse its discretion in overruling [Defendant]’s motion for new trial.

Attorney’s Fees

We review an award of attorney’s fees for abuse of discretion. Comm’rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). A decision to award attorney’s fees is an issue of fact. See Gonzalez v. Nielson, 770 S.W.2d 99, 102 (Tex. App.—Corpus Christi 1989, writ denied); Magids v. Dorman, 430 S.W.2d 910, 912 (Tex. Civ. App.—Houston [14th Dist.] 1968, writ ref. n.r.e.). "Where an appellant has not produced a record before this Court showing the evidence considered by the trial court in making the award, we cannot say that the trial court erred in the amount awarded." Houston Lighting & Power Co. v. Russo Props., Inc., 710 S.W.2d 711, 716 (Tex. App.—Houston [1st Dist.] 1986, no writ). Accordingly, we hold that the trial court did not abuse its discretion in awarding attorney’s fees.

Conclusion

[Defendant] objects to the absence of a court reporter for the first time on appeal. We conclude that, because [Defendant] did not challenge the lack of a reporter in the trial court, he has waived such a challenge on appeal. Without a record, we cannot find that the trial court abused its discretion in overruling [Defendant]’s motion for new trial or in awarding attorney’s fees. We therefore affirm the judgment of the trial court.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00044-CV - 11/10/11

Lack of Diligence: After more than 4 years, continuance for further discovery was not warranted in debt collection suit brought by Citibank

After the debt collection case had been pending for longer than the limitations period, a continuance of hearing on Citibank's motion for summary judgment for the purpose of taking depositions was not warranted. So found the trial court and the court of appeals agreed. But the motion for continuance by the credit-card debtor/defendant also suffered from formal defects. It was not verified (sworn) as required.

Motion for Continuance

In his second issue,[Credit card holder/defendant] argues that the trial court erred in granting Citibank summary judgment because his motion for continuance "included an affidavit showing sufficient cause for the continuance."

We review for an abuse of discretion a trial court's decision to deny a motion for continuance. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). The denial will be reversed only if the trial court acted in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. BMC Software Belg., N.V. v. Marchland, 83 S.W.3d 789, 800 (Tex. 2002). The party complaining of an abuse of discretion has the burden to present a record showing the abuse. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).

When a party contends that it has not had an adequate opportunity for discovery before a summary judgment, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (citing TEX. R. CIV. P. 166a(g)); see TEX. R. CIV. P. 251 ("No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or consent of the parties, or by operation of law."); TEX. R. CIV. P. 252 (providing, among other things, that if motion for continuance is filed on ground of "want of testimony," movant must present affidavit "showing the materiality" of such testimony and that he "used due diligence to procure such testimony" and "stating such diligence, and the cause of failure, if known"). If a motion for continuance is not verified or supported by affidavit, an appellate court must presume that the trial court did not abuse its discretion in denying the motion. City of Houston v. Blackbird, 658 S.W.2d 269, 272 (Tex. App.-Houston [1st Dist.] 1983, writ dism'd). The affidavit or motion must describe the evidence sought, state with particularity the diligence used to obtain the evidence, and explain why the continuance is necessary. Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.-Austin 2002, no pet.). If these requirements are met, then the appellate court considers three non-exclusive factors in determining the propriety of a trial court's ruling on a motion for continuance: (1) the length of time the case was on file; (2) the materiality and purpose of the discovery sought; and (3) whether the party seeking the continuance exercised due diligence to obtain the discovery sought. Joe, 145 S.W.3d at 161.

It is undisputed that[Credit card holder/defendant]'s motion for continuance was not verified and was not supported by an attached affidavit. However,[Credit card holder/defendant] argues that although his motion for continuance did not contain an affidavit "per se," his motion was supported by an affidavit attached to his summary-judgment response in which he listed "the names of the employees of Citibank whom he would seek to depose."

[Credit card holder/defendant] alleged in his motion for continuance that Citibank's representatives "had been effectively non-responsive" to his discovery requests and it was "unclear" whether Citibank's counsel had the "proper want of authority to prosecute this suit." Even assuming that we could consider[Credit card holder/defendant]'s affidavit attached to his summary-judgment response, this affidavit was deficient in multiple respects. See Rocha, 69 S.W.3d at 319. Despite his assertions on appeal, the record reflects that his affidavit did not list the names of the Citibank employees that he wanted to depose, describe the anticipated testimony of these representatives, or explain how such testimony was essential to his summary-judgment response. See West v. SMG, 318 S.W.3d 430, 443-44 (Tex. App.-Houston [1st Dist.] 2010, no pet.). [Credit card holder/defendant]'s motion for continuance also failed to show that he had used due diligence in procuring the desired depositions and that such testimony was material to his summary-judgment response. See TEX. R. CIV. P. 252.

As noted above, Citibank filed its summary-judgment motion more than four and one-half years after the case's commencement, providing [Credit card holder/defendant] more than enough time to conduct discovery and seek the aid of the trial court, if any, in compelling discovery. See Rest. Teams Int'l v. MG Secs. Corp., 95 S.W.3d 336, 339-41 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Accordingly, we hold that the trial court did not abuse its discretion in denying[Credit card holder/defendant]'s motion for continuance.

We overrule[Credit card holder/defendant]'s second issue.

SOURCE: First Court of Appeals Houston - No. 01-10-00768-CV 11/10/11