Motion for new trial must be set for hearing to establish relevant facts that form basis for relief

Evian Johnson and Mellanie M. Walton v. Pamela Lee & Donny Lee, NO. 01-17-00773-CV (Tex.App. - Houston [1st Dist.] Oct. 30, 2018) (appellants' failure to obtain hearing on motion to attack default judgment nixes appeal based on failure to preserve issues for review. Motion was overruled by operation of law in the trial court).

EVIAN JOHNSON AND MELLANIE M. WALTON, Appellants,
v.
PAMELA LEE AND DONNY LEE, Appellees.

No. 01-17-00773-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued October 30, 2018.

Derek Deyon, for Evian Johnson and Mellanie M. Walton, Appellants.

Neil A. Bickley, for Pamela Lee & Donny Lee, Appellee.

On Appeal from the 270th District Court, Harris County, Texas, Trial Court Case No. 2017-20412.

Panel consists of Justices Keyes, Bland, and Lloyd.

MEMORANDUM OPINION

JANE BLAND, Justice.

Evian Johnson and Mellanie M. Walton appeal from a default judgment. Johnson and Walton contend that the trial court abused its discretion when their motion for new trial was overruled by operation of law. Because Johnson and Walton did not request a hearing on their motion for new trial or present it to the trial court on written submission, they failed to preserve for our review the challenges to the judgment raised in the motion. Accordingly, we affirm the trial court's judgment.

BACKGROUND

This suit arises out of an automobile accident. Pamela and Donny Lee sued Johnson and Walton for negligence. Johnson and Walton were served with the Lees' petition but did not answer the suit. The Lees requested that the trial court enter a default judgment. The trial court signed a default judgment against Johnson and Walton, and it awarded damages in the amount of $10,400.82.

Johnson and Walton moved for a new trial, contending that their failure to answer resulted from their lack of notice of the lawsuit, or alternatively, their lack of understanding of "what legal documents to file and where." Walton attached an affidavit, in which she averred that all facts stated in the motion were true and correct and within her personal knowledge.

Johnson and Walton did not file a request for submission or seek a hearing on their motion. The record does not show that the trial court considered the motion either by written submission or at an oral hearing. The motion for new trial was denied by operation of law. Johnson and Walton moved for reconsideration, but the record again does not reveal any request for submission or hearing of the motion.

DISCUSSION

Johnson and Walton contend that the trial court abused its discretion by failing to grant a new trial based on the grounds asserted in their motion.

A. Standard of review and applicable law

We review a trial court's denial of a motion for new trial for abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). But we do so only if the movant has first presented the motion to the trial court; if a movant seeks a new trial on a ground on which evidence must be heard, the movant must obtain a hearing on its new-trial motion to preserve error. See TEX. R. APP. P. 33.1(b); Felt v. Comerica Bank,401 S.W.3d 802, 808 (Tex. App.-Houston [14th Dist.] 2013, no pet.).

B. Analysis

Johnson and Walton asked the trial court to set aside its default judgment in their motion for new trial, but they did not set the motion for a hearing, or request that the trial court consider it by written submission. The trial court never acted on the motion. Instead, the motion was denied by operation of law. Because a hearing on the motion for new trial was required to preserve the issues raised in the motion for our review, we overrule their appellate complaint. See TEX. R. APP. P. 33.1(b); Felt, 401 S.W.3d at 808; see also R&G Transp. v. Fleetmatics, No. 01-14-00891-CV, 2016 WL 268553, at *2 (Tex. App.-Houston [1st Dist.] Jan. 21, 2016, no pet.) (mem. op.) (no abuse of discretion when movant fails to set new-trial motion for hearing and it is overruled by operation of law).

CONCLUSION

We affirm the judgment of the trial court.

Murphy v Underhill (Tex.App. 2018) Failure to request reporter's record at trial proves fatal to subsequent appeal

Murphy v. Underhill, No. 14-17-00385-CV (Tex.App. - [14th Dist.] Jun. 14, 2018) (in the absence of reporter's record -- none was taken -- court of appeals presumes that the evidence presented at trial supports the judgment, including the denial of relief) 

TERRY MURPHY, Appellant,
v.
BILL UNDERHILL, ALLIANCE ROOFING & CONSTRUCTION, Appellee.

No. 14-17-00385-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Memorandum Opinion filed June 14, 2018.

Cyril-Westcott Omwirhiren, for Terry Murphy, Appellant.

Paul Kennedy, for Bill Underhill, Alliance Roofing & Construction, Appellee.

On Appeal from the County Civil Court at Law No. 2 Harris County, Texas, Trial Court Cause No. 1087643.

Affirmed.

Panel consists of Chief Justice Frost and Justices Christopher and Jamison.

MEMORANDUM OPINION

TRACY CHRISTOPHER, Justice.

In this breach-of-contract case, the plaintiff/appellee Bill Underhill d/b/a Alliance Roofing & Construction prevailed in his claim against defendant/appellant Terry Murphy in a Harris County justice court, alleging that Murphy failed to pay a 25% cancelation fee on a contract to repair Murphy's roof. After the justice court ruled in Murphy's favor, Underhill appealed to the county court at law for trial de novo. After a non-jury trial, the county court at law rendered judgment in Underhill's favor.

On appeal from the county court at law's judgment, Murphy contends that the document he and Underhill signed was not a contract but an unenforceable proposal. Murphy further contends that the trial court abused its discretion in refusing to admit into evidence a competing proposal for the work. Finally, Murphy asks that we award him attorney's fees and sanction Underhill for bringing this suit. Because the omitted portions of the reporter's record presumably support the trial court's judgment, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND^[1]

After Murphy asked Underhill to inspect his roof, Underhill told Murphy that the roof had storm damage for which Murphy may have an insurance claim. Underhill and Murphy signed an agreement under which Underhill agreed to file the claim with Murphy's insurance carrier, and Murphy agreed to let Underhill perform the work if the insurer approved the claim, with Murphy being responsible to pay only the amount of his insurance deductible. They further agreed that if Murphy's insurer approved the claim and Murphy canceled the agreement more than three days after it was signed, then Murphy himself would pay Underhill a 25% cancelation fee.

Eight days after Murphy and Underhill signed the agreement, the insurer approved the claim. More than two weeks after the claim was approved, Underhill sent Murphy an invoice for the work to be performed in accordance with the insurer's "loss sheet." When Murphy received the invoice, he immediately responded that he was canceling the agreement.

Underhill sued Murphy in a Harris County justice court to recover the agreed-upon cancelation fee. The justice court ruled in favor of Murphy, and Underhill appealed to a Harris County civil court at law. The appeal was decided by a non-jury trial de novo, and the trial court rendered judgment against Murphy for $3,465.50. At Murphy's request, the trial court rendered findings of fact and conclusions of law. The trial court's findings support the judgment the trial court rendered, nor does Murphy contend otherwise. Murphy requested amended findings of fact and conclusions of law, but the trial court issued nothing further.

II. ISSUES PRESENTED

In his first, second, and fourth issues, Murphy challenges the trial court's determination that Murphy and Underhill had an enforceable contract; we address all three of these issues together.^[2] In his third issue, he argues that the trial court abused its discretion in refusing to admit evidence of a competing proposal Murphy allegedly received in the time between signing the agreement with Underhill and receiving Underhill's invoice. Although not presented as a separate issue, Murphy asked in his prayer for relief that we award him attorney's fees and sanction Underhill on the ground that Underhill's contract claim is groundless and was brought in bad faith for the purpose of harassment. We address the request for attorney's fees and sanctions together.

III. CHALLENGES TO THE EXISTENCE AND ENFORCEABILITY OF THE CONTRACT

Although Murphy does not expressly challenge the legal or factual sufficiency of the evidence supporting any of the trial court's findings, he does ask that this court reverse the trial court's judgment and render a take-nothing judgment on Underhill's contract claim. Because he would be entitled to rendition of judgment only if the evidence were legally insufficient to support the trial court's findings, we construe this issue as a challenge to the legal sufficiency of the evidence. See Onwudiegwu v. Dominguez, No. 14-14-00249-CV, 2015 WL 4366213, *5 (Tex. App.-Houston [14th Dist.] July 16, 2015, no pet.) (mem. op.) (citing Stevens v. Travelers Ins. Co., 563 S.W.2d 223, 233 (Tex. 1978)).

To analyze the legal sufficiency of the evidence, we review the record in the light most favorable to the challenged finding, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally sufficient if it "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). We will conclude that the evidence is legally insufficient to support the finding only if (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810.

We cannot review the record of the trial in this case because no record was filed; indeed, the information sheet filed in this Court by the trial court's official court reporter reveals that no reporter's record was made. We were presented with the same situation in Dongsheng Huang v. Riverstone Residential Group (Alexan Piney Creek), No. 14-11-00009-CV, 2011 WL 6003949, at *2 (Tex. App.-Houston [14th Dist.] Dec. 1, 2011, pet. dism'd) (mem. op.). There, as here, the court reporter certified that no reporter's record of the bench trial existed. Id. We explained that, in the absence of a reporter's record, we must indulge every presumption in favor of the trial court's findings.^[3] Id. (citing Bryant v. United Shortline Inc. Assur. Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998); see also Bryant,972 S.W.2d at 31 ("We indulge every presumption in favor of the trial court's findings in the absence of a statement of facts.");^[4] In re J.C., 250 S.W.3d 486, 489 (Tex. App.-Fort Worth 2008, pet. denied) (stating that, in the absence of a reporter's record, the court could not review the appellant's challenge to the sufficiency of the evidence). 

We accordingly presume that the evidence presented at trial supports the trial court's findings, and we overrule Murphy's first, second, and fourth issues.

IV. CHALLENGE TO THE EXCLUSION OF EVIDENCE

We review the trial court's exclusion of evidence for abuse of discretion. JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015). We will not reverse a judgment due to the erroneous exclusion of evidence unless the ruling probably resulted in an improper judgment. Id.

In the absence of a reporter's record, we cannot say that the trial court erred in excluding the evidence or that the ruling was harmful. See Brentwood Fin. Corp. v. Lamprecht, 736 S.W.2d 836, 843 (Tex. App.-San Antonio 1987, writ ref'd n.r.e.) ("We presume that the rulings of the trial court are correct, and we will consider only matters shown by the record."). Because we must presume that a record of the trial would have supported the trial court's ruling, we overrule Murphy's third issue.

V. REQUEST FOR ATTORNEY'S FEES AND SANCTIONS

In his prayer for relief, Murphy asks that we sanction Underhill pursuant to Texas Civil Practice and Remedies section 9.012 and order Underhill to pay "Appellee's reasonable attorney fees." 

Because Murphy pleaded in the trial court for sanctions and for an order that Underhill be ordered to pay Murphy's attorney's fees, we assume that Murphy meant to request that we order Underhill to pay "Appellant's reasonable attorney's fees." Murphy sought sanctions under Texas Civil Practice and Remedies Code section 9.012 in the county court at law, and we construe this request as an appellate challenge to the county court at law's denial of this request.

Here, too, we are bound by the presumption arising from the omitted reporter's record. We must presume that a record of the trial proceedings would have supported the county court at law's refusal to award Murphy the requested relief. See Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.-Houston [14th Dist.] 1999, pet. denied) ("Where the record is ambiguous or silent, the presumption of validity will supply by implication every proof, element, factual finding, or proper application of the law needed to support the judgment.").

We accordingly reject this appellate challenge.

VI. CONCLUSION

Because we presume that a reporter's record of the trial would support the trial court's rulings, we affirm the trial court's judgment, including its failure to award Murphy attorney's fees or to sanction Underhill.

[1] We describe the facts as found by Harris County Civil Court at Law No. 2.

[2] Murphy states these issues as follows:

1. Whether a roof job proposal lacking cost of repairs submitted by Bill Underhill (Appellee) to home owner Murphy (Appellant) followed by a job estimate that was unambiguously rejected by the home owner rise to the level of an enforceable contract.

2. Whether the estimate that was sent on August 15, 2016 by Underhill which was rejected by Murphy within the hour created a contractual obligation.

. . . .

4. Whether the relationship between Underhil[l] and Murphy represent a failure of "meeting of the minds["] and the doctrine of agreement to agree.

Full capitalization omitted.

[3] We might be said to have a partial reporter's record, because the exhibits submitted at trial have been filed in the clerk's record, and the Texas Rules of Appellate Procedure treat trial exhibits as part of the reporter's record. See TEX. R. APP. P. 34.6(a) (stating that the reporter's record includes any of the trial exhibits designated by a party to the appeal). The result, however, would be the same. An appellant may request a partial reporter's record, but "must include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues." TEX. R. APP. P. 34.6(c)(1). If the appellant complies with the rule, then "[t]he appellate court must presume that the partial reporter's record designated by the parties constitutes the entire record for purposes of reviewing the stated points or issues." TEX. R. APP. P. 34.6(c)(4). Even a late-filed statement of issues will support the presumption, absent some indication that the appellee was adversely affected by the delay. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002) (per curiam). But if the appellant entirely fails to submit a statement of the points or issues to be presented on appeal, "we must presume that the omitted portions of the record are relevant and would support the judgment." Mason v. Our Lady Star of the Sea Catholic Church, 154 S.W.3d 816, 822 (Tex. App.-Houston [14th Dist.] 2005, no pet.). The record before us does not contain the parties' agreement to a partial reporter's record or to a statement of the case. It also does not contain a statement of Murphy's issues to be presented on appeal. Thus, even if the trial exhibits included in the clerk's record were construed as a partial reporter's record, we still would be required to presume that the omitted portions of the reporter's record are relevant and support the trial court's judgment.

[4] What previously was called a "statement of facts" is now called the reporter's record. TEX. R. APP. P. 34 cmt. to 1997 change ("Clerk's record is substituted for transcript, and reporter's record is substituted for statement of facts throughout the rules."); see also Shields Ltd. P'ship v. Bradberry, 526 S.W.3d 471, 480 n.22 (Tex. 2017) (noting that a "statement of facts" is now called the reporter's record); Nejnaoui v. State, 44 S.W.3d 111, 115 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (same).

Error in denial of pre-judgment interest as part of the judgment must be preserved for appellate review, 14th Court says

A complaint regarding the award of pre-judgment interest must be preserved in the trial court by a motion to amend or correct the judgment or by a motion for new trial. See Keith v. Keith, 221 S.W.3d 156, 173 (Tex. App.-Houston [1st Dist.] 2006, no pet.); see also Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987) (per curiam) (error regarding award of pre-judgment interest must be preserved); Miller v. Kendall, 804 S.W.2d 933, 944 (Tex. App.-Houston [1st Dist.] 1990, no writ) (motion to amend or correct judgment or motion for new trial is proper vehicle for preserving error in judgment). The Nguyens failed to object to the trial court regarding the award of post-but not pre-judgment interest, and such failure waived this issue for appellate review. See Keith, 221 S.W.3d at 173; see also TEX. R. APP. P. 33.1(a)(1). We overrule the Nguyens' first issue on cross-appeal.

SOURCE: FOURTEENTH COURT OF APPEALS - No. 14-11-00126-CV - 5/17/12 (substituted opinion) (Cross-appellants argued that the trial court abused its discretion in failing to award pre-judgment interest, despite finding that they were entitled to such interest.)

Do-it-Yourself in Justice Court (JP Court) not a good idea, much less on appeal

Pro Se Litigants (parties acting as their own attorney, also called pro-pers elsewhere) almost always come to grief, and have their legal incompetence pointed out for the whole world to see if they insist on pursuing their case in the court of appeals, as illustrated for the umptieth time in the following ….   

MEMORANDUM OPINION

In this forcible detainer case, [former homeowner], acting pro se, appeals the trial court’s judgment granting Wells Fargo Bank, National Association, as Trustee for Securitized Asset-Backed Receivables, LLC 2005 FR3 Mortgage Pass-Through Certificates, Series 2005-FR3 (Wells Fargo) possession of [former home  owner]’s former residence.  [Former home  owner] complains that the trial court erred by (1) denying her the opportunity to seek legal counsel; (2) awarding possession to Wells Fargo in spite of a conflicting claim to ownership; (3) failing to address Wells Fargo’s failure to attend court-ordered mediation; and (4) abusing its authority by requiring her to post a $34,200 supersedeas bond for the appeal.  We hold that [former home  owner] waived these complaints and affirm.

Background  

After [former home  owner] defaulted on her mortgage, her private residence became the subject of a nonjudicial foreclosure sale.  Wells Fargo became owner of the residence under a substitute trustee’s deed.  [former home  owner] continued to live in the residence, so Wells Fargo instituted this forcible detainer lawsuit in justice court to obtain possession of the property.  The justice court granted Wells Fargo possession of the property, and [former home  owner] appealed that judgment to the county court at law.  The court at law tried the case de novo and entered final judgment in favor of Wells Fargo.

Discussion

In its response brief, Wells Fargo contends that [former home  owner] failed to preserve any of her complaints on appeal.  In order to properly preserve a complaint for appellate review, the record must show that (1) the complaint was made to the trial court by a timely request, objection, or motion and (2) the trial court ruled on or refused to rule on the request, objection, or motion.  Tex. R. App. P. 33.1(a).  This rule applies equally to pro se litigants as it does to those represented by counsel.  “Pro se litigants,” like [former home  owner], “are held to the same standards as licensed attorneys and must comply with all applicable laws and rules of procedure.”  Hope’s Fin. Mgmt. v. Chase Manhattan Mortg. Corp., 172 S.W.3d 105, 107 (Tex. App.—Dallas 2005, pet. denied); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1985, no writ); see West Columbia Nat’l Bank v. Griffith, 902 S.W.2d 201, 206 (Tex. App.—Houston [1st Dist.] 1995, writ denied); accord Scoville v. Shaffer, 9 S.W.3d 201, 204 (Tex. App.—San Antonio 1999, no pet.); see also Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978).

With respect to [former home  owner]’s first complaint, the record nowhere reflects that [former home  owner] asked for additional time to seek legal counsel before trial or that the trial court denied such a request.  On the contrary, the trial court’s final judgment states, “Defendant Cynthia [former home  owner] appeared pro se and announced ready.”  After the close of trial, [former home  owner] asked the trial court, “Could I have gotten an attorney?”  As [former home  owner]’s question reflects, this request was untimely.  Thus, [former home  owner] did not preserve this issue for appellate review.  See Tex. R. App. P. 33.1(a).

[former home  owner]’s complaint that the trial court’s ruling does not acknowledge a conflicting claim to ownership is likewise unpreserved.  [former home  owner] did not object to the admissibility of the evidence that Wells Fargo presented to the trial court, nor did she offer any evidence of her own to show that she or another had a superior right to immediate possession, which is the only issue in a forcible detainer action.  Tex. R. Civ. P. 746; see Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.).  To the extent [former home  owner] alleges that a conflicting right to ownership exists, that issue lies beyond the scope of a forcible detainer action.  Dormady, 61 S.W.3d at 557; see Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. App.—El Paso 1994, writ denied) (“Where title to the property is directly involved in the suit, the justice and county courts lack jurisdiction.”). 

With respect to [former home  owner]’s third issue, the record does not contain any written order requiring the parties to mediate their dispute.  It shows only that the trial court delayed entry of judgment for half an hour so that [former home  owner] could “go talk to” Wells Fargo’s counsel “and see if you can’t work out an arrangement.”  This language does not require Wells Fargo to take any action.  Further, [former home  owner] did not move for sanctions against Wells Fargo based on any failure to attend mediation.  As a result, [former home  owner] waived this issue as well.

[former home  owner] waived her final complaint, that the trial court abused its authority in requiring her to supersede the judgment, by failing to present it to the trial court in the first instance.  The record shows that, although the justice court granted [former home  owner]’s request to proceed in forma pauperis, [former home  owner] informed the court that she was going to post the bond “right now because I do have $34,000.”  By agreeing to post the bond, [former home  owner] waived any complaint about the bond requirement.[1] 

Conclusion

We hold that [former home  owner] waived her appellate complaints.  We therefore affirm the judgment of the trial court.

                                                                      Jane Bland

                                                                      Justice

Panel consists of Justices Keyes, Bland, and Sharp.

SOURCE:  First Court of Appeals - 01-10-00931-CV - 4/12/12 [ "former home owner" substituted for name of appellant ]

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

Fellow Justices Judge Jeff Brown

Fourteenth Court of Appeals panel does not recuse itself from case, or request transfer to another court of appeals; affirms new Justice Brown's judgment entered as trial court judge of the 55th District Court. Judge Jeffrey Brown was promoted to the Fourteenth Court of Appeals at the end of 2007 by gubernatorial appointment and faces the voters this year.

Norra v. Harris County, Texas No. 14-05-01211-CV (Tex.App. - Houston [14th Dist.] Mar. 4, 2008)(Guzman) (civil penalty for environmental violations affirmed, failure to preserve legal challenge for appellate review)
Opinion by Justice Guzman
Before Justices Leslie Brock Yates, Wanda Fowler and Eva M. Guzman
Carol Ann Norra v. Harris County, Texas; Texas Commission on Environmental Quality; and Texas Department of Health
Trial court: 55th District Court (Judge now Justice Jeff Brown)
Disposition: Civil Penalties Affirmed

This is an appeal from the trial court's award of civil penalties, injunctive relief and attorney's fees in a civil enforcement proceeding filed by the State of Texas and Harris County against the owner of two mobile home parks in Harris County. In two issues, appellant, Carol Ann Norra, argues that the civil penalties assessed against her for numerous and repeated violations of the State's public health laws are exemplary damages subject to Chapter 41 of the Texas Civil Practice & Remedies Code. She further argues that her United States constitutional right to due process was violated by the imposition of these penalties. She frames these arguments as legal sufficiency challenges to the evidence. But we conclude that these complaints are not challenges to the legal sufficiency of the evidence and are instead legal arguments that were not presented to the trial court. As such, she has failed to preserve error on these challenges, and we therefore affirm the judgment of the trial court.

Award of 100% of the Home Equity to Wife Affirmed Based on Stipulation

Court of Appeals Holds that Husband Did Not Effectively Revoke Stipulation Regarding Disposition of the Parties' Home.

In his appeal from the property division in a divorce case in which conservatorship was tried to a jury, husband unsuccessfully challenged his attorney's authority to enter the stipulation concerning the assignment of 100% of the equity in the parties' home to the wife. In an opinion by Justice Guzman, a former family court judge, the appellate panel holds that husband had waived the argument on appeal by failing to first present it in the trial court.

Zavala v. Zavala (Tex.App.- Houston [14th Dist.] May 31, 2007)(Guzman)(divorce, property division)

Disposition: Affirmed
Opinion by Justice Eva Guzman
Panel composition: Justices Kem Frost, Charles Seymore and Eva M. Guzman
Appellate cause no: 14-06-00081-CV
Style: Paul Zavala v. Evelyn Zavala
Trial Court: 246th District Court of Harris County (no name for judge shown on e-docket)

Legal lingo: divorce, unequal property division, 100% of the marital home to one spouse, settlement agreement between divorcing spouses, stipulation by counsel, revocation