Villagomez Investments, LLC v. Magee (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)
(Op. by Justice Higley) (unavailable reporter's records, lost or destroyed clerks record,
supplemental record, entitlement to new trial)
[E]ach of the requirements of Rule 34.6(f) are satisfied. See Tex. R. App. P.
34.6(f). We hold that Villagomez Investments is entitled to a new trial.
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Higley
Before Justices Jennings, Keyes and Higley
01-08-00851-CV Villagomez Investments, L.L.C. v. Janie (Penny) Magee
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. Shearn Smith
O P I N I O N
The preliminary question presented by this appeal is whether appellant, Villagomez Investments,
L.L.C. (“Villagomez Investments”), is entitled to a new trial because the entire reporter’s record was
destroyed during Hurricane Ike. Because we answer that question in the affirmative, we reverse
and remand the case to the trial court.
Background
Villagomez Investments sued appellee, Janie Magee, for anticipatory breach of a lease
agreement. Magee filed a counterclaim against Villagomez Investments. Following a two-day bench
trial, the trial court rendered judgment that each party take nothing against the other. The trial
court signed its judgment on August 18, 2008. In support of the judgment, the trial court filed
findings of fact and conclusions of law. Villagomez Investments filed a request that the trial court
file additional and amended findings of fact and conclusions of law. The trial court denied the
request. Appellant also filed a motion for new trial. In the motion, Villagomez Investments
argued that the evidence presented at trial did not support the trial court’s findings of fact and
conclusions of law. The trial court denied Villagomez Investments’s motion for new trial.
Villagomez Investments appealed the trial court’s judgment. On October 13, 2008, Villagomez
Investments’s attorney sent a letter to the court reporter requesting preparation of the trial
transcript. In response, the court reporter sent Villagomez Investments an affidavit in which he
stated that his stenographic notes, “representing all the notes on the entire pretrial and trial
arguments, evidence, and rulings thereon made by the [trial] court . . . were destroyed by
Hurricane Ike.” The court reporter continued, “I have no way of salvaging any of my notes taken
during the trial, and therefore, I am unable to prepare and provide any of the requested reporter’s
record and transcript of the trial. . . .”
After being notified of the destruction of the court reporter’s notes, Villagomez Investments filed a
supplemental motion for new trial. Attaching the court reporter’s affidavit and citing Rule of
Appellate Procedure 34.6(f), Villagomez Investments requested a new trial on the basis that the
entire reporter’s record had been destroyed through no fault of its own. The trial court did not rule
on the supplemental motion for new trial, and it was overruled by operation of law.
Request Pursuant to Rule of Appellate Procedure 34.6(f)
Based on the complete destruction of the reporter’s record from the trial proceedings, Villagomez
Investments now requests this Court to reverse the trial court’s judgment and remand the case for
a new trial. Rule 34.6(f) provides that an appellant is entitled to a new trial when (1) the appellant
timely requests a reporter’s record; (2) by no fault of the appellant, a significant portion of the
court reporter’s notes and records has been lost or destroyed; (3) the lost portion of the reporter’s
record is necessary to the appeal’s resolution; and (4) the parties cannot agree on a complete
reporter’s record. Tex. R. App. P. 34.6(f).
Magee does not dispute that the reporter’s record has been destroyed through no fault of
Villagomez Investments, that “a significant portion” of the record has been destroyed, or that the
record cannot be replaced by an agreement of the parties. Nonetheless, Magee does not concede
that the trial court’s judgment should be reversed and the case remanded for new trial. Magee
contends that Villagomez Investments is not entitled to a new trial because it has not shown that it
made a written request for preparation of the reporter’s record. See Tex. R. App. P. 34.6(b)(1),(f).
Since Magee raised this argument, a supplemental clerk’s record has been filed, which contains
a copy of Villagomez Investments’s October 13, 2008 written request for preparation of the
reporter’s record. Because it was made within the time period for perfecting Villagomez Investments’
s appeal, the written request was timely and satisfies that requirement of Rule 34.6(f). See Tex. R.
App. P. 34.6(f); see also Tex. R. App. P. 26.1 (governing time for perfecting appeal).
Magee also contends that Villagomez Investments’s request for a new trial should be denied
because Villagomez Investments did not file a copy of the request for preparation of the reporter’s
record with the trial court clerk as provided in Rule 34.6(b). See Tex. R. App. P. 34.6(b). We
disagree that Villagomez Investments’s request should be denied on such ground. Although
subpart (b) of Rule 34.6 provides that a request for preparation of a reporter’s record should be
filed with the trial court clerk, subpart (f), governing the destruction of a reporter’s record, makes
no mention of such a requirement to obtain a new trial. See Tex. R. App. P. 34.6(f). As mentioned,
subpart (f) speaks only to making a timely request for preparation of the reporter’s record, which
Villagomez Investments has shown it did in this case. See id.
We further note that filing the request with the trial court clerk would have in no manner
prevented the complete destruction of the reporter’s record in this case. To deprive Villagomez
Investments of the right to a new trial because it did not file the request with the trial court clerk or
based on some other imperfection with the request is to evaluate form over substance, which we
will not do. See Gavrel v. Rodriguezi, 225 S.W.3d 758, 763 (Tex. App.—Houston [14th Dist.] 2007,
pet. denied) (rejecting appellee’s argument that appellant not entitled to new trial pursuant to Rule
34.6(f) because appellant had not timely requested reporter’s record); In re G.M.S., 991 S.W.2d
923, 925 (Tex. App.—Fort Worth 1999, pet. denied) (determining that appellant was entitled to
new trial under Rule 34.6(f) even though request for reporter’s record not timely).
In any event, after Magee raised the filing-of-the-request issue, Villagomez Investments filed a
copy of the request with the trial court clerk. As mentioned, a supplemental clerk’s record has been
filed in this Court containing the request.
Magee also focuses on Rule 34.6(f)’s requirement that the destroyed portion of the reporter’s
record must be necessary to the appeal’s resolution. See Tex. R. App. P. 34.6(f)(3). Magee
contends that we should abate the appeal to the trial court for it to make a determination whether
the missing record is necessary to the appeal’s resolution. To support its position, Magee cites two
cases from this Court in which we abated for the trial court to make factual determinations
regarding the requirements of Rule 34.6(f). More precisely, Magee cites Pierre v. State, 2 S.W.3d
439, 444 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) and Country Village Homes, Inc. v.
Patterson, 236 S.W.3d 413, 447–48 (Tex. App.—Houston [1st Dist.] 2007, pet. granted, judgm’t
vacated w.r.m.).
Because they are factually inapposite to the instant case, neither Pierre nor Country Village
Homes requires us to abate the instant appeal to the trial court to determine whether the
destroyed reporter’s record is necessary to the resolution of the appeal. In both Pierre and
Country Village Homes, the appellant requested a new trial under Rule 34.6(f) because only a
portion of the record was missing. The question in those appeals was whether those portions were
necessary to the appeal’s resolution. In contrast, here, the entire reporter’s record is missing.
We also note that, in Pierre, although the trial court made a number of findings on abatement,
the trial court did not determine whether the missing portions of the record were necessary to
resolution of the appeal. 2 S.W.3d at 444. Instead, this Court made that determination. See id. In
Pierre, we concluded that the missing portions were necessary to the resolution of the appeal and
remanded the case to the trial court. See id.; cf Landry’s Seafood House-Addison, Inc. v. Snadon,
233 S.W.3d 430, 437 (Tex. App.—Dallas 2007, no. pet.) (concluding appellant was not entitled to
new trial without abating matter for hearing on the elements of Rule 34.6(f)).
As in Pierre, we conclude that the missing reporter’s record in this case is necessary to the
resolution of the appeal. We need not abate the case for that determination to be made. Here,
Villagomez Investments points to its motion for new trial for the challenges it would raise on appeal.
In the motion, Villagomez Investments assails the trial court’s findings of fact and conclusions of law
on the basis that the findings are not supported by the evidence presented at trial. Villagomez
Investments points primarily to the parties’ respective trial testimony to support its challenges.
Given the circumstances of this case, it would strain credulity to conclude that the destroyed
reporter’s record was unnecessary to the resolution of the appeal.
In sum, each of the requirements of Rule 34.6(f) are satisfied. See Tex. R. App. P. 34.6(f). We
hold that Villagomez Investments is entitled to a new trial.
Conclusion
We reverse the judgment of the trial court and remand to the trial court for further proceedings.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Keyes, and Higley.