VILLAGOMEZ v. MAGEE

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 01-08-00851-CV.

Advocates

Andres Perez-Chaumont, Law office of Andres Chaumont, Houston, TX, for Appellant. Jim L. Culpepper, Larry Andrew Dunham, Jim L. Culpepper Associates, Houston, TX, for Appellee.

See more information ...

Smart Summary

Factual and Procedural Background

Villagomez Investments, L.L.C. ("Villagomez Investments") sued Janie Magee for anticipatory breach of a lease agreement. Magee filed a counterclaim. After a two-day bench trial, the trial court rendered a judgment that both parties take nothing against each other and filed findings of fact and conclusions of law supporting this judgment. Villagomez Investments requested additional and amended findings, which were denied. Villagomez Investments also filed a motion for new trial, arguing that the evidence did not support the court's findings, but this motion was denied.

Villagomez Investments appealed the judgment and requested preparation of the trial transcript. The court reporter responded by affidavit that all stenographic notes from the trial were destroyed by Hurricane Ike, making preparation of the reporter's record impossible. Villagomez Investments then filed a supplemental motion for new trial, citing Texas Rule of Appellate Procedure 34.6(f), requesting a new trial due to the destruction of the entire reporter's record through no fault of its own. The trial court did not rule on this supplemental motion, resulting in its overruling by operation of law.

Legal Issues Presented

Whether Villagomez Investments is entitled to a new trial due to the complete destruction of the reporter's record during Hurricane Ike under Texas Rule of Appellate Procedure 34.6(f).
Whether Villagomez Investments made a timely written request for preparation of the reporter's record as required by Rule 34.6(f).
Whether failure to file a copy of the request for preparation of the reporter's record with the trial court clerk, as required by Rule 34.6(b), precludes entitlement to a new trial under Rule 34.6(f).
Whether the destroyed reporter's record is necessary to the resolution of the appeal, and if abatement to the trial court is required to make that determination.

Arguments of the Parties

Appellant's Arguments

Villagomez Investments timely requested the reporter's record and is entitled to a new trial because the entire reporter's record was destroyed through no fault of its own.
The destroyed reporter's record is necessary to the appeal's resolution as the appellant challenges the trial court's findings of fact and conclusions of law based on the trial testimony.
Failure to file the request for preparation of the reporter's record with the trial court clerk should not bar a new trial under Rule 34.6(f), as that rule does not impose such a requirement for a new trial.

Appellee's Arguments

Magee does not dispute the destruction of the reporter's record or that it was through no fault of Villagomez Investments, nor that the record cannot be replaced by agreement.
Magee contends Villagomez Investments is not entitled to a new trial because it failed to make a written request for preparation of the reporter's record.
Magee argues the request for preparation was not filed with the trial court clerk as required by Rule 34.6(b), which should preclude entitlement to a new trial.
Magee contends the appeal should be abated to the trial court to determine whether the destroyed record is necessary to the appeal's resolution.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gavrel v. Rodriguez, 225 S.W.3d 758, 763 (Tex.App.-Houston [14th Dist.] 2007, pet. denied)	Rejecting argument that appellant not entitled to new trial under Rule 34.6(f) due to untimely request for reporter's record.	Court cited this case to support the principle that formality defects in requesting reporter's record should not bar a new trial when the record was destroyed through no fault of appellant.
In re G.M.S., 991 S.W.2d 923, 925 (Tex.App.-Fort Worth 1999, pet. denied)	Appellant entitled to new trial under Rule 34.6(f) despite untimely request for reporter's record.	Court used this precedent to emphasize that procedural imperfections in requesting the reporter's record do not defeat entitlement to a new trial when the record is lost.
Pierre v. State, 2 S.W.3d 439, 444 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd)	Abatement to trial court to determine necessity of missing portions of reporter's record for appeal resolution.	Court distinguished this case, noting it involved only partial loss of record and that the trial court did not make the necessary determination; here, the entire record was lost, so abatement was unnecessary.
Country Village Homes, Inc. v. Patterson, 236 S.W.3d 413, 447-48 (Tex.App.-Houston [1st Dist.] 2007, pet. granted, judgment vacated w.r.m.)	Abatement for trial court to determine necessity of missing record portions under Rule 34.6(f).	Court found this case factually inapposite because it involved partial record loss, unlike the complete loss here.
Landry's Seafood House-Addison, Inc. v. Snadon, 233 S.W.3d 430, 437 (Tex.App.-Dallas 2007, no pet.)	New trial not granted without abatement to hear evidence on Rule 34.6(f) elements.	Cited to contrast with the instant case where the entire record is lost and the court itself determined necessity of the lost record for appeal resolution.

Court's Reasoning and Analysis

The court began by identifying the preliminary question: whether Villagomez Investments is entitled to a new trial due to the complete destruction of the reporter's record during Hurricane Ike. The court applied Texas Rule of Appellate Procedure 34.6(f), which entitles an appellant to a new trial if four conditions are met: (1) a timely request for the reporter's record was made; (2) the loss or destruction of a significant portion of the reporter's notes was through no fault of the appellant; (3) the lost portion is necessary to the appeal's resolution; and (4) the parties cannot agree on a complete reporter's record.

The court found that Villagomez Investments timely requested the reporter's record within the appeal period, supported by a supplemental clerk's record. The destruction of the entire reporter's record was undisputed and occurred through no fault of the appellant. The parties could not agree on a replacement record. The court rejected appellee's argument that failure to file the request with the trial court clerk barred relief, noting that Rule 34.6(f) does not require such filing and that denying relief on such a technicality would elevate form over substance.

Regarding whether the destroyed record was necessary to the appeal's resolution, the court distinguished this case from precedents involving only partial record loss. Here, the entire reporter's record was lost, and Villagomez Investments challenged the trial court's factual findings and conclusions based on trial testimony, making the record essential. The court concluded it need not abate the appeal to the trial court for this determination, as it could decide that the lost record was necessary.

Having found all Rule 34.6(f) requirements satisfied, the court held that Villagomez Investments is entitled to a new trial.

Holding and Implications

The Court reversed the trial court's judgment and remanded the case for a new trial.

The direct effect of this decision is to grant Villagomez Investments a new trial due to the complete destruction of the reporter's record through no fault of its own. The court did not establish new precedent beyond applying existing procedural rules protecting appellants in cases of lost or destroyed records. The ruling emphasizes the principle that procedural technicalities should not override substantive rights to a fair appeal when the record is unavailable.

Show full summary ...

VILLAGOMEZ INVESTMENTS, L.L.C., Appellant, v. Janie MAGEE, Appellee.

OPINION

LAURA CARTER HIGLEY, Justice.

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. Rodriguez, 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.