Affirmed and Majority and Concurring Opinions filed December 16, 2010.
In The
Fourteenth Court of Appeals
NO. 14-09-00587-CV
WILBER COLLINS, Appellant
v.
CLARENCE WALKER D/B/A BROTHERHOOD RECYCLING, Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2006-38481
CONCURRING OPINION
The court reaches the right result but utilizes the wrong analysis in the process. For this reason, I respectfully decline to join the majority’s opinion, but I concur in the court’s judgment.
The appellant’s two issues should be overruled because our appellate record contains no reporter’s record from the bench trial, and therefore this court must presume that the trial proceedings support the judgment. Though the majority refers to this presumption in a footnote as an alternate basis for affirming the trial court’s judgment, this court should rely on the presumption as the sole basis for affirming the trial court’s judgment.
Proceedings in the Trial Court
Plaintiff/appellee Clarence Walker d/b/a Brotherhood Recycling sued defendant/appellant Wilber Collins, asserting claims for breach of contract, promissory estoppel, alleged violation of section 91.004 of the Texas Property Code, fraud, and trespass to try title. The district court called this case to trial, and both parties, represented by counsel, appeared. During the bench trial that followed, the trial court heard evidence and arguments of counsel. For reasons not reflected by the appellate record, the court reporter did not record any of the trial proceedings.[1]
The trial court rendered judgment awarding Walker actual damages and attorney’s fees based on his promissory-estoppel claim and rendering a take-nothing judgment against Walker as to all of his other claims. The trial court issued findings of fact and conclusions of law.
Arguments on Appeal
On appeal, Collins asserts two issues:
The trial court erred in rendering judgment in favor of [Walker] because the judgment for promissory estoppel and attorney’s fees is not supported by all necessary findings of fact and conclusions of law.
The trial court erred in rendering judgment in favor of [Walker] because the trial evidence [] was not legally sufficient nor factually sufficient to support all of the necessary elements required for [Walker] to prevail on the issues of promissory estoppel and recovery of attorney’s fees.
In the “Summary of the Argument” section of his appellate brief, Collins does not mention the trial court’s findings of fact or conclusions of law. Instead, he asserts that this court should reverse and render or reverse and remand because Walker allegedly failed to prove his promissory-estoppel claim. In his argument under the first issue, Collins asserts that “the issue presented in this appeal is very straightforward.” Collins then states that, “[q]uite simply, the trial court’s judgment is not supported by the evidence, as described by the trial court’s findings of fact and conclusions of law.” Collins then presents argument, including citation to legal authorities and to the clerk’s record, in support of the proposition that the trial evidence is legally insufficient to prove the essential elements of a promissory-estoppel claim and that this evidentiary insufficiency is also reflected in the trial court’s findings of fact and conclusions of law. In his argument under his second issue, Collins (1) asserts that the evidence is legally and factually insufficient to support a recovery by Walker on his promissory-estoppel claim, (2) correctly states that the appellate record contains only a clerk’s record and no reporter’s record, (3) incorrectly states that a record of the trial was made, (4) requests that this court allow him to supplement his briefing after the reporter’s record is filed, to provide argument with citations to the reporter’s record, and (5) asks that this court reverse the trial court’s judgment and render a take-nothing judgment.
Adequacy of Appellate Briefing Regarding Insufficiency of the Evidence
The majority disposes of Collins’s argument that the evidence is insufficient by finding briefing waiver. See ante at pp. 6–7. The majority concludes that Collins’s appellate briefing is insufficient because he did not cite any legal authority under his second issue. But, as Collins himself states in his brief, his two issues are different ways of asserting the same argument, namely that the evidence is insufficient to support the trial court’s judgment. Collins does cite legal authorities. And he sufficiently briefs this argument under his first issue. The Supreme Court of Texas has emphasized that we must construe appellate briefs liberally so that the right to appellate review is not lost by waiver. Perry v. Cohen, 272 S.W.3d 585, 587–88 (Tex. 2008). Given that Collins presented argument, including citations to legal authorities and the appellate record, in support of his evidentiary-insufficiency argument under his first issue, this court errs in holding that Collins waived this argument by insufficient appellate briefing. See id. (liberally construing issues presented in appellate brief based on argument section of the brief).
Application of Presumption Based on Lack of Reporter’s Record
In this appeal and in his argument under his two issues, Collins asserts that the trial evidence is legally, or in the alternative factually, insufficient to support the trial court’s judgment. Collins asserts in his first issue that the trial court’s judgment lacks all necessary findings of fact and conclusions of law. But Collins’s argument under this issue is that the trial evidence is legally insufficient to prove the essential elements of a promissory-estoppel claim and that this evidentiary insufficiency is reflected in the trial court’s findings of fact and conclusions of law.
Our appellate record reflects that evidence was presented at trial but that the court reporter did not make a record of any of the trial proceedings in this case. The record contains no bill of exceptions or any other indication that Collins objected in the trial court to the court reporter’s failure to record the trial proceedings. Collins has not assigned error or presented argument on appeal regarding the court reporter’s failure to record the trial. Our appellate record does not contain a reporter’s record from the trial. Collins has not undertaken an appeal based upon a partial reporter’s record under Texas Rule of Appellate Procedure 34.6(c), and given the court reporter’s failure to make a record, it is unlikely that Collins could successfully invoke this rule. See Tex. R. App. P. 34.6(c) (detailing various procedures that apply when an appellant “requests a partial reporter’s record”). On this record and under applicable law, this court must presume that the trial proceedings are relevant to Collins’s appellate issues and that they support the trial court’s judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002); Middleton v. Nat’l Fam. Care Life Ins. Co., No. 14-04-00428-CV, 2006 WL 89503, at *2 (Tex. App.—Houston [14th Dist.] Jan. 17, 2006, pet. denied) (mem. op.). Applying this presumption to the two issues presented, Collins cannot prevail. Therefore, this court should affirm the trial court’s judgment based on this presumption alone.
Instead of taking this approach, the majority undertakes a merits analysis as to the first issue, quoting the trial court’s findings of fact and conclusions of law at length and discussing the merits of this appeal. Because this court cannot analyze the merits of the issues based on the presumption discussed above, this court should avoid discussing the merits of this case. If this court had a reporter’s record from the trial, it might conclude that the evidence was legally insufficient to support the trial court’s judgment, or it might conclude to the contrary. But, because this court must affirm the trial court’s judgment in any event based on the lack of a reporter’s record, this court should not conduct a merits analysis at all.
In conclusion, this court should not base its analysis on briefing waiver; rather, this court should base its analysis only on the presumption that results from lack of a reporter’s record of the trial proceedings.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Anderson, Frost, and Seymore. (Anderson, J., majority).
[1] The Texas Government Code provides that the official court reporter is required to record court proceedings if requested to do so. See Tex. Gov’t Code Ann. § 52.046 (West 2005). According to the Texas Rules of Appellate Procedure, the official court reporter must make a full record of court proceedings unless excused by agreement of the parties. See Tex. R. App. P. 13.1(a). There is a conflict of authority as to whether the court reporter must record proceedings unless the parties agree otherwise or whether the court reporter need not record proceedings unless a party requests that the reporter do so. See Electronic Bankcard Sys., Inc. v. Retriever Indus., Inc., 2005 WL 3435294, at *2 (Tex. App.—Houston [14th Dist.] Dec. 15, 2005, no pet.) (mem. op.). This court need not address this issue because, in either case, to complain of the court reporter’s failure to record the trial proceedings, Collins would have had to object in the trial court and assign error on appeal. See id. The record contains no bill of exceptions or any other indication that Collins objected in the trial court to the court reporter’s failure to record the trial proceedings, and Collins has not assigned any such error on appeal.