Opinion issued September 26, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00086-CV
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MACK B. YATES, Appellant
V.
HARRIS COUNTY, CITY OF HOUSTON, HOUSTON INDEPENDENT
SCHOOL DISTRICT, AND HOUSTON COMMUNITY COLLEGE
SYSTEM, Appellees
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2014-67727
MEMORANDUM OPINION
Appellant Mack B. Yates, proceeding pro se, appeals the trial court’s
judgment for delinquent taxes rendered in favor of appellees Harris County, the City
of Houston, Houston Independent School District, and Houston Community College
System. In three issues, Yates contends that he is entitled to a new trial because
(1) no reporter’s record was taken and the appellate record is incomplete, (2) the trial
court erred by entering judgment without notifying him of or ordering his presence
at trial, and (3) the trial court erred by denying his motion for new trial for the same
reasons.
Because the failure to have a court reporter make a record is reversible error
in the context of a post-answer default judgment such as the one against Yates, we
reverse the judgment as to Yates and remand for a new trial on appellees’ claims
against Yates.
Background
Appellees sued Yates and other owners of a piece of real property in Harris
County for delinquent property taxes, penalties, interest, and attorney’s fees. Yates
filed an answer. When the case was called for trial, Yates, who is incarcerated, was
not present. After trial, the trial court rendered a judgment against all defendants for
delinquent taxes, interest, costs, and attorney’s fees.1
Yates timely filed a motion for new trial and notice of appeal. He was
confirmed indigent and this Court directed the district clerk to file the clerk’s record
and the court reporter to file the reporter’s record. The district clerk filed the clerk’s
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No other defendant appealed.
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record, but the court reporter filed an information sheet indicating that no reporter’s
record was taken.
Appellate Jurisdiction
Before turning to the merits, we address appellees’ argument that we lack
jurisdiction over the appeal because Yates’s notice of appeal does not identify the
correct trial court or state that the appeal is to the First or Fourteenth Court of
Appeals, as required by Texas Rule of Appellate Procedure 25.1(d)(1) and (4).
A. Standard of Review and Applicable Law
We review questions of appellate jurisdiction de novo. See Tex. Lottery
Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Texas
Rule of Appellate Procedure 25.1 provides, among other things, that the notice of
appeal must:
(1) identify the trial court and state the case’s trial court number and style;
[and]
...
(4) state the court to which the appeal is taken unless the appeal is to either
the First or Fourteenth Court of Appeals, in which case the notice must
state that the appeal is to either of those courts[.]
TEX. R. APP. P. 25.1(d)(1), (4). Properly filing a notice of appeal is a prerequisite to
appellate jurisdiction. Id. at 25.1(b). However, strict compliance with Rule 25.1 is
not necessarily required to invoke appellate jurisdiction so long as the appellant files
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an instrument that is a “bona fide attempt to invoke appellate jurisdiction.” City of
San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (quoting Grand Prairie Indep. Sch.
Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991) (per
curiam)). For example, if an appellant incorrectly denotes a case number on his
notice of appeal, but there is “no suggestion of confusion” regarding the judgment
from which the appellant sought to appeal or to whom the appellant sought to appeal,
dismissal for lack of jurisdiction is inappropriate. See Rodriguez, 813 S.W.2d at
418. In other words, where the attempt to perfect the appeal was “bona fide,”
appellate jurisdiction is not defeated. Id.
B. Analysis
Appellees argue that we lack jurisdiction over this appeal because Yates’s
notice of appeal identifies the incorrect trial court and does not state that appeal is to
the First or Fourteenth Court of Appeals, as required by Texas Rule of Appellate
Procedure 25.1(d)(1) and (4). They rely upon Stubblefield v. Courtland Village
Townhomes Homeowner’s Ass’n, No. 01-00-01328-CV, 2002 WL 1340296 (Tex.
App.—Houston [1st Dist.] June 20, 2002, no pet.) (mem. op., not designated for
publication), to support their argument that the appeal should be dismissed for lack
of jurisdiction. In Stubblefield, Stubblefield incorrectly identified the trial court
cause number in his notice of appeal, even though the record showed that he was
aware that his case had been severed and assigned a new cause number. Id. at *2.
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Stubblefield also did not indicate on his notice the date of the final judgment that he
was attempting to appeal, as required by Rule 25.1(d)(2), or the court to which the
appeal was taken, as required by Rule 25.1(d)(4). Id. at *2. Moreover, it was
Stubblefield’s fourth appeal regarding the same issues. Id. For all of these reasons,
the Stubblefield court concluded that the appeal should be dismissed for lack of
jurisdiction. Id.
By contrast, here, Yates’s notice of appeal correctly identifies the trial court
cause number and style, two of the three things required by Rule 25.1(d)(1).
Although the notice misidentifies the trial court and does not state that the appeal is
to the First or Fourteenth Court of Appeals, it properly identifies the date of the
judgment and includes the other Rule 25.1(d) requirements. See TEX. R. APP. P.
25.1(d). There is no suggestion that any party was confused about what judgment
Yates was appealing, or to whom Yates sought to appeal. See Rodriguez, 813
S.W.2d at 418. Accordingly, we conclude that Yates made a bona fide attempt to
invoke appellate jurisdiction with his notice of appeal, and dismissal is
inappropriate. See id.
Having concluded that we have jurisdiction over this appeal, we turn to the
merits.
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Discussion
In his first issue, Yates argues that the judgment should be reversed because
no reporter’s record was taken and the appellate record is incomplete.
A. Applicable Law
Post-answer default judgments cannot be entered on the pleadings, but, rather,
a plaintiff must offer evidence and prove his case as in a judgment on trial. Sharif
v. Par Tech, Inc., 135 S.W.3d 869, 873 (Tex. App.—Houston [1st Dist.] 2004, no
pet.) (citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)). “If the
judgment is rendered after presentation of evidence to the court in the absence of the
appellant,” then “the failure to have the court reporter present to make a record
constitutes reversible error.” Id. (quoting Chase Bank v. Harris Cty. Water Control
& Improvement Dist., 36 S.W.3d 654, 655 (Tex. App.—Houston [1st Dist.] 2000,
no pet.)). “Such error is not harmless because, without a reporter’s record, this Court
is unable to determine if sufficient evidence was submitted to support the judgment.”
Id. (quoting Chase Bank, 36 S.W.3d at 655–56).
B. Analysis
Yates contends that he is entitled to reversal because no reporter’s record was
taken of the trial. It is undisputed that Yates filed an answer, that he did not appear
at trial, and that there was no reporter’s record taken. Because the judgment rendered
against Yates was a post-answer default judgment, the failure to have a reporter’s
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record taken of the trial constitutes reversible error. See Sharif, 135 S.W.3d at 873;
Chase Bank, 36 S.W.3d at 655–56. Accordingly, we must reverse for a new trial on
appellees’ claims against Yates. See, e.g., Chase Bank, 36 S.W.3d at 656 (because
there was no reporter’s record of post-answer default judgment entered in delinquent
property tax case, appellate court was required to reverse and remand for a new trial).
We sustain Yates’s first issue.
Because we have sustained Yates’s first issue, we do not reach his second and
third issues, which would result in no greater relief.
Conclusion
We reverse the trial court’s judgment as to Yates and remand for further
proceedings on appellees’ claims against Yates. The judgment as to the other
defendants, who did not appeal, is affirmed.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Keyes and Massengale.
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MacK B. Yates v. Harris County, City of Houston, Houston Independent School District, and Houston Community College System
Combined Opinion