Gillen v. Williams Bros. Const. Co., Inc.
| Decision Date | 08 February 1996 |
| Docket Number | No. 14-95-00330-CV,14-95-00330-CV |
| Citation | 933 S.W.2d 162 |
| Parties | Peter Robert GILLEN, Jr., Appellant, v. WILLIAMS BROTHERS CONSTRUCTION COMPANY, INC., Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
David W. Holman, Craig Lewis, Houston, for appellant.
Shelley Rogers, Richard Sheehy, Houston, for appellee.
Before YATES, FOWLER and O'NEILL, JJ.
This is an appeal from a take-nothing judgment. After this court granted three extensions of time to file the statement of facts appellant, Peter Robert Gillen, Jr. (Gillen), moved for summary reversal and remand for new trial because the court reporter cannot produce the statement of facts from the trial of this case. We grant the motion, reverse the judgment, and remand for new trial. See TEX.R.APP.P. 50(e).
Gillen attached an affidavit from the official court reporter who took notes of the testimony for the first six days of trial in this case. In her affidavit, the court reporter avers that, despite diligent efforts to reconstruct a statement of facts, she is unable to do so and, therefore, will be unable to certify a statement of facts in this case.
She asserts she was unable to keep up the pace of the trial, complained to the trial judge about the speed, and was told to get a tape recorder. She got a tape recorder, which subsequently failed. After the sixth day of trial, the court reporter once again complained to the judge who told her to quit if she couldn't do her job. She engaged a substitute court reporter and subsequently resigned her job. According to her affidavit, "The notes are sketchy, truncated, have places in them where I wrote 'gap/gap' so that I would know there was an area of many words missing."
Appellee, Williams Brothers Construction Company, Inc. (Williams), filed an objection to the court reporter's affidavit and filed a response to the motion to reverse and remand. Gillen filed a reply to Williams' response that included an affidavit of his trial counsel.
If, for sake of argument, we sustain all of Williams's objections to the court reporter's affidavit, the affidavit is still sufficient to demonstrate that the court reporter cannot and will not be able to certify a statement of facts in this case because portions of the testimony are not present either in her stenographic notes or on the tape-recorded testimony. Williams asserts four arguments to defeat Gillen's motion to reverse and remand: (1) the notes are not "lost or destroyed"; (2) Gillen has not provided the court with the record that is available so the court can determine the nature and extent of any missing portions to see if the "missing testimony" is really necessary for a review of the case; (3) Gillen is not without fault; and (4) there has been no attempt to agree on the statement of facts.
Rule 50(e) provides that "If the appellant has made a timely request for a statement of facts, but the court reporter's notes and records have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts." TEX.R.APP.P. 50(e). The first issue to consider is whether the statement of facts in this case were "lost or destroyed" as contemplated by the rules. We hold that they were.
Williams argues that the notes were not lost or destroyed because they never existed. He cites Rogers v. Cigna Ins. Co., 881 S.W.2d 177, 181 (Tex.App.--Houston [1st Dist.] 1994, no writ) to support his argument. In Rogers the court reporter left the courtroom while videotaped depositions were played for the jury. The reporter, consequently, did not take notes of the videotaped testimony. 1 The parties were aware the court reporter was not taking notes at trial when the videotape was played. We decline to adopt the Rogers rule in this case.
The facts are significantly different. The court reporter was present while testimony was being given in this case and, presumably, was taking notes of the testimony. Further we believe the word "lost," defined as "beyond reach or attainment," is broad enough to encompass the missing notes in this case. See WEBSTER'S NEW COLLEGIATE DICTIONARY (1979).
Williams also relies on this court's opinion in Born v. Virginia City Dance Hall and Saloon, 857 S.W.2d 951 (Tex.App.--Houston [14th Dist.] 1993, writ denied). In Born, the trial was electronically recorded. Appellants complained that portions of the testimony were inaccurate. The court noted that the rules governing electronic recording of trials require a transcription only of relevant portions of the statement of facts, a requirement similar to the rule governing partial statement of facts. See TEX.R.APP.P. 53(d). The rules governing electronic recording and partial statement of facts both presume that omitted portions of the record support the trial court's judgment. See Born at 954. There is no such rule governing a full statement of facts in which the testimony was taken by a...
To continue reading
Request your trial
-
Hygeia Dairy Co. v. Gonzalez, 04-96-00651-CV
...v. Chatham, 899 S.W.2d 722, 727 (Tex. App.-Houston [14th Dist.] 1995, writ dism'd); cf. Gillen v. Williams Brothers Constr. Co., 933 S.W.2d 162, 163 (Tex. App.-Houston [14th Dist.] 1996, writ denied). THE QUESTION OF In its third issue, Hygeia complains the trial court erred in submitting t......
-
Town of Flower Mound v. Teague
...of the appeal; thus, the Town has not met its burden under Rule 34.6. Citing Gillen v. Williams Brothers Construction Co., 933 S.W.2d 162, 164 (Tex. App.-Houston [14th Dist.] 1996, writ denied), the Town asserts that Rule 34.6 does not require it to demonstrate harm from having an incomplet......
-
Rice Food Markets v. Ramirez
...the appeal and it was the reporter's responsibility to record or report them pursuant to TRAP 13.1(a). Appellant cites Gillen v. Williams Bros. Constr., 933 S.W.2d 162 (Tex.App.--Houston [14th Dist.] 1996, no writ) in support of its position. The appellate record does not contain a copy of ......
-
In re Estate of Arrendell
...fault and the parties could not agree to the contents of the missing record. In Gillen v. Williams Bros. Construction Co., 933 S.W.2d 162, 163-64 (Tex.App.-Houston [14th Dist.] 1996, writ denied), the appellate court found that the record was "lost or destroyed" —i.e., beyond reach or attai......