Givens v. Givens, A2472
| Decision Date | 08 April 1981 |
| Docket Number | No. A2472,A2472 |
| Parties | Ethel C. GIVENS, Appellant, v. Elias G. GIVENS, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Herbert L. Coffman, Houston, for appellant.
Adolph Uzick, Law Offices of Adolph Uzick, Houston, for appellee.
Before BROWN, C. J., and PAUL PRESSLER and JUNELL, JJ.
This is an appeal from a divorce judgment in a case tried to the court without a jury. Appellee filed for divorce on September 19, 1978. Appellant filed her Original Cross-Action on February 28, 1979. The final hearing took place on January 21, 1980, and the Final Judgment was signed January 30, 1980.
At the final hearing the parties signed a Waiver of Record waiving the recording of testimony by the Court Reporter. Appellant complains that the trial court erred in overruling her Motion for New Trial because, "Appellant did not with knowledge and intent, knowing the meaning and import of her actions waive the record of the case on the first trial." Appellant contends, relying on Art. 2324, Texas Revised Civil Statutes, that it is the absolute duty of the Court Reporter to record all testimony in a case, and the failure to do so is prejudicial to Appellant's right to an appeal. In 1975, Art. 2324 was amended to read: "Each Official Court Reporter shall upon request : ..." Tex.Rev.Civ.Stat.Ann. art. 2324 (Vernon Supp. 1980-1981). (Emphasis added.) The statute then proceeds to list the duties of an Official Court Reporter. If one looks only to the statute, the addition of the words "on request" relieves an Official Court Reporter of the responsibility of attending all sessions of court and recording all testimony unless requested to do so. Therefore, Art. 2324 taken alone does not require reversal because of the absence of a record in this case.
Following a line of cases which do not rest on Art. 2324, the Texas Supreme Court, in Rogers v. Rogers, stated that "if an appellant exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, this may require a new trial where his right to have the case reviewed on appeal can be preserved in no other way." Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex.1978). Appellant is unable to show that the absence of a record in this case is not the result of her own negligence or lack of due diligence. To the contrary, it is undisputed that she signed a Waiver of the Record. She may not now be heard to complain that such waiver is not binding upon her.
Appellant also complains that the trial court erred in not granting her Motion for New Trial because of five unauthorized acts by her counsel. These acts involve the purported negligence of counsel in trying the lawsuit. It is well settled that "the negligence, inadvertence, or mistake of counsel is attributable to his client so that counsel's failure to defend the case properly or to develop fully the evidence does not constitute 'good cause,' authorizing a new trial." Scheffer v. Cron, 560 S.W.2d 419, 420 (Tex.Civ.App. Beaumont 1977, writ ref'd n. r. e.). Appellant's first and second points of error are overruled.
Appellant complains in her third point of error that newly discovered evidence bearing upon the property division requires the granting...
To continue reading
Request your trial
-
Webb v. Ray
...or mistake of counsel is attributable to his client and does not constitute 'good cause' authorizing a new trial. See Givens v. Givens, 616 S.W.2d 450, 451 (Tex.Civ.App.--Houston [14th Dist.] 1981, no Appellants complain the denial of their motion for new trial amounted to death penalty san......
-
McLamore v. McLamore
...Where a party has signed a waiver of the making of a record she may not complain that such waiver is not binding upon her. Givens v. Givens, 616 S.W.2d 450 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ). Those cases do not discuss the requirement that the court consent to the party's wa......
-
Houghtaling v. Houghtaling
...in this case" and "agree[d] that this case may be taken up and considered by the Court without further notice to me." See Givens v. Givens, 616 S.W.2d 450, 451 (Tex. Civ. App.—Houston [14th Dist.] 1981, no writ) ("Appellant is unable to show that the absence of a record in this case is not ......
-
Henning v. Henning
...the responsibility of attending all sessions of court and recording all testimony unless specifically requested to do so. See Givens v. Givens, 616 S.W.2d 450, 451 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ). However, section 11.14(d) was not amended at the same time as article 2324.......