In re Estate of Arrendell

• Decision Date: 21 December 2006
• Docket Number: No. 06-05-00022-CV.,06-05-00022-CV.
• Citation: 213 S.W.3d 496
• Parties: In the Matter of the ESTATE OF Bessie Lee ARRENDELL, Deceased.
• Court: Texas Court of Appeals

213 S.W.3d 496

In the Matter of the ESTATE OF Bessie Lee ARRENDELL, Deceased.

No. 06-05-00022-CV.

Court of Appeals of Texas, Texarkana.

Submitted November 30, 2006.

Decided December 21, 2006.

Opinion Overruling on Rehearing January 23, 2007.

Daniel F. Dean, Jeffrey L. Coe, Dean, Coe & Associates, PC, Palestine, for appellant.

James D. Hankins, Sr., Freeman & Hankins, LLP, Palestine, M. Keith Dollahite, M. Keith Dollahite, PC, Tyler, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

Bessie Arrendell died, at the age of ninety-four, on April 15, 2003. In late 2002, she executed a power of attorney giving her younger sister, Helen Keeling, authority to manage her affairs, and with her "assistance" Arrendell executed a new will January 3, 2003, at an attorney's office, which materially altered the prior disposition of her estate. Her 1978 will (which is neither in evidence nor, evidently, in existence) had divided all property, in equal shares, to her two children, and to the two children of her husband, who had died in 1991. One of Arrendell's two children — Bobbie Hudson—who had been in a caretaking role—died in 2002. The new will placed Arrendell's house in a testamentary trust. Ultimately, the house was transferred to her grandson Mike Hudson (Bobbie's son), and the rest of her property (except for two large certificates of deposit) to Keeling. However, before her death, Keeling's name also became attached to those certificates of deposit.

Keeling sought to probate the will, and Arrendell's other daughter, Dorothy Ingram, filed this contest. A jury found that Arrendell lacked testamentary capacity when she signed the 2003 will, that Keeling unduly influenced Arrendell to make the will, that Arrendell lacked mental capacity when she signed the trust agreement, and that Keeling violated her fiduciary duty to Arrendell when she made herself the beneficiary of Arrendell's two CDs. The jury also found that Keeling did not show good faith and did not act with just cause in prosecuting the probate proceeding. The trial court granted a motion to disregard the jury's finding of undue influence, and then rendered judgment in favor of the appellee.

I. Issues Raised On Appeal

Keeling contends there was legally and factually insufficient evidence to support the finding that Arrendell lacked testamentary capacity, that she conclusively proved she (Keeling) did prosecute the probate proceeding in good faith and with just cause, and that there is an irreconcilable conflict between the jury's answer finding that Arrendell had no testamentary capacity and its answer finding that Keeling had exerted undue influence over her.

Keeling then argues the court exceeded its authority by granting appellee's requests to set aside a deed, for monetary damages, and to place a constructive trust on the funds in Keeling's possession for which she had been the designated "pay on death" beneficiary.

II. Incomplete Record

We are first confronted with the question of how our review of the issues based on the evidence may proceed in the face of an incomplete record. Two of appellee's witnesses, Dr. Lisa Clayton and Debbie Shultz, testified by videotaped deposition. Neither videotape was introduced as an exhibit, both tapes were excerpted rather than played in full, and no written transcription of their testimony exists in the record either at this Court or in the trial court. Although this case has been before this Court for over a year, neither party has made any attempt to bring that testimony before us. When questioned about the lack of those depositions at oral argument, it was quite clear that, although appellant's counsel believed that he had a copy of the depositions in his files, and that they at least had some notes on them about the actual playing to the jury, there has been no effort to attempt to get those items into the appellate record.

III. Sufficiency Review on an Incomplete Record

The first question—which is dispositive—is: What is the effect on our sufficiency analysis when a portion of the evidence placed before the jury at trial is not before us for review.

In this case, testimony presented by the appellee of a video recording (deposition) of a medical expert and of an individual familiar with Arrendell was not transcribed by the court reporter. To further complicate matters, the video recording was not introduced into evidence as an exhibit, and thus we have no record of the testimony of two witnesses considered by the jury.¹

The court reporter did not transcribe the videotaped depositions. The depositions were seen and heard by the jury, but they are not in the record furnished to this Court. The Texas Supreme Court announced the controlling rule in Englander:

When the complaint is that the evidence is factually or legally insufficient to support vital findings of fact, or that the evidence conclusively refutes vital findings, this burden cannot be discharged in the absence of a complete or an agreed statement of facts.

Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968).

Although there have since been changes in the rules governing the preparation of appellate records, and in the rules controlling our review when a partial record is properly requested, the caselaw involving this type of scenario has not been questioned or altered by the Texas Supreme Court. Logically it follows that, without a complete record, it is impossible to review all the evidence presented to the jury or to apply the appropriate evidentiary sufficiency standards in review of the case.

On the other hand, Keeling argues that her inability to obtain a complete record mandates a reversal and remand, citing State Farm Fire & Casualty Ins. Co. v. Vandiver, 941 S.W.2d 343 (Tex.App.-Waco 1997, no writ).

IV. Supplementation or Correction of the Record

The applicable appellate rule authorizes several methods for supplementing or correcting the record on appeal. TEX.R.APP. P. 34.6. The first method is by simple supplementation "[i]f anything relevant is omitted from the reporter's record" as authorized by Rule 34.6(d). That section allows a party, the trial court, or the appellate court to direct the court reporter to file the omitted items. The section appears to govern matters recorded by the court reporter, but simply omitted from the official record as it allows the supplementation by a letter directing the court reporter to include the omission. Nothing in that section appears to deal with inaccuracies in the record or the failure of the court reporter to record the proceedings. It has no application to this case. The second method is if there is an inaccuracy in the court reporter's record. TEX.R.APP. P. 34.6(e). The final method governs records that have been lost or destroyed. TEX.R.APP. P. 34.6(f). We will discuss the applicability of the last two methods of curing the record on appeal.

A. Inaccuracies

The Texas Rules of Appellate Procedure provide a method to correct inaccuracies in the record. TEX.R.APP. P. 34.6(e). The rule begins by allowing corrections by agreement, and if the parties cannot agree on whether or how to correct the record, the rule describes how to settle the dispute after notice and hearing before the trial court. Finally, such correction may be made at the appellate level by abating to the trial court for resolution. TEX.R.APP. P. 34.6(e)(3).

Whether a complete omission of a substantial portion of testimony can be handled as an inaccurate record under TEX.R.APP. 34.6(e) is a matter subject to debate. It is clear that a record may be corrected for inaccuracies where there is a disagreement about whether the record reflects what actually happened at trial. Ex parte Woodall, 154 S.W.3d 698, 703 n. 1 (Tex.App.-El Paso 2004, pet. ref'd) (party stated transcription did not accurately reflect her testimony—but made no attempt to use procedure to correct inaccuracy in reporter's record); Halsey v. Dallas County, Tex., 68 S.W.3d 81, 86 (Tex.App.-Dallas 2001), rev'd on other grounds, 87 S.W.3d 552 (Tex.2002) (recognizing that, when parties dispute contents of record, after notice and hearing, it is court's duty to order court reporter to correct any inaccuracies and certify corrected version). These cases rest on the premise that the purpose of the rule is to correct any inaccuracies in the record before the court.

However, some courts have allowed "correction of inaccuracies" in other situations. There are other cases—in a variety of factual settings—where the court reporter did not transcribe a deposition. The Waco court (changing its position from an earlier case) concluded that a reporter's record could be supplemented to add transcription of oral reading from depositions when a courtroom audio recording existed, but was not used originally by the reporter in creating the record. The Waco court had originally taken the position that only shorthand notes could be transcribed, but then later concluded an electronic recording of the playing of the deposition could also be used. Vandiver, 941 S.W.2d at 348-49.

An even closer scenario to our case was addressed in Rogers v. Cigna Ins. Co., 881 S.W.2d 177, 180-81 (Tex.App.-Houston [1st Dist.] 1994, no writ). In that case, there was also no recording, but transcriptions existed that had been produced in discovery, thus the record could be supplemented with them. Rogers sought reversal because the record was lost or destroyed, but also, several months before oral argument, asked the appellate court to allow him to correct the record by adding the transcriptions—so that the record would accurately reflect all that was heard by the jury. The First court concluded that the record was not lost, thus automatic reversal was inappropriate. The appellate court then found it to be an "omission" from the record, and then "corrected" the statement of facts by making the deposition transcriptions a part of the record. It...