Palmer v. Espey Huston & Associates, Inc., 13-98-562-CV.

• Decision Date: 01 August 2002
• Docket Number: No. 13-98-562-CV.,13-98-562-CV.
• Citation: 84 S.W.3d 345
• Parties: G.J. PALMER, Jr., Individually and as Managing Partner on Behalf of Queen Isabella Development Joint Venture and Queen Isabella Development Joint Venture and 1629 Service Corporation, Appellants, v. ESPEY HUSTON & ASSOCIATES, INC., Max Burkhart, MBA Architecture Group, Michael J. Blum, and Valcon, Inc., Appellees.
• Court: Texas Court of Appeals

84 S.W.3d 345

G.J. PALMER, Jr., Individually and as Managing Partner on Behalf of Queen Isabella Development Joint Venture and Queen Isabella Development Joint Venture and 1629 Service Corporation, Appellants, v. ESPEY HUSTON & ASSOCIATES, INC., Max Burkhart, MBA Architecture Group, Michael J. Blum, and Valcon, Inc., Appellees.

No. 13-98-562-CV.

Court of Appeals of Texas, Corpus Christi.

August 1, 2002.

Rehearing Overruled September 19, 2002.

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Adam Poncio, Law Offices of Cerda & Poncio, San Antonio, for Appellants.

Eric G. Behrens, Graves, Dougherty, Hearon & Moody, Austin, Terry D. Key, Jones, Galligan, Key & Lozano, L.L.P., Weslaco, William D. Peisen, Law Offices of

William D. Peisen, Edinburg, for Appellees.

Before Justices DORSEY, YANEZ, and RODRIGUEZ.

OPINION

NELDA V. RODRIGUEZ, Justice.

Appellants, G.J. Palmer, Jr., individually and as managing partner on behalf of Queen Isabella Development Joint Venture and Queen Isabella Development Joint Venture and 1629 Service Corp., appeal from directed verdicts granting take nothing judgments in favor of appellees, Max Burkhart, MBA Architecture Group (MBA),¹ Michael J. Blum, Valcon, Inc.² and Espey Huston & Associates, Inc. By six points of error, appellants complain that (1) the record is neither complete nor proper for this appeal, and (2) the trial court erred in granting appellees' motions for directed verdict, and in excluding evidence. We affirm.

I. Background

This case involves the development of a marina in the Laguna Madre at Port Isabel, Texas. Queen Isabella Development Joint Venture (QID) hired MBA, an architectural, engineering and planning firm, to assist with the development of the marina. MBA worked on the planning and design phase of the project, including the design of a breakwater to create an artificial harbor by forming a barrier between waters outside the harbor and the interior of the marina.

MBA hired Espey Huston, an engineering firm, to (1) assist in handling permit applications with the Army Corps of Engineers; (2) conduct a bathymetric study;³ (3) conduct a wave-attenuation or "wave-climate" study;⁴ and (4) later, perform a written analysis of four different types of generic breakwaters, and how they typically would react to the wave-climate/attenuation study. Espey Huston's final report was completed in February 1985.

Because MBA did not provide in-house structural engineering services, it sub-contracted this work to Donald Dragutsky,⁵ a licensed civil engineer. Prior to the completion of the breakwater design, MBA withdrew from the project. Thereafter, Dragutsky contracted with appellants, and modified the design prepared by Espey Huston. Dragutsky's design was a variation on a timber-wall breakwater depicted in Espey Huston's February 1985 report. Bellingham Marine constructed the breakwater. After construction was complete, a series of storms with prevailing northerly winds generated waves which overtopped or went under the breakwater and caused damage to the docks and boats inside the marina.

In 1988, appellants sued appellees for breach of contract, negligence, breach of warranty, strict liability, and violations of the Texas Deceptive Trade Practices and Consumer Protection Act (DTPA).⁶ Nine years later, in October 1997, the case went to trial. After appellants' case-in-chief, the trial court found "there [was] no evidence of probative force to support a recovery for Plaintiffs or to submit the case to a jury," and granted all appellees' motions for directed verdict.

II. The Appellate Record

By their first point of error, appellants contend the appellate record is not complete or proper. They complain of (1) unrecorded bench conferences, (2) inaccuracies and missing testimony and arguments in the trial transcript, (3) lost or misplaced original exhibits, and (4) an improperly certified statement of facts.⁷

A. Unrecorded Bench Conferences

Appellants complain of four unrecorded bench conferences. First, they contend the court reporter failed to record a bench conference that occurred during appellants' examination of Burkhart. Espey Huston objected to a question asked of Burkhart because it called for an opinion. An unrecorded bench conference followed. After the bench conference, appellants asked Burkhart the same question and he responded. Again, Espey Huston objected, this time on the basis that the response was non-responsive, hearsay, an opinion, and was not based on personal knowledge. The court sustained the objection and struck the response. Appellants did not challenge the ruling and no bench conference, recorded or unrecorded, followed.

The second unrecorded bench conference occurred after appellants offered their fourth exhibit into evidence. Immediately following the unrecorded bench conference; outside the presence of the jury, the trial court and counsel had a lengthy discussion on exchanging exhibits, not interrupting the trial with objections regarding exhibits, and witnesses rendering expert testimony. This exchange was recorded and appears in the transcript of the trial proceeding.

The third unrecorded bench conference occurred during appellants' direct examination of Dragutsky, presented by way of deposition testimony. During the course of the testimony, after the trial court sustained appellee's objection that the testimony called for an opinion, appellants requested a bench conference. Following the bench conference, appellants continued presenting the deposition testimony of Dragutsky.

The last unrecorded bench conference occurred during appellants' case-in-chief; after they had offered excerpts of the deposition testimony of Paul Jensen, the vice-president of Espey Huston, passed the witness, and discussed exhibits entered. Appellant Palmer's trial counsel asked to approach the bench on another issue. After the bench conference, counsel called Palmer as the next witness.

A court reporter is required to make a full record of the proceedings unless excused by agreement of the parties. TEX. R. APP P. 13.1(a). No such agreement is apparent on the record. We recently held, in a criminal proceeding, the reporter's duty to record proceedings, including bench conferences that occur after the trial commences, is mandatory pursuant to appellate rule 13.1, and, thus, noncompliance is error. See Tanguma v. State, 47 S.W.3d 663, 667 (Tex.App.-Corpus Christi 2001, pet. ref'd); but see Polasek v. State, 16 S.W.3d 82, 88-89 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd) (rule 13.1(a) conflicts with section 52.046(a) of Texas Government Code, and is void).⁸ Likewise, in this civil case, we conclude the court reporter's failure to record and transcribe the identified bench conferences that occurred after the trial commenced, without agreement of the parties, constitutes error. See TEX. R. APP. P. 13.1(a). However, a failure to record bench conferences does not automatically result in reversal.

We may not reverse unless the error complained of probably caused the rendition of an improper judgment or prevented an appellant from properly presenting the case to the appellate court. TEX. R. APP. P. 44.1; cf. Tanguma, 47 S.W.3d at 667 (pursuant to appellate rule 44.2, this Court analyzed whether error was reversible constitutional error or reversible non-constitutional error affecting substantial rights). Appellants asserted no consequences from the failure of the court reporter to record the four bench conferences. They do not claim the error probably caused rendition of improper judgments. See TEX. R. APP. P. 44.1(a)(1). Neither have they set out how the failure of the court reporter to record the four bench conferences prevented appellants from properly presenting their case to this Court. See id. at 44.1(a)(2). Furthermore, based on our review of the record, we cannot ascertain support for these arguments, had they been made. Accordingly, while we conclude the court reporter's failure to completely record the bench conferences at trial was error, such failure is not reversible. See id. at 44.1(a). We must, therefore, disregard the error. See id.

B. Inaccurate/Lost Record

Appellants next argue the statement of facts is replete with inaccuracies which call the entire statement of facts into question. Appellants refer us to inaccuracies in eight lines of transcription in the five-volume reporter's record. Although the referenced portions of the record contain some unintelligible words or phrases, when reviewed in context, the meaning is understandable. Thus, we cannot conclude the entire statement of facts is called into question on this basis.

Appellants also generally refer us to other inaccuracies in the reporter's record, inaccuracies they contend are impossible to set out "without enormously exceeding the page limits of [their] brief." However, a party asserting error on appeal bears the burden of showing that the record supports the contention raised, and of specifying the place or places in the record where matters upon which they rely or of which they complain are shown. TEX. R. APP. P. 38.1(h); Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex.App.-Houston [1st Dist.] 1995, no writ). "We will not do the job of the advocate." Happy Harbor, 903 S.W.2d at 886. Appellants have not carried their burden on this contention.

Finally, to the extent appellants are complaining that the above referenced portions of the record were lost or destroyed, we apply a similar analysis. An appellant is entitled to a new trial when a reporter's record is lost or destroyed if (1) appellant timely requested the record; (2) a significant portion of the court reporter's notes has been lost or destroyed; (3) the lost portion is necessary to the appeal, and the parties cannot agree on a complete reporter's record. TEX. R. APP. P. 34.6(f). We have reviewed the complained-of portions of the record, and have concluded the nature of the testimony or...