Rogers v. CIGNA Ins. Co. of Texas

• Court: Texas Court of Appeals
• Writing for the Court: HUTSON-DUNN
• Citation: Rogers v. CIGNA Ins. Co. of Texas, 881 S.W.2d 177 (Tex. App. 1994)
• Decision Date: 21 July 1994
• Docket Number: No. 01-93-00549-CV,01-93-00549-CV
• Parties: John Davison ROGERS, Appellant, v. CIGNA INSURANCE COMPANY OF TEXAS, Appellee. (1st Dist.)

Page 177

881 S.W.2d 177

John Davison ROGERS, Appellant, v. CIGNA INSURANCE COMPANY OF TEXAS, Appellee.

No. 01-93-00549-CV.

Court of Appeals of Texas Houston (1st Dist.).

July 21, 1994.

William T. Powell, Houston, Robert G. Clark, Abilene, for appellant.

Gary A. Scarzafava, Kathleen Walsh Beirne, Annelie Menke, Houston, for appellee.

Before HUTSON-DUNN, COHEN and O'CONNOR, JJ.

OPINION

HUTSON-DUNN, Justice.

John Davison Rogers brought a bad faith action against CIGNA Insurance Company of Texas, and now appeals the directed verdict granted to CIGNA. We affirm.

Disposition of Outstanding Motions

Several months before oral argument, the parties filed motions concerning the content of the record. We ordered the motions to be "taken with the appeal," i.e., to be ruled on at the time we hear the appeal itself. Because the resolution of these motions will determine the content of the record we will review in deciding this appeal, we consider the motions first.

1. Fact Summary

The statement of facts reflects that Rogers called two witnesses, Belinda Johnson and John Collins, by videotape deposition. The written transcriptions of these witnesses' depositions were available to, and used by, counsel for both parties and the judge. Before the playing of each video, CIGNA's attorney used the written transcriptions to make objections, and Rogers' attorney used them to respond. In the process, both attorneys referred to specific pages and lines of the transcriptions. The judge sustained some of CIGNA's counsel's objections, and ordered that some portions of the videotapes not be played to the jury.

Rogers then played the portions of the videotapes that he wanted the jury to see, minus the parts ordered left out by the judge. The statement of facts indicates that the court reporter left the courtroom during the playing of the videotapes. Rogers' counsel did not object to the reporter's absence during the showing of the videos.

At the end of the video presentations, the court reporter returned to the courtroom. CIGNA's counsel, under the rule of optional completeness, then offered portions of the depositions that Rogers did not present in playing the videotapes. CIGNA's counsel, however, did not offer the omitted portions by videotape; rather, he read the omitted testimony from the written transcriptions of the witnesses' testimony. The court reporter transcribed CIGNA's counsel's reading of the testimony.

Neither the videotapes nor the written transcriptions of the depositions were originally included in our record.

2. The Motions

A. Rogers' Motion to Supplement the Statement of Facts

As the appellant, it was Rogers' burden to make sure that the deposition testimony of Johnson and Collins was transcribed and presented to us for our review. TEX.R.APP.P. 50(d); 4M Linen & Uniform Supply Co. v. W.P. Ballard & Co., 793 S.W.2d 320, 323 (Tex.App.--Houston [1st Dist.] 1990, writ denied) (holding that, under rule 50(d), it is the complaining party that "must provide the record that shows error."). In this motion, Rogers asks us to supplement the statement of facts with the written transcriptions of Johnson's and Collins' testimony made at the time they gave their depositions.

Texas Rule of Appellate Procedure 55(b), entitled "Amendment of the Record--Before Submission," states in relevant part:

If anything material is omitted from the ... statement of facts, before submission ... the appellate court, on a proper suggestion or on its own initiative, may direct a supplemental record to be certified and transmitted by the clerk of the trial court or the official court reporter supplying such omitted matter. The appellate court shall permit it to be filed unless the supplementation will unreasonably delay disposition of the appeal.

TEX.R.APP.P. 55(b). Relying on this rule, the San Antonio Court of Appeals allowed supplementation under similar circumstances in Southern Pac. Transp. Co. v. Hernandez, 804 S.W.2d 557 (Tex.App.--San Antonio 1991, writ denied), cert. denied, 502 U.S. 952, 112 S.Ct. 406, 116 L.Ed.2d 355 (1991). In Hernandez, counsel read the deposition testimony of a witness to the jury. 804 S.W.2d at 560. The court reporter did not transcribe the reading of the deposition testimony into the statement of facts. Id. Upon discovering the omission of the witness' testimony in the statement of facts, counsel filed a motion to amend the record, seeking to add the written transcription made at the time of the deposition to the statement of facts. Id. The court granted the motion, making the transcription "part of the formal record before this court." Id.

The videotape depositions of Belinda Johnson and John Collins were viewed by the jury, but written transcriptions of the video testimony were not made at trial. Written transcriptions of the same testimony do exist, however, because written transcriptions were made at the time the video depositions were given in the discovery phase of the lawsuit. We hold that, under these circumstances, the testimony of Belinda Johnson and John Collins was "omitted" from the statement of facts under rule 55(b).

CIGNA argues that to allow supplementation would amount to "creating" part of the record, as opposed to "correcting" the record. See Gerdes v. Marion State Bank, 774 S.W.2d 63, 65 (Tex.App.--San Antonio 1989, writ denied) ("Rule 55 authorizes trial judges and appellate courts to correct the appellate record on their own initiative, or at the request of counsel; it does not allow the creation of a new trial court record."). We disagree. Where (1) deposition testimony is presented to the jury, (2) the deposition testimony is not transcribed into the record by the court reporter, and (3) a proper written transcription of the same testimony was made at the time the deposition was given, supplementation of the record with the transcription made at the time the deposition was given is correcting the record, not creating it. Hernandez, 804 S.W.2d at 560. What we are adding to the record is merely a transcription of testimony that the jury, it is undisputed, heard at trial. ¹ Under these circumstances using deposition transcriptions to cure an omission in the statement of facts amounts to no more than correcting the statement of facts.

Rogers has attached to his motion copies of the written transcriptions of the depositions of Belinda Johnson and John Collins. The filing of these transcriptions will not unreasonably delay the disposition of this appeal. We grant this motion and order the transcriptions filed as part of the record in this cause.

B. Rogers' Motion (and Supplemental Motion) to Reverse and Remand for a New Trial

Texas Rule of Appellate Procedure 50(e) states that an appellant is entitled to a new trial if (1) the appellant has made a timely request for a statement of facts, (2) the court reporter's notes and records "have been lost or destroyed," and (3) the parties do not agree on a statement of facts. Rogers made a timely request for a statement of facts, and the parties have stated that they will not agree on a statement of facts. Rogers, however, cannot meet the second part of the test--the court reporter's notes are not "lost or destroyed." This requirement contemplates that notes were actually made, then either lost or destroyed after coming into existence. See Hidalgo, Chambers & Co. v. Federal Deposit Ins. Corp., 790 S.W.2d 700, 701 (Tex.App.--Waco 1990, writ denied) (records made, then lost); Vickers v. Sunrise Lumber Co., 759 S.W.2d 747, 748 (Tex.App.--El Paso 1988, writ denied) (stenographic notes made, then inadvertently thrown away); Hoyt v. INA of Texas, 752 S.W.2d 628, 629 (Tex.App.--Waco 1988, writ denied) (stenographic notes made, then lost).

Here, the court reporter did not make any notes when the videotapes were played to the jury; thus, there were no notes to lose or destroy. Rogers argues, however, that he is entitled to a new trial because the court reporter did not fulfill his duty under TEX. R.APP.P. 11(a)(1) to record the video deposition testimony. We disagree. Although an appellant is entitled to a complete statement of facts, where a witness testifies in the absence of the court reporter and the appellant fails to object, the appellant is not entitled to a new trial. Robinson v. Robinson, 487 S.W.2d 713, 714 (Tex.1972); see Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23, 24 (Tex.1987) (party preserved appellate complaint of absence of court reporter by objecting to absence of court reporter during the proceeding).

Furthermore, rule 11(a)(1) states that an official court reporter shall "mak[e] a full record of the evidence when requested by the judge or any party to the case...." (Emphasis added.) In a criminal case, we held that, under rule 11(a)(1), "the requirement of a court reporter must be asserted." Osborne v. State, 845 S.W.2d 319, 322 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd). While this does not mean that counsel has a burden to ask for a court reporter each time a new witness takes the stand even if the court reporter never leaves his position, counsel cannot keep silent when the court reporter openly leaves the courtroom and thereby guarantee his client a new trial.

Rogers is not entitled to a new trial. We deny this motion.

C. Other Motions

In view of our disposition of Rogers' motion to supplement, we deny as moot Rogers' "Objection to the Statement of Facts," in which he asks us to "rule that the statement of facts is incomplete through no fault of the appellant and that it is not possible to obtain a complete statement of facts." We likewise deny CIGNA's motion to strike Rogers' motions and the deposition copies.

The Merits of the Appeal

1. Fact Summary

Rogers was injured when the car he was driving, which had been provided by his employer was struck by a train. CIGNA, the workers' compensation insurer for Rogers' employer, began paying indemnity and medical benefits for total incapacity after the...