Rowlett v. Colortek, Inc.
| Decision Date | 06 November 1987 |
| Docket Number | No. 05-87-00312-CV,05-87-00312-CV |
| Citation | 741 S.W.2d 206 |
| Parties | Louis A. ROWLETT, Appellant, v. COLORTEK, INC., Appellee. |
| Court | Texas Court of Appeals |
Jack O. Norman, Dallas, for appellant.
John P. Knouse, Dallas, for appellee.
Before ENOCH, C.J., and LAGARDE and THOMAS, JJ.
Appellee Colortek, Inc. ("Colortek"), seeks clarification of an order (the "Order") of the Supreme Court of Texas, dated January 8, 1986, 1 concerning a pilot project for the district courts of Dallas County and implementing the use of electronic statements of facts for appeals in this Court. Specifically, appellant Louis A. Rowlett ("Rowlett") has raised points of error contending that there was no evidence, or alternatively insufficient evidence, to support the trial court's findings of fact. The complete electronic statement of facts has been filed; however, the transcription that Rowlett has appended to his brief, in compliance with paragraph 5 of the Order, is only a partial transcription of the electronic record. Rowlett argues that he is under no obligation to provide a complete transcription of the electronic record, because we cannot presume that anything contained in any material he omits supports the judgment of the trial court. Colortek argues that, as appellant, Rowlett has the burden of providing a complete transcription of the electronic statement of facts, if he wishes to urge no-evidence or insufficient-evidence points of error. For the reasons given below, we agree with Colortek.
The Texas Rules of Appellate Procedure governing appeals with conventional, written statements of facts provide that, if only a partial statement of facts is filed, "there shall be a presumption on appeal that nothing omitted from the record is relevant to any of the points specified or to the disposition of the appeal." TEX.R.APP.P. 53(d) (emphasis added). When the Texas Rules of Civil Procedure were first amended to permit the filing of a partial statement of facts, the Subcommittee on Interpretation of the Texas Rules of Civil Procedure stated that "[t]he record ... on appeal should be limited as far as possible to the questions relied on for reversal." Advisory opinion, 8 TEX.B.J. 17, 18 (1945). To promote the efficiency of reduced records, the Subcommittee indicated that the presumption that anything omitted from the record would sustain the judgment would no longer be indulged. Id. When asked for clarification, the Subcommittee replied that "[t]he intention was to say that there will be no presumption that matter omitted from the statement of facts sustains the judgment." Advisory opinion, 8 TEX.B.J. 27 (1945). Notwithstanding this language, the supreme court later held that, when an appellant complained of no evidence to support a trial court's finding the appellant could not discharge his burden of showing error "in the absence of a complete or an agreed statement of facts." Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968) (per curiam). See also Champion Drilling Corp. v. Ranton, 664 S.W.2d 785, 786-87 (Tex.App.--Waco 1984, no writ) (an appellant who urges an insufficient-evidence point cannot avail himself of the presumption that nothing omitted from the record is relevant to the points or to the disposition of the appeal). An appellant bringing forth a conventional, written statement of facts may not omit any material if he wishes to urge no-evidence or insufficient-evidence points of error.
Rowlett recognizes that the "official" statement of facts in an electronically recorded trial is the tape recording itself and that the entire taped proceedings have been filed with this Court. He contends that, if he argues no-evidence or insufficient-evidence points of error, he need only transcribe a portion of the electronic statement of facts in the appendix to his brief and that we must then presume that the portion omitted from the appendix to his brief contains no evidence (or at least insufficient evidence) to support the trial court's findings.
For those appeals based on an electronic statement of facts, paragraph 6 of the Order contains a presumption analogous to that of Texas Rule of Procedure 53(d).
Presumption. The appellate court shall presume that nothing omitted from the transcriptions in the appendices [to the parties' briefs] is relevant to any point raised or to the disposition of the appeal. The appellate court shall have no duty to review any part of the electronic recording.
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...of the evidence to support a finding without bringing forth a complete statement of facts. Rowlett v. Colortek, Inc., 741 S.W.2d 206, 207-08 (Tex.App.--Dallas 1987, writ denied). "Great-weight-and-preponderance" points require an appellate court to consider the entire record, and therefore,......
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