State Farm Fire and Cas. Ins. Co. v. Vandiver, 10-96-092-CV

• Decision Date: 12 February 1997
• Docket Number: No. 10-96-092-CV,10-96-092-CV
• Parties: STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. Sandra Sue VANDIVER, Appellee.
• Court: Texas Court of Appeals

Page 343

941 S.W.2d 343

STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. Sandra Sue VANDIVER, Appellee.

No. 10-96-092-CV.

Court of Appeals of Texas,

Waco.

Feb. 12, 1997.

Rehearing Overruled April 9, 1997.

Anne Gardner, Shannon, Gracey, Ratliff & Miller, Fort Worth, David Kassabian, Kassabian, Moran & Doyle, P.C., Arlington, for appellant.

Richard E. Ward, Fort Worth, Clay Lewis Jenkins, Jenkins & Jenkins, P.C., Waxahachie, Ronald D. Wren, Bedford, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION ON STATE FARM'S MOTION TO STRIKE SUPPLEMENTAL

(CORRECTED) STATEMENT OF FACTS AND SECOND MOTION

TO REVERSE AND REMAND

PER CURIAM.

On April 17, 1990, appellee Sandra Sue Vandiver sued State Farm Fire and Casualty Insurance Company on an insurance contract when State Farm allegedly failed to compensate her adequately for her losses after her home was consumed by fire. During a jury trial, the trial court directed a verdict against State Farm on Vandiver's contractual claims and submitted her bad faith claims to the jury, which found in her favor. The court entered its final judgment on January 5, 1996. On February 5, State Farm filed a motion for new trial, which was denied on March 20. On April 4, State Farm filed its appeal bond and its requests to the proper parties for the preparation of both the transcript and the statement of facts. The transcript was filed in this court on April 29, and the statement of facts was filed on May 15, following the granting of a motion to extend the time to file.

Upon receipt, trial and appellate counsel for State Farm reviewed the statement of facts and noticed several omissions of testimony and a number of discrepancies between their recollection of the evidence adduced at trial and what was contained in the statement of facts. Due to these alleged omissions and inaccuracies, State Farm on July 18 filed a motion in this court requesting that we either reverse and remand the cause for a new trial or, in the alternative, abate the cause to the trial court so that the inaccuracies in the statement of facts could be corrected. Also on July 18, State Farm filed its appellate brief. Vandiver filed her brief on August 21.

On August 21, we abated the cause to the trial court, and on September 5 the trial court conducted a hearing on the accuracy of the record. After the hearing, the trial court determined that the statement of facts could be properly corrected pursuant to TEX.R.APP.P. 55(b), and the court entered findings of fact and conclusions of law. State Farm then filed its "Motion to Strike Supplemental (Corrected) Statement of Facts and Second Motion to Reverse and Remand," which is the subject of this opinion. ¹

At the hearing, State Farm filed an affidavit from its trial attorney, David Kassabian, identifying 74 or 75 instances in which he allegedly found inaccuracies in the statement of facts. Prior to the hearing, counsel for both State Farm and Vandiver were able to reach an agreement on how approximately three-quarters of the inaccuracies should be amended, and they entered stipulations to that effect. With regard to the unresolved discrepancies, the trial court, after considering the exhibits offered into evidence at the hearing and the testimony from the several witnesses, made findings of fact and conclusions of law on how the record should be corrected.

Notwithstanding its efforts to reach a mutual agreement with Vandiver on the 74 or 75 alleged inaccuracies in the statement of facts, State Farm did nothing to remedy the problem of the omitted testimony. ² Instead, it made essentially two arguments that the record could not be corrected; first, that the court reporter, Bryan Coday, in taking down what was said at trial, did not always indicate the ending lines of the depositions and exhibits that were read and, therefore, it could not be determined with sufficient accuracy how much of the relevant depositions and exhibits had been read into the record; and second, that under this court's opinion in The Home Ins. Co. v. Hambric, 906 S.W.2d 956 (Tex.App.--Waco 1995, no writ), court reporters are obligated to take down contemporaneously everything that is said at trial and, if they fail to do so, the portions of the record not taken down contemporaneously are irremediably lost within the meaning of TEX.R.APP.P. 50(e), so that, unless the parties can reach an agreement, a new trial must be ordered. See Owens-Illinois, Inc. v. Chatham, 899 S.W.2d 722, 733 (Tex.App.--Houston [14th Dist.] 1995, writ dism'd) (on rehearing). ³

At the hearing, Vandiver argued, among other things, that State Farm could not complain about any untranscribed portions of the trial, except closing arguments and the reading of the jury charge, because those were the only events which State Farm actually requested to be taken down by a court reporter. See TEX.R.APP.P. 11. In apparent agreement with Vandiver, the trial court entered findings that the only proceedings State Farm requested to be taken down were closing arguments and the reading of the charge.

The first issue we will consider is whether the court reporter was under any obligation to record the events of the trial. Rule of Appellate Procedure 11(a)(1) provides that a court reporter has a duty to attend all sessions of the court and to make a full record of the evidence together with all objections to the admissibility of the evidence, the rulings, and remarks of the court thereon when requested by the judge or any party to a case. TEX.R.APP.P. 11(a)(1). These same obligations, again conditioned upon the requirement of a request, are imposed upon the court reporter by the Government Code. See TEX. GOV'T CODE ANN. § 52.046(a) (Vernon 1988). Vandiver contends that, because no request was made by State Farm for the court reporter to record the proceedings at trial, State Farm has waived any complaint it may have had about Coday's not making a correct and complete statement of facts. See Lascurain v. Crowley, 917 S.W.2d 341, 345 (Tex.App.--El Paso 1996, no writ); Rogers v. CIGNA Ins. Co., 881 S.W.2d 177, 181 (Tex.App.--Houston [1st Dist.] 1994, no writ); see also Piotrowski v. Minns, 873 S.W.2d 368, 370 (Tex.1993).

It is undisputed, and the trial court made findings to this effect, that State Farm made no request for the court reporter to record anything except for closing arguments and the reading of the jury charge. Moreover, in one of its conclusions of law, the trial court determined that "any proceedings not reflected in the corrected Statement of Facts were not requested to be reported." State Farm, while conceding that it made no request for the court reporter to record the contested portion of the proceedings, asserts that the trial court did request it and that this was sufficient under Rule 11 and section 52.046(a).

The requirement that a request be made for a court reporter is not as formalistic as the bare wording of Rule 11 and section 52.046(a) may indicate. The Supreme Court, at least since Robinson v. Robinson, 487 S.W.2d 713 (1972), has held that "[i]f 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." Id. at 715. Six years later, in response to an argument that the holding in Robinson should be changed in light of a newly imposed statutory requirement that a court reporter has no duty to record any trial court proceedings in the absence of a request, the Supreme Court reaffirmed that an appellant will not be found to have waived a complaint about the absence of a statement of facts when such occurred through no fault of his own and he exercised due diligence to see that the trial proceedings were recorded by the court reporter. Rogers v. Rogers, 561 S.W.2d 172, 173 (1978) (decided under former TEX.REV.CIV.STAT.ANN. art. 2324, which was later recodified as TEX.R.APP.P. 11); see also Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23, 24 (Tex.1987). ⁴

Although the trial court made no findings in this regard, we conclude that State Farm exercised due diligence to see that a contemporaneous record of the trial proceedings were recorded by a court reporter and that Coday's failure to take down verbatim the words spoken by the attorneys and witnesses as they read the portions of the relevant depositions and exhibits was not in any way the fault of State Farm. The statement of facts from the abatement hearing clearly indicates that Coday was present in the courtroom throughout the entire trial, including the times when the attorneys and witnesses were reading from the depositions and exhibits, and seemed to be taking down what was being said by the participants at trial. Indeed, the trial court made the following relevant findings from the bench at the close of the abatement hearing:

[After I received the Hambric opinion,] I told [Coday], as he verified here, that unless the attorneys stipulated otherwise, he was to take down [contemporaneously] ... all the testimony offered by deposition; whether it was a video deposition and they were playing it straight through, he was to take all that down as if a witness was on the stand. And if the attorneys were reading the deposition, he was supposed to take what they were reading down as it was being said verbatim.... I even looked over there when that testimony was being offered. I even looked over there and saw his fingers moving on the [stenographic] machine. Now, ... I don't know what he's putting down there. I told him to take it down. It looked like he was taking something down, so I assumed it was being taken down. I don't know what else to do.

Kassabian testified that he, too, thought that Coday was contemporaneously taking down what was said while the relevant depositions and exhibits were being read because he also saw Coday present in the...