Watson v. Hart

• Decision Date: 23 February 1994
• Docket Number: No. 3-93-459-CV,3-93-459-CV
• Citation: 871 S.W.2d 914
• Parties: Wendell WATSON, Relator, v. The Honorable Joseph H. HART, Respondent.
• Court: Texas Court of Appeals

Page 914

871 S.W.2d 914

Wendell WATSON, Relator, v. The Honorable Joseph H. HART, Respondent.

No. 3-93-459-CV.

Court of Appeals of Texas,

Austin.

Feb. 23, 1994.

Wendell Watson, pro se.

Sarah Pierce Cowen, J. Clifford Gunter III, Bracewell & Patterson, L.L.P., Houston, for Allstate Indem. Co.

Laura Upchurch, Brown McCarroll & Oaks Hartline, Austin, for American Gen. Fire & Cas. Co. a/k/a MD Cas.

Thomas J. O'Meara, Austin, for U.S. Fidelity and Guar. Co.

Before CARROLL, KIDD and B.A. SMITH, JJ.

PER CURIAM.

Relator Wendell Watson, pro se, seeks a writ of mandamus to require respondent, the Honorable Joseph H. Hart, ¹ to vacate an order sustaining in part the contests to Watson's affidavit of inability to pay costs of appeal and to order that the allegations of the affidavit be taken as true. We will conditionally grant the writ.

I. BACKGROUND

Watson filed a petition for an equitable bill of review in the trial court. The trial court dismissed his petition with prejudice by an order signed April 9, 1993. On July 8, 1993, Watson filed an affidavit of inability to pay costs of appeal. ² See Tex.R.App.P. 40(a)(3)(A). He gave notice of the filing of the affidavit to official court reporters Cynthia Alvarez and Grace Chavez, both of whom subsequently filed contests to the affidavit. See Tex.R.App. 40(a)(3)(C). The first contest to Watson's affidavit was filed on July 15, 1993. ³ On July 16, 1993, the trial court signed an order setting a hearing date on the contests for August 3, 1993. On August 5, 1993, the trial court signed an order, sustaining in part the contests to Watson's affidavit of inability. On August 9, 1993, Watson filed a motion to vacate judgment and motion to take the allegations of the affidavit of inability to pay the costs of appeal as true. On August 10, 1993, the trial court signed an order denying Watson's motion. On September 16, 1993, this Court granted Watson's motion for leave to file petition for writ of mandamus and filed the petition. Watson asks this Court to order Judge Hart to vacate the August 5, 1993, order sustaining in part the contests to Watson's affidavit and to order that the allegations of the affidavit be taken as true.

II. DISCUSSION

Before we consider the basis for Watson's petition, we must dispose of three preliminary issues. First, real parties in interest United States Fidelity & Guaranty Company (Fidelity) and Allstate Indemnity Company (Allstate Indemnity) argue in their responses to Watson's petition that mandamus should not lie because he failed to give notice of the mandamus proceeding to court reporters Cynthia Alvarez, Grace Chavez, and Caroline Chapman. See Tex.R.App.P. 121(a)(2)(B), (G). This Court requested that Watson supplement his petition to include the court reporters as real parties in interest or as parties whose interests would be affected by the proceeding. We further requested Watson to provide the court reporters with a copy of the motion for leave to file a petition for writ of mandamus, the petition for writ of mandamus, and any supplements to the petition. We also instructed Watson to submit, as a supplement to the petition, a certificate of Second, Fidelity argues that the question presented by Watson's petition for writ of mandamus is moot because Watson has filed the transcript and statement of facts from the trial court in his appeal on the merits in cause number 3-93-418-CV and any error in requiring him to pay for the statement of facts can be addressed in that appeal. Watson responds that he did not request or file the statement of facts Fidelity refers to and, if any statement of facts were filed in his appeal, it was without his knowledge.

service showing service on the court reporters. Watson complied with the foregoing requests and instructions.

The statement of facts filed in cause number 3-93-418-CV is from a hearing on Allstate Indemnity's motion for sanctions and injunctive relief held on July 7, 1993. Court reporter Alvarez prepared the statement of facts. The transcript in cause number 3-93-418-CV reflects that Watson did not request that Alvarez prepare the statement of facts from the July 7 hearing. Rather, Allstate Indemnity requested Alvarez to prepare and tender the statement of facts. Watson has requested statements of facts for two other hearings that have not been filed in his appeal. Accordingly, the question presented in Watson's petition for writ of mandamus is not moot.

Third, we must determine the effect of Watson's failure to notify one of the court reporters in the trial-court proceeding that he had filed an affidavit of inability to pay costs for appeal. Three court reporters participated in the bill-of-review proceeding: Cynthia Alvarez, Grace Chavez, and Caroline Chapman. Alvarez and Chavez are official court reporters and Chapman appears to be a deputy court reporter for the District Court of Travis County, 126th Judicial District. ⁴ Before July 8, 1993, Alvarez mistakenly informed ⁵ Watson that she was the official court reporter who had transcribed the proceedings on November 25, 1991, relating to a hearing on motions to dismiss Watson's lawsuit. On July 8, 1993, Watson filed his affidavit of inability and requested Alvarez to transcribe the November 25 proceedings. See Tex.R.App.P. 53(a). Watson timely served notice on Alvarez and Chavez that he had filed an affidavit of inability. See Tex.R.App.P. 40(a)(3)(B). Both Alvarez and Chavez filed contests to Watson's affidavit. ⁶ Approximately one week after the trial court signed its order sustaining the contests in part, Alvarez for the first time notified Watson that a reporter from Chapman Court Reporting Service had, in fact, transcribed the November 25 proceedings.

Rule 40(a)(3)(B) provides:

The appellant or his attorney shall give notice of the filing of the affidavit to the opposing party or his attorney and to the court reporter of the court where the case was tried within two days after the filing; otherwise, he shall not be entitled to prosecute the appeal without paying the costs or giving security therefor.

Tex.R.App.P. 40(a)(3)(B) (emphasis added).

Watson argues the rule means exactly what it says and that the phrase "the court reporter of the court where the case was tried" refers only to the official court reporter of the trial court. Indigency provisions, like other appellate rules, have long been liberally construed in favor of a right to appeal. Jones v. Stayman, 747 S.W.2d 369, 370 (Tex.1987). The appellate rules, however The notice requirement in Rule 40(a)(3)(B) is intended to allow the court reporter and appellee the opportunity to file a timely written contest. Id. If the notice sufficiently fulfills the purpose of the rule, the notice requirement is met. See Id. Jones, however, should not be read so broadly as to exonerate an appellant's burden of complying with the applicable rules of procedure so long as no harm results. Fellowship Missionary Baptist Church v. Sigel, 749 S.W.2d 186, 188 (Tex.App.--Dallas 1988, no writ).

must be construed in a manner consistent with their purposes.

If Rule 40(a)(3)(B) requires notice of the filing of the affidavit to the official court reporter only, and the official court reporter did not transcribe the proceedings for which the statement of facts is requested, she has no interest in contesting the affidavit because she is not the reporter who will be required to prepare the statement of facts without payment. Conversely, if a substitute court reporter actually transcribed the proceedings and must prepare the statement of facts, she is clearly an interested officer of the court entitled to notice. See Tex.R.App.P. 40(a)(3)(C) (interested officer of court may file contest to affidavit within ten days after notice thereof). We understand the purpose of the notice requirement to be to provide the court reporter who transcribed the trial-court proceedings the opportunity to file a contest. We will assume, without deciding, that Rule 40(a)(3)(B) requires an appellant to give timely notice of the filing of an affidavit of inability to all court reporters from whom he will request a statement of facts. Chapman was not served with notice, and she did not file a contest. Nothing in the record before us suggests that she otherwise acquired actual knowledge of the filing of the affidavit. ⁷ Thus, we cannot say that Chapman had the opportunity to file a timely contest to Watson's affidavit.

Allstate Indemnity and American General Fire & Casualty Company argue that the notice requirement is mandatory and Watson cannot proceed without paying costs, citing Wheeler v. Baum, 764 S.W.2d 565, 566 (Tex.App.--Houston [1st Dist.] 1988, orig. proceeding); Fellowship Missionary Baptist Church of Dallas v. Sigel, 749 S.W.2d 186, 188 (Tex.App.--Dallas 1988, no writ); and Villarreal v. H.E. Butt Grocery Co., 742 S.W.2d 725, 726 (Tex.App.--Corpus Christi 1987, writ dism'd w.o.j.). In both Wheeler and Villarreal, the appellant completely failed to give notice to any court reporter of the filing of an affidavit of inability to pay costs of appeal. In Sigel, the notice was not timely. Watson gave timely notice of his affidavit of inability to the court reporter he believed had transcribed the November 25 proceedings. Thus, this case does not involve the complete absence of timely notice.

Watson argues that he made a good-faith effort to notify every court reporter from whom he intended to request a statement of facts in compliance with Rule 40(a)(3)(B) and that under the circumstances of this case his failure to give notice to Chapman should be excused because the mistake of the official court reporter effectively prevented him from giving the required notice. The failure to serve notice timely of the affidavit of inability to a court reporter or substitute court reporter is not automatically fatal to an appellant's right to prosecute an appeal by affidavit of inability. See Lovall v. West, 859 S.W.2d...