Clara Patrick v. DeWayne Alan Watson ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-075-CV
CLARA PATRICK APPELLANT
V.
DEWAYNE ALAN WATSON APPELLEE
------------
FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
------------
MEMORANDUM OPINION 1
------------
I. Introduction
Appellee DeWayne Alan Watson sued Appellant Clara Patrick for
conversion and violation of the Texas Theft Liability Act. 2 Based on the jury’s
findings, the trial court rendered judgment in favor of Watson. Patrick
1
… See T EX. R. A PP. P. 47.4.
2
… See T EX. C IV. P RAC. & R EM. C ODE A NN. § 134.001 et seq. (Vernon
2005).
challenges the legal and factual sufficiency of the evidence to support the jury’s
findings and the trial court’s judgment.3 We affirm.
II. Background
Because Patrick has failed to provide us with a reporter’s record, our
background summary is taken from the allegations made in the various
pleadings, the jury’s findings, and the procedural history reflected in the clerk’s
record. See T EX. R. A PP. P. 37.3(c). In March 2004, Watson—ostensibly on
behalf of his church—signed a lease with Patrick for commercial property to be
used by Watson’s church. After the church began using the property, a fire
damaged the premises. Believing that Patrick had breached the lease by failing
to repair the damage caused by the fire, the church abandoned the premises
and terminated the lease. According to Watson’s petition, despite providing
adequate notice, Patrick failed to return personal property that belonged to
Watson, wrongfully sold the personal property, and kept the proceeds.
3
… Patrick does not specifically identify whether she is making a legal or
factual sufficiency argument in each of these issues. In part of her brief she
describes how there was “factually insufficient” evidence to support each of
these issues, but later she asks this court to render judgment in her favor, a
remedy available only in the context of a legal sufficiency challenge. See Elias
v. Mr. Yamaha, Inc., 33 S.W.3d 54, 59 (Tex. App.— El Paso 2000, no
pet.)(construing appellant’s challenge as a legal sufficiency challenge because
in prayer for relief appellant asked for court to render judgment). We therefore
construe her issues as both legal and factual sufficiency challenges.
2
On January 16, 2007, a jury trial was held. The jury found that Watson
was not a party to the lease between Patrick and the church. The jury also
found that Patrick committed conversion and theft in the amount of $4,840.00
and awarded Watson attorney fees in the amount of $20,000.00. On February
7, 2007, the trial court rendered judgment on these findings in favor of Watson.
On March 5, 2007, Patrick filed this appeal.
On June 6, 2007, this court sent a letter to Patrick informing her that she
had until June 21, 2007, to provide this court with proof that she had either
paid or made arrangements to pay the court reporter for preparing the record
and that her failure to do so would limit this court’s consideration to those
issues that did not require a reporter’s record for a decision. See T EX. R. A PP.
P. 37.3(c). Patrick did not provide this court with proof of payment. On June
22, 2007, this court sent a letter to Patrick informing her that she had failed to
pay or make arrangements to pay for the reporter’s record and that this court
would only consider and decide those issues that did not require a reporter’s
record for a decision. See Id.
III. Discussion
In three issues, Patrick challenges the legal and factual sufficiency of the
evidence to support the jury’s findings that Watson was not a party to the lease
and that he was entitled to attorney’s fees in the amount of $20,000.00.
3
Texas Rule of Appellate Procedure 37.3(c) directs us to address those
issues that do not need the reporter’s record for decision. See T EX. R. A PP. P.
37.3(c). Implicit therein is the notion that we need not consider those issues
that are dependent upon the reporter’s record. In re Spiegel, 6 S.W.3d 643,
646 (Tex. App.—Amarillo 1999, no pet.). In other words, when the reporter’s
record is missing and the issue before us depends upon matters within that
record, we may overrule or reject it. Id. We must presume there was evidence
to support the findings of the jury and the trial court’s judgment rendered on
those findings. Bryant v. United Shortline, Inc. Assurance Servs., 972 S.W.2d
26, 31 (Tex. 1998); Mays v. Pierce, 281 S.W.2d 79, 82 (Tex. 1955).
Therefore, we must overrule Patrick’s legal and factual sufficiency complaints
because there is no reporter’s record of the jury trial in this case. See Bryant,
972 S.W.2d at 31. Accordingly, we overrule Patrick’s three issues.
IV. Conclusion
Having overruled each of Patrick’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL B: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: July 24, 2008
4