R.D. Harris v. Bill Devin Hooper, Maria Teresa Hooper and Hooperville, Inc., and Alton & Iralle Haley ( 2011 )

MEMORANDUM OPINION
No. 04-10-00378-CV
R.D. HARRIS,
Appellant
v.
Bill Devin HOOPER, Maria Teresa Hooper, Hooperville, Inc.,
Alton Haley, and Iralee Haley,
Appellees
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-13019
Honorable Gloria Saldana, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Marialyn Barnard, Justice
Delivered and Filed: March 2, 2011
AFFIRMED
A jury found in favor of appellees Bill Devin Hooper, Maria Teresa Hooper, Hooperville,
Inc., Alton Haley, and Iralee Haley on numerous claims relating to certain real estate
transactions. Based on the jury’s verdict, the trial court entered judgment in favor of Hooper.
On appeal, appellant R.D. Harris raises three issues essentially contending the jury’s findings are
in conflict and contrary to the evidence. We affirm the trial court’s judgment.
04-10-00378-CV
BACKGROUND
A detailed rendition of the underlying facts is unnecessary to our disposition of the
appeal. Therefore, we provide only a brief outline of the facts for context.
The Hoopers sought to sell several rental properties. The Hoopers initially believed they
were selling the properties to the Haleys, who were seemingly represented by Harris as a real
estate broker. The Hoopers and Haleys claimed Harris was, in fact, the true buyer, and he had
fraudulently persuaded the Haleys to act as “straw buyers.” According to the Haleys, Harris told
them that if they allowed him to use their credit to purchase the Hooper properties, he would pay
the down payment and make mortgage payments in their name. The Haleys claimed Harris did
neither.
At closing, Harris “flipped” the property to himself, thereby procuring title to the
properties, but leaving the Haleys holding the mortgages. The Haleys asserted they spent years
attempting to repair the damage to their credit based on Harris’s conduct. The Hoopers claimed
they were charged closing costs, but never received any mortgage payments.
The Hoopers and the Haleys brought suit against Harris alleging claims for breach of
fiduciary duty, fraud, fraud in the inducement, negligent misrepresentation, violations of the
Texas Deceptive Trade Practices Act, violations of the Texas Occupations Code applicable to
real estate agents and brokers, breach of the duty of good faith and fair dealing, breach of
contract, and conspiracy. After a jury entered findings in their favor, the trial court rendered
final judgment, awarding the Hoopers and the Haleys monetary damages, attorneys’ fees, and
interest. Harris then perfected this appeal.
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ANALYSIS
Harris raises three issues on appeal in which he complains the jury’s findings are in
conflict and contrary to the evidence presented at trial. In response, the Hoopers and the Haleys
first assert Harris has waived any error as to his “conflict” assertion by failing to object to any
alleged conflict or inconsistency in the jury’s answers. They further contend Harris’s claim that
the jury’s findings are contrary to the evidence is without merit because he failed to comply with
the appellate rule applicable to requests for partial records.
We begin by noting that Harris has not provided a single record citation in his brief. Rule
38.1(i) of the Texas Rules of Appellate Procedure requires a brief to contain “clear and concise
argument for the contentions made, with appropriate citations to authorities and to the record.”
TEX. R. APP. P. 38.1(i) (emphasis added). We are to construe the appellate rules liberally, but
neither this court nor any other is under a duty to make an independent search of the record to
determine whether an assertion of error is valid. See Ashley Furniture Indus. Inc. ex rel. RBLS
Inc. v. Law Office of David Pierce, 311 S.W.3d 595, 597 (Tex. App.—El Paso 2010, no pet.);
Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 237 (Tex. App.—Dallas 2000, pet. denied);
Wade v. Comm’n for Lawyer Discipline, 961 S.W.2d 366, 373 (Tex. App.—Houston [1st Dist.]
1997, no writ). This court has discretion to find error is waived based on inadequate briefing,
and it is not necessary to afford an appellant an opportunity to rebrief. Fredonia State Bank v.
Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); King v. Graham Holding Co., Inc.,
762 S.W.2d 296, 298-99 (Tex. App.—Houston [14th Dist.] 1988, no writ). Adequate briefing
includes proper citation to the record, and this court and others have held error waived based on a
failure to provide citations to the record. See, e.g., Niera v. Frost Nat’l Bank, No. 04-09-00224-
CV, 2010 WL 816191, at *3 (Tex. App.—San Antonio Mar. 10, 2010, pet. denied) (mem. op.);
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Ashley Furniture Indus., 311 S.W.3d at 597; In re M.J.G., 248 S.W.3d 753, 760 (Tex. App.—
Fort Worth 2008, no pet.); Curtis v. Comm’n for Lawyer Discipline, 20 S.W.3d 227, 236 (Tex.
App.—Houston [14th Dist.] 2000, no pet.).
Harris’s brief does not include a single citation to either the clerk’s record or the
reporter’s record. Accordingly, he has waived his appellate issues for his failure to adequately
brief them. However, in the interest of justice, we will review Harris’s contentions.
Before we can review Harris’s issues, we must first discuss the state of the appellate
record–specifically, the reporter’s record. Rather than requesting the court reporter to prepare
and file the entire reporter’s record, Harris requested only that the court reporter prepare certain
portions of the record. In other words, Harris requested a partial reporter’s record. See TEX. R.
APP. P. 34.6(c).
Historically, the burden was on the appellant to see that a sufficient record was presented
to show reversible error. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). In
accord with this burden, appellate courts applied the common law presumption that whatever
was omitted from the record was relevant to and supported the judgment. W & F Transp., Inc. v.
Wilhelm, 208 S.W.3d 32, 37 (Tex. App.—Houston [14th Dist.] 2006, no pet.). As this court
explained, “[i]t is the appellant who has the burden of bringing forward a statement of facts.
Unless the record shows to the contrary, every reasonable presumption must be indulged in favor
of the findings and judgment of the trial court.” Wright v. Wright, 699 S.W.2d 620, 622 (Tex.
App.—San Antonio 1985, writ ref’d n.r.e.).
Rule 34.6(c) was implemented to avoid the common law presumption. See Christiansen,
782 S.W.2d at 843. The rule sets forth the procedures that apply when the appellant requests
some, but not all, portions of the reporter’s record. See TEX. R. APP. P. 34.6(c).
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When an appellant requests a partial reporter’s record, he must include in the request the
points or issues to be presented on appeal. Id. R. 34.6(c)(1). Such an appellant is thereafter
limited to raising those issues on appeal. Id. This portion of the rule was promulgated to protect
an appellee from having to defend an appeal without parts of the record that support its defense.
Wilhelm, 208 S.W.3d at 38. Requiring the appellant to give notice of the issues to be appealed
allows the appellee the opportunity to designate additional portions of the record that might be
necessary for a proper review of the appeal. Id. Without the statement of points or issues, an
appellee would be left to guess which additional portions of the evidence should be included in
the reporter’s record. Id. (quoting Gardner v. Baker & Botts, L.L.P., 6 S.W.3d 295, 297 (Tex.
App.—Houston [1st Dist.] 1999, pet. denied)).
When a partial reporter’s record is properly requested, i.e., the appellant requests a partial
reporter’s record and prepares a statement of the points or issues to be raised on appeal, the
appellate court must presume the designated record constitutes the entire record for purposes of
reviewing the stated issues. TEX. R. APP. P. 34.6(c)(4). Although strict compliance with rule
34.6(c) is unnecessary, the appellant is still required to include a statement of points or issues to
be relied upon to activate the presumption that the omitted portions of the record are irrelevant.
See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2003) (holding appellant complied with rule
34.6(c) even though his statement of issues was filed almost two months late because nothing in
record established this impaired appellee’s “appellate posture,” but noting a complete failure by
appellant to submit issues or points would require appellate court to affirm judgment in favor of
appellee); Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991) (rejecting interpretation of
predecessor rule that would require appellant to actually file statement of issues or points “in”
request for reporter’s record). If a party utterly fails to comply with the requirements of rule
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34.6(c)(1) by completely failing to file a statement of issues or points to be relied upon, the
contrary presumption arises, and the appellate court must presume the omitted portions of the
record support the judgment rendered by the trial court. Bennett, 96 S.W.3d at 229; CMM Grain
Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439-40 (Tex. App.—Fort Worth 1999, no pet.). Failure
to comply with the requirements of rule 34.6 and the resulting application of the common law
presumption ordinarily has the effect of destroying an appellant’s appeal. Wilhem, 208 S.W.3d
at 38.
Appellate courts, including this one, routinely apply the common law presumption when
an appellant has requested and caused to be filed a partial reporter’s record, but has failed to give
the appellee notice of the points or issues to be raised on appeal. See, e.g., In re J.S.P., 278
S.W.3d 414, 418 (Tex. App.—San Antonio 2008, no pet.); Wilhelm, 208 S.W.3d at 38; Coleman
v. Carpentier, 132 S.W.3d 108, 110-11 (Tex. App.—Beaumont 2004, no pet.); CMM Grain Co.,
991 S.W.2d at 439; Jaramillo v. Atchison, Topeka & Santa Fe Ry. Co., 986 S.W.2d 701, 702
(Tex. App.—Eastland 1998, no pet.). To do otherwise would unfairly allow the appellant to
create a record containing only those portions of the reporter’s record that support his arguments.
Wilhem, 208 S.W.3d at 38.
In this case, Harris never filed a statement of the points or issues which he intended to
present on appeal. He, therefore, failed to comply with the mandates of rule 34.6(c).
Accordingly, he is not entitled to the rule’s presumption, and we will presume the omitted
portions of the record are relevant and support the trial court’s judgment.
Conflicted Jury Findings
Harris first contends certain jury findings are in conflict. More specifically, he argues the
jury’s damage findings are in conflict because although based on the same evidence, the jury
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awarded “substantially different amounts for elements of damages that were identical.” Even if
Harris had not waived this contention due to inadequate briefing, we hold he has certainly
waived it by failing to lodge an objection in the trial court to the alleged conflict.
Rule 295 of the Texas Rules of Civil Procedure provides that if a purported jury verdict is
defective–jury answers are incomplete, non-responsive, or in conflict–the trial court must
instruct the jury of the nature of the problem, give the jury additional instructions as necessary,
and allow the jury to further deliberate. TEX. R. CIV. P. 295. However, Harris lodged no
objection to the alleged conflicts he asserts in this court; rather, he raises the issue for the first
time in this court. Rule 33.1(a) of the Texas Rules of Appellate Procedure requires a party to
present to the trial court a “timely request, objection, or motion” to preserve error. TEX. R. APP.
P. 33.1(a). To preserve error to conflicting jury findings, an objection must be made before the
jury is discharged. E.g., Lundy v. Masson, 260 S.W.3d 482, 495 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied); City of San Antonio v. Esparza, No. 04-04-00631-CV, 2005 WL
3477826, at *2 (Tex. App.—San Antonio Dec. 21, 2005, no pet.) (mem. op.); Columbia Med.
Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 861 (Tex. App.—Fort Worth 2003,
pet. denied); Norwest Mortg., Inc. v. Salinas, 999 S.W.2d 846, 865 (Tex. App.—Corpus Christi
1999, pet. denied).
We have reviewed the entire record before this court and can find no place in which
Harris objected to any alleged conflict in the jury findings prior to the jury’s discharge. See
Christiansen, 782 S.W.2d at 843 (holding burden is on appellant to see that sufficient record is
presented to show error); Gray v. Noteboom, 159 S.W.3d 750, 753 (Tex. App.—Fort Worth
2005, pet. denied) (same). Accordingly, Harris has waived any complaint about conflicts in the
jury findings by failing to raise the issue in the trial court before the jury was discharged. See id.
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Jury Findings Not Support By Evidence
Harris also contends the jury’s damage findings are not supported by the evidence. In
other words, he contends the evidence is insufficient to support those findings. As we discussed
above, because Harris chose to proceed on a partial reporter’s record without providing the
necessary statement of issues or points to be raised on appeal, we must presume the material
missing from the reporter’s record is relevant and supports the trial court’s judgment. See, e.g.,
J.S.P., 278 S.W.3d at 418; Wilhelm, 208 S.W.3d at 38; Coleman, 132 S.W.3d at 110-11; CMM
Grain Co., 991 S.W.2d at 439; Jaramillo, 986 S.W.2d at 702. The portion of the record missing
in this case is the actual trial in which evidence of damages was presented. Presuming, as we
must, the missing record contains evidence supporting the jury’s award of damages, we overrule
this issue.
CONCLUSION
Based on the foregoing, we overrule Harris’s issues, and we therefore affirm the trial
court’s judgment.
Marialyn Barnard, Justice
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