CITY OF TRINITY v. GOODALL (1997)

OPINION ON MOTION FOR REHEARING

The Goodalls' motion for rehearing is denied, and the following discussion is added to that set forth in our original opinion.   In both their original brief and motion for rehearing, the Goodalls challenge this court's decision to allow the City to supplement the statement of facts to make it complete after the City originally filed a partial statement of facts in accordance with Rule 53(d).¹  However, they have not cited and we have not found authority specifically supporting their argument that Rule 55(b) ² does not apply where a partial statement of facts has been properly designated and filed.   On the contrary, in an advisory opinion addressing a related issue under the predecessor appellate rules, a State Bar of Texas subcommittee on interpretation of rules of civil procedure indicated that the appellate amendment provision was intended to apply to a designation of a partial statement of facts:

A main purpose of the rules concerning appeal is announced by [former] Rule 370 in this way:

“In view of the crowded condition of the dockets of the appellate courts, the record and briefs on appeal should be limited as far as possible to the questions relied on for reversal.   The primary purpose of the courts is to administer justice between the parties with as little expense and delay as possible.   Liberal provisions are therefore made in these rules for amendments on appeal to bring forward any matter which may have been omitted.   With this protection, the bar is expected to cooperate in shortening the records in furtherance of the provisions of these rules.”

Pursuant to this purpose, [former] Rule 377, respecting the statement of facts, requires that:  “All matters not essential to the decision of the questions presented on appeal shall be omitted.” [3]

At a later point the same rule, carrying out this policy, reads that:  “․ the appellant shall ․ file with the clerk of the court a designation in writing of the portions of the evidence desired, ․ and the portions that are desired to be omitted.   Within ten days thereafter any other party to the appeal may file a designation in writing of any additional portions of the evidence to be included ․”

Then there is this further alternative practice looking to the same end:

“Rule 337-a.  Statement of the Points to Be Relied On.-For the purpose of inducing the opposing party to accept an abbreviated transcript or statement of facts, the appellant, or the appellee to the extent that he complains of the judgment or any part thereof, may file with the clerk of the trial court a statement of the points on which he intends to rely on appeal;  and he shall thereafter be limited to such points.”

․

If it should be that either of the parties omits something that should be in the statement of facts there are liberal provisions in the rules for amendment even after the statement of facts gets into the appellate court.   One of the rules to this end is 428.   It reads:

“If anything material to either party is omitted from the transcript or statement of facts, the parties by stipulation, or the trial court, either before or after the record has been transmitted to the appellate court, or the appellate court, on a proper suggestion or on its own initiative, may direct a supplemental record to be certified and transmitted by the clerk of the trial court supplying such omitted matter.”

5 Tex.B.J. 236 (1942).   Although the particular rules cited in the advisory opinion have since been repealed, the thrust of rules 377, 337-a and 428 can still be found in current rules 53(a)-(d) and (i) and 55(b) and (c),⁴ and the policy favoring supplementation appears to be no less applicable to the current rules.⁵  Accordingly, the Goodall's challenge to the supplementation is overruled.

FOOTNOTES

1.   See Tex.R.App.P. 53(d).

2.   See Tex.R.App.P. 55(b).

3.   This statement can now be found in Texas Rule of Appellate Procedure 53(c).

4.   See Tex.R.App.P. 53, 55.

5.   The overall conclusion of the advisory opinion was that, “in view of the abundant provisions contained in the new rules authorizing the appellee to designate any additional matter which he desires to have brought up on the statement of facts, and further provisions allowing him to supplement the statement of facts later, if necessary, the presumption under prior law should not prevail” that where there is not a complete statement of facts on appeal, all reasonable presumptions will be indulged in favor of the judgment of the lower court.   By contrast, the current rule is that, in the absence of a complete statement of facts, it is presumed that the omitted evidence supports the trial court's judgment.   See Schafer v. Conner, 813 S.W.2d 154, 155 (Tex.1991).   However, the policy generally favoring supplementation so that appellate decisions turn on substance rather than procedural technicality remains.   See Crown Life Ins. v. Estate of Gonzalez, 820 S.W.2d 121, 121 (Tex.1991).

EDELMAN, Justice.