Opinion
NO. 01-16-00646-CV
05-16-2017
360 DEGREES BEAUTY & BARBER CAREERS, L.L.C., Appellant v. CORINTHIAN LAND CORPORATION, Appellee
On Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2014-21068
MEMORANDUM OPINION
In this commercial lease dispute, 360 Degrees Beauty & Barber Careers, L.L.C. ("360 Degrees"), sued its landlord, Corinthian Land Corporation ("Corinthian"), asserting several causes of action, including breach of contract. Corinthian counterclaimed for breach of contract. Following a jury trial, the trial court rendered a take-nothing judgment against 360 Degrees on its claims against Corinthian and awarded Corinthian $17,500 in damages on its counterclaim and $41,800 in attorney's fees. On appeal, 360 Degrees contends that (1) the trial court erred in refusing to submit its cause of action for breach of contract to the jury based on the trial court's determination that 360 Degrees did not prove net or economic damages and (2) determination of damages is a fact question that should have been submitted to the jury. We affirm.
Background
In March 2013, 360 Degrees and Corinthian entered into a written lease agreement in which Corinthian leased space in a commercial shopping center located at 9720 Jones Road, in Houston, Texas, to 360 Degrees for use as a beauty and barber school. On April 15, 2014, 360 Degrees filed suit against Corinthian alleging causes of action for unlawful lockout, breach of contract, and common law fraud. On May 16, 2014, Corinthian answered and asserted a counterclaim for breach of contract. On April 11, 2016, 360 Degrees amended its petition to add claims for quantum meruit and promissory estoppel.
The case proceeded to trial on May 3, 2016. The jury charge consisted of four questions. Question No. 1 addressed 360 Degrees's wrongful lockout claim. Question Nos. 2, 3, and 4 addressed Corinthian's breach of contract claim, its damages, and its request for attorney's fees. On May 5, 2016, the jury rendered its verdict in favor of Corinthian. On July 25, 2016, the trial court entered judgment that 360 Degrees take nothing in its suit against Corinthian and awarded Corinthian $17,500 in damages on its counterclaim, plus post-judgment interest and costs, and $41,800 in attorney's fees. This appeal followed.
The Record
This appeal is before this Court without a reporter's record from the jury trial. The reporter's record in this case was originally due September 23, 2016. On September 28, 2016, the Clerk of this Court notified 360 Degrees that the court reporter responsible for preparing the record in this appeal had informed the Court that 360 Degrees had not paid, or made arrangements to pay, for the reporter's record. On October 27, 2016, the court reporter advised this Court that 360 Degrees had made arrangements to pay for the record. On October 27, 2016, 360 Degrees filed a notice of request for reporter's record and requested a ninety-day extension of time to file the reporter's record. On November 8, 2016, this Court extended the due date for filing the reporter's record to thirty days from the date of the order (i.e., December 8).
The clerk's record in this case was filed on December 7, 2016.
The court reporter is responsible for filing the reporter's record provided that, among other things, the party responsible for paying for the preparation of the reporter's record has either paid the reporter's fee or has made satisfactory arrangements with the reporter to pay the fee. TEX. R. APP. P. 35.3(b)(3).
On December 8, 2016, the court reporter notified the Clerk that 360 Degrees had not paid, or made arrangements to pay, for the reporter's record, stating that she had received "$1500 of the total $4290 to complete the full transcript." On December 13, 2016, this Court advised 360 Degrees that unless it submitted written evidence from the court reporter that it had paid or arranged to pay the reporter's fee no later than January 12, 2017, the Court may require 360 Degrees to file a brief and consider and decide the appeal on those issues that do not require a reporter's record. On January 3, 2017, the court reporter notified the Clerk that a reporter's record would not be filed because 360 Degrees had decided not to pay the reporter's fee, and that 360 Degrees would proceed without a record. 360 Degrees filed its brief on February 2, 2017.
When no reporter's record is filed because the appellant failed to pay or make arrangements to pay the reporter's fee to prepare the reporter's record, the appellate court may, after first giving the appellant notice and a reasonable opportunity to cure, consider and decide those issues or points that do not require a reporter's record for a decision. TEX. R. APP. P. 37.3(c)(2).
Analysis
In its first issue, 360 Degrees contends that the trial court erred in refusing to submit its cause of action for breach of contract to the jury based on the court's determination that 360 Degrees did not prove net or economic damages. In its second issue, 360 Degrees argues that determination of damages is a fact question that should have been submitted to the jury as it relates to whether 360 Degrees had economic or net lost profits.
A court must submit questions, instructions, and definitions raised by the pleadings and the evidence. TEX. R. CIV. P. 278; see Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). Only issues raised by the evidence are to be submitted to the jury. Celanese Ltd. v. Chem. Waste Mgmt., Inc., 75 S.W.3d 593, 600 (Tex. App.—Texarkana 2002, pet. denied) (citing TEX. R. CIV. P. 278). A trial court may refuse to submit a question if no evidence exists to warrant its submission. Elbaor, 845 S.W.2d at 243. We review a trial court's decision to refuse a particular jury question or instruction for abuse of discretion. See Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam).
In determining whether a trial court should have submitted a question to the jury, the reviewing court must examine the record for evidence supporting submission. Celanese Ltd., 75 S.W.3d at 600. In this case, 360 Degrees failed to file a reporter's record from the jury trial. Without a record of what evidence was admitted, we have no basis to review the trial court's decisions based on that evidence. See Sam Houston Hotel, L.P. v. Mockingbird Rest., Inc., 191 S.W.3d 720, 721 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (concluding that plaintiff's failure to file reporter's record denied reviewing court basis upon which to review trial court's decisions based on evidence admitted at trial). Moreover, absent a reporter's record, we must presume that the proceedings support the trial court's judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002); Sam Houston Hotel, L.P., 191 S.W.3d at 721.
Further, without a reporter's record, an appellate court cannot determine whether error was properly preserved. Texas Rule of Civil Procedure 278 provides that "[f]ailure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment[.]" TEX. R. CIV. P. 278; see Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 603 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) ("[A]n appellant does not preserve the issue of an omitted instruction or question for appellate review unless the appellant: (1) tenders a written request to the trial court for submission of the question, (2) which is 'in substantially correct wording.'"). Absent a reporter's record, we are unable to determine whether 360 Degrees preserved error in the court below.
Finally, because there is no reporter's record, none of the factual assertions in 360 Degrees's brief are supported by the record and cannot be reviewed. See TEX. R. APP. P. 38.1(g); Donahoe v. Jones, No. 01-15-00191-CV, 2016 WL 796892, at *2 (Tex. App.—Houston [1st Dist.] Mar. 1, 2016, no pet.) (mem. op.); see also Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 789 (Tex. 2006) ("[W]e do not consider factual assertions that appear solely in briefs and are not supported by the record.").
Because 360 Degrees did not elect to file a reporter's record, its issues challenging the trial court's decisions based on the proceedings at trial afford no basis for relief. Accordingly, they are overruled.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Jennings, Huddle, and Lloyd.