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Chase Bank of Texas, N.A. v. Harris County Water Control & Improvement District # 109

Court of Appeals of Texas, First District, Houston
Dec 28, 2000
36 S.W.3d 654 (Tex. App. 2000)

Summary

holding that lack of reporter's record of post-answer default judgment requires reversal on appeal challenging sufficiency of the evidence

Summary of this case from In re K.B.A

Opinion

No. 01-99-01234-CV.

Opinion issued December 28, 2000. Published in Part Pursuant to Tex. R. App. P. 90

Appeal from the 55th District Court Harris County, Texas Trial Court Cause No. 99-05590.

Candice E. Sayre, Houston, for Appellant.

Ted A. Cox, Pankaj R. Parmar, Terry G. Wiseman, for Appellee.

Panel consists of Justices O'Connor, Hedges, and Price.

The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.


OPINION ON REHEARING


The motion for rehearing is granted. Our opinion and judgment of October 19, 2000 are withdrawn and the following is substituted in its place.

In our previous opinion, we held that because no reporter's record was made of the proceedings below, we assumed that the trial judge heard sufficient evidence to make the necessary findings needed to support the judgment. We now find that our opinion was in error, and therefore, reverse and remand for a new trial.

Background

We briefly review the procedural posture of this case. Appellees, Harris County et al., sued appellant, Chase Bank of Texas, N.A. F/K/A Texas Commerce Bank, N.A. (Chase). Chase filed an answer. When the case was called for trial, Chase was not present. The trial court rendered a post-answer default judgment. Chase then filed this restricted appeal.

On appeal, Chase asked this Court to reverse and remand because there was insufficient evidence to support the trial court's judgment. In the reply brief, Chase noted that because there was no reporter's record, this Court should grant a new trial.

Reporter's Record

In CarStar Collision v. Mercury Finance, this Court considered a nearly identical issue. 23 S.W.3d 368 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). There, a timely notice of appeal was taken from a post-answer default judgment. The appellant discovered that the court reporter was not requested to record any testimony and therefore, no record was made. We held that, "[i]f the judgment is rendered after presentation of evidence to the court in the absence of the appellant and his attorney, the failure to have the court reporter present to make a record constitutes reversible error." Id. at 370. Further, "[s]uch error is not harmless because, without a reporter's record, this Court is unable to determine if sufficient evidence was submitted to support the judgment." Id.

The question then becomes whether CarStar can be extended to a restricted appeal. We have found only one case that has the same procedural posture, a post-answer default judgment followed by a restricted appeal, as the case at bar. In Smith v. Smith, a post-answer default judgment was rendered, followed by a restricted appeal. 544 S.W.2d 121, 122 (Tex. 1976). The court reporter did not participate in the hearing and was unable to furnish a statement of facts. Id. at 122. The Court of Civil Appeals ruled that the petitioner's inability to obtain a statement of facts did not entitle him to a reversal of the judgment. Id. However, the Texas Supreme Court reversed, finding that the petitioner has a right to a retrial because of his inability to procure a statement of facts. Id. at 123. Other cases have also held that lack of a reporter's record in a post-answer default judgment requires reversal when the appellant is unable to obtain a statement of facts. See Rogers v. Rogers, 561 S.W.2d 172, 173-74 (Tex. 1978); Robinson v. Robinson, 487 S.W.2d 713, 715 (Tex. 1972).

Based on Smith and the cases that follow it, we hold that Car Star can be extended to a restricted appeal. Accordingly, we find that because there was no reporter's record of the post-answer default judgment, this case must be reversed for a new trial.

Conclusion

The discussion of the remaining points of error does not meet the criteria for publication, TEX. R. APP. P. 47, and is thus ordered not published.

We reverse the judgment of the trial court and remand the case for further proceedings.


Summaries of

Chase Bank of Texas, N.A. v. Harris County Water Control & Improvement District # 109

Court of Appeals of Texas, First District, Houston
Dec 28, 2000
36 S.W.3d 654 (Tex. App. 2000)

holding that lack of reporter's record of post-answer default judgment requires reversal on appeal challenging sufficiency of the evidence

Summary of this case from In re K.B.A

reversing and remanding where there was no reporter's record of post-answer default judgment

Summary of this case from Kapur v. Pleasant

In Chase Bank, the Houston court of appeals held that the lack of a reporter's record required reversal in a post-answer default judgment proceeding.

Summary of this case from CHARLES v. TX PROP CAS INS
Case details for

Chase Bank of Texas, N.A. v. Harris County Water Control & Improvement District # 109

Case Details

Full title:CHASE BANK OF TEXAS, N.A. F/K/A TEXAS COMMERCE BANK, N.A., Appellant v…

Court:Court of Appeals of Texas, First District, Houston

Date published: Dec 28, 2000

Citations

36 S.W.3d 654 (Tex. App. 2000)

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