                                  In the
                             Court of Appeals
                     Second Appellate District of Texas
                              at Fort Worth
                             ___________________________
                                  No. 02-18-00091-CV
                             ___________________________

           THE STONEGATE FINANCIAL CORPORATION, Appellant,

                                                V.

    BROUGHTON MAINTENANCE ASSOCIATION, INC., and OLD GROVE
           MAINTENANCE ASSOCIATION, INC., Appellees



                          On Appeal from the 96th District Court
                                 Tarrant County, Texas
                             Trial Court No. 096-256351-11


                      Before Kerr and Pittman, JJ., and Gonzalez, J. 1
                         Memorandum Opinion by Justice Kerr




       1
         The Honorable Ruben Gonzalez, Judge of the 432nd District Court of Tarrant County,
sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h)
of the government code. See Tex. Gov’t Code Ann. § 74.003(h).
                            MEMORANDUM OPINION

      With an incomplete record and in two issues, the Stonegate Financial

Corporation appeals the amount of attorney’s fees awarded to it following a trial to

the court, arguing first that the trial court abused its discretion by awarding less than

Stonegate’s evidence had established in this breach-of-contract case. In its second

issue, Stonegate complains of the trial court’s declining to award a contractual 18 per

cent interest on top of the full amount of attorney’s fees Stonegate sought at trial.

      Because Stonegate did not comply with appellate-procedure rule 34.6(c)(1) by

providing a “statement of the points or issues to be presented on appeal”—not in its

request to the court reporter, in its notice of appeal, or otherwise—we must presume

that the record’s missing portions are relevant and support the trial court’s judgment.

We will therefore affirm.

                                     BACKGROUND

      A.     The litigation

      In November 2011, Stonegate, Sister Initiative, LLC, and Randy Vest2 sued

three maintenance associations (HOAs) that performed landscaping and common-


      2
         Vest nonsuited his claims before trial and is not involved in this appeal. There
were issues with the complete reporter’s record late-ordered by appellant Sister
Initiative. After this cause’s October 23, 2018 submission and on our own motion, we
severed the appeal perfected by Sister Initiative and two third-party defendants and
assigned it Cause No. 02-19-00102-CV; that appeal remains pending. We have not
considered any portion of the reporter’s record that Sister Initiative and the other
non-Stonegate appellants caused to be filed (in January 2019) in connection with their
own now-severed appeal.

                                            2
area-upkeep services for various residential developments and to which the plaintiffs

had loaned money. Of the roughly $118,000 collectively sued for, the outstanding

amount owed to Stonegate when suit was filed totaled less than $5,300: Broughton

Maintenance Association, Inc. was alleged to owe $4,170.98 in principal and accrued

interest, and Old Grove Maintenance Association, Inc. allegedly owed Stonegate

$1,068.47 in principal and accrued interest.3

      The plaintiffs’ seemingly straightforward breach-of-promissory-note claims

were met with accusations of fraud and self-dealing, along with counterclaims asserted

several months later in February 2012 by all three HOAs against Stonegate and the

other two plaintiffs. Until the late summer of 2014, Bracewell LLP continued to

represent all three plaintiffs–counterdefendants, limiting its representation to

Stonegate and its president, Dale Crane, only after the HOAs brought third-party

actions against Crane, David Bagwell, Susan Bagwell, the David Bagwell Company,

and Old Grove Limited Partnership in August and September 2014. Around that

time, Sister Initiative and the others obtained separate counsel.

      B.     Trial testimony on Stonegate’s attorney’s fees

      A bench trial on all claims and counterclaims took place over several weeks in

the early summer of 2017, almost seven years after this lawsuit started. In the only

part of the reporter’s record that is before us in connection with Stonegate’s appeal,


      Sister Initiative, but not Stonegate, had loaned money to the third HOA
      3

defendant, Whittier Heights Maintenance Association, Inc.

                                            3
Stonegate’s counsel testified to attorney’s fees through trial of $564,521.01 and

introduced some 175 pages of Bracewell billing records. Testifying in narrative form

about the requested fees through trial, counsel discussed each of the Arthur Andersen

factors.4

       As for the contractual interest on attorney’s fees that Stonegate also seeks on

appeal, counsel’s testimony refers to other testimony—that of Stonegate’s president,

Crane—which was not included in the record:

              Mr. Crane testified that he’s seeking interest on his attorneys’ fees
       and – based off of an 18 percent provision in his contract at the point
       that he paid the invoices.

            I have a demonstrative that I would like to pull up on the screen.
       [Counsel then described that demonstrative, which is not in the record.]

              The total amount of the accrued interest on the amount actually
       paid is $93,092.25. He testified that he’s seeking that as – as damages as
       well. And – And – And that – And he couldn’t testify at that point in
       time from his memory of each date that he paid, but this demonstrative
       here shows those particular dates and the amount he is seeking for
       interest on attorneys’ fees of $93,092.25.

       Each HOA cross-examined Stonegate’s counsel, including about a mutual-

walkaway offer that the HOAs had made before a mediation that took place in



       Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)
       4

(op. on reh’g) (setting out eight salient factors in determining a reasonable amount of
attorney’s fees). The Texas Supreme Court has recently refined how a party should
prove up its reasonable and necessary attorney’s fees and how an opponent should
challenge them. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019
WL 1873428, at *20–22 (Tex. Apr. 26, 2019). Our disposition of Stonegate’s appeal
obviates any need to consider Rohrmoos’s putative effect here.

                                            4
September 2012, which was almost a year before the HOAs filed their third-party

claims.

      C.     Final judgment

      In mid-December 2017, the trial court entered a final judgment. As it related to

Stonegate’s claims, the judgment awarded Stonegate the following monetary relief:

             from Old Grove Maintenance Association—

   • $2,073.72 owed “under the terms of the promissory notes”;

   • $11,706.15 in reasonable and necessary attorney’s fees through judgment;

   • $17,000 in attorney’s fees at the court-of-appeals level; and

   • $12,750 in attorney’s fees through any appeal to the Texas Supreme Court; and

             from Broughton Maintenance Association—

   • $6,955.38 owed “under the terms of the promissory notes”;

   • $57,153.55 in reasonable and necessary attorney’s fees through judgment;

   • $83,000 in attorney’s fees at the court-of-appeals level; and

   • $62,250 in attorney’s fees through any appeal to the Texas Supreme Court.

      With this judgment, the trial court awarded Stonegate the entirety of its

requested $175,000 in conditional attorney’s fees at the appellate and highest-court

levels but reduced the requested attorney’s fees through trial from $564,521.01 down

to $68,859.70 ($11,706.15 plus $57,153.55).




                                          5
       D.     Findings of fact and conclusions of law

       At Stonegate’s request, the trial court later entered findings of fact and

conclusions of law. Among other things, including noting the “amount in controversy

with regard to the Stonegate notes” (a total, through trial, of $9,029.10, including

accrued interest), the trial court found that

       the amount of $11,706.15 is a reasonable fee for the necessary services
       rendered by Bracewell on behalf of Stonegate in the collection of the
       Stonegate notes pertaining to [Old Grove]. The Court further finds that
       any amount of fees paid to Bracewell in excess of $11,706.15 were not
       reasonable or necessary in connection with the collection of the
       Stonegate notes pertaining to [Old Grove], and therefore any recovery of
       fees for collection of the [Old Grove] notes by Stonegate in excess of
       $11,706.15 would be unconscionable, particularly in light of the amount
       in controversy.

       The trial court used the same language concerning the Broughton note,

changing only the amount of a “reasonable fee” to $57,153.55, and wrapped up its

findings of fact by stating that it had taken into account both Arthur Anderson and Tony

Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006).

       The trial court did not address the sued-for 18% interest on attorney’s fees

contained in the Stonegate loan documents with the two HOA borrowers.

       E.     Stonegate appeals and orders the reporter’s record.

       Stonegate timely filed its notice of appeal “from the Final Judgment signed on

December 14, 2017” by the trial court. Two days later, Stonegate asked the court

reporter to



                                                6
      prepare, certify, and file with the Court of Appeals for the Second
      Judicial District the Reporter’s Record, including a full record of the
      selected proceedings in the above-captioned case, listed below:

          • Transcript of the expert testimony of Kevin T. Schutte regarding
            attorneys’ fees from the Trial, including all exhibits admitted into
            evidence during Kevin T. Schutte’s testimony at Trial.

                          SUMMARY OF ISSUES ON APPEAL

      Stonegate has raised two issues: (1) that the trial court’s attorney’s-fee award

resulted from an abuse of discretion because (a) the evidence established the half-

million-dollar-plus amount as a matter of law; (b) the trial court acted arbitrarily; and

(c) the award was against the great weight and preponderance of the evidence

presented at trial; and (2) that the trial court abused its discretion by not awarding

$93,000 in interest on the attorney’s fees Stonegate had actually paid because (a) the

parties had contracted for interest on attorney’s fees; (b) the evidence established all

facts underpinning Stonegate’s claim for interest as a matter of law; and (c) the trial

court’s failure to award the contracted-for interest was against the great weight and

preponderance of the evidence.

      The HOA appellees responded by first arguing that Stonegate’s failure to

provide “a statement of the points or issues to be presented on appeal” under rule

34.6(c)(1) means that Stonegate cannot benefit from rule 34.6(c)(4)’s presumption that

the partial reporter’s record “constitutes the entire record for purposes of reviewing

the stated points or issues.” See Tex. R. App. P. 34.6(c)(4). According to the HOAs,



                                           7
we must therefore presume, contrarily, that missing portions of the record support

the trial court’s findings and judgment.

       Stonegate filed a reply brief citing caselaw that cautions against a hyper-

technical reading of rule 34.6(c)(1) and contending that its letter request to the court

reporter and its opening appellate brief effectively sufficed to constitute the issue

statement required by the rule. Stonegate also argued that the HOAs could themselves

have designated other parts of the record and have not been harmed.

       The day after Stonegate filed its reply brief, a supplemental clerk’s record was

filed at Stonegate’s request, but Stonegate has never called our attention to its

contents or otherwise relied on that supplement for anything.

       For the reasons that follow, we agree with the HOAs that Stonegate did not

comply with rule 34.6(c)(1). As a result, we must presume that the missing parts of the

record support the trial court’s exercise of its discretion in determining the attorney’s-

fee award contained in the final judgment.

                                       DISCUSSION

       Rule 34.6(c) allows appellants to save money by ordering only those parts of

the reporter’s record that relate to specifically delineated appellate issues. E.g., Dinkins

v. Calhoun, No. 02-17-00081-CV, 2018 WL 2248572, at *2 (Tex. App.—Fort Worth

May 17, 2018, no pet.) (mem. op.). Subsection (c)(4) instructs that we “must presume

that the partial reporter’s record designated by the parties constitutes the entire record



                                             8
for purposes of reviewing the stated points or issues,” even if an issue complains of

legal or factual evidentiary insufficiency. See Tex. R. App. P. 34.6(c)(4).

       But to benefit from this presumption, an appellant must first satisfy subsection

(c)(1). “If the appellant requests a partial reporter’s record, the appellant must include

in the request a statement of the points or issues to be presented on appeal and will

then be limited to those points or issues.” See Tex. R. App. P. 34.6(c)(1). Otherwise,

we must presume the opposite: that the record’s missing portions are relevant and

that they support the trial court’s judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229

(Tex. 2002) (allowing “more flexible approach” in certain circumstances but

reaffirming that complete failure to file compliant issue statement requires appellate

courts to presume that record’s omitted portions support trial court’s judgment);

Dinkins, 2018 WL 2248572, at *2 (noting that failure to comply with rule 34.6(c)(1)

creates presumption in favor of trial-court judgment); CMM Grain Co. v. Ozgunduz,

991 S.W.2d 437, 439–40 (Tex. App.—Fort Worth 1999, no pet.) (affirming judgment

because appellant failed to comply with rule 34.6(c)(1)).

       In several situations—none of which is factually comparable to this case—the

command to strictly comply with subsection (c)(1) has fallen by the wayside, including

when

          • the appellant filed the statement of points or issues late but more than
            two months before the appellee had to file its brief, thus allowing plenty
            of time for the appellee to add to the reporter’s record if needed and to
            prepare its appellate arguments, Bennett, 96 S.W.3d at 229;


                                             9
          • the appellant did not include an issue statement in its notice of appeal or
            reporter’s-record request but simultaneously provided notice to the
            opposing party that it “desire[d] to appeal only Judge Ferguson’s failure
            to award [appellant] its taxable court costs, pursuant to Tex. R. Civ. P.
            131 and Tex. Civ. Prac. & Rem. Code § 31.007,” notice that was held
            sufficient to invoke the partial-record presumption, Furr’s Supermarkets,
            Inc. v. Bethune, 53 S.W.3d 375, 377 (Tex. 2001);

          • rather than filing the issue statement “in” the request for the partial
            reporter’s record as the rule states, the appellant filed such a statement in
            a separate document, Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991)
            (disapproving of appellate court’s “hypertechnical” interpretation of rule
            requiring statement “in” the request but otherwise affirming);

          • the appellant listed its appellate issues not in the request for a partial
            reporter’s record but in a premature notice of appeal, Dinkins, 2018 WL
            2248572, at *3; and

          • the appellant included its statement of issues in the notice of appeal
            rather than in the partial-record request, Brawley v. Huddeleston, No. 02-11-
            00358-CV, 2012 WL 6049013, at *2 (Tex. App.—Fort Worth Dec. 6,
            2012, no pet.) (mem. op.).

       What all these cases have in common is that the appellant provided a discrete

statement of the issues for appeal (1) at some point in time before the appellee’s brief

was due, and certainly before the case was submitted, and (2) at some place in the

record, even if not in the partial-record request itself.

       Here, in contrast, Stonegate has never filed anything that we can fairly construe

as a rule 34.6(c)(1) statement of points or issues, even given the supreme court’s

endorsing a “more flexible approach” when circumstances warrant. Bennett, 96 S.W.3d

at 229. Indeed, the Bennett court explicitly warned that “litigants should not view our

relaxation of rules in a particular case as endorsing noncompliance. While we seek to


                                             10
resolve appeals on their merits, litigants who ignore our rules do so at the risk of

forfeiting appellate relief.” Id. at 230; see also In re P.H.B.S., No. 02-02-000195-CV,

2003 WL 22026594, at *4 (Tex. App.—Fort Worth Aug. 26, 2003, no pet.) (mem. op.)

(noting that “[w]hile we are not to apply Rule 34.6 in a rigid fashion, some compliance

with the rule is required,” citing Bennett, 96 S.W.3d at 230).

       Bennett again: “There is no question that, had [the appellant] completely failed to

submit his statement of points or issues, Rule 34.6 would require the appellate court

to affirm the trial court’s judgment.” 96 S.W.3d at 229 (emphasis added); see also Bailey

v. Gallagher, 348 S.W.3d 322, 325 (Tex. App.—Dallas 2011, pet. denied) (noting that

“[i]n this case, the record contains no documentation of any attempt by appellants to

comply with the provisions of rule 34.6 regarding a partial reporter’s record.

Accordingly, we must presume the missing portions of the record support the trial

court’s findings of fact, and we take those findings as true.”); P.H.B.S., 2003 WL

22026594, at *4 (observing that “[i]f only a partial reporter’s record is requested and

an appellant completely fails to submit a statement of points or issues, the

presumption arises that the omitted portions support the trial court’s findings”).

I.     Stonegate did not comply with rule 34.6(c)(1), which required it to file an
       issue statement in order to rely on a partial reporter’s record.

       A.     The request for a reporter’s record

       It requires no hypertechnical reading to conclude that Stonegate’s reporter’s-

record request failed to invoke rule 34.6(c)(4)’s presumption. Not only does nothing


                                            11
in it purport to be an issue statement, but Stonegate’s request literally asked for the

entire record. The request mentioned appellate rule “34.6” generally, without referring

to subsection (c)(1)’s partial-record provisions, and it asked the court reporter to

“prepare, certify, and file . . . the Reporter’s Record, including” counsel’s attorney’s-fee

testimony and all exhibits admitted during that testimony. 5 The request continued by

asking the court reporter to be in touch “if there is an additional fee for preparation of

the reporter’s record” and noted that “the reporter’s record is due on April 13, 2018.”

       As a straightforward definitional matter, including does not mean only or limited

to—a fact self-evident from lawyers’ ubiquitous use of the phrase including but not

limited to when (for example) propounding document requests. See including but not

limited to; including without limitation; without limiting the generality of the foregoing, Garner’s

Dictionary of Legal Usage 439–40 (3d ed. 2011) (noting that “the word including itself

means that the list is merely exemplary and not exhaustive”); see also Black’s Law

Dictionary 880 (10th ed. 2014) (defining include to mean “[t]o contain as part of

something” and observing that “some drafters use phrases such as including without

limitation and including but not limited to — which mean the same thing”).




       5
         In its reply brief, Stonegate focused solely on the language following the word
including, writing that “[s]pecifically, on March 16, 2018, Stonegate requested the
reporter prepare, certify and file with the Court, a ‘full record of the selected
proceedings . . . listed below: Transcript of the expert testimony of Kevin T.
Schutte,’” etc. (bold and underlining in original). To us, omitting including changes the
quoted material’s import quite a bit.

                                                12
      Moreover, Stonegate’s supplemental clerk’s record, which was filed the day

after Stonegate filed its reply brief, indicates that the court reporter himself

understood the reporter’s-record request to have been for the entire trial proceedings.

Four days after Stonegate’s March 16, 2018 request, the court reporter emailed his

cost estimate “for preparation of the Reporter’s Record in the above-referenced case.”

Although the estimate itself is not before us, it was apparently a total for the whole

trial because later that same day, Stonegate responded, “Thank you for the invoice

you provided for the Stonegate Reporter’s Record. Can you please tell us what the

charge would be if we just wanted [counsel’s] testimony and the exhibits

admitted through his testimony?” [Emphasis in original.] The court reporter’s next

email sent 30 minutes later reads as follows:

      Clarification:

      Are you-all requesting a “partial” appeal? The reason I ask is because if
      [counsel’s] testimony is going to constitute the entire appellate record,
      you will be charged for the ORIGINAL. If the TRIAL ON MERITS is
      going to constitute the appellate record, then [counsel’s] testimony will
      be charged to you at copy rate.

      Up to this point, I have not understood the appeal to be a “partial
      appeal.” Could you please clarify[?]

      Seven days later, Stonegate answered the court reporter’s question by writing

that “Stonegate’s appeal is only a partial appeal of the award of attorneys’ fees. I

cannot speak for the other parties that have filed a notice of appeal.” This entire email




                                           13
chain was between only the court reporter and Stonegate’s counsel; none of the other

parties or their lawyers was copied on any of the messages. 6

      From these March 2018 emails, Stonegate was thus aware, or should have been,

that perhaps its filings had not complied with rule 34.6(c)(1)—or were at least capable

of being altogether misunderstood. Because the selected portion of the reporter’s

record was not filed until April 17, 2018, Stonegate had more than enough time to

clarify with everyone, not just the court reporter. Instead, it was not until after the

HOAs filed their appellees’ brief in August 2018 and raised the rule 34.6(c)(1) issue

that Stonegate asked for its complete correspondence with the court reporter to be

made part of our record. Regardless, we do not find this supplemental record helpful

to Stonegate’s argument.

      But even setting aside the expansiveness of the word including in the reporter’s-

record request here, we have held that rule 34.6(c)(1)’s requirement of a statement of

points or issues was not satisfied—and thus that the missing-record presumption

mandated affirmance—in a situation more facially deserving of a flexible construction.

Barcroft v. Walton, No. 02-16-00404-CV, 2017 WL 1738079, at *1 (Tex. App.—Fort

Worth May 4, 2017, no pet.) (mem. op.). As we observed in that pro se appeal




      6
        At the time Stonegate and the court reporter were trading these emails, none
of the other appellants had requested either the clerk’s or the reporter’s record. Not
until a week after the court reporter filed the incomplete reporter’s record did the
Sister Initiative appellants late-file their reporter’s-record request.

                                           14
involving a postjudgment turnover order and an incomplete reporter’s record of the

hearing from which that order sprang,

      [the appellant’s] letter to the court reporter requesting preparation of the
      reporter’s record sought “only that portion of the hearing held on
      September 19, 2016, which specifically addresses the Order for
      Turnover” and asked the court reporter to “submit [to the court of
      appeals] the record only as to the parts that concern the Order for
      Turnover.” [Appellant] also filed a “Notice of Appeal of Order for
      Turnover and Designation of Record.” But neither [appellant’s] written
      request for preparation of a partial reporter’s record (the portion
      addressing the turnover order) nor his notice of appeal included a
      statement of points or issues to be presented on appeal. See Tex. R. App.
      P. 34.6(c)(1); 38.1(f).

Id. at *1 n.2; see also Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107, at *1

(Tex. App.—Corpus Christi–Edinburg Nov. 25, 2009, pet. denied) (mem. op.) (noting

that appellants were not entitled to rule 34.6(c)(4) presumption when request to court

reporter asked for partial record consisting of “arguments of counsel and objections

and rulings of the Court of the hearing held on October 5, 2007, on [Dr. Kristensen’s]

Motion to Enter Judgment,” and appellants “did not announce in their request or in

their notice of appeal any intention to limit their appeal, nor did they include in the

request or notice the issues to be presented on appeal”); Munden v. Reed, No. 05-01-

01896-CV, 2003 WL 57751, at *3 (Tex. App.—Dallas Jan. 8, 2003, no pet.) (mem.

op.) (holding that appellant failed to comply with rule 34.6(c)(1) when request to court

reporter said that “[w]e want only specific portions of the record to be transcribed.

We would like only those portions regarding the submission to the jury of the issue of

the negligence of [one of two defendants] and Plaintiff’s objections to that submission

                                           15
to be transcribed,” and after noting that the request sought “part of the record but

[did] not state the issue on appeal,” applying the missing-record presumption and

affirming trial-court judgment).

      An example of an appeal on a partial record involving attorney’s-fee testimony

and in which the appellant did sufficiently state the issues is Rosenblatt v. Freedom Life

Ins. Co. of America, 240 S.W.3d 315 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

There, during oral argument the appellate court had sua sponte expressed its concerns

about the record, noting that although the appellant had filed only a partial reporter’s

record, the clerk’s record did not contain a request to the court reporter that included

a rule 34.6(c)(1) statement of points or issues. Id. at 318 n.4. After the case was

argued, the appellant supplemented the clerk’s record with his original

correspondence to the court reporter that had asked for a partial record and

designated the issues:

      [Rosenblatt] has requested only a partial Reporter’s Record, consisting of
      the testimony of Tracy Conwell, [Rosenblatt’s] counsel, because
      [Rosenblatt] intends to assert on appeal only that the trial court’s error
      [sic] in denying [Rosenblatt’s] request to disregard the jury’s finding of
      zero attorneys’ fees and the trial court’s refusal to award $500,000 in
      attorneys’ fees, based on the uncontroverted testimony of [Rosenblatt’s]
      counsel [sic].

Id. (bracketed material in original). The Houston court concluded that this request had

complied with rule 34.6(c)(1) and noted further that the appellee had gone on to

designate additional material under rule 34.6(c)(2) in response; as a result, the court



                                           16
presumed that the partial record “constitute[d] the ‘entire’ record for purposes of

reviewing Rosenblatt’s single issue challenging the sufficiency of the evidence.” Id.

       Unlike a case such as Rosenblatt, Stonegate’s record request was devoid of

anything approaching an issue statement; it did not even seek only a partial reporter’s

record.

       In light of all the foregoing, we hold that Stonegate did not comply with rule

34.6(c)—neither when it filed its notice of appeal nor when it requested the reporter’s

record nor otherwise—by stating, as it was required to, the “points or issues to be

presented on appeal.”

       B.     The “Issues Presented” section of Stonegate’s appellate brief

       In addition to arguing that its request for the reporter’s record satisfied rule

34.6(c)(1), Stonegate posits that the “Issues Presented” section of its opening brief

also “clearly indicates that its appeal is solely limited to the issue of attorneys’ fees and

contractual interest related to such fees,” thus tacitly equating it to compliance with

the partial-record rule.

       Stonegate cites no authority holding that the “issues presented” component of

an appellant’s brief that rule 38.1(f) requires can retroactively satisfy an appellant’s

obligation under rule 34.6(c) when requesting only part of the reporter’s record. See

Tex. R. App. P. 38.1(f) (“The brief must state concisely all issues or points presented

for review. The statement of an issue or point will be treated as covering every

subsidiary question that is fairly included.”). We have not located any authority

                                             17
directly on point, but rule 34.6(c)’s purpose and mechanism both indicate that an

appellant cannot wait until filing its brief to include a statement of points or issues and

then claim the benefit of rule 34.6(c)(4)’s presumption.

         Rule 34.6(c) contemplates an issue-statement filing that precedes the briefing

period. Such a statement “gives an appellee notice of the issues to be appealed, so that

it can designate [under subsection (c)(2)] additional portions of the record that may be

necessary for its case.” W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 38 (Tex. App.—

Houston [14th Dist.] 2006, no pet.) (op. on reh’g); see Tex. R. App. P. 34.6(c)(2) (“Any

other party may designate additional exhibits and portions of the testimony to be

included in the reporter’s record.”); Tex. R. App. P. 34.6(c)(3) (providing that

additions requested by another party “must be included in the reporter’s record at the

appellant’s cost”). Subsection (c)(2) designations are made before the partial reporter’s

record is filed and thus before the briefing period even commences. See Tex. R. App.

38.6(a) (stating that the briefing period begins after the reporter’s record is filed);

Johnson v. Alcon Labs., Inc., 149 S.W.3d 653, 654 (Tex. App.—Fort Worth 2003, no

pet.).

         If an appellant relying on a partial record could wait until its opening brief to

reveal its appellate issues as Stonegate implies, rule 34.6(c)(1)’s issue-statement

requirement would be effectively nullified—not to mention that appellees would be

prejudiced by being forced to guess the appellate issues attending a partial record and

by being prevented from intelligently designating additional portions of the reporter’s

                                            18
record under rule 34.6(c)(2). See Gardner v. Baker & Botts, L..LP., 6 S.W.3d 295, 297

(Tex. App.—Houston [1st Dist.] 1999, pet. denied) (noting that without a specific

statement of the issues, appellee is “left to guess which additional portions of the

evidence should be included” in the reporter’s record); see also Garcia v. Sasson, 516

S.W.3d 585, 590 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (noting that the

“statement of issues on appeal need not be included in the request for the reporter’s

record as long as the statement is filed in time for the other parties to designate any

additional, relevant portions of the record and to prepare their appellate briefs”).

      Additionally, an appellee would have only 30 days after the appellant’s brief’s

filing to request other parts of the record and also research and file its own brief. See

Tex. R. App. 38.6(b) (providing 30-day deadline for appellee’s brief). Appellees would

now have to pay for added record requests, too, because they would be considered

rule 34.6(d) “supplementations” and not rule 34.6(c)(2) “designations.” See Alcon

Labs., 149 S.W.3d at 654 (interpreting rule 34.6 to mean that appellees are not

required to pay for (c)(2) designations but must pay for (d) supplementations because

they are made after the partial reporter’s record has been filed).

      We hold that, without something more (and much earlier), the issues-presented

section of an appellant’s brief cannot be used in the first instance as a rule 34.6(c)(1)

issue statement.




                                           19
II.   The HOAs’ ability to supplement the record is irrelevant.

      Stonegate also argues that if the HOAs had wanted to “expand” the appellate

record, they had “ample time to request a supplementation,” and that, in any event,

the HOA appellees have not claimed any prejudice.7 But because Stonegate did not

include a rule-compliant statement of issues at all, its attempt to shift blame to the

HOAs is misplaced. See Garcia, 516 S.W.3d at 591.

      In Garcia, the appellant had provided only a generalized notice of her appellate

complaints in connection with requesting a partial record, stating that she “desire[d] to

appeal on deemed admissions and on other grounds.” Id. Replying to the appellee’s

argument that her failure to comply with rule 34.6(c)(1) deprived her of the (c)(4)

presumption, Garcia argued, as does Stonegate, that even if her attempt to limit the

appellate issues was deficient, the appellee could not show harm because he could

have “supplement[ed] the record if he believed such supplementation was necessary

on appeal.” Id. The court of appeals was unpersuaded:

      We reject this argument. The fact that Rule 34.6(c)(2) allows other
      parties to designate additions to the partial reporter’s record does not
      relieve a party of her own burden, as the party asserting that the trial
      court erred, to either comply with the requirements of Rule 34.6(c) or to
      otherwise provide a record adequate to demonstrate error on the part of
      the trial court.



      Stonegate asserts that “Appellee’s brief is devoid of any assertion that
      7

Stonegate’s alleged delay in submitting its ‘Issues Presented’ prevented Appellants [sic]
from identifying the relevant issues, supplementing the record, or from having
adequate time to prepare their appellate arguments.”

                                           20
Id.; see also Aldous v. Bruss, 440 S.W.3d 90, 93–94 (Tex. App.—Houston [14th Dist.]

2012, order) (Busby, J., dissenting) (observing that if an appellant does not file a rule

34.6(c)(1) issue statement at all, an appellee “may choose to rely on the presumption

[that the missing parts of the record support the judgment] rather than designating

additional portions of the record”), disp. on merits, 405 S.W.3d 847 (Tex. App.—

Houston [14th Dist.] 2013, no pet.).

       To similar effect on different facts is Mason v. Our Lady Star of the Sea Catholic

Church, 154 S.W.3d 816 (Tex. App.—Houston [14th Dist.] 2005, no pet.). There, four

months after the appellees’ briefing was completed and shortly before the case was

submitted, the appellant belatedly acknowledged—as the appellees’ brief had pointed

out—that she had not included a statement of issues under rule 34.6(c)(1) when

requesting a partial record; she then moved to supplement the record with additional

portions as well as with her new letter to the court reporter now containing an issue

statement. Id. at 818.

       The appellate court declined to accept the late-filed statement of issues, thus

presuming that the omitted portions of the record were relevant and supported the

judgment. Although recognizing the supreme court’s instruction in Bennett to take a

“more flexible approach when ‘the appellee has not established any prejudice from a

slight relaxation of the rule,’” id. at 819 (quoting Bennett, 96 S.W.3d at 229), the Mason

court noted the obvious difference between a case like Bennett in which the issue

statement, though late, was filed well before the appellee’s brief was due, and the

                                           21
situation before it: “In contrast, Mason did not seek leave to file her statement of the

issues until almost nine months after it was due” and four months after the appellees

had filed their brief. Id. at 820.

       Not mincing words, the court wrote that it “cannot condone such an egregious

flouting of the rules of appellate procedure,” reasoning that “[p]ermitting Mason to

file her statement of issues at this late date would effect more than the ‘slight

relaxation of the rule’ the Supreme Court described Bennett as being—it would render

it meaningless.” Id.

       We similarly conclude that, if an appellant fails to include an issue statement

with, in, or around a request for less than the entire record, whether an appellee has

shown or can show any harm is beside the point. 8

III.   Stonegate’s failure to comply requires us to affirm.

       Had Stonegate effectively and timely provided a statement of points or issues,

we would presume that the partial reporter’s record “constitutes the entire record for

purposes of reviewing the stated points or issues.” Tex. R. App. P. 34.6(c)(4). Because

Stonegate did not do so, we presume that other parts of the record are relevant and

support the trial court’s judgment. See Bennett, 96 S.W.3d at 229; Tran v. Tran, No. 01-

07-00662-CV, 2008 WL 2930190, at *2 (Tex. App.—Houston [1st Dist.] July 31,

2008, no pet.) (mem. op.) (in appeal on partial reporter’s record, affirming trial court’s


       8
         We reiterate that Stonegate’s record request was not, on its face, one for a
partial record anyway.

                                           22
having granted motion to disregard jury’s finding awarding attorney’s fees to appellant

because clerk’s record did not include a statement of points or issues from appellant

and applying missing-record presumption and thus “[could not] conclude that the trial

court erred in denying [appellant] recovery of attorney’s fees”).

      By prevailing on its contract-breach claim, Stonegate was entitled to recover

attorney’s fees under section 38.001 of the civil practice and remedies code. See

Ventling v. Johnson, 466 S.W.3d 143, 154 (Tex. 2015); Tex. Civ. Prac. & Rem. Code

Ann. § 38.001. The trial court did award attorney’s fees to Stonegate but in an amount

smaller than Stonegate asked for. From the limited record before us, we cannot know

why the trial court found that a greater award would not have reflected reasonable and

necessary fees and, as the trial court also found, would in fact have been

“unconscionable.”

      As the supreme court has instructed, there is “no question” that rule 34.6

requires us to affirm the trial court’s judgment, because Stonegate “completely failed

to submit [its] statement of points or issues.” Bennett, 96 S.W.3d at 229–30 (also

observing that “litigants who ignore our rules do so at the risk of forfeiting appellate

relief”); see also Cantu v. Fed. Nat’l Mortg. Ass’n, No. 02-11-00293-CV, 2012 WL 955363,

at *3 (Tex. App.—Fort Worth Mar. 22, 2012, no pet.) (mem. op.) (holding that

appellant could not show abuse of discretion in trial court’s award of attorney’s fees

when appellant “neither filed a complete record on appeal nor complied with the

partial reporter’s record provisions of rule 34.6”); Davis v. Kaufman Cty., 195 S.W.3d

                                           23
847, 851 (Tex. App.—Dallas 2006, no pet.) (quoting Bennett and holding that because

appellant did not file a statement of points or issues, appellate court “must apply the

presumption that the omitted portions of the record support the trial court’s

judgment” and accordingly “must overrule appellant’s challenge to the sufficiency of

the evidence” in connection with attorney’s-fee award).

      As a result, we have no choice but to overrule Stonegate’s issues on appeal.

                                    CONCLUSION

      Having overruled Stonegate’s issues, we affirm that part of the trial court’s

judgment awarding Stonegate its attorney’s fees.

                                                     /s/ Elizabeth Kerr

                                                     Elizabeth Kerr
                                                     Justice

Delivered: July 30, 2019




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