Appeal Reinstated; Order and Dissenting Order filed October 30, 2012.




                                         In The

                      Fourteenth Court of Appeals
                                      ____________

                                   NO. 14-11-01108-CV
                                     ____________

            WARREN ALDOUS AND MICHAEL ALDOUS, Appellants

                                           V.

                                  ERIC BRUSS, Appellee


                       On Appeal from the 405th District Court
                              Galveston County, Texas
                          Trial Court Cause No. 09CV0104


                                  DISSENT TO ORDER

      I respectfully dissent from the Court’s order requiring appellee to pay for the
additional portions of the record he designated. Because appellants did not state their
issues as required by Tex. R. App. P. 34.6(c)(1), appellee did not have an opportunity to
designate additional portions of the record under subsection (c)(2) until after the record
was filed. In my view, therefore, appellants should bear the cost of preparing appellee’s
designations, except to the extent the trial court determines they are unnecessary to the
appeal under subsection (c)(3).
       The issue presented here appears not to arise frequently, and we could find no
authority precisely on point. As the Court points out, requesting a partial reporter’s
record without stating the issues results in a presumption that the missing parts of the
record support the judgment.      In such cases, appellees may choose to rely on the
presumption rather than designating additional portions of the record. When an appellee
does designate additional portions after the record has been filed, however, the rules do
not clearly address who should pay for preparing those portions.

       The Court cites two cases for the proposition that the appellant generally should
pay for preparing the appellee’s designations if they are made before the record is filed,
while the appellee should pay for preparing them if they are made after the record is
filed. See Graves v. Diehl, No. 01-00-00412-CV, 2006 WL 1699527, at *3 n.4 (Tex.
App.—Houston [1st Dist.] June 22, 2006, pet. denied) (mem. op.); Johnson v. Alcon
Labs., Inc., 149 S.W.3d 653, 654 (Tex. App.—Fort Worth 2003, order). In neither of
those cases, however, did the appellants fail to state their issues as required by Rule
34.6(c)(1).

       I would hold that appellants’ failure to state their issues in this case changes the
analysis. As the Court explains, Rule 34.6(c)(1)’s requirement that an appellant state its
issues when requesting a partial record ensures that the appellee receives fair notice, so
that it can designate additional portions of the record that may be necessary to support its
defense. See W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 38 (Tex. App.—Houston
[14th Dist.] 2006, no pet.). Here, appellee received notice of appellants’ issues for the
first time when appellants filed their briefs—long after the record had been filed.
Because appellee then designated the additional portions of the record that he felt were
relevant to appellants newly-announced issues, appellants should be required to pay for
preparing the designations to the extent allowed under Rule 34.6(c)(3).         Appellants
should not be able to escape the obligation to pay for designated additions to the record



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by violating the mandate that they state their issues, thereby depriving appellee of the
ability to make an informed designation before the record is filed.

       For these reasons, I would order appellants to pay the cost of preparing appellee’s
designated additions to the record, except to the extent the trial court determines that they
are unnecessary to the appeal. I respectfully dissent.




                                                  /s/    J. Brett Busby
                                                         Justice




Panel consists of Chief Justice Hedges and Justices Brown and Busby. (Busby, J.
dissenting).




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