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


                                        ORDER
       Appellee sued both Michael and Warren Aldous for defamation. The trial court
granted a partial summary judgment against Warren Aldous, and after a hearing on
damages, signed an interlocutory judgment on March 7, 2011. Appellee’s claims against
Michael Aldous were tried to a jury, which found in favor of appellee. The trial court
signed a final judgment on July 22, 2011, and both Michael and Warren Aldous filed
notices of appeal.

       On October 18, 2011, the official court reporter for the 405th District Court filed
four volumes of the reporter’s record related to Warren Aldous’s appeal, consisting of the
hearings on damages and on his motion for new trial. On March 22, 2012, the court
reporter filed seven additional volumes of reporter’s record, containing excerpts of
testimony from the underlying jury trial. Appellant Warren Aldous filed his brief on May
30, 2012. Appellant Michael Aldous filed his brief on June 18, 2012. After being granted
an extension of time, appellee’s brief was due August 2, 2012, but it has not been filed.

       Appellee has asserted that he requires additional time to file his brief because he
has requested supplementation of the reporter’s record in order to respond to appellants’
briefs. On July 3, 2012, appellee filed a request with the court reporter to prepare a
complete record from the jury trial, with the exception of voir dire, opening statements,
and closing arguments. In addition, he requested preparation of the record from the
hearing on appellant Warren Aldous’s motion for new trial, which has been filed.

       The appeal was abated for preparation of the supplemental record. The court
reporter advised this court that the reporter’s record has not been filed because she has
not received payment for its preparation. The parties disagree about who is responsible
for payment. As a general rule, the appellant pays the cost to prepare the appellate record
and this court awards the prevailing party the appellate costs incurred by that party. See
Lopez v. Ford Motor Co., No. 04-08-00092-CV, 2009 WL 636517 (Tex. App.—San
Antonio Mar. 11, 2009, no pet.) (mem. op.); see also Tex. R. App. P. 43.4.

       On September 24, 2012, appellant Michael Aldous filed a request that this court
require appellee to pay for preparation of those portions of the record that he wishes to
add, asserting that they are frivolous and not relevant to appellants’ briefs, citing Texas
Rule of Appellate Procedure 34.6(c)(3).

       Texas Rule of Appellate Procedure 34.6(c) governs the procedure for filing a
partial reporter’s record. The Rule provides:

       (c) Partial Reporter’s Record

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       (1) Effect on Appellate Points or Issues. 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.
       (2) Other Parties May Designate Additions. Any other party may designate
       additional exhibits and portions of the testimony to be included in the
       reporter’s record.
       (3) Costs; Requesting Unnecessary Matter. Additions requested by another
       party must be included in the reporter’s record at the appellant’s cost. But if
       the trial court finds that all or part of the designated additions are
       unnecessary to the appeal, the trial court may order the other party to pay
       the costs for the preparation of the unnecessary additions. This paragraph
       does not affect the appellate court’s power to tax costs differently.
       (4) Presumptions. The appellate court must presume that the partial
       reporter’s record designated by the parties constitutes the entire record for
       purposes of reviewing the stated points or issues. This presumption applies
       even if the statement includes a point or issue complaining of the legal or
       factual insufficiency of the evidence to support a specific factual finding
       identified in that point or issue.

Tex. R. App. P.34.6(c).

       At common law, when a complete record of the evidence at trial has not been
filed, the appellate court presumes that the omitted evidence supports the trial court’s
judgment. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (applying
Rule 53(d), the predecessor to Rule 34.6(c)). If the appellant has designated the issues
that will be presented on appeal as required in Rule 34.6(c), then the appellate court
presumes that the partial reporter’s record constitutes the entire record for purposes of
appellate review. See Tex. R. App. P.34.6(c)(1).

       The purpose of the requirement to identify the issues to be appealed set out in Rule
34.6(c) is to protect an appellee from having to defend an appeal without parts of the
record that support its defense. See W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 38
(Tex. App.—Houston [14th Dist.] 2006, no pet.). The statement of issues mandated by
Rule 34.6(c) gives an appellee notice of the issues to be appealed, so that it can designate
additional portions of the record that may be necessary for its case. Id.
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       Our record contains no designation of the issues that appellants intended to present
on appeal, as required by Rule 34.6(c)(1).1 Courts routinely apply the common law
presumption when an appellant has filed a partial record but has failed to give the
appellee notice of the issues to be appealed in compliance with Rule 34.6(c). See Haut v.
Green Café Mngmt., Inc., __ S.W.3d ___, No. 14-10-01224-CV, 2012 WL 2109260 * 7
(Tex. App.—Houston [14th Dist.] June 12, 2012, no pet.); Mason v. Our Lady Star of the
Sea Catholic Church, 154 S.W.3d 816, 819 (Tex. App.—Houston [14th Dist.] 2005, no
pet.); Marion v. Davis, 106 S.W.3d 860, 869 (Tex. App.—Dallas 2003, pet. denied).

       Rule 34.6(c)(3) requires the trial court to determine whether additions to a partial
record that have been requested by another party are unnecessary to the appeal before it
may order the other party to pay for their preparation. Tex. R. App. P. 34.6(c)(3). In this
case, we need not refer the case to the trial court. Rule 34.6(c) has been construed to
mean that when the appellant requests a partial record, other parties may designate
additional portions to be included in the reporter’s record at the appellant’s cost if the
designation is made before the reporter’s record is prepared and filed in the appellate
court. See Johnson v. Alcon Laboratories, Inc. 149 S.W.3d 653, 654 (Tex. App.—Fort
Worth 2003, order) (citing Tex. R. App. P. 34.6(c)(2), (3)). After the reporter’s record has
been filed, however, relevant portions of testimony that are not included in the reporter’s
record may only be added through supplementation pursuant to Texas Rule of Appellate
Procedure 34.6(d). Id.; Graves v. Diehl, No. 01-00-00412-CV, 2006 WL 1699527, *3 n.4
(Tex. App.—Houston [1st Dist.] June 22, 2006, pet. denied) (mem. op.). The requesting


1
  Appellant requested preparation of a reporter’s record limited to the following:
         1. All questioning and testimony of Eric Bruss;
         2. All questioning and testimony of Silvia Sandoval; and
         3. All objections made by counsel for either side and rulings on said objections by the judge
     during trial.
The request does not identify the issues for appeal, and we find no other statement of the issues. See
Furr’s Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 377 (Tex. 2001) (holding that a separate notice
identifying the issue for appeal sent the same day the record was requested was sufficient to invoke the
presumption the that partial record constituted the entire record for purposes of appellate review).
                                                   4
party is then required to make arrangements to pay for the supplemental reporter’s record.
Johnson, 149 S.W.3d at 654 (citing Tex. R. App. P. 35.3(b)(3)).

        We agree with this construction of Rule 34.6(c), and issue the following order: We
ORDER the appeal reinstated and ORDER appellee to make arrangements to pay for the
preparation of any supplemental reporter’s record that he seeks to have filed. See
Johnson, 149 S.W.3d at 654. Any supplemental reporter’s record shall be filed on or
before November 28, 2012. Appellee’s brief will then be due on or before December 28,
2012.

                                         PER CURIAM


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




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