                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-332-CV


KENNETH KOHLER                                                     APPELLANT

                                        V.

M & M TRUCK CONVERSIONS                                              APPELLEE

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      FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      This is an appeal from a judgment awarding damages to appellant

Kenneth Kohler on his breach of contract and fraud claims against appellee

M&M Truck Conversions. We affirm.

      M&M Truck Conversions (M&M) contracted with Kenneth Kohler to install

a wheelchair lift and related hydraulic equipment on a horse truck. Kohler later




      1
          … See Tex. R. App. P. 47.4.
sued M&M for fraud and breach of contract alleging that M&M failed to pay him

for his work.    After a bench trial, in which no record was made of the

proceedings, the trial court rendered judgment in Kohler’s favor for $6,500.00

in damages. No findings of fact or conclusions of law were made or requested.

       Subsequently, Kohler moved for a new trial on the grounds that damages

awarded were manifestly too small2 and that he was improperly denied a court

reporter at trial. At the hearing on the motion, Kohler testified to the amount

of his alleged damages but offered no testimony or other evidence to support

his allegation that he had been improperly denied a court reporter at trial. The

trial court denied Kohler’s motion for new trial and this appeal followed.

                                  I.    Analysis

       In one issue, Kohler contends that he is entitled to a new trial because the

amount of damages awarded is against the great weight and preponderance of

the evidence and because the trial court erroneously denied him a court reporter

at trial.




       2
     … Kohler alleged that he incurred actual damages in the amount of
$20,333.00 in addition to exemplary damages, attorney’s fees, and interest.

                                         2
A.    Lack of a Court Reporter at Trial

      Unless the parties expressly waive their right to a record, the court

reporter’s failure to transcribe the proceedings constitutes error. 3 To preserve

such error for appeal, however, the complaining party has the burden of timely

objecting to the court reporter’s failure to record the proceedings. 4    To be

timely, an objection must be made as soon as its basis becomes apparent, so

that the trial court has the opportunity to rule on the matter and correct

possible error before proceeding.5

      There is no record showing that Kohler requested a court reporter or made

an objection to the absence of a court reporter during trial. He first objected


      3
       … Reyes v. Credit Based Asset Servicing & Securitization, 190 S.W.3d
736, 740 (Tex. App.—San Antonio 2005, no pet.); see Tex. R. App. P. 13.1(a)
(stating that the official court reporter must, “unless excused by agreement of
the parties, attend court sessions and make a full record of the proceedings”).
      4
       … Tex. R. App. P. 33.1(a); see Reyes, 190 S.W.3d at 740 (noting that
the preservation requirement “comports with the general rules that an appellate
court may consider a case based only upon the clerk’s and/or reporter’s record
filed which must show the complaint was made to the trial court by a timely
request, objection, or motion”).
      5
       … See Barnett v. State, 161 S.W.3d 128, 132 (Tex. App.—Fort Worth
2005), aff'd, 189 S.W.3d 272 (Tex. Crim. App. 2006) (holding that timely
objection is required “to allow the trial court to have the opportunity to make
a determination and ruling” and “proceed with the trial under the proper
procedural and substantive manners, as appropriately corrected by the trial
court”); Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 145 (Tex.
App.—Amarillo 2001, pet. denied) (concluding that appellate rule 33.1 requires
“objections to a trial court’s proposed conduct be urged in a timely manner”).

                                       3
more than four months after trial in his motion for new trial. We hold that

Kohler’s objection was not timely because it was not raised when error became

apparent and did not afford the trial court the opportunity to correct possible

error before proceeding with the trial.6 Therefore, Kohler has failed to preserve

error for appeal and we overrule this subissue.

B.   Amount of Damages Awarded

      Kohler contends that the damages award is manifestly too small and is

against the great weight and preponderance of the evidence. In a bench trial

where no findings of fact or conclusions of law are filed, the trial court’s

judgment implies all findings of fact necessary to support it.7     Also, in the

absence of a reporter’s record, we indulge every presumption in favor of the

trial court’s findings. 8 Because there is no reporter’s record of the trial, we




      6
      … See St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 974
S.W.2d 51, 53 (Tex.1998) (holding that raising objection for first time in
motion for new trial is not timely if complaint could have been urged earlier).
      7
          … Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996).
      8
       … See Bryant v. United Shortline Inc. Assurance Servs., 972 S.W.2d 26,
31 (Tex. 1998); In re Spiegel, 6 S.W.3d 643, 646 (Tex. App.—Amarillo 1999,
no pet.).

                                       4
must presume that the evidence presented at trial supports the damages

award.9 Accordingly, we overrule this subissue.




     9
       … See, e.g., Patrick v. Watson, No. 02-07-00075-CV, 2008 WL
2854656, at *1 (Tex. App.—Fort Worth July 24, 2008, no pet.) (mem. op.)
(holding that legal and factual sufficiency complaints must be overruled in
absence of reporter’s record of trial).

                                    5
                              II.   Conclusion

     Having overruled Kohler’s sole issue on appeal, we affirm the trial court’s

judgment.




                                                 PER CURIAM

PANEL: CAYCE, C.J.; DAUPHINOT and MEIER, JJ.

DELIVERED: August 21, 2009




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