Montgomery v. R.E.C. Interests, Inc.
Montgomery v. R.E.C. Interests, Inc.
Opinion of the Court
OPINION
R.E.C. Interests, Inc., filed a trespass to try title suit against some thirty defendants, including Donnie M. Wilson, and cited them by publication. After a trial to the court, judgment was rendered against these defendants. Tony Montgomery, as devisee under Wilson’s will and as independent coexecutor of Wilson’s estate, appeals, contending the trial court erred by failing to comply with the requirements of Tex.R. Civ. P. 244 for defendants cited by publication and by rendering judgment in favor of R.E.C. when it failed to make a prima facie case in trespass to try title.
Procedural History
R.E.C. filed its petition in trespass to try title on March 2, 2001. The defendants were cited by publication, but made no appearance. The trial court appointed an attorney ad litem for the defendants, who filed a general denial on their behalf.
On July 5, 2001, the trial court heard the case and rendered judgment in favor of R.E.C. Nearly two years later, on June 24, 2003, Montgomery filed a motion for new trial.
R.E.C. contends this appeal is untimely because it was not brought within six months of the judgment. Tex. Civ. Prac. & Rem.Code Ann. § 51.013 (Vernon 1997); see Isaac v. Westheimer Colony Ass’n, 933 S.W.2d 588, 589 (Tex.App.Houston [1st Dist.] 1996, writ denied). However, R.E.C. relies on the rules appli
Montgomery filed a timely, regular appeal. Because process was served by publication and a motion for new trial was timely filed according to Tex.R. Civ. P. 329, we calculate the appellate timetable using the date the motion for new trial was filed as the date judgment was signed. See Tex.R.App. P. 4.4; Tex.R. Civ. P. 306a(7); 329b(d). Here, Montgomery filed his motion for new trial June 23, 2003. Using that date as the date the trial court’s judgment was signed, a timely notice of appeal was due September 22, 2003. See Tex.R.App. P. 26.1(a)(1). Because Montgomery filed his notice of appeal September 8, 2003, his appeal in this case was timely perfected and is within the jurisdiction of this Court.
Failure to File Statement of the Evidence
Montgomery first complains the trial court failed to cause to be filed a statement of the evidence as required by Rule 244 of the Texas Rules of Civil Procedure. This rule provides two safeguards when citation is by publication and no appearance has been made:
the court shall appoint an attorney to defend the suit in behalf of the defendant, ... [2] in every such case a statement of the evidence, approved and signed by the judge, shall be filed loith the papers of the cause as a part of the record thereof.
Tex.R. Civ. P. 244 (emphasis added).
Here, the trial court clearly complied with the first requirement by appointing Christina Wedding as attorney ad litem to represent the interests of the defendants cited by publication. At issue is whether the trial court complied with the second requirement that it sign and approve a statement of the evidence to be filed as a part of the record in this matter. R.E.C. argues that the reporter’s record serves as the “statement of the evidence.” We reject R.E.C.’s argument and hold that the reporter’s record filed in this case does not satisfy Rule 244’s requirement that the trial court sign and approve a “statement of the evidence.”
No cases clearly delineate the required elements of a statement of the evidence as contemplated by Rule 244. However, as discussed below, several cases indirectly support the conclusion that an unsigned and unapproved court reporter’s record is insufficient to satisfy Rule 244’s mandate.
In construction of Texas law, it is a well-established presumption that every word has been used for a purpose. See Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93, 96 (1957). Even if we were convinced by R.E.C.’s argument that the reporter’s record represented a statement of the evidence, we note the trial court never approved and never signed the reporter’s record, an obvious deviation from the plain, mandatory language of the rule. Wording in statutes is to be given its literal interpretation when that wording is clearly unambiguous. Page v. Structural Wood Components, Inc., 102 S.W.3d 720, 729 (Tex. 2003).
Texas courts have employed such an interpretation as illustrated by their treatment of a signed and approved statement
The law favors allowing a defaulted party its day in court, and traditionally, Texas courts have required strict compliance with the rules governing citation by publication.
Conclusion
Because the record in this case does not contain a statement of the evidence as required by Rule 244, we sustain Montgomery’s first point of error and do not reach his second point as to the sufficiency of R.E.C.’s evidence of title.
We reverse the judgment and remand this case to the trial court for further proceedings consistent with this opinion.
. In cases where the defendant is cited by publication, a motion for new trial is timely if filed within two years. Tex.R. Civ. P. 329.
. In Graves, the terms "transcript” and "statement of facts” were used to refer to the clerk’s record and the reporter’s record, respectively.
. Rule 244 is derived from Vernon’s Annotated Civil Statutes, Article 2158 and contains only minor textual changes from its predecessor. Therefore, we look to cases interpreting Article 2158, in addition to cases involving Rule 244, for guidance on construction and effect of this rule. See Villegas v. Shane-Michael Optical Co., 443 S.W.2d 571, 572 (Tex.Civ.App.-El Paso 1969, writ dism’d by agr.).
Concurring Opinion
Concurring Opinion by
I concur in the judgment of the court, but write separately to comment on the mandatory requirement of a judicial “statement of the evidence” when a court reporter’s record exists.
Byrnes v. Sampson, 74 Tex. 79, 11 S.W. 1073 (1889), was one of the first cases to interpret the statement of evidence as a mandatory requirement. The court held that, in suits of this character, there must be strict compliance with the essential requirements of the statute. Id. at 1075. One of the requirements was for the court to “make out and incorporate with the records of the case a statement of the facts proven on which the judgment was founded.” Id. Similarly, Tex.R. Civ. P. 244 re
When the court reporter has made a full record of all the evidence, the purposes of this requirement — to protect the defendant and to ensure the judgment is adequately supported by competent evidence — have been fully met. The additional statement of the evidence is of little or no real value. In this case, a complete reporter’s record was made and is presently before us. We could review that record to determine if the evidence meets the proper legal requirements to support this judgment. To reverse this case for a lack of a statement of evidence elevates form over substance. Only in this unique circumstance is a court “statement of evidence” even considered as a proper record of the evidence. See Bertsch & Co. v. Spells, 687 S.W.2d 826 (Tex.App.-Eastland 1985, writ ref'd n.r.e.).
In Byrnes, the court, while announcing this mandatory rule, reviewed the “only evidence,” a deposition, and found it to be insufficient to support the judgment. The further holding that the court’s “statement of evidence” was mandatory was unnecessary. I urge a reconsideration of this requirement, either by amendment to the rule or its interpretation. It is nonsensical that we must reverse a case for the stated reason that we do not a have “statement of evidence” when every word of the evidence presented is before us.
Reference
- Full Case Name
- Tony MONTGOMERY, Individually and as Executor of the Estate of Donnie M. Wilson, Deceased, Appellants, v. R.E.C. INTERESTS, INC., Appellee
- Cited By
- 9 cases
- Status
- Published