Opinion

Tom E. Robertson v. Texas Department of Transportation Cindy Jetton, Tax Assessor-Collector And Louis A. Perez

Court
Texas Court of Appeals, 3rd District (Austin)
Filed
Aug 31, 2000
Status
Published
Cited by
0 cases
Authority
More cited than 35.9%

The opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00167-CV

Tom E. Robertson, Appellant

v.

Texas Department of Transportation; Cindy Jetton, Tax Assessor-Collector;

and Louis A. Perez, Appellees

FROM THE COUNTY COURT OF TOM GREEN COUNTY

NO. 99C450, HONORABLE MICHAEL D. BROWN, JUDGE PRESIDING

Appellee Louis Perez sold a Chevrolet truck to Pamela Tennell, one of his

employees, in April 1999. Perez signed an application for a certificate of title, transferring

ownership of the truck to Tennell. Perez did not note on the title application that he held a lien

against the truck. The application states that the truck's sales price was $1,000. Tennell did not

file her title application and receive an original certificate of title until September 3 ("the original

title"). On September 20, Tennell signed the original title over to appellant Tom E. Robertson.

On September 24, Tennell, claiming the title had been lost or destroyed, applied for and received

a certified copy of the original title ("the certified copy"). On October 7, Perez applied for title,

using the certified copy as proof of ownership. On October 8, Robertson also applied for title,

using the original title as proof of ownership. The Texas Department of Transportation ("the

Department") suspended both applications pending a determination of who was the rightful owner.

Cindy Jetton, the Tax Assessor/Collector, ruled against Robertson, and Robertson appealed that

determination to the county court.

The county court held a hearing and filed findings of fact and conclusions of law

in which it stated the "matter was heard beginning on January 10, 2000 with all parties waiving

the making of a record. That hearing was recessed and reconvened on February 2, 2000 before

a court reporter so that the record in this case is incomplete." Robertson does not challenge this

finding and it is binding on appeal. The court found that Tennell bought the truck from Perez for

$4,500; Robertson said Tennell gave him the truck as a gift; Tennell stopped paying Perez and

obtained the certified copy, claiming the original title was lost or destroyed; Tennell signed the

certified copy over to Perez, who filed a title application on October 7; and Robertson filed his

title application on October 8. The court found by a preponderance of the evidence that Perez was

the rightful owner. Robertson appeals from that determination. We will affirm.

In his brief, Robertson states that on January 10 the hearing was convened without

a court reporter and that the proceedings were recessed until February 2 "to allow a record to be

made. The trial court then heard evidence on the Appellant's appeal of the Department's

decision." Robertson does not dispute that the parties agreed to proceed on January 10 without

the making of a record or that the record is incomplete. The court's docket sheet for January 10

notes "all parties waive making of record . . . Tom R. presents case background and facts."

A party who waives the making of a record risks waiving any complaint arising out

of those proceedings. See Piotrowski v. Minns , 873 S.W.2d 368, 370-71 (Tex. 1993). A party

challenging the sufficiency of the evidence supporting the trial court's judgment must present a

complete reporter's record or an agreed record. See Land v. AT & S Transp., Inc. , 947 S.W.2d

665, 667-68 (Tex. App.--Austin 1997, writ denied). Without a complete or agreed record, we will

presume any omitted evidence supports the trial court's judgment. See Feldman v. Marks , 960

S.W.2d 613, 614 (Tex. 1996); Land , 947 S.W.2d at 668 . The appellate rules allow an exception

to this general rule. To proceed with a partial reporter's record, an appellant must request a

partial record and include a statement limiting its issues on appeal. See Tex. R. App. P.

34.6(c)(1). Other parties may then designate additional portions of the record to be included. See

id. 34.6(c)(2). If the parties proceed in this manner with a partial record, we will presume that

the designated record constitutes the entire record for purposes of the appeal. See id. 34.6(c)(4).

There is no indication in the record that Perez has agreed that any evidence

presented on January 10 is not material or relevant. Robertson has not complied with rule 34.6(c)

and has not disputed the county court's statement that the record is incomplete due to the parties'

agreement. We must presume that evidence presented on January 10 supports the county court's

decision. We overrule Robertson's issues on appeal and affirm the county court's judgment.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

Affirmed

Filed: August 31, 2000

Do Not Publish

ennell did not

file her title application and receive an original certificate of title until September 3 ("the original

title"). On September 20, Tennell signed the original title over to appellant Tom E. Robertson.

On September 24, Tennell, claiming the title had been lost or destroyed, applied for and received

a certified copy of the original title ("the certified copy"). On October 7, Perez applied for title,

using the certified copy as proof of ownership. On October 8, Robertson also applied for title,

using the original title as proof of ownership. The Texas Department of Transportation ("the

Department") suspended both applications pending a determination of who was the rightful owner.

Cindy Jetton, the Tax Assessor/Collector, ruled against Robertson, and Robertson appealed that

determination to the county court.

The county court held a hearing and filed findings of fact and conclusions of law

in which it stated the "matter was heard beginning on January 10, 2000 with all parties waiving

the making of a record. That hearing was recessed and reconvened on February 2, 2000 before

a court reporter so that the record in this case is incomplete." Robertson does not challenge this

finding and it is binding on appeal. The court found that Tennell bought the truck from Perez for

$4,500; Robertson said Tennell gave him the truck as a gift; Tennell stopped paying Perez and

obtained the certified copy, claiming the original title was lost or destroyed; Tennell signed the

certified copy over to Perez, who filed a title application on October 7; and Robertson filed his

title application on October 8. The court found by a preponderance of the evidence that Perez was

the rightful owner. Robertson appeals from that determination. We will affirm.

In his brief, Robertson states that on January 10 the hearing was convened without

a court reporter and that the proceedings were recessed until February 2 "to allow a record to be

made. The trial court then heard evidence on the Appellant's appeal of the Department's

decision." Robertson does not dispute that the parties agreed to proceed on January 10 without

the making of a record or that the record is incomplete. The court's docket sheet for January 10

notes "all parties waive making of record . . . Tom R. presents case background and facts."

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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