Tony Cantu v. Jack Philip Seeman

Opinion issued May 3, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00545-CV

———————————

Tony Cantu , Appellant

V.

Jack Seeman , Appellee

****

Jack seeman , Appellant

V.

tony cantu

and elsa cantu ,

Appellees

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Case No. 2007-53626

MEMORANDUM OPINION

After

a jury trial in this dispute between neighbors in a condominium complex, the

trial court granted a take nothing judgment for one neighbor and reduced the

damages awarded to the other. Both

neighbors appeal. We affirm.

BACKGROUND

On

March 9, 2007, Tony Cantu filed suit in County Court against his neighbor, Jack

Seeman, alleging intentional infliction of emotional distress, libel and

slander, sexual harassment, stalking, assault, conspiracy, and malicious

prosecution. The crux of Cantu’s

allegations against Seeman was that Seeman was obsessed with Cantu’s wife,

Elsa, that he stalked her, harassed her by giving her gifts, and spied on

her. Cantu further alleged that as a

result of this obsession, Seeman hated Cantu and made false reports to the

police about him, threatened him, and damaged his property.

Cantu’s

petition alleges that the plaintiffs are Tony Cantu and Elsa Cantu, but the

petition is signed only by Tony. The

petition, however, incorporates by reference an affidavit by Elsa, which is

attached to the petition. In the

affidavit, Elsa states, “I am the Plaintiff,” and alleges that “due to

[Seeman’s] actions I have suffered Slander and Libel, Sexual Harassment and

Stalking, Severe Mental anguish, Loss of society, Loss of earning capacity,

Hurt to Reputation, Personal Humiliation, and Defamation.” The affidavit, which is attached to and

incorporated by reference in the petition, is signed by Elsa.

On

April 25, 2007, Tony filed a “Notice of Nonsuit with Prejudice to Refile.” Again, the non-suit is signed only by Tony,

not Elsa.

On

April 30, 2007, the trial court signed an order approving the nonsuit.

On

May 29, 2007, Seeman filed counter-claims against both Cantus and a motion to

transfer the case to the District Court.

On

June 5, 2007, the County Court granted Seeman’s motion and transferred the case

to the District Court.

On

August 30, 2007, Elsa and Tony answered Seeman’s counter-claims. They also filed a motion to reconsider

Seeman’s motion to transfer venue, requesting sanctions, or alternatively, that

all of their claims against Seeman be reinstated. Thereafter, the Cantus filed several amended

petitions seeking damages from Seeman.

On

February 9, 2009, the 270th District Court held a jury trial. The next day, after both parties rested, the

trial court granted a directed verdict against the Cantus on all their

claims. The jury then returned a verdict

in Seeman’s favor. The Cantus filed a

Motion for Judgment Notwithstanding the Verdict, which the trial court granted

in part, removing all jury findings against Elsa, and reducing Seeman’s damages

from $625,000 to $300,000.

On May

1, 2009, the trial court signed a final judgment which provided (1) that the

Cantus take nothing on their claims against Seeman, and (2) that Seeman recover

$300,000, plus interest and costs, from Tony Cantu.

Tony,

but not Elsa, filed a notice of appeal.

Seeman also filed a notice of appeal.

When a complete reporter’s record was not filed, this Court abated the

case to determine whether Cantu timely requested the record and whether he had

failed to pay or make arrangements to pay for any portion of the record. After the

trial court concluded that the failure to provide this Court with a complete

reporter’s record was Cantu’s fault, this Court reinstated the appeal on

December 27, 2011, and issued an order that the case would be considered based

on the partial reporter’s record that was on file with the Court. The reporter’s record on file with this Court

consists of (1) a transcript from a recusal hearing before Judge Olen Underwood

on November 12, 2009, and (2) a volume of exhibits from the February 2009 jury

trial. There is no reporter’s record of

the testimony given at the trial.

CANTU’S APPEAL

Cantu brings 26 issues on

appeal challenging (1) the District Court’s jurisdiction over the case, and (2)

various trial court rulings.

Jurisdiction

In his

first issue on appeal, Cantu contends the District Court never had

jurisdiction, thus its judgment is void.

Specifically, Cantu argues that Elsa was never a party to the suit

because she did not sign the petition, and, as a result, his nonsuit of April

25, 2007, which was approved by the County Court on April 30, 2007, disposed of

all claims then pending in the suit. As

a result, Cantu argues that the County Court lost plenary power on May 25,

2007, or at the very latest, on May 30, 2007.

Therefore, Cantu contends that the County Court’s June 5, 2007 order

transferring venue to the District Court was void, and the District Court lacked subject-matter jurisdiction. In his third issue on appeal, Cantu contends

the trial court erred in overruling his motion for summary judgment, which was

based on the same ground. Because this

argument hinges on whether Elsa was ever a party to the suit, we address that

issue first.

Cantu argues that because he is not a

lawyer, he could not represent his wife, and that because she never signed the

Original Petition, she was never a party to the suit. It is true that Cantu cannot represent his wife unless he is

a member of the State Bar of Texas or otherwise qualifies for the limited

practice of law. See Tex. Gov’t

Code Ann. § 81.102 (Vernon 2005); Magaha v. Holmes, 886 S.W.2d

447, 448 (Tex. App.—Houston [1st Dist.] 1994, no writ).

However, under the facts of this case,

we conclude that Elsa did in fact represent herself pro se in the filing of the

lawsuit. While it is true that Elsa did

not sign the petition, she did sign an affidavit attached to the petition in

which she averred, “I am the Plaintiff.”

And, not only was her affidavit attached to the petition with the

notation “Plaintiff Original Petition” appearing in its lower left corner,

paragraph 8 of the petition provides, “Plaintiff, Mrs. Cantu, attaches Exhibit

2 as her affidavit and fully incorporates it herein by reference in this

petition.” By signing the affidavit

referring to herself as a Plaintiff, attaching that affidavit to the petition,

and incorporating it by reference into the petition, Elsa has complied with the

requirement that a pro se petition be signed.

See Tex. R. Civ.

P. 57. Additionally, a pleading shall not be deemed

defective because of something that can be supplied by an exhibit attached to

and referenced in a petition. See Tex. R. Civ. P. 57.

Elsa’s affidavit, which is attached to and incorporated by reference in

the petition, provides her signature, which was missing from the petition

itself. Thus, we conclude that Elsa was

a party to the lawsuit.

We next consider what effect Elsa’s

participating in the lawsuit had on the County Court’s plenary power. Cantu argues that because his nonsuit

disposed of all claims pending at the time it was filed, the trial court lost

plenary power 30 days thereafter, which was several days before it signed the order

to transfer jurisdiction to the District Court.

Thus, Cantu contends the order transferring jurisdiction was void and

the District Court never acquired subject-matter jurisdiction.

However, like the petition, the “ Notice of

Nonsuit with Prejudice to Refile” was signed only by Cantu, but not Elsa. Further, the notice provides, “COMES NOW

Plaintiff, Tony Cantu, and pursuant to Rule 162 of the Texas Rules of Civil

Procedures serves notice on this Court that he is taking a nonsuit . . . on all

claims against Jack P. Seeman[.]” The

nonsuit does not reference Elsa or her claims at all. Because Tony cannot represent Elsa, see Magaha,

886 S.W.2d at 448 , and the nonsuit he filed does not even purport to do so, it

did not dispose of Elsa’s claims against Seeman. Because Elsa’s claims remained pending, the

County Court retained plenary power over the suit when it transferred jurisdiction

to the District Court. Thus, the

transfer provided the District Court with subject-matter jurisdiction. [1]

We overrule Cantu’s first and third issues

on appeal.

In issue two, Cantu contends that the

June 5, 2007 order transferring the case to District Court was void. Specifically, Cantu argues that under Texas

Rule of Civil Procedure 87, he was entitled to 45 days’ notice of a hearing on

a motion to transfer venue. However,

Rules 86 and 87 apply to motions to transfer venue from one county to

another. See Tex. R. Civ. P.

86 & 87. The present case was being

transferred from the County Court to the District court pursuant to Tex. Gov’t Code Ann . § 74.121(b)(1) (Vernon

2011), thus the 45 days’ notice required by Rule 87 is not applicable.

We overrule Cantu’s second issue on

appeal.

Trial

Court Rulings

In issues four

through 23, Cantu complains about various trial court rulings and other matters

for which a reporter’s record from the trial are necessary for an adequate

appellate review. The rules of appellate

procedure state that the court reporter (as opposed to appellant) is

responsible for preparing, certifying, and timely filing the reporter’s record.

Tex. R. App. P. 35.3(b). However,

the reporter’s responsibility is expressly conditioned upon the filing of

notice of appeal, requesting that the reporter’s record be prepared, and paying

for or making arrangements to pay for the reporter’s record. Id. at

35.3(b)(1)-(3); Rodriguez v. State, 970 S.W.2d 133, 135 (Tex. App.—Amarillo

1998, pet. ref’d) (involving the clerk’s record). If an appellant does not satisfy it by

completing the steps required under rule 35.3(b)(1), (2), and (3), his actions

continue to deny us a sufficient record with which to review his complaints. If

the reporter’s record is absent because the appellant did not satisfy rule

35.3(b), we will not only continue to presume that the missing record supports

the trial court’s determination, but also forego reviewing the dispute as

authorized under appellate rule 37.3(c), which only requires us to “consider

and decide those issues or points that do not require a reporter’s record for a

decision.”

Nevertheless, in

issue 24, appellant contends that he is not responsible for the lack of a

reporter’s record because “the Court Reporter is in collusion with opposing

counsel and has refused to deliver the trial transcripts although Appellant has

paid for them.” There is no evidence to

support this statement.

To resolve the

dispute over the reporter’s record, this Court abated the case to the trial

court with instructions that it determine (1) whether Cantu timely requested a

reporter’s record, (2) whether Cantu failed to pay or make satisfactory

arrangements to pay for any portion of the reporter’s record that he had

requested, and (3) whether Cantu was at fault for the lack of a complete

record.

On July 18, 2011,

in accordance with this Court’s abatement order, the trial court held a hearing

and filed findings of fact and conclusions of law with this Court. The trial court concluded that Cantu paid

$3000 for the first day of the trial and the trial exhibits, but he never paid

or made arrangements to pay for the record from the second and third days of

trial, and that he still owed the reporter $4,500 for the remainder of the

record, which she had prepared on an expedited basis.

Cantu has not

challenged any of the findings made by the trial court.

Because Cantu has

not provided the Court with a complete reporter’s record, we will presume that

the missing portions of the record support the trial court’s determination, and

will only “consider and decide those issues or points that do not require a

reporter’s record for a decision.”

Because issues four through 23 require a reporter’s record, which we do

not have, they are overruled. We also

overrule issue 24 regarding the court reporter’s “refusal” to deliver the

record.

Issues

Related to Turnover Order

On August 10, 2009, Seeman moved for post-judgment relief

under the Texas Turnover Statute, and apparently, a hearing was held on his

motion on August 14, 2009. In issues 25

and 26, Cantu complains that he did not receive notice of the hearing and that

the turnover was erroneously granted ex parte.

However, due process does not require that a complainant who

has been granted an opportunity to be heard and has had his day in court

should, after a judgment has been rendered against him, have further notice and

hearing before supplemental proceedings are taken to reach his property in

satisfaction of the judgment against him. See Endicott–Johnson Corp.

v. Encyclopedia Press, Inc.,

266 U.S. 285, 288 , 45 S. Ct. 61 , 62–63 (1924) ; In re Guardianship of Bays , 355 S.W.3d 715, 720 (Tex. App.—Fort

Worth 2011, no pet.). The turnover statute itself does not require notice and a

hearing. See Tex. Civ. Prac.

& Rem. Code Ann. § 31.002; Sivley v. Sivley, 972 S.W.2d 850,

861 (Tex. App.—Tyler 1998, no pet.). In

the absence of a statutory requirement, it is not essential that a complainant

be given notice before the issuance of an execution against his tangible

property; after the rendition of the judgment, he must take notice of what will

follow, no further notice being necessary to advance justice. Endicott–Johnson

Corp, 266 U.S. at 288 , 45 S. Ct. at 62–63; In re Guardianship of Bays , 355 S.W.3d at 720 .

We overrule issues 25 and 26.

SEEMAN’S APPEAL

In four issues on appeal,

Seeman contends that the trial court erred in (1 & 2) granting JNOV as to

the liability and damage findings against Elsa Cantu, (3) granting JN OV and eliminating the damages awarded to him for

loss of future reputation and past mental anguish, and (4) refusing to submit

his requested jury questions on exemplary damages. In each of these points, Seeman is the

appellant because he is “a party who seeks to alter the trial court’s

judgment. See Tex. R. App. P.

25.1(c).

An appellant bears the burden to bring forward an appellate

record that enables the appellate court to determine whether appellant’s

complaints constitute reversible error. See Enter. Leasing of Houston v.

Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam); Christiansen v.

Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (stating

that burden is on appellant to present sufficient record to show error requiring reversal).

If the appellant desires a reporter’s record on appeal, he must request the court

reporter to prepare the record and arrange for payment of the reporter’s fee

for doing so. See Tex. R. App. P.

35.3(b). The request must designate the exhibits to be included and be filed

with the trial court. Tex. R. App. P.

34.6(b). When, as here, the issues on appeal necessarily involve consideration

of evidence omitted from the appellate record, we must presume the missing evidence

supports the trial court’s ruling. See Barrios, 156 S.W.3d at 550 ; Willms

v. Ams. Tire Co., Inc., 190 S.W.3d 796, 806 (Tex. App.—Dallas 2006, pet.

denied) (evidence presumed to be sufficient to support trial court’s order when

appellant fails to bring reporter’s record). Issues depending on the state of

the evidence cannot be reviewed without a complete record, including the

reporter’s record. See Favaloro v. Comm’n for Lawyer Discipline, 994

S.W.2d 815 , 820–21 (Tex. App.—Dallas 1999, pet. stricken). If the appellant

fails to bring forward a complete record, the court will conclude he has waived

issues dependent on the state of the evidence. Id.

While

it is true that Cantu paid only for a portion of the record, Seeman had an

independent duty to provide a record to support his appellate issues. However, the record shows that Seeman never

paid or made arrangements to pay for a reporter’s record. From the notices provided to the parties by

this Court, as well as the abatements to determine the status of the reporter’s

record, Seeman was well aware that this Court did not have a complete

reporter’s record. When this Court

stated in its December 27, 2011 order that because of Cantu’s failure to pay

for the complete reporter’s record “the partial record in this cause will be

considered on appeal,” Seeman could have filed a motion to supplement the

record, but he did not. See Tex. R. App. P. 34.6 (when partial record is

filed, any other party may designate additional items to be included in the

reporter’s record).

Presuming,

as we must, that the missing portions of the reporter’s record support the

trial court’s rulings, we overrule Seeman’s issues on appeal.

CONCLUSION

We

affirm the judgment of the trial court.

We

overrule all pending motions.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.

[1]

We do not address the issue of

whether Cantu should have been served with citation once Seeman asserted claims

against him after he had nonsuited his own claims. We note that Cantu appeared in the

transferred case and refiled his claims against Seeman, including the filing of

a motion for summary judgment and several amended petitions. By doing so, Cantu has waived any issue of

personal jurisdiction that he might have had.