The opinion
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: William J. Gonyea Junior v. Orian Scott
Appellate case number: 01-16-00292-CV
Trial court case number: 2014-51066
Trial court: 152nd District Court of Harris County
The reporter’s record was originally due on May 24, 2016. Two court reporters reported
this case: Cynthia Montalvo and Peggy Hershelman. On July 15, 2016, William J. Gonyea
submitted proof of payment to court reporter Montalvo for the portion of the reporter’s record
Montalvo prepared. This portion of the reporter’s record was filed on September 9, 2016, and
included volumes 1, 2, and 4.
On August 31, 2016, court reporter Hershelman advised this Court that she reported this
case on November 5, 2015 and that Gonyea had not requested or made financial arrangements
for the filing of her portion of the reporter’s record. On September 1, 2016, we issued a notice to
Gonyea regarding the failure to make arrangements to file the remaining portion of the reporter’s
record and advised him that the final deadline to submit written evidence of payment or
arrangements to pay for the reporter’s record was 5:00 p.m. on September 5, 2016. On
September 12, 2016, Gonyea filed a letter advising this Court that he was not requesting the
portion of the reporter’s record from Peggy Hershelman. By not requesting the entire reporter’s
record, Gonyea is requesting a partial reporter’s record. When an appellant requests a partial
reporter’s record, he is to include the points or issues to be presented in the request and is then
limited to those points or issues. See TEX. R. APP. P. 34.6(c)(1). The record does not include a
request filed by Gonyea that contains the issues or points he intends to raise, as required by rule
34.6(c)(1).
Appellee, Orian Scott, subsequently filed a notice that he had requested supplementation
of the reporter’s record with the portion recorded by Peggy Hershelman. Scott further stated that
Hershelman was required to prepare and file this portion at appellant’s cost. Peggy Hershelman
has advised this Court that appellant has not paid for this portion of the record.
Rule 34.6(d) provides for supplementation of the reporter’s record by any party. See
TEX. R. APP. P. 34.6(d). Rule 34.6(c)(3) provides that other parties may designate additional
exhibits or portions of testimony to be included in the reporter’s record. TEX. R. APP. P.
34.6(c)(2). These additions must be included in the reporter’s record at appellant’s cost. TEX. R.
APP. P. 34.6(c)(3). However, 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.” TEX. R. APP. P. 34.6(c)(3).
Accordingly, we order this appeal ABATED and REMANDED to the trial court for a
hearing to determine whether the portion of the reporter’s record taken by Peggy Hershelman is
necessary to the issues Gonyea intends to raise on appeal See TEX. R. APP. P. 34.6(c)(3). If the
trial court finds this portion of the record is not necessary to Gonyea’s issues, Scott will be
responsible for payment for this supplemental reporter’s record. See id. If, on the other hand,
the trial court finds the Hershelman portion of the reporter’s record is necessary to issues Gonyea
intends to raise, Gonyea will be responsible for payment for this supplemental reporter’s record.
See id.
The trial court’s findings issued pursuant to this hearing shall be included in a
supplemental clerk’s record and filed in this Court by November 1, 2016.
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record is filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
Acting individually
Date: October 4, 2016