pablo-and-ruth-d-turull-v-william-e-fergusson-individually-and-dba ( 2010 )

Opinion issued September 30, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00067-CV

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Pablo Turull and Ruth Turull, Appellants

V.

William E. Ferguson, Individually and d/b/a Timberoof Company and Timberoof Roof Company and Timberoof Roof Company, Inc., and Timberoof Roofing Company, Inc., Timberoof Roofing Co., Inc. and TRC Services, Inc., Individually and d/b/a The Roof Co. Holdings, Appellees

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Case No. 2003-22884

SUPPLEMENTAL MEMORANDUM OPINION ON MOTION FOR REHEARING

Appellees, William E. Ferguson—individually and doing business as Timberoof Company, Timberoof Roof Company, Inc., and Timberoof Roofing Company, Inc.—and Timberoof Roofing Co., Inc. (the “Timberoof Defendants”), filed a motion for rehearing arguing that (1) contrary to this Court’s opinion, they had filed a supplemental record request and (2) they were not the appellants and, therefore, waiver should not be applied against them regarding the portion of the charge concerning attorney’s fees.

We deny Appellees’ motion for rehearing.

Supplementation of the record

The Timberoof Defendants ask this Court to modify the portion of the opinion that states that the parties to this appeal did not properly request supplementation of the record to include documents that they relied on in their briefs on the merits. The Timberoof Defendants attach to their motion for rehearing a certified copy of the supplementation letter they filed with the district clerk’s office asking the district clerk to prepare a supplemental clerk’s record with the items they relied on in their brief on the merits.  Filing the letter did not satisfy the Timberoof Defendants’ responsibilities to have the supplemental record prepared and filed with this Court.

The trial court clerk is responsible for preparing, certifying, and timely filing the clerk’s record if (1) a notice of appeal has been filed and (2) the party responsible for paying for the preparation of the record has paid the clerk’s fee, has made satisfactory arrangements to pay the fee, or is entitled to appeal without paying the fee.  Tex. R. App. P. 35.3(a).  There is no exception to the application of this rule for supplemental record requests.  According to this rule, the clerk’s responsibility to prepare, certify, and file a record with an appellate court is not triggered until after the fee has been paid, satisfactory arrangements have been made to pay the fee, or it has been established that the fee does not have to be paid.  Id. 

The Timberoof Defendants have not established indigence, nor have they provided this Court with any proof that it paid the fee for preparation of the clerk’s record or made satisfactory arrangements to pay the fee.  Without that proof, we cannot conclude that the district clerk was required to prepare the supplemental record that was requested.

Waiver of Error

In our opinion, we held, “Because the Timberoof Defendants did not object to the Turulls’ counsel’s testimony regarding segregation of fees and because there was no objection to the wording of the charge that did not ask the jury to segregate attorney’s fees, any error regarding segregation has been waived.”  The Timberoof Defendants argue that, as appellees, they “had no burden to preserve error on a no evidence complaint by making a charge objection.”  They argue that they are not complaining of charge error.  “In fact, [we are] not alleging error at all.”  They argue that they only presented a no-evidence argument, “which can be raised for the first time in a post-trial motion for JNOV.”

In a jury trial, a legal-sufficiency complaint is not separable from the charge.  “The sufficiency of the evidence must be measured by the jury charge when, as here, there has been no objection to it.”  Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 221 (Tex. 2005).  This is true even if the charge’s statement of the law is not correct.  Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001). 

As we noted in our opinion, the jury question relating to the attorney’s fees to be awarded to the Turulls read, “What is a reasonable fee for the necessary services of the Turulls’ attorney in this case, stated in dollars and cents?”  No objection was raised as to the wording of this question. Because there was no objection to the charge’s failure to have the jury segregate the Turulls’ attorney’s fees, any error in the charge was waived.  Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997).  Accordingly, the trial court erred by finding the evidence of attorney’s fees legally insufficient on a ground that was different from what was presented to and decided by the jury.

Conclusion

We deny Appellees’ motion for rehearing.

                                                                   Laura C. Higley

                                                                   Justice

Panel consists of Justices Keyes and Higley.[1]

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[1]        Justice Hanks was a member of the original panel but has resigned in the interim.  This case has been decided by the two remaining justices. Tex. R. App. P. 41.1(b).