Mansell, Samuel McClure v. Villa Del Rey Realty Incorporated

• Court: Court of Appeals of Texas
• Decided: March 13, 2003
• Docket: 14-01-01114-CV
• Status: Published

Opinion

Affirmed and Opinion filed _____________, 2002

Affirmed and Opinion filed March 13, 2003.                                                   

In The

Fourteenth Court of Appeals

____________

NO. 14-01-01114-CV

SAMUEL McCLURE MANSELL, Appellant

V.

VILLA DEL REY REALTY, INCORPORATED, Appellee

On Appeal from the 133rd District Court

                                                           Harris County, Texas                      

Trial Court Cause No. 95-29937

M E M O R A N D U M   O P I N I O N

            Samuel Mansell appeals from an adverse judgment in his lawsuit against Villa Del Rey Realty.  The parties are familiar with the facts and procedural background of this case, so we will not recount them here.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex. R. App. P. 47.1.  We affirm. 

            In his first issue, Mansell contends that the trial court erred in granting a new trial after he received a post-answer default judgment against Villa Del Rey.  However, a new trial granted during the trial court’s plenary power cannot be appealed, either from that order or from a final judgment rendered after further proceedings in the trial court.  Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236 (Tex. 1984); Sommers v. Concepcion, 20 S.W.3d 27, 36 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).  Mansell does not claim the new trial was granted outside the court’s plenary power.  See generally Tex. R. Civ. P. 329 (stating rules regarding plenary power).  Accordingly, we overrule Mansell’s first issue.

            In his second and third issues, Mansell contends the trial court erred in admitting testimony from two defense witnesses when, among other things, the witnesses were not sufficiently forthcoming in depositions.  He further alleges that one of the witnesses was permitted to testify as an expert despite having not been designated as such and having expressly denied being an expert at his deposition.  As Mansell acknowledges in his brief, this Court cannot review claims regarding trial testimony in the absence of a reporter’s record.  See Tex. R. App. P. 36.3 (stating if no reporter’s record is filed due to appellant’s fault, court may consider issues not requiring a record for decision); In re Marriage of Spiegel, 6 S.W.3d 643, 646 (Tex. App.—Tyler 1999, no pet.) (holding appellant’s failure to secure reporter’s record authorized court to forego review of dispute).  Despite repeated extensions of time and warnings from this Court, Mansell failed to secure a reporter’s record in this case.[1]  Accordingly, we must summarily overrule Mansell’s second and third issues.

            The judgment of the trial court is affirmed.

                                                                                                                                                                                                                                                /s/        Scott Brister

                                                                        Chief Justice

Judgment rendered and Opinion filed March 13, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

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[1] To ensure the filing of a reporter’s record, an appellant must (1) file a notice of appeal; (2) request that the reporter’s record be prepared; and (3) pay the reporter’s fee or make arrangements with the reporter to pay the fee.  Tex. R. App. P. 35.3(b).  Mansell acknowledges that he never paid or made arrangements to pay the reporter’s fee.  He sought and was denied indigent status in the trial court.  In an earlier order, we affirmed this decision, finding the trial court did not abuse its discretion.