Smith v. Sun-Belt Aviation, Ltd.

625 S.W.2d 22, 1981 Tex. App. LEXIS 4287

• Court: Court of Appeals of Texas
• Decided: November 4, 1981
• Docket: 16844
• Status: Published

Opinions

OPINION

ESQUIVEL, Justice.

This is a venue case. Appellee Sun-Belt Aviation, Ltd. brought suit on sworn account against appellant E. L. Smith, d/b/a Aztec Services for goods, merchandise, wares and services that Sun-Belt provided Smith. Smith filed his plea of privilege seeking to have the matter transferred to his county of domicile, Nueces County. The trial court overruled Smith’s plea of privilege. We reverse and remand.

The order of the trial court states that the appellant Smith made no appearance at the venue hearing, although he was duly cited. In the transcript, the appellant included a letter to the County Court-at-Law No. Three Court Reporter requesting a statement of facts and the Court Reporter’s subsequent response that no record of the in chambers hearing was made.

It is clear that the appellant was unable to obtain a statement of facts because no court reporter was present during the in chambers hearing. The applicable test has been stated recently by this Court in Goodman v. Goodman, 611 S.W.2d 738 (Tex.Civ. App. — San Antonio 1981, no writ):

An appealing party is entitled to a statement of facts, and if, through no fault of his own, after the exercise of due diligence, that party is unable to procure a statement of facts, his right to have the case reviewed on appeal can be preserved for him in no other way than by retrial of the cause. Dugie v. Dugie, 511 S.W.2d 623 (Tex.Civ.App. — San Antonio 1974, no writ); Accord: Rogers v. Rogers, 561 S.W.2d 172 (Tex.1978) and Robinson v. Robinson, 487 S.W.2d 713 (Tex.1972).

611 S.W.2d at 738. [See those cases cited therein]

The appellee maintains that the appellant had an affirmative duty to seek and procure a statement of facts through an alternative means pursuant to Tex.R.Civ.P. 377 and 378. The Supreme Court of Texas clearly has disposed of that position in Rogers v. Rogers, supra. The supreme court held that due diligence is exercised where an appealing party has attempted to obtain a statement of facts from the official court reporter and, through no fault of his own, was unable to procure them. We find appellant’s efforts to secure the statement of facts to constitute due diligence. Rogers v. Rogers, supra; Smith v. Smith, 544 S.W.2d 121 (Tex.1976); Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697 (Texas Com.App. 1936), judgmt adopted); See Christie v. Price, 558 S.W.2d 922 (Tex.Civ.App. — Texarkana 1977, no writ).

The appellee’s reliance upon Christie v. Price, supra, for the proposition that appellant had an affirmative duty to request a court reporter pursuant to Tex.Rev.Civ. Stat.Ann. art. 2324 (Vernon 1975) is misplaced. The supreme court has stated that an appellant, in order to exhaust his available remedies to procure a statement of facts, must attempt to obtain a statement of facts from the official court reporter and be unable to procure the material through no fault of his own. In Christie, the appellant argued that no evidence was introduced at the hearing and, therefore, no statement of facts existed. The appellant did not show that he attempted to procure the material from the official court reporter and, consequently, did not exhaust his available remedies.

Appellant is entitled to have the order overruling his plea of privilege reviewed to determine his assignments of error complaining of the sufficiency of the evidence to support the order. Such a review cannot be made in the absence of a statement of facts. Therefore, we conclude that the trial court erred in hearing this matter in the absence of the court reporter. Dugie v. Dugie, supra.

We reverse and remand the order of the court overruling the appellant’s plea of privilege.