Lack of Reporter’s Record Fatal to Appeal

reporter's recordThe record on appeal actually consists of two records: the clerk’s record and the reporter’s record. The clerk’s record consists of documents filed with the clerk of court. The reporter’s record is the transcription of testimony in the courtroom plus the exhibits. The clerk’s record is necessary for all appeals, and the reporter’s record is necessary for most, as the appellant discovered in Farah v. Hamamiyah, No. 02-14-00109-CV (Tex. App. – Fort Worth Nov. 20, 2014) (mem. op.).*

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The “Agreed” Decree

The appellant and his wife entered into Rule 11 agreements about property and conservatorship. The wife’s lawyer drafted an agreed decree of divorce, but the husband did not sign it. The wife filed a motion to sign the decree. The trial court signed the decree. The husband appealed, claiming that because he did not sign the decree, he had revoked his consent to it.

No Reporter’s Record

But as the Fort Worth Court of Appeals explained, the husband’s refusal to sign the decree does not, by itself, establish a revocation of consent. Revocation of consent must be brought to a trial court’s attention in some way. One way is to bring it up at a court hearing. But because the husband did not order a reporter’s record, there was no way to know whether the husband revoked his consent at that hearing. Without any other evidence of revocation, the court overruled this issue on appeal.

Motion for New Trial

Although the husband also filed a motion for new trial, the husband did not state in the motion that he had revoked his consent to the agreements he had made with his wife. Instead, the motion for new trial argued that part of the Rule 11 agreement on conservatorship was ambiguous. And again, there was no reporter’s record of the motion for new trial, so there was no evidence that the husband had revoked his consent.

* The appellant is identified as “Sam F.” in the style of the case, but the court’s online records show his surname to be Farah.

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