Opinion
No. 08-04-00080-CV
July 15, 2004.
Appeal from the 120th District Court of El Paso County, Texas, (Tc#2001-3325).
Attorney for Appellants: Mark C. Walker, Mounce, Green, Myers, Safi Galatzan, El Paso, TX.
Attorney for Appellee: Carlos Rincon, Delgado, Acosta, Braden Jones, P.C., El Paso, TX.
Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
MEMORANDUM OPINION
Appellant Dick Poe Motors has filed a written objection to Appellee DaimlerChrysler Corporation's designation of the reporter's record. We have received the reporter's record, but have not yet filed it. For the reasons stated below, we will deny the objection and file the entire record received from the court reporter.
Background
Dick Poe's objection relates only to the second volume of the reporter's record, which is a transcription of a hearing on a motion to substitute counsel. Dick Poe asserts that the designation of this transcription as part of the reporter's record is improper because it is irrelevant to the issues on appeal. Dick Poe requests that this Court "not include" this transcription. Although not clearly stated, we understand the request to be that this Court not file the transcription as part of the reporter's record for this appeal. Dick Poe cites no authority for this request. DaimlerChrysler has filed a response, asserting that the transcription is relevant to the issues on appeal. Because the parties have not yet filed briefs, we cannot determine whether the challenged transcription is actually relevant to the appeal.
Discussion
The reporter's record of stenographically recorded proceedings "consists of the court reporter's transcription of so much of the proceedings, and any of the exhibits, that the parties to the appeal designate." Tex.R.App.P. 34.6(a)(1) (emphasis added). Although the appellant has the initial duty to request the reporter's record and to designate the proceedings to be included in the record, other parties may designate additions to the reporter's record. Tex.R.App.P. 34.6(b)(1), (c)(2), 35.3(b).
We find nothing in the Rules of Appellate Procedure authorizing this Court to refuse to file a portion of the reporter's record simply because it may not be relevant to the appeal. In fact, the Rules quite clearly require this Court to file the reporter's record, provided that it has been correctly prepared:
On receiving . . . the reporter's record from the reporter, the appellate clerk must determine whether [it] complies with the Supreme Court's and Court of Criminal Appeals' order on preparation of the record. If so, the clerk must endorse on [it] the date of receipt, file it, and notify the parties of the filing and the date.
Tex.R.App.P. 37.2 (emphasis added); see also Tex.R.App.P. 35.3(c) ("The trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed. The appellate court must allow the record to be filed late when the delay is not the appellant's fault, and may do so when the delay is the appellant's fault."). Dick Poe does not claim that the challenged transcription has been incorrectly prepared.
An appellant who believes that an appellee has requested the transcription of irrelevant proceedings is not without a remedy. Upon a finding that the designated additions are unnecessary to the appeal, the trial court may order the appellee to pay for the preparation of the additions. Tex.R.App.P. 34.6(c)(3). Moreover, although this Court ordinarily awards costs to the prevailing party, we have the authority to tax costs differently for good cause. See Tex.R.App.P. 34.6(c)(3), 43.4.
Conclusion
For the reasons stated herein, Dick Poe Motors's objection to DaimlerChrysler's designation of the reporter's record is denied, and the Clerk of this Court shall file the reporter's record in its entirety on the date that this opinion issues.