Opinion
04-22-00736-CV
05-24-2024
Victor HILDERBRAN, Homer Ray Smith, Ramon Castro, Dean Paret and Brad Bradley, Appellants v. TEXAS SOUTHWEST COUNCIL INC., Boy Scouts of America, Appellees
From the 38th Judicial District Court, Uvalde County, Texas Trial Court No. 2022-07-34431-CV Honorable Donna S. Rayes, Judge Presiding.
ORDER
PER CURIAM
In the underlying cause, the Trustees sued the Council seeking an accounting, on-site inspections of Camp Fawcett, and attorney's fees. CR 3.
To assist the trial court in responding to our order, we have included record citations to the clerk's record (CR), reporter's record (RR), and supplemental clerk's record (SCR). We have attached copies of each. The clerk's record and reporter's record are part of the appellate record. For the supplemental clerk's record, we express no opinion about its contents at this time; the trial court may consider or choose not to consider any document therein. See FedEx Corp. v. Contreras, No. 04-19-00757-CV, 2020 WL 4808721, at *9 (Tex. App.-San Antonio Aug. 19, 2020, no pet.) (mem. op.) ("While the Texas Rules of Appellate Procedure allow an appellate record to be supplemented 'if something has been omitted, the supplementation rules cannot be used to create new evidence.'" (quoting Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 366 (Tex. 2019))).
The Council moved to dismiss the Trustees' suit under Rule 91a, see TEX. R. CIV. P. 91a.1, and the Council sought to recover its attorney's fees, see id. R. 91a.7. CR 26, 34. Its motion states that "[a]ttached as Exhibit A is a declaration by the Council's counsel of record seeking [sic] forth its reasonable and necessary attorney's fees through hearing of this matter and in the event of appeal." CR 35.
During the hearing on its motion, the Council advised the trial court that, under Rule 91a, it could award the Council its attorney's fees. RR 10:8-9. The Council also asserted that "we did provide evidence of attorney's fees attached to the motion." RR 10:15-16.
The trial court granted the Council's motion to dismiss. Its order dated October 17, 2022, awarded the Council $4,585.00 for attorney's fees already incurred, and it conditionally awarded appellate attorney's fees. CR 85-86.
The Trustees timely filed a notice of appeal. CR 87.
The clerk's and reporter's records were timely filed in November 2022. Notably, neither record includes a copy of Exhibit A.
On April 21, 2023, after the Trustees filed their brief but before the Council filed its brief, the Council filed in the trial court a "Notice of Filing Post Judgment Submission." SCR 14. The Notice contained several documents; one was a copy of the Council's Rule 91a Motion to Dismiss-which included a two-page Exhibit A. CR 36-37.
The Council directed the trial court clerk to file a supplemental clerk's record containing, inter alia, its Notice, and the trial court clerk complied. See TEX. R. APP. P. 34.5(C)(1), Rule 91a requires "[a]ny award of costs or fees [to] be based on evidence." TEX. R. CIV. P. 91A.7; see Strickland v. iHeartMedia, Inc., 665 S.W.3d 739, 742 (Tex. App.-San Antonio 2023, pet. denied).
The parties dispute whether the trial court received and considered a copy of the Council's Exhibit A before it signed the order being appealed.
The trial court's order states that it considered the Council's motion, but it is silent as to whether it considered Exhibit A. Cf. McElyea v. Parker, 81 S.W.2d 649, 653 (Tex. [Comm'n Op.] 1935) ("Because the judgment does not expressly recite that evidence was heard is not a conclusive determination that evidence was not heard ...."). CR 85-86. And absent controverting evidence, "we presume that proceedings in the trial court, as well as its judgment, are regular and correct." S. Ins. Co. v. Brewster, 249 S.W.3d 6, 13 (Tex. App.-Houston [1st Dist.] 2007, pet. denied).
Further, the clerk's and reporter's records do not conclusively resolve that question of fact, which is necessary to our disposition of an issue in this appeal. See TEX. R. APP. P. 44.4 (REMEDIABLE ERROR).
Accordingly, we abate this appeal and remand the cause to the trial court.
We ORDER the trial court, the Honorable Donna S. Rayes, to file with the trial court clerk within TEN DAYS of the date of this order a writing answering the following questions of fact:
The Honorable Donna S. Rayes, sitting by assignment, held the October 17, 2022 hearing on the Council's Rule 91a motion and signed the complained-of order.
• Did you receive a copy of Exhibit A at the hearing?
• If so, did you consider the contents of Exhibit A before you signed the October 17, 2022 order?
The statement need not address whether an exhibit that was received but not admitted into evidence may be used as evidence to support an award of attorney's fees. See Tex. Commerce Bank, Nat. Ass'n v. New, 3 S.W.3d 515, 516 (Tex. 1999) (per curiam).
We ORDER the trial court clerk to file a supplemental clerk's record in this court that contains Judge Rayes's statement within THREE DAYS of when the trial court files its statement.
We DIRECT the clerk of this court to provide the trial court with an electronic copy of the clerk's record, the reporter's record, and the supplemental clerk's record.
It is so ORDERED.