In Smith v. Malone, parties litigated the propriety of certain transactions in an estate proceeding before a statutory probate court. No. 01-19-00266-CV, 2020 Tex. App. LEXIS 4622 (Tex. App.—Houston [1st Dist.] June 23, 2020, no pet. history). At trial, the estate’s representative asked for a record, but the court refused. After there was an adverse judgment, the representative appealed and asserted, among other arguments, that the judgment must be reversed due to the failure of the trial court to make a transcript of the evidence. Then court of appeals agreed. The court first discussed the general requirements for trial courts to make a record:

Section 52.046(a) of the Government Code placed the obligation on Scott, not the probate court, to ensure that a court reporter recorded oral testimony. See Tex. Gov’t Code § 52.046(a) (requiring an official court reporter to take full shorthand notes of oral testimony “on request”). An official court reporter must take full shorthand notes of oral testimony “on request.” Id. § 52.046(a). As Smith notes, Section 52.046(d) of the Government Code creates an exception to the “on request” language found in 52.046(a). Subsection (d) mandates that a “judge of a county court or county court at law shall appoint a certified shorthand reporter to report the oral testimony given in any contested probate matter in that judge’s court.” Id. § 52.046(d).

The court then addressed whether this rule applied to statutory probate courts:

The Estates Code defines the generic term “court” to include “a court created by statute and authorized to exercise original probate jurisdiction.” Tex. Estates Code § 22.007(a)(2). The Code provides that the terms “county court” and “probate court” are synonymous and both include “a court created by statute and authorized to exercise original probate jurisdiction.” Id. § 22.007(b)(2). The Estates Code defines a “statutory probate court” as “a court created by statute and designated as a statutory probate court under Chapter 25 [of the] Government Code. For purposes of this code, the term does not include a county court at law exercising probate jurisdiction unless the court is designated a statutory probate court under Chapter 25 [of the] Government Code.” Id. § 22.007(c). [A] plain reading of these statutory provisions leads us to conclude it does [apply to statutory probate courts]. A statutory probate court is a court created by statute and authorized to exercise original probate jurisdiction. See id. §§ 22.007(c), 32.002(c). As such, a statutory probate court meets the definition of a “county court.” Id. § 22.007(b)(2). And the Government Code directs that a judge of a “county court . . . shall appoint a certified shorthand reporter to report the oral testimony given in any contested probate matter in that judge’s court.” Tex. Gov’t Code § 52.046(d)…

Id. The court concluded that the requirement of a court reporter was mandatory on the statutory probate court, and as the court did not have a reporter, the error required reversal.

Interesting Note: A party should always request a record for any evidentiary hearing. When no reporter’s record is filed, a court of appeals must assume the evidence supports the trial court’s ruling and summarily affirm. Bryant v. United Shortline Inc. Assurance Servs., 972 S.W.2d 26, 31 (Tex. 1998). So, if a party wants to challenge a trial court’s ruling or judgment based on evidentiary complaints, it must present a record of the evidence to the court of appeals. This is why the Malone opinion is so important. If a statutory probate court could deny a party the right to a record, even when requested, then the court would effectively eviscerate any right of appellate review. A judge may like that, but it is not fair and not due process.

Further, a party wanting to challenge the trial court’s ruling on an evidentiary matter should also request findings of fact and conclusions of law. When no findings of fact and conclusions of law are filed, a court of appeals must presume the trial court made all the necessary findings to support its judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). This may seem a little counter-intuitive: why would a losing party want the trial court to explain why the party lost? I have had many attorneys (even smart ones) make this exact point. But, if the trial court does not enter findings, the appellate court will presume that the losing party lost on all issues of fact. So, express findings cannot make it any worse and likely will assist the losing party in some respect. It should be mentioned that a party has a right to findings and conclusions after a bench trial if the party properly preserves that right, which can be a little tricky. A party does not have a right to findings and conclusions after an interlocutory order, but a trial court can enter findings and conclusions after such an order and often does when requested. So, a party who wants to challenge an interlocutory order should also request findings and conclusions.

Tags: conclusions of law, court's duty to provide a record, findings and conclusions, findings of fact, missing record, presumption when record is missing, record, right to a record, statutory probate court, statutory probate court's duty to provide a record
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Photo of David Fowler Johnson David Fowler Johnson

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law Review, St. Mary’s Law Journal, South Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law
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