Robert Cole v. Gwendolyn Parker, Inc., CRF
05-13-01655-CV
| Tex. App. | Aug 4, 2015Background
- Gwendolyn Parker, Inc. (GPI), a court reporting firm, contracted (orally through owner Parker) with attorney Robert R. Cole to provide expedited transcripts for two depositions in a 2006 underlying suit; GPI subcontracted the actual reporting to certified reporters and billed Cole $4,626.90.
- Cole’s client attempted a partial $500 payment which was dishonored; GPI demanded payment and sued in justice court; judgment for Cole in justice court was appealed to county court where a de novo bench trial was held.
- At trial GPI presented testimony that Parker arranged and billed for the services, subcontractors performed and were paid, and Cole asked the first question at both depositions; Cole admitted transcript errors but did not file procedural challenges to the transcripts and presented no written contract or proof that payment responsibility had been placed on the record.
- The trial court entered judgment for GPI: $4,626.90 (compensatory), $1,862.71 (pre-judgment interest), $3,150 (attorney’s fees), and costs; Cole did not request findings or a new trial and appealed.
- On appeal Cole argued (1) only individual court reporters (not firms) may recover under Gov’t Code §52.059; (2) the transcripts contained errors amounting to failure of consideration and caused a diminished settlement for his client; and (3) he was entitled to damages as a counterclaim for the alleged transcript errors.
Issues
| Issue | Plaintiff's Argument (GPI) | Defendant's Argument (Cole) | Held |
|---|---|---|---|
| Whether a court reporting firm may recover court-reporting charges or only individual reporters may sue under §52.059 | GPI: statute imposes liability on attorney for reporter charges but does not bar firms from contracting and suing for services | Cole: §52.059 permits only individual court reporters to recover; firm lacks standing | Court: Firm may recover; §52.059 does not invalidate contracts with firms and creates independent statutory liability on attorney when he asks first question or fails to state non-liability on record — judgment for GPI affirmed |
| Whether transcript errors constitute failure of consideration preventing GPI’s recovery | GPI: performed contract and billed; transcript errors do not negate performance or payment obligation | Cole: transcription errors diminished settlement value; thus consideration failed | Court: Cole waived affirmative defense of failure of consideration by not pleading it; issue rejected |
| Whether Cole proved entitlement to damages as counterclaimant for transcript errors | GPI: no counterclaim by Cole was before the court | Cole: errors caused reduced settlement and he should recover damages | Court: No counterclaim/pleading in record; relief cannot be awarded absent pleading — issue rejected |
| Whether procedural remedies were required to preserve transcript objections | GPI: Cole did not timely object or use rule-based remedies | Cole: argued substance of errors affected settlement (did not use Rule 203.5) | Court: Noted Cole did not file motion to suppress or otherwise preserve objections; his failure undermines his contentions |
Key Cases Cited
- Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80 (Tex. 1992) (judgment implies necessary fact findings when none are requested)
- Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) (review limited to evidence favorable to implied findings)
- Weisfeld v. Tex. Land Fin. Co., 162 S.W.3d 379 (Tex. App.—Dallas 2005) (judgment may be upheld on any legal theory supported by pleadings and evidence)
- Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876 (Tex. App.—Dallas 2007) (elements of breach of contract claim)
- Leland v. Brandal, 257 S.W.3d 204 (Tex. 2008) (statutory construction follows plain language)
- Dallas County v. Crestview Corners Car Wash, 370 S.W.3d 25 (Tex. App.—Dallas 2012) (chapter 52 governs court reporters and firms; §52.059 creates attorney liability)
- Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659 (Tex. 1996) (standing requires a real justiciable controversy)
- Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) (judicial review of statutes and legislative intent)
- Austin Nursing Ctr. v. Lovato, 171 S.W.3d 845 (Tex. 2005) (standing challenge can be raised on appeal)
- Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844 (Tex. App.—Dallas 2005) (party asserting affirmative defense bears pleading and proof burden)
- Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex. 1983) (judgment must conform to pleadings)
- DeGroot v. DeGroot, 369 S.W.3d 918 (Tex. App.—Dallas 2012) (no relief without supporting pleading)