I know this sounds basic, but it’s a good reminder: If your appellate argument depends on what happened at trial, and you don’t provide the necessary record, you’re going to lose. That was the practical result in The Tahar Group, LLC v. Palomar Investment Group, LLC, an August 27, 2026 decision from the Fourteenth Court of Appeals, applying one of appellate procedure’s most elementary rules.
After a jury trial over a construction contract, the appellant argued that the clerk’s record established that the other party breached first. It also challenged the exclusion of deposition testimony and contended that the jury’s six-figure damages award lacked evidentiary support and didn’t conform to the pleadings. According to the appellant, the court could resolve those issues from the pleadings, documents, jury charge, and other materials in the clerk’s record.
In an opinion by Justice McLaughlin (joined by Justices Jewell and Antú), the court disagreed. Not because it rejected the substance of the arguments, but because the missing reporter’s record prevented the court from evaluating them.
Why? Documents appearing in the clerk’s record weren’t necessarily admitted at trial. And the clerk’s record didn’t contain the witness testimony the jury heard and weighed. Without knowing what evidence was actually presented, the court couldn’t decide whether the verdict lacked evidentiary support. It instead had to presume that the trial proceedings supported the judgment.
The same problem defeated the evidentiary challenge. Without a reporter’s record, the court couldn’t determine exactly what the trial court ruled, whether the disputed testimony came in through another route, whether the appellant preserved its complaint through an offer of proof, or whether any error was harmful.
Even the argument that the damages award didn’t conform to the pleadings required the missing record. An unpleaded issue can be tried by consent, and deciding whether that happened requires examining the evidence presented and the objections made at trial.
The opinion is useful precisely because the lesson isn’t complicated. Appellate lawyers spend a great deal of time refining standards of review, identifying charge error, and framing legal questions. Of course, all of that matters. But before an appellate court can decide whether an argument has merit, it must have a record that allows it to reach the argument in the first place.
Practical Takeaways
- Identify the portions of the record each appellate issue will require before briefing begins.
- Match each proposed issue to the specific clerk’s record and reporter’s record materials needed to support it.
- If the appeal challenges evidentiary sufficiency, an evidentiary ruling, preservation, or harm, the reporter’s record will ordinarily be indispensable.
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