David, Robinson B. v. Kamman, Jeanne--Appeal from County Court at Law No 4 of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ROBINSON B. DAVID,

Appellant,

v.

JEANNE KAMMAN,

Appellee.

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No. 08-01-00276-CV

Appeal from the

County Court at Law No. 4

of Dallas County, Texas

(TC# CC-00-02622-D)

O P I N I O N

This is an appeal from a judgment assessing professional fees against Appellant, Robinson B. David, in a personal injury suit. For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

On March 8, 1998, Appellee, Jeanne Kamman, was involved in an automobile accident with Appellant. Appellee sued Appellant for personal injuries, including past medical expenses. Prior to the trial of the case, the trial court entered partial summary judgment in favor of Appellee on the liability issue. Thus, the only issue submitted to the jury was that of damages.

During the trial, Appellee=s treating healthcare providers, Dr. Michael J. Reed and Dr. Don West, testified about various injuries allegedly sustained by her as a result of the accident. Appellee offered the testimony of Drs. Reed and West via deposition. Appellant opted to subpoena both doctors in order to conduct their examination live at trial. Neither doctor filed any objection or motion for protection in response to the subpoenas served.

The jury determined that Appellee was not entitled to any damages as a result of the accident in question. The trial court entered judgment that Appellee take nothing, but included the following provision concerning court costs:

Costs of court are adjudged against Plaintiff, SAVING AND EXCEPTING the portion of costs represented by the professional fees charged by Drs. West and Reed incurred as a result of the trial subpoena of them issued by Defendant, which portion is adjudged against Defendant.

Appellant filed his Motion to Modify that portion of the judgment purporting to tax professional fees against him. That motion was overruled by operation of law and this appeal follows.

II. DISCUSSION

In his sole issue on appeal, Appellant challenges the trial court=s ordering in its Final Judgment that Appellant pay the professional fees of Dr. Michael Reed and Dr. Don West charged as a result of their appearance and testimony at trial. We begin with a discussion of the standard of review.

A. Abuse of Discretion Standard of Review

AA [party] who attacks the ruling of a trial court as an abuse of discretion labors under a heavy burden.@ Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). The test for abuse of discretion is not whether, in the opinion of this Court, the facts present an appropriate case for the trial court=s actions. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) cert. denied, 476 U.S. 1159 (1986); Amador v. Tan, 855 S.W.2d 131, 133 (Tex. App.--El Paso 1993, writ denied). Another way of stating the test is whether the act was arbitrary or unreasonable. Downer, 701 S.W.2d at 242 (citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984)); Amador, 855 S.W.2d at 133. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242 (citing Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965)). A mere error of judgment is not an abuse of discretion. Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989).

Appellant argues that the court erred in characterizing the professional fees charged by Drs. Reed and West as court costs and in adjudging those costs against him. Appellee argues that the trial court has the inherent power to protect a witness from undue burden or expense and thus the trial court did not err in holding Appellant responsible for paying the doctors= reasonable expenses.

The issue of the payment of the doctors= expenses was discussed several times during the trial. The first hearing was held outside the presence of the jury when Appellee=s counsel advised the court that he had received a bill for Dr. Reed=s expenses totaling $4,000. Appellee=s counsel requested that the court order Appellant to pay the bill since Appellant subpoenaed Dr. Reed.[1] Appellant=s counsel argued that because it was Appellee=s expert and because the rules do not provide for the court to assess costs against a defendant for cross-examining a witness, Appellee should be responsible for the doctor=s expenses. The court noted, A. . . the issue is framed. It=s under advisement.@

Later, prior to Dr. West=s cross-examination, he asked to speak to the judge in chambers. The discussion was off the record in the judge=s chambers.

Neither Counsel asked that the court reporter be present in chambers, thus we have no record of the discussion. At the conclusion of Dr. West=s testimony before the lunch break, the following exchange occurred:

Counsel for Appellee: We=ll advise you. I=ll let you know what his ruling is when he makes it.

The Court: Right. Send the bill to whoever you think and I=ll make a ruling and they can --

Dr. West: I=ll send it to both of them.

The Court: All right. That=s up to you, Doctor.

Counsel for Appellant: Smart man.

When the Appellant has failed to request a reporter=s record of the hearing or, as here, has failed to request the court reporter=s presence during the discussion in chambers, and we therefore have no record before us, the record is presumed to support the trial court=s ruling. See, e.g., Bryant v. United Shortline Inc. Assurance Servs., 972 S.W.2d 26, 31 (Tex. 1998); see Piotrowski v. Minns, 873 S.W.2d 368, 370-71 (Tex. 1993) (AA litigant who fails to request that the reporter record pretrial proceedings risks waiver of any complaint with respect to error occurring during those proceedings.@); Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987) (Appellant=s failure to request reporter at hearing on motion for new trial created presumption of sufficient evidence). We indulge every presumption in favor of the trial court=s findings in the absence of a statement of facts. Bryant v. United Shortline Inc. Assur. Services, N.A., 972 S.W.2d 26, 31 (Tex. 1998). Absent a record showing an abuse of discretion, we must presume that the evidence before the trial court was adequate to support its decision.[2] Simon, 739 S.W.2d at 795; see also Tex. R. App. P. 34.6(b)(1) and 35.3(b). Accordingly, we overrule Appellant=s sole issue and affirm the judgment of the trial court.

August 29, 2002

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

[1] We note that Appellee took advantage of both doctors= presence and conducted redirect examinations.

[2] We note that Rule 176.6(f) provides that with regard to trial subpoenas, the person commanded to attend Amay object or move for protective order at the time and place specified for compliance.@ Tex. R. Civ. P. 176.6(f). Without a reporter=s record to the contrary, we presume this is what Dr. West did while in chambers. Thus the trialcourt=s ruling was supported by the record and we cannot conclude the trial court abused its discretion.