CROWN ASSET MANAGEMENT, L.L.C., Appellant v. BLANCA CASTRO, Appellee

AFFIRM and Opinion Filed August 11, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01305-CV
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CROWN ASSET MANAGEMENT, L.L.C., Appellant
V.
BLANCA CASTRO, Appellee
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On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. cc-07-00995-A
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MEMORANDUM OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Wright
        Crown Asset Management, L.L.C. appeals the trial court's order dismissing its case for failure to prosecute. In two issues, Crown contends the trial court abused its discretion by denying its request for default judgment and by dismissing this case. We affirm the trial court's dismissal order. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled.
        We begin by addressing the appellate record in this case. In support of its argument, Crown relies on several documents attached as an appendix to its brief. Specifically, those documents include (1) the citation and proof of service; (2) a February 12, 2007 dismissal notice to Crown from the trial court; and (3) a March 8, 2007 letter from Crown to the trial court requesting a default judgment and attaching, among other documents, the certificate of last known mailing address and Service Members Civil Relief Act Affidavit. These documents, however, are not contained in the appellate record nor is there anything in the record to show appellant requested these documents be included in the record. See Tex. R. App. P. 34.5(b) (explaining appellant's burden to request items other than those required by rule).
        Additionally, the docket sheet and other documents contained in our clerk's record indicate several other documents are missing from the appellate record and were not requested by Crown. Specifically, the clerk's record shows that after the February dismissal notice was sent to Crown, Crown filed at least one motion to retain the case which is not contained in the appellate record. The record does contain a June 8, 2007 order granting Crown's motion to retain, retaining the case for an additional thirty days, and ordering a conditional dismissal. The order mandated an appearance on July 13, 2007, and ordered the case to be dismissed unless (1) Crown filed proof of service and Castro filed an answer, or (2) Crown obtained a default judgment. However, the case was not dismissed on July 13th. The docket sheet contains a notation showing that on July 13th, the case was retained for an additional 30 days and was reset for dismissal on August 24, 2007. The record does not contain a motion for retention, an order retaining the case, or a copy of the letter noted on the docket sheet that was sent to Crown on July 13, 2007 regarding the August 24th dismissal. The docket sheet notation on August 24th suggests Crown failed to appear and the case was to be dismissed for want of prosecution. On August 27, 2008 the trial court signed an order dismissing the case for failure to prosecute.
        The law is clear that documents provided in an appendix to a brief and not contained in the record are not properly before this court. Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001); WorldPeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451, 465 n. 23 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). Further, the law is clear that the burden to timely prepare, file, and certify the clerk's record lies with the trial court clerk. See Tex. R. App. P. 35.3(a). The trial court and this Court are jointly responsible for ensuring that the appellate record is timely filed. See Tex. R. App. P. 35.3(c). However, an appellant must properly request and pay, or make arrangements to pay, for the record before any duty arises. Id.; Aguero v. Aguero, 225 S.W.3d 236, 237 (Tex. App.-El Paso 2006, no pet.). And, although the appellate rules require the clerk to include certain documents in the clerk's record, the appellant bears the burden to supply this Court with a complete record demonstrating the trial court abused its discretion. See Tex. R. App. P. 34.5(b); Watkins v. Jones, 192 S.W.3d 672, 674 (Tex. App.-Corpus Christi 2006, orig. proceeding [mand. pending]); Univ. of Tex. at Austin v. Hinton, 822 S.W.2d 197, 202 (Tex. App.-Austin 1991, no writ) (citing Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990)).
        If, as here, the appellant fails to do so and raises an issue on appeal which involves matters omitted from the record, its actions prevent us from adequately addressing the dispute. See Watkins, 192 S.W.2d at 674; Hinton, 822 S.W.2d at 202. When documents necessary to determine the issue on appeal are not included in the record, we must presume the missing documents support the trial court's ruling. See Watkins, 192 S.W.2d at 674 (appellant's failure to include amended report in clerk's record required appellate court to presume amended report supported trial court's refusal to grant motion to dismiss); Hinton, 822 S.W.2d at 202 (appellants' failure to include interrogatories and answers in record required appellate court to presume trial court did not abuse discretion by excluding expert testimony on basis of appellants' failure to supplement answers as required); see also Aguero, 225 S.W.3d at 237 (failure to include reporter's record of evidentiary hearing required appellate court to presume evidence admitted at hearing supported trial court's ruling). Because the record in this case does not include documents (most notably Crown's request for default judgment and the final dismissal notice) that are necessary for a determination of whether the trial court abused its discretion by denying Crown's motion for default judgment or by dismissing the case for failure to prosecute, we must presume these missing documents support the trial court's rulings. We overrule appellant's issues.
        Accordingly, we affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
071305F.P05