The City of Waco v. Armando Fuentes, III--Appeal from 414th District Court of McLennan County (majority)

IN THE

TENTH COURT OF APPEALS

No. 10-09-00126-CV

The City of Waco,

                                                                                    Appellant

 v.

Armando Fuentes, III,

                                                                                    Appellee

From the 414th District Court

McLennan County, Texas

Trial Court No. 2003-875-3

ORDER

The City has filed a motion for rehearing in this matter taking issue with our determination that the record was insufficient to resolve whether the trial court abused its discretion in denying the City's motion to strike based on an argument that Dr. Michael Riggs was not qualified to offer opinion testimony that the underlying accident caused Fuentes's injury.  We determined that it was unclear from the record on appeal what the trial court reviewed to determine Riggs's qualifications.  Because the record was unclear, we could not say that the trial court abused its discretion.

            By its motion for rehearing, the City has provided us with clarification to only one question we had, that is, whether the trial court reviewed the exhibits attached to the deposition which included Riggs's curriculum vitae.  The City pointed out to us that counsel for Fuentes stated at the hearing that he did not have the exhibits.  No additional clarification of what the trial court reviewed has been provided by the City. 

The City suggests in its motion for rehearing that what is in the record is what was reviewed.  It further suggests that we must limit our review to what the trial court stated in its order was reviewed, that is, the motion to strike, evidence attached to the motion, and the argument of counsel.  The cases cited by the City for this proposition do not make this limitation.  In those cases, the appellate court looked to the order to determine what the trial court reviewed to determine a summary judgment motion because there was no hearing on the motion itself.  See DMC Valley Ranch, L.L.C. v. HPSC, Inc., 315 S.W.3d 898, 903 (Tex. App.Dallas 2010, no pet.); Saldana v. City of Brownsville, No. 13-02-00705-CV, 2004 Tex. App. LEXIS 8003, *9-11 (Tex. App.Corpus Christi, Aug. 31, 2004, no pet.) (mem. op).  Here, a hearing was held on the motion to strike and a record of that hearing was made.  Accordingly, our review is not limited by the documents listed in the trial court's order. 

However, as we noted in our opinion, after reviewing the hearing on the motion to strike, it was unclear as to what, specifically, the trial court reviewed in making its ruling on the City's motion to strike.  It appears from the record that the trial court may have been given a copy of Riggs's entire deposition.  It also appears that the trial court may have been given a highlighted copy of excerpts of the deposition as well as handwritten objections by the City.[1]  None of the documents referenced at the hearing were admitted into evidence for the purpose of the hearing.[2]  The City contends that the case we rely on in our original opinion for the proposition that an appellant cannot prevail in any evidentiary challenge without first meeting his burden of presenting a sufficient record on appeal is not factually on point.  See Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.Houston [1st Dist.] 2007, no pet.).  We believe, however, it also supports the proposition that an appellant cannot prevail when documents necessary for review are not admitted into evidence.  Cf. Diaz v. Ellis County, No. 10-09-00327-CV, 2010 Tex. App. LEXIS 8666 (Tex. App.Waco Oct. 27, 2010) (mem. op.) (record is insufficient where appellant failed to request the court reporter to record proceedings involving the discussion of jury instructions); Dodd v. State, No. 06-03-00060-CR, 2004 Tex. App. LEXIS 170 (Tex. App.Texarkana Jan. 8, 2004, pet. dism'd, improvidently granted, No. PD-0453-04, June 25, 2005) (mem. op.) (record insufficient where documents were not introduced or admitted into evidence).

 It is unclear from this record what documents the trial court reviewed in making its determination because the documents presented to the trial court, whatever they were, were not admitted into evidence.  We, therefore, continue to believe that the record is insufficient to hold that the trial court abused its discretion in denying the City's motion to strike.

For the reasons expressed in this order and in our original opinion, the City of Waco's Motion for Rehearing is denied.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Davis, and

            Judge Littlejohn[3]

Motion denied

Order issued and filed April 20, 2011

[1] The City states that these objections are not necessary to the disposition of the issue.  But because these objections are not in the record, we cannot make that determination. 

[2] Thus, the reporter had nothing to include as exhibits in the reporter's record.  See Tex. R. App. P. 34.6; Dodd v. State, No. 06-03-00060-CR, 2004 Tex. App. LEXIS 170 (Tex. App.Texarkana Jan. 8, 2004, pet. dism'd, improvidently granted, No. PD-0453-04, June 25, 2005) (mem. op.).

[3] The Honorable Janet P. Littlejohn, Judge of the 150th District Court of Bexar County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code.  See Tex. Gov't Code Ann. § 74.003(h) (West 2005).