Maria Williams v. Robert Lavell Gage--Appeal from 369th District Court of Anderson County

NO. 12-03-00023-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

MARIA WILLIAMS,

 
APPEAL FROM THE 369TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

ROBERT LAVELL GAGE,

APPELLEE

 
ANDERSON COUNTY, TEXASMEMORANDUM OPINION

Appellant Maria Williams ("Williams") appeals the trial court's judgment that she take nothing in her suit against Appellee Robert Lavell Gage ("Gage"). In her sole issue on appeal, Williams challenges the factual sufficiency of the evidence. We affirm.

 

Background

On or about June 25, 1999, Williams was driving her employer's vehicle in Palestine, Anderson County, Texas, when she was hit from behind by Gage's vehicle. Williams filed suit against Gage alleging that he was operating his vehicle negligently. On July 1, 2002, a jury trial began and, at the close of evidence and after Gage rested, the court granted Williams's motion for partial directed verdict. In granting the motion, the court found that Gage's negligence proximately caused the occurrence in question. The jury's sole issue was Williams's damages for her injuries resulting from the occurrence. On July 2, 2002, the jury returned with a unanimous verdict of zero dollars in damages, and the trial court entered a take-nothing judgment. This appeal followed.

 

Compliance with Texas Rules of Appellate Procedure

Williams argues that the take-nothing judgment is against the great weight and preponderance of the evidence and manifestly unjust. Gage contends that Williams failed to comply with the requisites of Texas Rule of Appellate Procedure 34.6(c)(1), requiring this court to affirm the trial court's judgment.

An appellant must request in writing that the official reporter prepare the reporter's record, and that request must designate the exhibits and portions of the proceedings to be included in the record. Tex. R. App. P. 34.6(b)(1). A copy of this request must be filed with the trial court clerk. Tex. R. App. P. 34.6(b)(2). However, in order to minimize the expense and delay associated with the appellate process, an appellant may request a partial reporter's record. Tex. R. App. P. 34.6(c)(1); Jaramillo v. The Atchison, Topeka & Santa Fe Ry. Co., 986 S.W.2d 701, 702 (Tex. App.-Eastland 1998, no pet.). An appellant who requests a partial record must also include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues. Tex. R. App. P. 34.6(c)(1). However, it is sufficient if the statement of points or issues is filed with, rather than in, an appellant's request for a partial reporter's record. See Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991).

If an appellant complies with Rule 34.6(c)(1), an appellate court must presume that the partial reporter's record designated by the parties constitutes the entire record for purposes of reviewing the stated points or issues. Tex. R. App. P. 34.6(c)(4); see Brown v. McGuyer Homebuilders, Inc., 58 S.W.3d 172, 175 (Tex. App.-Houston [14th Dist.] 2001, pet. denied), declined to follow on other grounds, Bennett v. Cochran, 96 S.W.3d 227, 229-30 (Tex. 2002). In other words, she is entitled to the benefit of the presumption that the omitted portions of the record are not relevant to the disposition of the appeal. Brown, 58 S.W.3d at 175 (citing Tex. R. App. P. 34.6(c)(4)); Jaramillo, 986 S.W.2d at 702. This presumption applies even if the statement includes a point or issue complaining of the legal or factual sufficiency of the evidence to support a specific factual finding identified in that point or issue. Tex. R. App. P. 34.6(c)(4); Bennett, 96 S.W.3d at 228. However, when an appellant appeals with a partial reporter's record but does not provide the list of points or issues required by Rule 34.6(c)(1), the presumption arises that the omitted portions support the trial court's findings. Jaramillo, 986 S.W.2d at 702; Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Moreover, if an appellant completely fails to submit her statement of points or issues, an appellate court is required, pursuant to Rule 34.6, to affirm the trial court's judgment. Bennett, 96 S.W.3d at 229 (citing Richards, 969 S.W.2d at 133).

In this appeal, the reporter's record on file consists of an excerpt of Gage's deposition, and an excerpt of the trial testimony of Gage and his wife, Rebecca. However, the clerk's record contains no request for a partial reporter's record from Williams to the official reporter nor a statement of the points or issues to be presented on appeal. Because Williams did not comply with Rule 34.6(c)(1) of the Texas Rules of Appellate Procedure, we must presume that the omitted portions of the reporter's record support the trial court's take-nothing judgment. See Jaramillo, 986 S.W.2d at 702; Richards, 969 S.W.2d at 133. Therefore, pursuant to Rule 34.6, we are required to affirm the trial court's take-nothing judgment. See Bennett, 96 S.W.3d at 229 (citing Richards, 969 S.W.2d at 133).

 

Conclusion

Williams's sole issue is overruled, and the judgment of the trial court is affirmed.

 

JAMES T. WORTHEN

Chief Justice

 

Opinion delivered November 26, 2003.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

 
(PUBLISH)