Soard, John v. University of Texas Health Science Center and Mary T. Donovan Smith, as Independent for the Estate of Dr. Michael G. Donovan ( 2002 )

Affirmed and Opinion filed December 19, 2002

Affirmed and Opinion filed December 19, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01110-CV

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JOHN R. SOARD, Appellant

V.

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER and MARY T. DONOVAN SMITH, AS INDEPENDENT EXECUTRIX FOR THE ESTATE OF DR. MICHAEL G. DONOVAN, DECEASED, Appellees

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 95-59405

O P I N I O N

In this dental malpractice suit, appellant John R. Soard, pro se, appeals from a take nothing judgment rendered on (1) an instructed verdict in favor of appellee University of Texas Health Science Center (UTHSC) and (2) a jury verdict in favor of appellee Mary T. Donovan Smith, Independent Executrix for the Estate of Dr. Michael G. Donovan, deceased. We affirm.

PROCEDURAL BACKGROUND

The law suit.  In 1995, Soard sued UTHSC, Dr. Michael G. Donovan, and two other dentists for dental malpractice.  In 2001, after a series of rulings related to proposed expert witnesses, the case proceeded to jury trial, with UTHSC and the independent executrix as the only remaining defendants.  At the close of evidence, the trial court instructed a verdict that Soard take nothing on all causes of action against UTHSC.  The court submitted the question of Donovan=s negligence to the jury, which found no negligence.  On October 30, 2001, the court rendered a take nothing judgment in favor of UTHSC and Donovan.

The appellate record.  On November 19, 2001, Soard filed a pro se notice of appeal.  On March 19, 2002, the clerk of this court notified Soard, by letter, that if he failed to provide a reporter=s record, we would consider and decide only those issues or points that do not require a reporter=s record.^[1]  Soard replied on March 26, 2002, stating he had not made arrangements for the reporter=s record.  This court then ordered Soard to file a brief on or before May 27, 2002, or face dismissal of his appeal for want of prosecution.

On May 24, 2002, Soard filed a motion for new trial in this court.  He contended he was entitled to a new trial because the trial court could not locate certain documents which he had designated for inclusion in the clerk=s record.  This court denied the motion for new trial, but ordered:

The judge of the 333rd District Court shall promptly conduct a hearing pursuant to rule 34.5(e) of the Texas Rules of Appellate Procedure at which appellant and appellees shall participate.  At the hearing the trial court shall determine if the parties can agree to (1) which documents are missing, and (3) [sic] what constitutes accurate copies of the missing documents.  See Tex. R. App. P. 34.5(e).  If the parties can agree, the trial court is to see that the parties enter a written stipulation to that effect.  Id. Copies of the stipulated documents are to be delivered to the trial court clerk for inclusion in a supplemental clerk=s record.  Id.  Any such record must be filed in this Court on or before July 12, 2002.  If the parties are unable to agree about which documents are missing and/or what constitutes accurate copies of the missing documents, the trial court is ordered to determine which documents are missing and what constitutes accurate copies of the missing documents.  Id.  The trial court shall then order the documents to be included in a supplemental clerk=s record and filed in this Court on or before July 12, 2002.  Id.

Additionally, we withdraw our order of April 25, 2002, which required appellant to file his brief on or before May 27, 2002, or face dismissal.  Appellant=s brief is now ordered to be filed 30 days after the supplemental clerk=s record is filed in this Court. (Bold in original.)

On July 7, 2002, Soard submitted to the trial court the documents he wanted certified for submission to the court of appeals.  Counsel for the appellees stated he had no objection to certification of the documents, and on July 16, 2002, the trial court certified the additional documents as a supplemental clerk=s record.

DISCUSSION

In eight points of error, Soard challenges rulings excluding evidence, an order granting summary judgment, the trial court=s purported failure to consider sections of the Texas Tort Claims Act, and the trial court=s purported refusal to apply the Texas Lawyer=s Creed and Disciplinary Rules of Professional Conduct.  Finding each of his complaints either without merit or unsubstantiated by the appellate record, we affirm.

Points one through four and seven.  In points of error one through four, and seven, Soard contends the trial court erred in excluding expert testimony and denying the submission of depositions as evidence.  To obtain reversal of a judgment based upon error in the admission or exclusion of evidence, the appellant must show:  (1) the trial court did in fact commit error, and (2) the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment.  Tex. R. App. P. 44.1(a)(1); Hunt v. Baldwin, 68 S.W.3d 117, 126 (Tex. App.CHouston [14th Dist.] 2001, no pet.).  To determine whether the exclusion of evidence constitutes reversible error, we must review the entire record.  McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992).  Without a complete reporter=s record we cannot determine whether, if the trial court erred, the error was reversible.  See S.H. v. Nat=l Convenience Stores, Inc., 936 S.W.2d 406, 407B08 (Tex. App.CHouston [1st Dist.] 1996, no writ) (stating same in context of case involving partial reporter=s record in compliance with former Texas Rule of Appellate Procedure 53(d)).  Instead, we must presume the record would have shown any errors in the exclusion of the evidence were harmless.  See Brown v. McGuyer Homebuilders, Inc., 58 S.W.3d 172, 176 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (stating same in context of case involving partial reporter=s record and non-compliance with Texas Rule of Appellate Procedure 34.6(c)).

We overrule points of error one through four, and seven.

Point five.  In point of error five, Soard argues the trial court erred when it granted the Adefendants@ judgment on May 16, 2002. In the summary judgment Soard cites, the trial court granted the independent executrix=s motion and discharged her from the suit.  The trial court, however, subsequently set aside this summary judgment and ordered the suit against the independent executrix be reinstated.  Soard=s complaint regarding the earlier summary judgment is therefore moot.  See Harris County Children Protective Servs. v. Richker, 2 S.W.3d 741, 744 (Tex. App.CHouston [14th Dist.] 1999, no pet) (holding agency=s complaint directed at trial court=s initial reimbursement order moot when subsequent order did not contain reimbursement requirement and agency was entitled to sovereign immunity).

In point of error five, Soard also reiterates the evidentiary complaints raised in points of error one through four, and seven. We have overruled these points above.

We overrule point of error five.

Point six.  In point of error six, Soard appears to argue the trial court erred in instructing the verdict he take nothing on his cause of action against UTHSC and not submitting the issue to the jury.  By citing Texas Tort Claims Act sections 101.021 and 101.023, Soard implies the instructed verdict was based on a claim of sovereign immunity.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 1997) & 101.023 (Vernon Supp. 2002).  Without a reporter=s record, however, we are unable to determine the basis of the instructed verdict.  Instead, we must presume the record supports the trial court=s decision to instruct a verdict in favor of UTHSC.  See Brown, 58 S.W.3d at 176 (stating same in context of case involving partial reporter=s record and non-compliance with Texas Rule of Appellate Procedure 34.6(c)); see also See Hicks v. Western Funding, Inc., 809 S.W.2d 787, 788 (Tex. App.CHouston [1st Dist.] 1991, writ denied) (presuming facts against appellant in appeal from directed verdict with no statement of facts).

We overrule point of error six.

Point eight.  In point of error eight, Soard contends the trial court erred in Arefusing to equally apply@ the Texas Lawyer=s Creed and Texas Disciplinary Rules of Professional Conduct 3.03 and 3.03.  In this point, Soard complains the trial court permitted the defendants= attorneys to schedule too many hearings and to submit false documents.  Soard, however, provides no record substantiating these allegations and no record indicating he presented the allegations to the trial court.  See Tex. R. App. P. 33.1(a) (regarding preservation of appellate complaints).

We overrule point of error eight.

We affirm the judgment of the trial court.

/s/        Joe L. Draughn

Justice

Judgment rendered and Opinion filed December 19, 2002.

Panel consists of Justices Yates, Frost, and Draughn.^[2]

Do Not Publish C Tex. R. App. P. 47.3(b).

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^[1]  See Tex. R. App. P. 37.3(c).

^[2]  Senior Justice Joe L. Draughn participating by assignment.