Bio Landscape & Maintenance, Inc. v. Sallie Morse and Sid A. Morse, Jr. ( 2008 )

Opinion issued November 13, 2008

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-07-00410-CV

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BIO LANDSCAPE & MAINTENANCE, INC., Appellant

V.

SALLE MORSE, Appellee

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On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 2005-77992

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MEMORANDUM OPINION ON REHEARING  

We grant appellant's motion for rehearing. See Tex. R. App. P. 49.3. We withdraw our July 31, 2008 opinion, substitute this opinion in its place, and vacate our July 31, 2008 judgment.

Appellant, Bio Landscape & Maintenance, Inc. ("Bio"), challenges the trial court's judgment entered in favor of appellee, Salle Morse, and Sid Morse, in the Morses' suit against Bio for breach of contract. In its sole issue, Bio contends that the trial court erred in allowing an undisclosed witness to testify.

We affirm.

Procedural Background

After the trial court found that Bio had breached its contract with Salle Morse, it awarded him $41,092.20 for actual damages, prejudgment interest, and attorney's fees. After Bio filed its notice of appeal, it decided to pursue a limited appeal by only requesting a partial reporter's record of the testimony of the undisclosed witness, Lee Pamuk. See Tex. R. App. P. 34.6.

Partial Reporter's Record

Bio argues that the trial court erred in permitting Lee Pamuk, "an undisclosed witness," to testify at trial because his testimony "was inadmissible and its admission probably caused the rendition of an improper judgment."

As a preliminary matter, the Morses assert that, although Bio has attempted to present a limited appeal using a partial reporter's record, Bio's failure to request that the official court reporter prepare a partial reporter's record and include in any such request a statement of the points or issues for this Court to consider on appeal and include this request in the clerk's record is fatal to Bio's appeal.

An appellant must request, in writing, that the official court reporter prepare the reporter's record. Tex. R. App. P. 34.6(b)(1). Also, the appellant must file a copy of this request with the trial court clerk. Tex. R. App. P. 34.6(b)(2). If the appellant requests a partial reporter's record for a limited appeal, the appellant must include in the request a statement of the points or issues to be presented on appeal, and the appellant will then be limited to those points or issues on appeal. Tex. R. App. P. 34.6(c)(1).

It is presumed that a 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). However, if the appellant entirely fails to file a statement of points or issues, he is not entitled to the presumption that the record is complete for appellate review purposes, and, instead, an appellate court presumes that the material missing from the reporter's record actually supports the trial court's judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229-30 (Tex. 2002) (per curiam); Davis v. Kaufman County, 195 S.W.3d 847, 851 (Tex. App.--Dallas 2006, no pet.).

Here, the clerk's record does not include a request for a partial reporter's record with a statement of the points or issues on appeal. See Tex. R. App. P. 34.6(b), (c)(1). Although the supreme court cautioned in Bennett that "appellate rules are designed to further the resolution of appeals on the merits," the supreme court also stated that "litigants who ignore our rules do so at the risk of forfeiting appellate relief." 96 S.W.3d at 230. In fact, the supreme court specifically stated in Bennett that "[t]here is no question that, had [the litigant] completely failed to submit his statement of points or issues, Rule 34.6 would require the appellate court to affirm the trial court's judgment." Id. at 229 (citing Tex. R. App. P. 34.6).

Bio did not file a request for a partial reporter's record in the trial court and, thus, necessarily "completely failed to submit [its] statement of points or issues." See id. Because Bio "failed to follow the requirements for [R]ule 34.6[]," we must presume "that the omitted portions of the record support the trial court's judgment." Davis, 195 S.W.3d at 851; see also In re A.W.P., 200 S.W.3d 242, 245 (Tex. App.--Dallas 2006, no pet.) (concluding that when clerk's record did not include request to court reporter showing statement of points or issues relied upon, court assumed that missing portions of record supported judgment); Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (stating that, because appellant appealed with partial reporter's record but did not designate points or issues relied upon for appeal, court must presume that omitted portions of reporter's record are relevant to disposition of appeal). Accordingly, applying the presumption that the omitted portions of the reporter's record support the trial court's judgment, we cannot conclude that the trial court erred in admitting Pamuk's testimony.

We overrule Bio's sole issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.