Stephen Kennedy v. Richard Sciaraffa, Sr. ( 2011 )

MEMORANDUM OPINION
No. 04-10-00782-CV
Stephen KENNEDY,
Appellant
v.
Richard SCIARAFFA, Sr.,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-11973
The Honorable Renée F. McElhaney, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: December 7, 2011
AFFIRMED
This appeal arises from a take-nothing judgment in favor of appellee. The underlying
lawsuit began when Herbert Polinard, Jr. sued appellee, Richard Sciaraffa, Sr. (“Sciaraffa”), and
his son, Richard Sciaraffa, Jr. Appellant, Stephen Kennedy, intervened, asserting claims against
Sciaraffa. The trial court severed Kennedy’s claims against Sciaraffa from Polinard’s claims
against Sciaraffa and his son. After a jury trial, the trial court rendered a take-nothing judgment
against Kennedy in favor of Sciaraffa. Kennedy now appeals. We affirm.
04-10-00782-CV
DENIAL OF PARTNERSHIP AGREEMENT
The history of the dispute between the various parties is not relevant to our disposition of
the appeal; therefore, we note only that the dispute arose over an alleged contract as described in
the question to the jury, which asked whether a partnership existed between Sciaraffa, Polinard,
and Kennedy “for development of property in the Tobin Hills and Monte Vista neighborhoods of
San Antonio.” The jury replied “no.” In his first issue, Kennedy complains that although
Sciaraffa denied the existence of a partnership, Sciaraffa failed to file a pleading, verified by his
affidavit, denying the partnership.
Unless the truth of the matter appears of record, a pleading setting up the denial of a
partnership as alleged in any pleading as to any party to the suit shall be verified by affidavit.
TEX. R. CIV. P. 93(5). Kennedy contends that because Sciaraffa did not comply with Rule 93(5),
the existence of the partnership is deemed admitted. See Sims v. Hill, 567 S.W.2d 912, 913 (Tex.
Civ. App.—Houston [14th Dist.] 1978, no writ) (holding failure to deny partnership status by
verified denial results in admission of partnership’s existence that cannot be controverted at
trial.). Kennedy also contends that after the severance, Sciaraffa filed a verification signed by
Sciaraffa’s attorney. Kennedy asserts this verification is improper because Sciaraffa’s attorney
had no personal knowledge of the facts.
We cannot consider whether a trial court has erred or whether a party has been prejudiced
by any error unless the record relating to the alleged error is before us. Foust v. Estate of
Walters, 21 S.W.3d 495, 504 (Tex. App.—San Antonio 2000, pet. denied). The verification
allegedly filed by Sciaraffa’s attorney is not contained in the record on appeal. Nor does the
clerk’s record on appeal contain a copy of Kennedy’s petition or any answer filed by Sciaraffa.
Kennedy notes in his appellate brief that the appellate record does not contain pleadings filed
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04-10-00782-CV
before the severance, but the Texas Rules of Appellate Procedure allow for supplementation of
the record if “a relevant item has been omitted from the clerk’s record . . . .” See TEX. R. APP. P.
34.5(c)(1),(3). Based on this incomplete record, we cannot consider the merits of Kennedy’s
complaint.
EVIDENCE OF PRIOR SUMMARY JUDGMENT
At trial, Sciaraffa testified about the still-pending lawsuit between himself and Polinard.
One of the causes of action in that suit also involved the existence of an alleged partnership.
When Sciaraffa was asked whether the trial court “granted [him] summary judgment on that
cause of action,” Kennedy objected on the grounds that the summary judgment was “procedural,
not on the merits” and the summary judgment was not yet final. The objection was overruled
and Sciaraffa replied affirmatively. On appeal, Kennedy asserts the trial court erred in allowing
Sciaraffa to present evidence that the trial court granted Sciaraffa’s motion for summary
judgment in the other lawsuit because, according to Kennedy, the summary judgment was not
final at the time of Kennedy’s lawsuit against Sciaraffa.
Again the record on appeal does not contain any pleadings or court orders supporting
Kennedy’s contention. Further, even if the trial court erred in allowing testimony that summary
judgment was rendered in the Polinard versus Sciaraffa lawsuit, Kennedy has not shown the
“error probably caused the rendition of an improper judgment” against him. See TEX. R. APP. P.
44.1(a). The basis of Sciaraffa’s motion for summary judgment was not discussed; therefore, the
jury was not told why the motion was granted. In fact, during cross-examination, when Kennedy
tried to get Sciaraffa to admit the summary judgment was granted on procedural grounds only,
Sciaraffa’s attorney objected and stated, “[Sciaraffa] has already testified that he doesn’t know
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the basis under which that summary judgment was granted. All he knows is that it was granted.”
Accordingly, on this record, we must conclude any error was harmless.
SUFFICIENCY OF THE EVIDENCE
In his final issue on appeal, Kennedy asserts the evidence is legally insufficient because
no evidence was placed before the jury that a partnership did not exist between himself,
Sciaraffa, and Polinard. We disagree. Kennedy concedes no written agreement exists, but he
contends an oral “handshake” agreement did exist. As to any oral agreement, Sciaraffa testified
he does not believe in partners and he would not consider a “handshake deal” with regard to real
estate. When a party challenges the legal sufficiency of the evidence, we “must view the
evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not.” City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In conducting our review, we are mindful that the
jury is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Id. at 819. In this case, the jury apparently believed Sciaraffa that no partnership
agreement existed, and we cannot substitute our judgment for that of the jury. See id.
CONCLUSION
We overrule Kennedy’s issues on appeal and affirm the trial court’s judgment.
Sandee Bryan Marion, Justice
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