Summary
holding that appellant failed to comply with rule 34.6(c) when request to court reporter said that "[w]e want only specific portions of the record to be transcribed. We would like only those portions regarding the submission to the jury of the issue of the negligence of [one of two defendants] and Plaintiff's objections to that submission to be transcribed," and after noting that the request sought "part of the record but [did] not state the issue on appeal," applying the missing-record presumption and affirming trial-court judgment
Summary of this case from Stonegate Fin. Corp. v. Broughton Maint. Ass'n, Inc.Opinion
No. 05-01-01896-CV.
Opinion filed January 8, 2003.
Appeal from the 192nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. DV98-00888-K
AFFIRMED.
MEMORANDUM OPINION
In this medical malpractice case, Mark and Laurie Munden bring a single issue challenging the trial court's submission of the negligence question. Because we conclude that the Mundens failed to show that any error in the submission was reversible, we resolve the Mundens' issue against them and affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Mundens alleged that, in September 1995, Mark was injured when another driver ran a red light and hit broadside the vehicle Mark was driving. Mark was diagnosed with a herniated disc as a result and sought medical treatment for his injury from the medical entities named as defendants. The Mundens alleged that Kenneth L. Reed, M.D., negligently injected Mark with steroids, which damaged his nervous system. The Mundens sued Reed and the other medical entities, alleging that their negligent acts caused Mark's damages. The Mundens also alleged that Laurie suffered damages as a result of Mark's injuries. In their third amended answer, Reed and North Texas Pain Management, P.A. pleaded that the Mundens' damages were solely caused by the acts of others, including the driver of the other automobile involved in the accident, who was not a party to the suit.
The Mundens' case was tried to a jury. At trial, the other driver was identified as Donald Paul Nuss. Question No. 1 of the jury charge submitted the negligence of Nuss and Reed. "Negligence," "ordinary care," and "proximate cause" were defined with respect to each. The jury found that neither Nuss's nor Reed's negligence proximately caused the occurrence in question. The court entered a take-nothing judgment in the medical entities' favor. The Mundens appealed.
Did the negligence, if any, of those named below, proximately cause the occurrence in question?
Answer "Yes" or "No" for each of the following:
Donald Paul Nuss
/ No/
Kenneth. L. Reed
/ No/
In their single issue, the Mundens contend that the trial court committed error by submitting the question of Nuss's negligence and the error caused rendition of an improper judgment.
APPLICABLE LAW
Error is reversible if it probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the court of appeals. Tex.R.App.P. 44.1(a). To determine whether an alleged error in the jury charge is reversible, we must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986). Submission of an improper jury question can be harmless error if the jury's answers to other questions render the improper question immaterial. City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995). A jury question is considered immaterial when its answer can be found elsewhere in the verdict or when its answer cannot alter the effect of the verdict. Id. Submission of an immaterial issue is not harmful error unless the submission confused or misled the jury. Id. When determining whether a particular question could have confused or misled the jury, we "consider its probable effect on the minds of the jury in the light of the charge as a whole." Id. (citation omitted).
DISCUSSION
Even assuming without deciding that the trial court erred in submitting Nuss in the negligence question, the Mundens cannot prevail without showing harm. Once the jury found that Reed was not negligent, neither an affirmative nor a negative answer to the question regarding Nuss's negligence could have altered the verdict, rendering the issue of Nuss's negligence immaterial. See id. Consequently, any error in the submission of Nuss's negligence was harmless, unless it confused or misled the jury.
The Mundens argue that the submission of Nuss in the negligence question confused or misled the jury because the only question the jury answered was improperly submitted. However, we cannot conclude that the inclusion of an extra person in the negligence question, when negligence, ordinary care, and proximate cause were defined as to each, was confusing or misleading. Nor do we discern how submission of two persons in one negligence question, instead of two questions, even if one person was improperly submitted, was confusing or misleading. See id. at 752-53 (holding improper submission of one party harmless when it and second party's negligence submitted in separate questions but jury answered negatively both questions as well as single percentage of responsibility question). The negligence question was not ambiguous, nor did the Mundens object to the wording of the question, other than the submission of Nuss. See id. Moreover, the percentage of responsibility question, which included Nuss in addition to Reed, was conditioned on an affirmative answer to Question No. 1, and it was not answered by the jury. Nor were the questions on Mark's and Laurie's damages, also conditioned on an affirmative answer to the negligence question, answered by the jury. Therefore, there were no logically inconsistent jury findings indicating jury confusion. See Lozano v. H.D. Indus., Inc., 953 S.W.2d 304, 319 (Tex.App.-El Paso 1997, no writ) (concluding that absence of logical inconsistencies in jury responses to questions regarding different issues and negative answers to assignment of negligence and percentage of negligence questions indicated no jury confusion). In light of the charge as a whole, we conclude that the charge itself was not confusing or misleading.
The Mundens also argue that erroneously offered evidence and the submission inserted into the case additional parties, issues, and disputed incidents that confused and misled the jury. The Mundens contend that the only evidence the jury heard regarding Nuss's negligence was a police report introduced by Reed to show how the accident happened, not Nuss's liability. Therefore, they argue, the jury was confused by distracting and irrelevant issues.
In order to address this argument, we must consider whether the Mundens complied with rule of appellate procedure 34.6(c) providing for a partial record. Rule 34.6(c) provides:
If the appellant requests a partial reporter's record, the appellant must 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). "The 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). The statement of points or issues to be presented on appeal must "designate with reasonable particularity the complaints to be pursued on appeal." Gardner v. Baker Botts, L.L.P., 6 S.W.3d 295, 296 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). Absent a specific statement, an appellee is left to guess which additional portions of the evidence should be included in the reporter's record. Id. When an appellant fails to comply with rule 34.6(c) or bring forth a complete reporter's record, we presume that the missing portions of the record contain relevant evidence and that the omitted evidence supports the trial court's judgment. Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991) (per curiam).
In their request to the court reporter, the Mundens stated:
[W]e want only specific portions of the record to be transcribed. We would like only those portions regarding the submission to the jury of the issue of the negligence of Donald Paul Nuss and Plaintiff's objections to that submission to be transcribed.
The Mundens' issue on appeal is: the trial court committed reversible error by improperly submitting the question of Nuss's negligence as Nuss was neither a claimant, defendant, settling defendant, nor a potentially responsible third party, thus precluding Reed's right to include the question of Nuss's negligence in the charge and causing the rendition of an improper judgment. The request indicating the specific portion of the reporter's record to be transcribed does not comply with rule 34.6(c)(1) because it requests part of the record but does not state the issue on appeal. See Gardner, 6 S.W.3d at 296 (general notice of intent to attack "certain jury answers" on legal and factual sufficiency grounds, without specifying jury answers appellants intended to challenge, did not satisfy rule 34.6(c)); CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439-40 (Tex.App.-Fort Worth 1999, no pet.) (general statement indicating desire to appeal portion of judgment appealed from insufficient to satisfy requirement of 34.6(c)). Without a specific statement of the issues on appeal, Reed must guess which additional portions of the record should be included in the reporter's record. See Gardner, 6 S.W.3d at 296. Thus, the objectives of rule 34.6(c)(1) are not served here. See Bennett v. Cochran, 46 Tex. Sup.Ct. J. 248, 249-50, 2002 WL 31769320, at *2-3 (Dec. 12, 2002) (per curiam).
Because the Mundens failed to submit their statement of points or issues on appeal in their request for a partial record, we cannot indulge in the presumption that the excerpt regarding objections to the charge, the only part of the reporter's record before us, constitutes the entire record for purposes of reviewing their issue on appeal. Review of the Mundens' argument regarding confusion requires us to review the entire record. See Island Recreational Dev. Corp., 710 S.W.2d at 555 (to determine whether alleged error in jury charge is reversible, appellate court must consider parties' pleadings, evidence presented at trial, and entire charge); Kwik Wash Laundries, Inc. v. McIntyre, 840 S.W.2d 739, 742 (Tex.App.-Austin 1992, no writ) (partial reporter's record does not provide sufficient record for review to determine whether refusal to submit requested instruction in charge was error). We cannot determine from the incomplete record before us whether any error in submitting Nuss's negligence was reversible because evidence at trial resulted in a submission that confused or misled the jury. Therefore, because we presume the omitted portions of the reporter's record support the trial court's judgment, we reject the Mundens' argument that the evidence at trial confused or misled the jury as to Nuss's involvement in this case as a non-party. See Bennett, 46 Tex. Sup.Ct. J. at 249, 2002 WL 31769320, at *3.
CONCLUSION
Because we have concluded that neither an affirmative nor a negative answer to the objected-to submission could have altered the affect of the verdict, the charge itself is not misleading or confusing, and the record on appeal is insufficient to show whether evidence at trial of a non-party's involvement resulted in a submission that confused or misled the jury, we conclude that the Mundens failed to show that any error in the jury charge was reversible. Therefore, we resolve the Mundens' issue against them and affirm the trial court's judgment.