Opinion
No. 14-03-00103-CV
Memorandum Opinion Filed March 24, 2005.
On Appeal from the County Civil Court at Law Number 1, Harris County, Texas, Trial Court Cause No. 750,292.
Affirmed.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
MEMORANDUM OPINION
This case highlights the unfortunate consequences of appealing a case on a partial reporter's record without complying with Texas Rule of Appellate Procedure 34.6(c). Because appellants did not request a partial reporter's record under this rule, and because we do not have a record of the closing arguments at trial, we must presume that the omitted portion of the record is both relevant to the disposition of this appeal and that it supports the trial court's judgment. Because we are unable to conduct a harm analysis without a record of the closing arguments, we affirm the trial court's judgment.
I. BACKGROUND
Appellees/plaintiffs Cindy and Ricky Wilhelm filed suit against appellants/defendants W F Transportation, Inc., Edward H. Wilhelm, Sr., and Margaret Wilhelm (hereinafter collectively referred to as "Edward and Margaret"), and the case was tried to a jury. Based on the jury's unanimous verdict, the trial court signed a judgment in favor of Cindy and Ricky and against Edward and Margaret in the amount of $33,773.39, plus attorney's fees, postjudgment interest, and costs.
II. ISSUES PRESENTED
Edward and Margaret present the following issues for appellate review:
(1) Did the trial court err by submitting jury questions 1-5 because they are allegedly ambiguous?
(2) Did the trial court err by submitting jury questions 1-5 because they allegedly assume appellants are jointly and severally liable for one another's actions?
(3) Did the trial court err in rendering judgment against the individual defendants because there was no jury question regarding their liability?
(4) Did the trial court err in rendering judgment because the judgment does not conform to the jury's verdict given that there was no liability question submitted for any of the appellants?
(5) Did the trial court err in awarding judgment against Edward and Margaret because Cindy and Ricky did not plead alter ego?
(6) Did the trial court err in rendering judgment against the individual defendants because its judgment violates article 2.21 of the Texas Business Corporation Act?
(7) Did the trial court err by awarding punitive damages because Cindy and Ricky recovered no actual tort damages?
(8) Did the trial court err in submitting question 6 to the jury because there is no causal connection between question 6 on damages and question 2 on liability?
(9) Did the trial court err in rendering judgment against Margaret because there was no evidence as to her liability on any claim?
(10) Did the trial court err in denying Edward and Margaret's motion for judgment notwithstanding the verdict because there was no evidence of fraudulent intent?
(11) If Cindy and Ricky are arguing a partnership theory, then did the trial court err in rendering judgment based on a partnership because there was no evidence of a partnership?
All of theses issues relate to one or more of the following: (1) alleged reversible error in the jury charge, (2) alleged absence of pleadings, which raises the related issue of whether the matter was tried by consent through the introduction of evidence on that issue without objection, and (3) alleged legal insufficiency of the evidence as to various issues.
III. ANALYSIS
In their appeal to this court, Edward and Margaret have not followed the procedures under the Texas Rules of Appellate Procedure for an appeal based on a partial reporter's record. See Tex.R.App.P. 34.6(c). More specifically, they did not request a partial reporter's record under Rule 34.6(c), nor did they submit a statement of points or issues under that rule. See id. Therefore, this is not a Rule 34.6(c) case. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002).
Because Edward and Margaret did not comply with Rule 34.6(c), our appellate record must contain a complete record of the trial; otherwise, we presume the omitted portions are relevant to the disposition of this appeal. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). If we do not have a record of the entire trial, then we are unable to perform a harm analysis, and we are unable to determine if Edward and Margaret invited the error of which they now complain. See id.; see also Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 755-56 (Tex. 1998) (stating that, in conducting harm analysis as to charge error, court reviews the entire record, including closing arguments, and finding reversible error, in part, based on closing arguments); Bass v. Walker, 99 S.W.3d 877, 889 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (holding appellants could not complain of alleged error by trial court in allowing inadequate settlement credit of $100,000 because appellants specifically had requested that the trial court apply a $100,000 settlement credit during closing arguments in bench trial, thus inviting the alleged error). Accordingly, if Edward and Margaret have not provided this court with a complete record of the trial, we presume the omitted portions support the trial court's judgment. See Bennett, 96 S.W.3d at 229; Gardner v. Baker Botts, L.L.P., 6 S.W.3d 295, 296-98 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (holding that complete record of trial was not provided because record lacked voir dire, opening statements, closing arguments, and some testimony and holding that, because appellants did not comply with the predecessor rule to Rule 34.6(c), the court of appeals had to presume that the omitted portions supported the trial court's judgment); accord Coleman v. Carpentier, 132 S.W.3d 108, 110-11 (Tex.App.-Beaumont 2004, no pet.).
The appellate record does not reflect whether counsel participated in the voir dire of prospective jurors in this case. Nor does it indicate whether counsel for the parties gave any opening statements. The record, however, clearly reflects that before the parties made closing arguments to the jury, they agreed that the court reporter did not have to make a record of the closing arguments. Even if we presume that the trial in this case did not include voir dire or opening statements, the record reflects that counsel for the parties made closing arguments to the jury and that the reporter's record does not contain these jury arguments. Thus, the reporter's record of the trial is not complete.
In the reporter's record, the trial court states that it "summoned the jury" and that "[o]ut of that jury that was examined six fair, true and just jurors were selected, sworn and placed within the box."
After the close of evidence and after the jury was charged, the record reflects the following:
[Trial court]: At this time I will now turn the case over to the lawyers for their closing arguments. Can we release the court reporter at this time?
[Counsel for appellees]: Yes, your Honor.
[Counsel for appellants]: Yes, your Honor.
(Closing arguments off the record).
Because Edward and Margaret did not comply with Rule 34.6(c) and because we do not have a record of the entire trial, we must presume that the closing arguments were relevant to the issues presented on appeal and that the closing arguments support the trial court's judgment. See Bennett, 96 S.W.3d at 229; Christiansen, 782 S.W.2d at 843; Coleman, 132 S.W.3d at 110-11; Gardner, 6 S.W.3d at 298. For example, we must presume that counsel for Edward and Margaret negated any alleged harm from the alleged ambiguity as to the meaning of "W F Transportation" in the charge by admitting in closing argument that this term referred to all three appellants. Applying the dual presumption — that the omitted portion of the proceeding was relevant and that it supports the lower court's judgment — to each of the issues raised on appeal, Edward and Margaret cannot prevail on any of their issues. Accordingly, we overrule Edward and Margaret's appellate issues and affirm the trial court's judgment.