Lucille C. Zalud v. John Christian Schiro, D.D.S.--Appeal from 400th District Court of Ft. Bend County

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Laws-info.com » Cases » Texas » 1st District Court of Appeals » 2007 » Lucille C. Zalud v. John Christian Schiro, D.D.S.--Appeal from 400th District Court of Ft. Bend County

State: Texas

Court: Texas Northern District Court

Docket No: 01-06-00200-CV

Case Date: 12/20/2007

Plaintiff: Toyia Lasasha Vining

Defendant: The State of Texas--Appeal from 262nd District Court of Harris County

Preview:Lucille C. Zalud v. John Christian Schiro, D.D.S.--
Appeal from 400th District Court of Ft. Bend County
Opinion issued December 20, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00200-CV
LUCILLE C. ZALUD, Appellant
V.
JOHN CHRISTIAN SCHIRO, D.D.S., Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 04-CV-137189
MEMORANDUM OPINION
Appellant, Lucille C. Zalud, challenges the trial court's take-nothing judgment rendered after a jury verdict in favor of
appellee, John Christian Schiro, D.D.S, in Zalud's suit against Schiro for dental malpractice. In her first and second
issues, Zalud contends that the trial court erred in admitting into evidence expert testimony proffered by Schiro. In her
third issue, Zalud contends that Schiro's experts should not have been allowed to testify "as to the standard of care in a
manner that contradicts published governmental standards" and that the trial court erred in denying her the "right to
cross-examine a doctor upon ethical violations in related cases that go directly to his lack of qualifications as an
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expert." In her fourth issue, Zalud contends that the trial court erred in not granting her a new trial and that Schiro
"abused the discovery process by withholding witness statements of plaintiff's experts."
We affirm.
Factual and Procedural Background
Zalud asserted a variety of claims against Schiro related to his alleged dental malpractice. She filed pre-trial "motions
to determine [the] competence" of Schiro's expert witnesses, Nathaniel G. Tippit, D.D.S., and Jonathan Penchas,
D.D.S., which the trial court denied, allowing both Tippit and Penchas to testify. After trial, the jury returned a verdict
in Schiro's favor, and the trial court rendered a take-nothing judgment in favor of Schiro.
Partial Reporter's Record
As a preliminary matter, Schiro asserts that, although Zalud has attempted to present a limited appeal using a partial
reporter's record, her failure to request that the official court reporter prepare a partial reporter's record and her failure
to include in any such request a statement of the points or issues to be considered on appeal is fatal to her appeal. We
agree.
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, 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. Davis v. Kaufman County, 195 S.W.3d 847, 851 (Tex. App.--Dallas 2006, no pet.);
see also Bennett v. Cochran, 96 S.W.3d 227, 229-30 (Tex. 2002) (per curiam) (favorably citing case law applying
presumption that, when appellant appeals with partial reporter's record but completely fails to submit statement of
points or issues, as required by Rule 34.6(c)(1), omitted portions of record support trial court's findings).
Zalud asserts that her appeal is "present[ed] upon a limited reporter's record" and the "issues presented for appellate
review are limited to the evidentiary questions concerning the admissibility of expert witness testimony." However,
although Zalud attempts to challenge the testimony of both Tippit and Penchas in her limited appeal, the reporter's
record on file consists solely of the trial testimony of Tippit. There is no reporter's record on file containing Penchas's
testimony or the testimony of any of the other witnesses presented during the approximately eight days of trial. Also,
the clerk's record does not contain either a request for the preparation of a partial reporter's record or a statement of the
points or issues to be presented 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. (citing Tex. R. App. P. 34.6).
Here, Zalud did not file a request for a partial reporter's record in the trial court and, thus, necessarily "completely
fail[ed] to submit [her] statement of points or issues." See id. Because Zalud "failed to follow the requirements for rule
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 Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (stating that
because appellant appealed with partial record but did not designate points for appeal, court must presume that omitted
parts of record are relevant to disposition of appeal); Jaramillo v. The Atchison, Topeka & Santa Fe Ry. Co., 986
S.W.2d 701, 702 (Tex. App.--Eastland 1998, no pet.) (holding that appellant's failure to comply with Rule 34.6(c)
required presumption that missing portions of reporter's record supported trial court's judgment and, thus, court could
not determine whether trial court's alleged errors in admitting expert testimony were harmful). Accordingly, applying
the presumption that the omitted portions of the record support the trial court's judgment, we cannot conclude that the
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trial court erred in admitting Schiro's expert testimony, that the admission of such testimony was harmful, or that the
trial court erred in denying Zalud a new trial.
We overrule Zalud's first, second, third, and fourth issues. All pending motions are denied. (1)
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Nuchia, Jennings, and Keyes.
1. Having rejected Zalud's issues on appeal on the basis that she failed to file a request for a partial reporter's record in
the trial court and also necessarily "completely fail[ed] to submit [her] statement of points or issues" in any such
request, we need not consider Schiro's alternative complaint that the limited reporter's record on file with this Court
was improperly and untimely filed.
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