CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437 (Tex. App. 1999). · Go Syfert
CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437 (Tex. App. 1999). Cases Citing This Book View Copy Cite
96 citation events (78 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 44 distinct citers. How cited ↗
discussed Overruled in the Interest of W.J.H., Jr., J.J.H., D.D.H., and D.N.H., Children
Tex. App. · 2003 · signal: see · confidence high
App. P. 34.6(c). 15: See CMM Grain Co. v. Ozgunduz , 991 S.W.2d 437, 439 (Tex. App.—Fort Worth 1999, no pet.); see also In re R.C. , 45 S.W.3d 146 , 148 (Tex. App.—Fort Worth 2000, no pet.), overruled by Bennett , 96 S.W.3d at 229 . 16: See Bennett , 96 S.W.3d at 229 . 17: D.R.L.M. , 84 S.W.3d at 289 . 18: Tex. Fam.
discussed Overruled in the Interest of W.J.H., Jr., J.J.H., D.D.H., and D.N.H., Children
Tex. App. · 2003 · signal: see · confidence high
See CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.App.-Fort Worth 1999, no pet.); see also In re R.C., 45 S.W.3d 146 , 148 (Tex.App.-Fort Worth 2000, no pet.), overruled by Bennett, 96 S.W.3d at 229. 16 .
discussed Overruled In Re WJH
Tex. App. · 2003 · confidence high
P. 34.6(c). [15] See CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.App.-Fort Worth 1999, no pet.); see also In re R.C., 45 S.W.3d 146 , 148 (Tex.App.-Fort Worth 2000, no pet.), overruled by Bennett, 96 S.W.3d at 229 . [16] See Bennett, 96 S.W.3d at 229 . [17] D.R.L.M., 84 S.W.3d at 289 . [18] Tex. Fam.Code Ann. § 263.405(f). [19] See id. 263.405(g). [20] Tex. Gov't Code Ann. § 311.021 (3) (Vernon 1998); D.R.L.M., 84 S.W.3d at 290 . [21] D.R.L.M., 84 S.W.3d at 290 . [22] See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997) (holding that complaint on appeal must be same as that raised in …
discussed Cited as authority (rule) Kenneth Lyons v. Denton Independent School District (2×) also: Cited "see"
Tex. App. · 2018 · confidence medium
Proceeding under a partial record In his request for a partial reporter’s record, Lyons stated that he is appealing only the trial court’s including the good-faith-reasonable-belief jury instruction “to protected activity that does not require a reasonable, good faith belief as discussed more fully in Plaintiff’s Motion for New Trial filed on February 22, 2018.” Consequently, the only portions of the reporter’s record Lyons requested were (1) the charge conference and (2) eight of his trial exhibits. 3 Appellate-procedure rule 34.6(c)(1) allows an appellant to reduce appellate expe…
discussed Cited as authority (rule) Tony R. Jimenez and Cynthia L. Jimenez v. MetLife Home Loans, a Division of MetLife Bank, N.A.
Tex. App. · 2015 · confidence medium
CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439-40 (Tex. App.—Fort Worth 1999, no pet.); accord In re Guardianship of Winn, 372 S.W.3d 291, 298 (Tex. App.—Dallas 4 The docket sheet notes that the hearing was “on the record.” 4 2012, no pet.) (stating the same).
discussed Cited as authority (rule) In the Matter of the MARRIAGE OF Jill Megan McKAY and Malcolm Franklin McKay and in the Interest of E.R.M., a Child (2×) also: Cited "see"
Tex. App. · 2012 · confidence medium
In the present case, the only ostensible statement of points that can be found in the record is Jill’s request, contained in her second request for preparation of the reporter’s record, that the reporter prepare “[a]ny and all parts of the transcript covering Standing along with Voir Dire.” According to Jill, this statement is a “simple, yet concise statement of points and issues.” However, “a general statement identifying the portion of the judgment appealed from and declaring an intention to appeal that portion of the judgment is insufficient to satisfy the narrow purpose of Ru…
discussed Cited as authority (rule) in the Matter of the Marriage of Jill Megan McKay and Malcolm Franklin McKay and in the Interest of E. R. M., a Child (2×) also: Cited "see"
Tex. App. · 2012 · confidence medium
In the present case, the only ostensible statement of points that can be found in the record is Jill's request, contained in her second request for preparation of the reporter's record, that the reporter prepare "[a]ny and all parts of the transcript covering Standing along with Voir Dire." According to Jill, this statement is a "simple, yet concise statement of points and issues." However, "a general statement identifying the portion of the judgment appealed from and declaring an intention to appeal that portion of the judgment is insufficient to satisfy the narrow purpose of Rule 34.6(c)." C…
discussed Cited as authority (rule) Ullja Kuntze v. Michelle Hall, Lydia Muell, Deborah Pierce, Elizabeth Wait, Mathilda O'Kelley, Holly McConnell, Heidi Bond, Amber Ayisha Van Meter, Darleen Michael-Baker, Sandra Cowan, Kandice Cordingly-Seeber, Sue Harmon-King, Tom Kies, Deborah Kauzlarich
Tex. App. · 2012 · confidence medium
P. 34.6(b); see also Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (explaining that the burden is on the appellant to ensure that a sufficient record is presented to show error); CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 440 (Tex. App.—Fort Worth 1999, no pet.) (presuming that the evidence supports the trial court’s judgment in the absence of a complete reporter’s record or compliance with Texas Rule of Appellate Procedure 34.6(c)).
cited Cited as authority (rule) Jim Chambers, Mary Ann Chambers, and Mark Weisbart, Chapter 7 Trustee v. First United Bank & Trust Company
Tex. App. · 2012 · confidence medium
CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.—Fort Worth 1999, no pet.).
cited Cited as authority (rule) Jim Chambers, Mary Ann Chambers, and Mark Weisbart, Chapter 7 Trustee v. First United Bank & Trust Company
Tex. App. · 2012 · confidence medium
CMM Grain Co., Inc. v. Ozgunduz , 991 S.W.2d 437, 439 (Tex. App.—Fort Worth 1999, no pet.).
discussed Cited as authority (rule) Tammie Jones v. Natalia Fernandez Cortes
Tex. App. · 2011 · confidence medium
See Christiansen v. Prezelski , 782 S.W.2d 842, 843 (Tex. 1990) (explaining that the burden is on an appellant to ensure that a sufficient record is presented to show error); CMM Grain Co. v. Ozgunduz , 991 S.W.2d 437, 440 (Tex. App.—Fort Worth 1999, no pet.). [8] Appellant made this claim in her motion for new trial, but the record does not establish that she made the claim during the trial. [9] Appellant amended her petition in March 2006 (four days after filing the original petition), March 2007, May 2007, and June 2007. [10] Carolina and her son stopped living with appellee in December 2…
discussed Cited as authority (rule) Tammie Jones v. Natalia Fernandez Cortes
Tex. App. · 2011 · confidence medium
See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (explaining that the burden is on an appellant to ensure that a sufficient record is presented to show error); CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 440 (Tex. App.— Fort Worth 1999, no pet.). 7 court‘s attention to the portions of the proposed charge that were complained about on appeal); Coates v. Coates, No. 05-08-00440-CV, 2009 WL 679592 , at *2 (Tex. App.—Dallas Mar. 17, 2009, pet. denied) (mem. op.) (―Appellants do not refer us to any place in the record where they drew the court‘s attention to their pretrial ju…
cited Cited as authority (rule) R.D. Harris v. Bill Devin Hooper, Maria Teresa Hooper and Hooperville, Inc., and Alton & Iralle Haley
Tex. App. · 2011 · confidence medium
Bennett, 96 S.W.3d at 229 ; CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439-40 (Tex. App.—Fort Worth 1999, no pet.).
discussed Cited as authority (rule) in the Matter of the Marriage of Sarah Christina Duran and Christopher Ismael Duran and in the Interest of Christopher Ismael Duran, a Child
Tex. App. · 2008 · confidence medium
Co. , 12 S.W.3d 846, 848 (Tex. App.--Texarkana 2000, no pet.); CMM Grain Co. v. Ozgunduz , 991 S.W.2d 437, 439-40 (Tex. App.--Fort Worth 1999, no pet.); see Bennett v. Cochran , 96 S.W.3d 227, 230 (Tex. 2002); Schafer v. Conner , 813 S.W.2d 154, 155 (Tex. 1991).
discussed Cited as authority (rule) Linda Gale Hurley v. Wood County Electric Cooperative, Inc.
Tex. App. · 2008 · confidence medium
Co. , 12 S.W.3d 846, 848 (Tex. App.--Texarkana 2000, no pet.); CMM Grain Co. v. Ozgunduz , 991 S.W.2d 437, 439-40 (Tex. App.--Fort Worth 1999, no pet.); see Bennett v. Cochran , 96 S.W.3d 227, 230 (Tex. 2002); Schafer v. Conner , 813 S.W.2d 154, 155 (Tex. 1991).
discussed Cited as authority (rule) Keenah Lottie v. Harvest Credit Management LLC
Tex. App. · 2008 · confidence medium
See Christiansen v. Prezelski , 782 S.W.2d 842, 843 (Tex. 1990) (stating that incomplete reporter’s record prevents reviewing court from determining whether trial court’s ruling is reversible error in the context of the whole case and without complete record, appellate court will presume that omitted evidence supports trial court’s judgment); CMM Grain Co. v. Ozgunduz , 991 S.W.2d 437, 440 (Tex. App.—Fort Worth 1999, no pet.) (holding that appellant must either comply with rule 34.6 or provide a complete record on appeal in order to avoid presumption that omitted evidence supports tria…
discussed Cited as authority (rule) Tony Pyles v. Loren B. Young and Louise Young
Tex. App. · 2007 · confidence medium
In re Estate of Arrendell , 213 S.W.3d 496, 503 (Tex. App.--Texarkana 2006, no pet.); CMM Grain Co. v. Ozgunduz , 991 S.W.2d 437, 439-40 (Tex. App.--Fort Worth 1999, no pet.); see Christiansen v. Prezelski , 782 S.W.2d 842, 843 (Tex. 1990).
discussed Cited as authority (rule) Forrest Barber v. Guillermo Pino, M.D.
Tex. App. · 2006 · confidence medium
App. P. 47.4. 2: Christiansen v. Prezelski , 782 S.W.2d 842, 843 (Tex. 1990) (per curiam) (stating that an incomplete reporter’s record prevents the reviewing court from determining whether the trial court’s ruling is reversible error in the context of the whole case and without a complete record, the appellate court will presume that the omitted evidence supports the trial court’s judgment); CMM Grain Co. Inc. v. Ozgunduz , 991 S.W.2d 437, 440 (Tex. App.—Fort Worth 1999, no pet.) (holding that appellant must either comply with rule 34.6 or provide a complete record on appeal in order …
discussed Cited as authority (rule) Travelers Indemnity Co. of Rhode Island v. Starkey
Tex. App. · 2005 · confidence medium
See Sandoval v. Commission for Lawyer Discipline, 25 S.W.3d 720, 722 (Tex.App.-Houston [14th Dist.] 2000, writ denied) (because appellant did not file a complete record on appeal, the court presumes the omitted portions of the reporter’s record support the judgment); CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.App.-Fort Worth 1999, no pet.); J.B.
discussed Cited as authority (rule) in the Matter of the Marriage of James D. Durham, Jr. and Deborah Lynn Durham
Tex. App. · 2004 · confidence medium
See Christiansen v. Prezelski , 782 S.W.2d 842, 843-44 (Tex. 1990) (discussing the necessity of strict compliance with former TRAP 53(d), predecessor to TRAP 34.6(c)); CMM Grain Co. v. Ozgunduz , 991 S.W.2d 437, 439 (Tex.App.-Fort Worth 1999, no pet.).
discussed Cited as authority (rule) in the Matter of the Marriage of James D. Durham, Jr. and Deborah Lynn Durham
Tex. App. · 2004 · confidence medium
See Christiansen v. Prezelski , 782 S.W.2d 842, 843-44 (Tex. 1990) (discussing the necessity of strict compliance with former TRAP 53(d), predecessor to TRAP 34.6(c)); CMM Grain Co. v. Ozgunduz , 991 S.W.2d 437, 439 (Tex.App.–Fort Worth 1999, no pet.).
discussed Cited as authority (rule) in the Matter of the Marriage of James D. Durham, Jr. and Deborah Lynn Durham
Tex. App. · 2004 · confidence medium
See Christiansen v. Prezelski, 782 S.W.2d 842, 843-44 (Tex. 1990) (discussing the necessity of strict compliance with former TRAP 53(d), predecessor to TRAP 34.6(c)); CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.App.–Fort Worth 1999, no pet.).
discussed Cited as authority (rule) $4,310 in U.S. Currency & 1993 Pontiac Automobile Vin: 1GNW543PC723734 v. State
Tex. App. · 2004 · confidence medium
CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439-40 (Tex. App.-Fort Worth 1999, no pet.); see Christiansen v. Prezelski, 782 S.W.2d 842, 843-44 (Tex.1990) (per curiam) (discussing necessity of strict compliance with former rule 53(d)).
cited Cited as authority (rule) Robert Coleman v. Ronnie Carpentier
Tex. App. · 2004 · confidence medium
CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.--Fort Worth 1999, no pet.).
cited Cited as authority (rule) Coleman v. Carpentier
Tex. App. · 2004 · confidence medium
CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.App.-Fort Worth 1999, no pet.).
discussed Cited as authority (rule) in the Matter of the Marriage of Freda Hausler Rice and H. E. Rice and in the Interest of Evreda Janene Rice, a Child
Tex. App. · 2003 · confidence medium
Co. , 12 S.W.3d 846, 848 (Tex. App.-Texarkana 2000, no pet.) (citing CMM Grain Co. v. Ozgunduz , 991 S.W.2d 437, 439-40 (Tex. App.-Fort Worth 1999, no pet.)); see also In re R.C. , 45 S.W.3d 146, 148 (Tex. App.-Fort Worth 2000, no pet.) (appellant's failure to designate issues for partial reporter's record requires appellate court to presume omitted portions support judgment rendered below).
discussed Cited as authority (rule) In Re the Marriage of Rice
Tex. App. · 2003 · confidence medium
Co., 12 S.W.3d 846, 848 (Tex.App.-Texarkana 2000, no pet.) (citing CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439-40 (Tex.App.-Fort Worth 1999, no pet.)); see also In re R.C., 45 S.W.3d 146, 148 (Tex.App.Fort Worth 2000, no pet.) (appellant’s failure to designate issues for partial reporter’s record requires appellate court to presume omitted portions support judgment rendered below).
cited Cited as authority (rule) In Re DRLM
Tex. App. · 2002 · confidence medium
P. 34.6(c); e.g., CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.-Fort Worth 1999, no pet.) (requiring strict compliance with rule 34.6(c)).
cited Cited as authority (rule) In the Interest of D.R.L.M.
Tex. App. · 2002 · confidence medium
P. 34.6(c); e.g., CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.App.-Fort Worth 1999, no pet.) (requiring strict compliance with rule 34.6(c)).
examined Cited as authority (rule) Brown v. McGuyer Homebuilders, Inc. (3×) also: Cited "see"
Tex. App. · 2001 · confidence medium
CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.App.-Fort Worth 1999, no pet.); see Tex.R.App.
discussed Cited as authority (rule) In Re RC
Tex. App. · 2000 · confidence medium
App. P. 34.6(c)(4) (requiring appellate court to presume that designated partial record constitutes entire record for purposes of reviewing stated points or issues); CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.App.-Fort Worth 1999, no pet.) (failure to comply with rule 34.6(c) results in appellate court applying contrary presumption that omitted portions of record support the judgment rendered). [3] Although Appellant did not specifically reference rule 34.6(c) in her request for the reporter's record, it is apparent that she requested a partial record, and only a partial record is bef…
discussed Cited as authority (rule) In the Interest of R.C.
Tex. App. · 2000 · confidence medium
App. P. 34.6(c)(4) (requiring appellate court to presume that designated partial record constitutes entire record for purposes of reviewing stated points or issues); CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.App.—Fort Worth 1999, no pet.) (failure to comply with rule 34.6(c) results in appellate court applying contrary presumption that omitted portions of record support the judgment rendered). .
cited Cited as authority (rule) Sandoval v. Commission for Lawyer Discipline
Tex. App. · 2000 · confidence medium
P. 34.6(c)(4); Schafer v. Conner, 813 S.W.2d 154, 155 (Tex.1991); CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 440 (Tex.App.Fort Worth 1999, no pet.).
examined Cited as authority (rule) Hilton v. Hillman Distributing Co. (3×) also: Cited "see"
Tex. App. · 2000 · confidence medium
CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 440 (Tex.App.Fort Worth 1999, no pet.); see Christiansen v. Prezelski, 782 S.W.2d 842, 843-44 (Tex.1990) (discussing the necessity of strict compliance with former Rule 53(d) predecessor to Rule 34.6(c)).
examined Cited as authority (rule) Gardner v. Baker & Botts, L.L.P. (4×) also: Cited "see, e.g."
Tex. App. · 1999 · confidence medium
The majority cites CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439-40 (Tex.App. — Fort Worth 1999, no pet.) in support of its position.
discussed Cited "see" Ana Margarita Fushille Abraham, Margaret Abraham, & the Tap Lounge, LLC v. Rita Hernandez, Charlene Soule, Soule Corporation, Inc., & 408 Espita, LLC (2×)
Tex. App. · 2024 · signal: see · confidence high
See CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.—Fort Worth 1999, no pet.).
discussed Cited "see" Jocelyn Lehman v. James Lehman and Jo Ann Lehman
Tex. App. · 2021 · signal: see · confidence high
“To effectuate the purpose of the rule, the statement of points must ‘designate with reasonable particularity the complaints to be pursued on appeal.’” In re Marriage of McKay, 393 S.W.3d 346, 349 (Tex. App.—Amarillo 2012, no pet.) (quoting Munden v. Reed, No. 05-01-01896-CV, 2003 WL 57751 , at *2-3 (Tex. App.—Dallas Jan. 8, 2003, no pet.) (mem. op.)); see CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.—Fort Worth 1999, no pet.) (statement of points “need not be exact” but should describe nature of asserted error with “reasonable particularity”); Kwik Wash Laund…
cited Cited "see" in the Interest of I. O. G. R., a Child
Tex. App. · 2014 · signal: see · confidence high
See CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 440 (Tex. App.—Fort Worth 1999, no pet.).
cited Cited "see" Hang Tran D/B/A Parisian Bakery v. Lien Trinh and Intervenor Manh Tran
Tex. App. · 2008 · signal: see · confidence high
P. 34.6(c)(4); see CMM Grain Co. v. Ozgunduz , 991 S.W.2d 437, 439 (Tex. App.—Fort Worth 1999, no pet.).
cited Cited "see" in the Interest of M.A. and M.A., Jr., Children
Tex. App. · 2001 · signal: see · confidence high
See In re J.J. , 991 S.W.2d 437, 439-40 (Tex. App.-Texarkana 1995, writ denied).
discussed Cited "see, e.g." Donald Joe Bishop and Carolyn Bishop v. A.B. Auto Salvage, Steven Scott Harcourt, A.B.'s Used Auto and Truck Parts, Inc., Jesse Small, Ltd., Jesse Small, A.B. Ford, A.B. Chevy, A.B.'s Ford and A.B.'s Chevrolet
Tex. App. · 2011 · signal: see also · confidence low
App. P. 33.1 (requiring preservation of complaints on appeal); 44.1 (providing that no judgment may be reversed on appeal for trial court error unless the complained-of error probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the court of appeals); see also Holten , 168 S.W.3d at 783 (stating that if the proceeding was evidentiary, “then a complaining party must present a record of that hearing to establish harmful error”). [16] CMM Grain Co. , 991 S.W.2d at 439–40. [17] See Guyot v. Guyot , 3 S.W.3d 243, 247 (Te…
discussed Cited "see, e.g." Donald Joe Bishop and Carolyn Bishop v. A.B. Auto Salvage, Steven Scott Harcourt, A.B.'s Used Auto and Truck Parts, Inc., Jesse Small, Ltd., Jesse Small, A.B. Ford, A.B. Chevy, A.B.'s Ford and A.B.'s Chevrolet
Tex. App. · 2011 · signal: see also · confidence low
App. P. 33.1 (requiring preservation of complaints on appeal); 44.1 (providing that no judgment may be reversed on appeal for trial court error unless the complained-of error probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the court of appeals); see also Holten, 168 S.W.3d at 783 (stating that if the proceeding was evidentiary, ―then a complaining party must present a record of that hearing to establish harmful error‖). 16 CMM Grain Co., 991 S.W.2d at 439–40. 17 See Guyot v. Guyot, 3 S.W.3d 243, 247 (Tex. App.…
discussed Cited "see, e.g." Wheeler v. Greene
Tex. App. · 2006 · signal: see, e.g. · confidence medium
See, e.g., CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.App.-Fort Worth 1999, no pet.) (a general statement identifying the portion of the judgment appealed from and declaring an intention to appeal that portion of the judgment is insufficient to satisfy the narrow purpose of Rule 34.6(c)).
discussed Cited "see, e.g." Ellen Hendry Wheeler v. June Greene, Jerry Baker and David Hendry
Tex. App. · 2006 · signal: see, e.g. · confidence medium
See, e.g., CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.–Fort Worth 1999, no pet.) (a general statement identifying the portion of the judgment appealed from and declaring an intention to appeal that portion of the judgment is insufficient to satisfy the narrow purpose of Rule 34.6(c)).
Retrieving the full opinion text from the archive…
CMM GRAIN COMPANY, INC., Charlie Myers, Individually D/B/A Charlie Myers Grain Company, Mary Myers, Charlie Myers, Jr., and Alfredo Jaimes, Appellants,
v.
Paul OZGUNDUZ, Appellee
2-98-156-CV.
Court of Appeals of Texas.
Apr 22, 1999.
991 S.W.2d 437
Charles M. Barnard, Wichita, Chad Williams, Seymour, for appellant., Bernard A. Guerrini, P.C., and Bernard A. Guerrini, John L. Thompson, Dallas, for appellee.
Cayce, Day, Richards.
Cited by 60 opinions  |  Published

OPINION

JOHN CAYCE, Chief Justice.

CMM Grain Company, Inc., Charlie Myers, individually and d/b/a Charlie Myers Grain Company, Mary Myers, Charlie Myers, Jr., and Alfredo Jaimes (collectively “appellants”) appeal the trial court’s judgment denying an offset for medical and disability benefits paid to ap-pellee Paul Ozgunduz for an on-the-job injury under an insurance policy issued to Charlie Myers Grain Company. We will affirm the trial court’s judgment.

On July 8, 1993, Ozgunduz was injured during the course of his employment with appellant CMM Grain Company, Inc. (“CMMGC, Inc.”). [1] Thereafter, Philadelphia American Life Insurance Company paid Ozgunduz approximately $61,000 for his job-related injuries plus disability benefits under an occupational death and disability policy issued to “Charlie Myers Grain Company.” [2] Ozgunduz later sued CMMGC, Inc. and the other appellants for negligence, premises liability, negligence per se, and gross negligence, seeking past medical expenses, lost wages, and lost earning capacity as damages. In their answer to the suit, appellants requested an offset against any potential judgment in the amount Philadelphia American paid Ozgunduz under the policy issued to Charlie Myers Grain Company.

The case was tried by a jury. At the conclusion of the trial, the trial court held a hearing on the offset claim which the court later denied by written order. On April 28, 1998, the trial court rendered a joint and several judgment against appellants based on the jury's verdict awarding Ozgunduz damages totaling $166,789.39.

The question we have been asked to decide is whether the trial court erred by[*439] refusing to credit appellants with the amount Philadelphia American paid to Oz-gunduz under the policy issued to Charlie Myers Grain Company. Before reaching this question, however, we must determine whether appellants have satisfied the requirements for presenting this appeal with a partial reporter’s record. In their notice of appeal, appellants stated that they “desire to appeal all rulings and orders of the trial court that dealt with the denial of the offset of benefits.” Consequently, the only portion of the reporter’s record requested by appellants, and filed by the court reporter, is the hearing on the offset claim. Appellants, however, did not include in their request for the partial reporter’s record a “statement of the points or issues to be presented on appeal.” Tex.R.App. P. 34.6(c)(1).

Appellate Rule 34.6(c)(1) sets out the exclusive procedures for appealing with a partial reporter’s record:

(c) Partial Reporter’s Record.
(1) Effect on Appellate Points or Issues. 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.

Id. This rule allows an appellant to reduce the expense of an appeal by abridging the reporter’s record and thereby limit the appellate court’s review to only those portions of the record that are relevant to the points raised in the appeal. [3] If an appellant complies with Rule 34.6(c)(1) by including with the request for a partial reporter’s record a statement of points or issues to be presented on appeal, the reviewing court must “presume that the partial reporter’s record designated by the parties constitutes the entire record for purposes of reviewing the stated points. Id. 34.6(c)(4). If, on the other hand, an appellant fails to comply with Rule 34.6(c), the contrary presumption arises and the reviewing court must instead presume that the missing portions of the record do contain relevant evidence and that the omitted evidence supports the trial court’s judgment. See id.

As with its predecessor, Rule 53(d), strict compliance with Rule 34.6(c) is necessary to activate the presumption that the omitted portions of the record are irrelevant. See Christiansen v. Prezelski, 782 S.W.2d 842, 843-44 (Tex.1990) (discussing the necessity of strict compliance with former Rule 53(d)). Generally, this means that both the request for a partial reporter’s record and the statement of points must be timely filed and appear in the appellate record. [4] See Schafer, 813 S.W.2d at 155 (discussing former Rule 53(d)). Furthermore, while the terminology of the statement of points need not be exact, the statement should describe the nature of the complained of error with reasonable particularity. See Kwik Wash Laundries, Inc. v. McIntyre, 840 S.W.2d 739, 741 (Tex.App.—Austin 1992, no writ).

In the instant case, appellants announced in their notice of appeal the desire to limit their appeal to the trial court’s denial of their offset claim. However, neither the notice of appeal nor the request for a partial reporter’s record contains any “statement of the points or issues to be presented on appeal.” Tex. R.App. P. 34.6(c)(1). We conclude that a general statement identifying the portion of the judgment appealed from and declaring an intention to appeal that portion of the judgment is insufficient to satisfy the narrow purpose of Rule 34.6(c). We must[*440] therefore presume that the omitted portions of the record are relevant to this appeal and that the missing evidence supports the trial court’s judgment. See id. 84.6(c)(4); Schafer, 813 S.W.2d at 155.

In their sole point, appellants argue that they are each entitled to an offset against the entire judgment because the purpose of the Philadelphia American policy was to replace workers’ compensation insurance and to limit the common law exposure of Ozgunduz’s employer in the event of a work-related injury. See Castillo v. American Garment Finishers Corp., 965 S.W.2d 646, 650 (Tex.App.—El Paso 1998, no pet.) (judgment against employer may be offset by the amount of benefits paid under an accident policy); Tarrant County Waste Disposal, Inc. v. Doss, 737 S.W.2d 607, 611 (Tex.App.—Fort Worth 1987, writ denied) (same). Ozgunduz urges that we affirm the trial court’s judgment denying the offset because the policy was issued to Charlie Myers Grain Company and not to Ozgunduz’s employer, CMMGC, Inc., or any other named appellant, and thus the policy constituted a collateral source the benefits from which cannot be credited to any appellant. See Restatement (Second) of Torts § 920A (1977) (tort-feasor does not get the benefit of payment conferred by another source); see also Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 934 (Tex.) (collateral source rule precludes wrongdoer from receiving credit for insurance procured by another), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980).

Appellants’ failure to comply with Rule 34.6(c) is fatal to their appeal. A partial reporter’s record unaided by the presumption of Rule 34.6(c)(4) does not provide us with a sufficient record to determine whether the Philadelphia American policy covered any appellant, and, if so, whether the trial court erred in refusing to credit appellants with the amounts paid Ozgunduz under the policy. Because appellants did not comply with Rule 34.6(c), or bring forth a complete reporter’s record, we presume the omitted evidence supports the trial court’s judgment denying the offset credit and we overrule appellants’ point. See Schafer, 813 S.W.2d at 155; Christiansen, 782 S.W.2d at 843. [5]

The trial court’s judgment is affirmed.

1

. Charlie and Mary Myers are the sole shareholders of CMMGC, Inc., which the jury found to be their alter ego.

2

. The designation of parties shows Charlie Myers Grain Company as the assumed name of appellant Charlie Myers. However, in his answer and response to interrogatories, Mr. Myers alleged that Charlie Myers Grain Company is the assumed name of CMMGC, Inc.

3

. When a request for a partial reporter's record is made, any other party may designate additional exhibits and portions of the testimony to be included in the reporter’s record. See id. 34.6(c)(2).

4

. Although Rule 34.6(c)(1) indicates that the statement of points must be included "in” the request for a partial reporter's record, the rule is complied with if the statement of points is filed in a separate document with the request. See Schafer v. Conner, 813 S.W.2d 154, 155 (Tex.1991).

5

. We note that the trial court excluded on relevancy grounds a letter dated October 3, 1991, from Charlie Myers to the Texas Workers' Compensation Commission which suggests that the policy may have been purchased by CMMGC, Inc. and issued under CMMGC, Inc.’s assumed name, Charlie Myers Grain Company. Appellants, however, do not challenge the exclusion of this letter on appeal, and, as a result, we cannot consider it. See San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 210 (Tex.1990); Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex.1987). Even if we were permitted to consider the letter in determining whether the policy covered CMMGC, Inc., we must nevertheless presume that the remainder of the reporter's record contained evidence supporting the trial court’s judgment.