law-partial-record | appellate procedure |

The parties here have agreed to proceed on a partial reporter's record. We "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).
Benavente v. Granger (Tex.App.-
Houston [1st Dist.] Oct. 23, 2009) (Radack) (rear-end automobile collision, negligence not established,
take-nothing judgment affirmed,
appeal on partial reporter's record)

Appeal with Partial Reporter’s Record

In her sole issue, Hang contends that the trial court erred in “its legal conclusion that the attorney’s fees should
not be awarded to[Hang]based on a failure to segregate those attorney’s fees.” As a preliminary matter, Trinh
and Manh argue that Hang “has effectively waived her appeal” because the absence of a complete reporter’s
record “requires this Court to presume the missing record supports the trial court’s actions and judgment.”2

An appellant must request, in writing, that the official court reporter prepare the reporter’s record. TEX. R. APP.
P. 34.6(b)(1). Generally, in an appeal with only a partial reporter’s record, we must presume that the omitted
portions of the record are relevant and support the trial court’s judgment. Feldman v. Marks, 960 S.W.2d 613,
614 (Tex. 1996). However, under Texas Rule of Appellate Procedure 34.6(c), an appellant may present an
appeal based upon a partial reporter’s record if the appellant includes in his request for the reporter’s record a
statement of the points or issues to be presented on appeal.3 TEX. R. APP. P. 34.6(c). Also, the appellant must

2 Trinh and Manh also filed a notice of appeal. See TEX. R. APP. P. 25.1(a). However, Trinh and Manh do not seek “to alter the trial court’s
judgment.” See TEX. R. APP. P. 25.1(c). In their brief, they only respond to Hang’s sole issue.

3 Although Texas Rule of Appellate Procedure 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) (per curiam).

file a copy of this request with the trial court clerk. TEX. R. APP. P. 34.6(b)(2); In re A.W.P., 200 S.W.3d 242, 245
(Tex. App.—Dallas 2006, no pet.). If an appellant includes in the request for a partial reporter’s record a
statement of the points or issues to be presented on appeal and files that request with the trial court clerk, we
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); see CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.—Fort Worth 1999, no pet.). If
“an appellant fails to file a notice of issues with the clerk, we assume the missing portions of the record support
the trial court’s judgment.” A.W.P., 200 S.W.3d at 245 (citing Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex.
2002) (per curiam)).

Here, the clerk’s record does not include a request to the court reporter showing a statement of the points or
issues relied upon or other documents showing the points or issues relied upon. See id. We ordered the county
civil court at law clerk to supplement the record with Hang’s request for a partial reporter’s record, if any,
including any statement of points or issues under Rule 34.6(c). The county civil court at law clerk supplemented
the record, responding that Hang did not file his request for a partial reporter’s record with the county civil court
at law clerk. Thus, we must presume that the missing portion of the reporter’s record supports the trial court’s
judgment. See id. (presuming that missing portions of the reporter’s record supported trial court’s judgment after
trial court clerk informed court of appeals that appellant had not filed request for partial reporter’s record or
statement of points or issues to be presented upon appeal with trial court clerk). Accordingly, we cannot
conclude that the trial court erred in denying Hang recovery of attorney’s fees.

We overrule Hang’s sole issue.

Tran v. Trinh (Tex.App.- Houston [1st Dist.] July 31, 2008)(Jennings)
(
breach of partnership agreement, jury found no partnership agreement, partial record, UDJA attorney's fees)


Zalud v. Schiro DDS (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Jennings)
(
HCLC dental malpractice, expert report, partial record on appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Nuchia, Jennings and Keyes
01-06-00200-CV Lucille C. Zalud v. John Christian Schiro, D.D.S.
Appeal from 400th District Court of Fort Bend County (Judge Clifford Vacek)



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