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

Citation: Not availableDocket: 02-09-00314-CV

Court: Court of Appeals of Texas; November 30, 2011; Texas; State Appellate Court

Original Court Document: View Document

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Carolyn and Donald Joe Bishop appeal a take-nothing judgment from the 96th District Court of Tarrant County against A.B. Auto Salvage and associated parties, following claims of assault, negligence, intentional infliction of emotional distress, and failure to warn stemming from an incident at the salvage yard. The altercation began when Joe Bishop attempted to return a bell housing; a disagreement ensued with Steven Scott Harcourt, resulting in a physical incident. The Bishops claimed Harcourt threw the bell housing at Joe, while Appellees maintained it was thrown at the floor and bounced up. Joe alleged he was assaulted by salvage yard employees, while Appellees contended he struck Harcourt first. The jury found no assault by Harcourt and attributed 30% negligence to him and 70% to Joe, leading to the trial court's judgment that the Bishops take nothing. The Bishops raised seven issues on appeal, including alleged errors in jury instructions, improper docket entries regarding their claims, claims of jury misconduct, and various evidentiary rulings, arguing these cumulatively warranted a new trial. The appellate court affirmed the trial court's judgment, presuming that any omitted portions of the record supported the ruling.

Appellees highlighted that the Bishops, as appellants, only requested a partial reporter’s record without submitting a statement of points or issues for their appeal. According to appellate procedure rule 34.6, an appellant must specify which parts of the proceedings to include in the reporter’s record and must provide a statement of issues if requesting only a partial record. This requirement ensures that the appellee is informed of the specific issues being appealed, allowing them to identify necessary additional record portions for their defense. Without a statement, the appellee cannot adequately prepare, and the appellate court assumes that any omitted record portions support the trial court's judgment. 

In this instance, the Bishops did not submit a statement of points until after the Appellees filed their briefs, leading to the court denying their late request. Consequently, without the presumption that omitted portions support their claims, the court could not assess potential errors regarding jury charges, misconduct, objections to testimony, or evidence exclusions. The Bishops' claim regarding the nonsuit of A.B. Auto Salvage was also contradicted by the trial court’s judgment, which affirmed the defendant's position, and reliance on a docket sheet entry was insufficient. Thus, the court overruled all of the Bishops' issues and affirmed the trial court’s judgment.

In CMM Grain Co. v. Ozgunduz, the Texas appellate court addressed the implications of late filings in appellate procedures, specifically regarding Rule 34.6. Bennett v. Cochran illustrates that while a partial record can allow consideration of a claim despite late submission of a statement of points, a complete failure to submit such a statement mandates affirmation of the trial court's judgment. Wilhelm reinforces this by noting the necessity of a complete record for the appellate court to evaluate claims properly. Mason v. Our Lady Star of Sea Catholic Church denied an appellant's motion to file a statement of points due to noncompliance with Rule 34.6, emphasizing that without a complete record, the court must presume that omitted portions support the trial court's judgment. The challenges of reviewing jury charge errors are highlighted, indicating that a lack of record obstructs the court’s ability to assess harm or error. Sendejar v. Alice Physicians underlines that determining harm from jury misconduct is a legal question requiring a comprehensive review of the record. Elbaor v. Smith comments on the distortive effects of Mary Carter agreements on trial processes. Additionally, the requirement for preserving complaints on appeal is stressed by Texas Rule of Appellate Procedure 33.1. Guyot v. Guyot clarifies that a docket sheet alone cannot substantiate the existence of a trial court's order or judgment, a point further supported by Dardas v. Fleming.