Opinion issued December = 20,=20 2007
Appellant,=20
Lucille C. Zalud, challenges the trial court's take-nothing =
judgment=20
rendered after a jury verdict in favor of appellee, John Christian =
Schiro,=20
D.D.S, in Zalud's suit against Schiro for dental malpractice. In =
her first=20
and second issues, Zalud contends that the trial court erred in =
admitting=20
into evidence expert testimony proffered by Schiro. In her third =
issue,=20
Zalud contends that Schiro's experts should not have been allowed =
to=20
testify "as to the standard of care in a manner that contradicts =
published=20
governmental standards" and that the trial court erred in denying =
her the=20
"right to cross-examine a doctor upon ethical violations in =
related cases=20
that go directly to his lack of qualifications as an expert." In =
her=20
fourth issue, Zalud contends that the trial court erred in not =
granting=20
her a new trial and that Schiro "abused the discovery process by=20
withholding witness statements of plaintiff's experts." =
We affirm.=20
Zalud=20
asserted a variety of claims against Schiro related to his alleged =
dental=20
malpractice. She filed pre-trial "motions to determine [the] =
competence"=20
of Schiro's expert witnesses, Nathaniel G. Tippit, D.D.S., and =
Jonathan=20
Penchas, D.D.S., which the trial court denied, allowing both =
Tippit and=20
Penchas to testify. After trial, the jury returned a verdict in =
Schiro's=20
favor, and the trial court rendered a take-nothing judgment in =
favor of=20
Schiro. As a=20
preliminary matter, Schiro asserts that, although Zalud has =
attempted to=20
present a limited appeal using a partial reporter's record, her =
failure to=20
request that the official court reporter prepare a partial =
reporter's=20
record and her failure to include in any such request a statement =
of the=20
points or issues to be considered on appeal is fatal to her =
appeal. We=20
agree. An=20
appellant must request, in writing, that the official court =
reporter=20
prepare the reporter's record. Tex. R. App. P. 34.6(b)(1). Also, =
the=20
appellant must file a copy of this request with the trial court =
clerk.=20
Tex. R. App. P. 34.6(b)(2). If the appellant requests a partial =
reporter's=20
record, the appellant must include in the request a statement of =
the=20
points or issues to be presented on appeal, and the appellant will =
then be=20
limited to those points or issues on appeal. Tex. R. App. P. =
34.6(c)(1).=20
Zalud=20
asserts that her appeal is "present[ed] upon a limited reporter's =
record"=20
and the "issues presented for appellate review are limited to the=20
evidentiary questions concerning the admissibility of expert =
witness=20
testimony." However, although Zalud attempts to challenge the =
testimony of=20
both Tippit and Penchas in her limited appeal, the reporter's =
record on=20
file consists solely of the trial testimony of Tippit. There is no =
reporter's record on file containing Penchas's testimony or the =
testimony=20
of any of the other witnesses presented during the approximately =
eight=20
days of trial. Also, the clerk's record does not contain either a =
request=20
for the preparation of a partial reporter's record or a statement =
of the=20
points or issues to be presented on appeal. See Tex. R. =
App. P.=20
34.6(b), (c)(1). Although the supreme court cautioned in =
Bennett=20
that "appellate rules are designed to further the resolution of =
appeals on=20
the merits," the supreme court also stated that "litigants who =
ignore our=20
rules do so at the risk of forfeiting appellate relief." 96 S.W.3d =
at 230.=20
In fact, the supreme court specifically stated in Bennett =
that=20
"[t]here is no question that, had [the litigant] completely failed =
to=20
submit his statement of points or issues, Rule 34.6 would require =
the=20
appellate court to affirm the trial court's judgment." =
Id.=20
(citing Tex. R. App. P. 34.6). Here, Zalud=20
did not file a request for a partial reporter's record in the =
trial court=20
and, thus, necessarily "completely fail[ed] to submit [her] =
statement of=20
points or issues." See id. Because Zalud "failed to =
follow the=20
requirements for rule 34.6," we must presume "that the omitted =
portions of=20
the record support the trial court's judgment." Davis, =
195 S.W.3d=20
at 851; see also Richards v. Schion, 969 S.W.2d 131, 133 =
(Tex.=20
App.--Houston [1st Dist.] 1998, no pet.) (stating that because =
appellant=20
appealed with partial record but did not designate points for =
appeal,=20
court must presume that omitted parts of record are relevant to=20
disposition of appeal); Jaramillo v. The Atchison, Topeka =
& Santa=20
Fe Ry. Co., 986 S.W.2d 701, 702 (Tex. App.--Eastland 1998, no =
pet.)=20
(holding that appellant's failure to comply with Rule 34.6(c) =
required=20
presumption that missing portions of reporter's record supported =
trial=20
court's judgment and, thus, court could not determine whether =
trial=20
court's alleged errors in admitting expert testimony were =
harmful).=20
Accordingly, applying the presumption that the omitted portions of =
the=20
record support the trial court's judgment, we cannot conclude that =
the=20
trial court erred in admitting Schiro's expert testimony, that the =
admission of such testimony was harmful, or that the trial court =
erred in=20
denying Zalud a new trial. We overrule=20
Zalud's first, second, third, and fourth issues. All pending =
motions are=20
denied. We affirm=20
the judgment of the trial court. Panel=20
consists of Justices Nuchia, Jennings, and Keyes. 1.