Court of Appeals of Texas, Fifth District, Dallas
SUNG SIK CHOI, KI PONG NA, CHONG SOOK NA, YOUNGS FOOD CO., SEHANA CORPORATION, ANDWILDWOOD NATURAL CORP., Appellants
JUGGERNAUT TRANSPORTATION, INC., Appellee
Appeal from the 191st Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-01415
Justices Francis, Brown, and Schenck
appeal, appellants Sung Sik Choi, Ki Pong Na, Chong Sook Na,
Youngs Food Co., Sehana Corporation, and Wildwood Natural
Corporation contend the trial court erred in granting a
no-evidence motion for summary judgment filed by Juggernaut
Transportation, Inc. Because appellants' response to the
no-evidence motion for summary judgment is not part of the
appellate record, we affirm.
to appellants' live pleading, they contracted with
A&A Express, Inc. to pick up produce from vendors in
California and transport the produce to Dallas. En route to
Dallas, A&A's refrigerated truck was involved in a
single vehicle accident and tipped over on its side.
Juggernaut's truck then collided with A&A's
truck, and A&A's truck had to be towed to a repair
shop. The damage to the truck rendered it incapable of
keeping the produce fresh. When the truck arrived in Dallas
ten days after the accidents, almost all of the food products
had perished. Appellants alleged the additional damage to
A&A's truck caused by Juggernaut contributed to the
truck's having to be towed and to the spoilage of goods
inside it. Appellants sued Juggernaut for negligence, and
they also brought several claims against A&A. A&A
also brought a cross action against Juggernaut, but later
filed a no-evidence motion for summary judgment. Juggernaut
asserted appellants had no evidence that (1) Juggernaut
breached a duty owed to them and (2) any breach proximately
caused appellants' injury. The trial court granted
Juggernaut's motion for summary judgment. Upon
Juggernaut's motion, the trial court later severed
appellants' case against Juggernaut from their remaining
claims against A&A. This appeal followed.
single issue in this appeal, appellants contend the trial
court erred in granting the no-evidence motion for summary
judgment. They contend they produced sufficient evidence to
create a fact issue as to the challenged elements of
negligence. However, appellants' response to
Juggernaut's motion for summary judgment is not part of
the appellate record.
a request from one of the parties, only the items listed in
rule of appellate procedure 34.5 are included in the
appellate record. See Tex. R. App. P. 34.5. An
appellant bears the burden to bring forward the record of the
summary judgment evidence to provide the appellate court with
a basis to review a claim of harmful error. Enterprise
Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549
(Tex. 2004) (per curiam); Bouie v. Kirkland's Stores,
Inc., No. 05-12-00453-CV, 2013 WL 4033645, at *2 (Tex.
App.-Dallas Aug. 8, 2013, no pet.) (mem. op.). If the
pertinent summary judgment evidence considered by the trial
court is not included in the appellate record, an appellate
court must presume that the omitted evidence supports the
trial court's judgment. Enterprise Leasing, 156
S.W.3d at 550. Taking this action is warranted if the
appellant has not requested under rule 34.5 that the trial
court clerk include the items in the clerk's record.
Nwokenaka v. Greater Houston Transp. Co., No.
14-15-00121-CV, 2016 WL 2605734, at *3 (Tex. App.-Houston
[14th Dist.] May 5, 2016, no pet.) (mem. op.).
did not request that their response to Juggernaut's
motion for summary judgment be included in the clerk's
record. Attached to appellants' designation of items to
be included in the clerk's record was a copy of the trial
court's docket sheet, with arrows next to the particular
items requested. No arrow appears next to appellants'
response to Juggernaut's motion for summary judgment.
Even after Juggernaut pointed out in its appellee's brief
that the summary judgment response was not part of the
clerk's record, appellants took no action to supplement
the record. Appellants instead filed a reply brief in which
they argue that their summary judgment response is part of
the appellate record because it was included in the appendix
to their original appellate brief. But the attachment of
documents as appendices to an appellate brief is not formal
inclusion in the appellate record, and thus the summary
judgment response in the appendix cannot be considered.
See Brumley v. Image Cleaners & Laundry, Inc.,
No. 05-05-01478-CV, 2006 WL 1727753, at *2 (Tex. App.-Dallas
June 26, 2006, no pet.) (mem. op.); Perry v. Kroger
Stores Store No. 119, 741 S.W.2d 533, 534 (Tex.
App.-Dallas 1987, no pet.).
appellants ask this Court to take judicial notice of their
summary judgment response. This is not an appropriate use of
judicial notice and would render the rules and case law
regarding designation of the appellate record meaningless.
The case appellants cite in support of this argument is
distinguishable. See Dutton v. Dutton, 18 S.W.3d
849, 856 (Tex. App.-Eastland 2000, pet. denied) (divorce case
tried to court that does not involve issue of judicial notice
of evidence not in appellate record; instead, appellate court
discussed trial court's sua sponte taking judicial notice
of admission contained in party's inventory). Because
appellants did not fulfill their burden to include the
relevant summary judgment evidence in the appellate record,
we must presume that the omitted evidence supports the trial
court's summary judgment for Juggernaut. We overrule
appellants' sole issue. We affirm the trial court's
accordance with this Court's opinion of this date, the
judgment of the trial court is AFFIRMED.
ORDERED that appellee JUGGERNAUT TRANSPORTATION, INC. recover
its costs of this appeal from appellants SUNG SIK CHOI, KI
PONG NA, CHONG SOOK NA, YOUNGS FOOD ...