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Choi v. Juggernaut Transportation, Inc.

Court of Appeals of Texas, Fifth District, Dallas

June 26, 2017

SUNG SIK CHOI, KI PONG NA, CHONG SOOK NA, YOUNGS FOOD CO., SEHANA CORPORATION, ANDWILDWOOD NATURAL CORP., Appellants
v.
JUGGERNAUT TRANSPORTATION, INC., Appellee

         On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-01415

          Before Justices Francis, Brown, and Schenck

          MEMORANDUM OPINION

          ADA BROWN JUSTICE

         In this 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.

         According 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 nonsuited it.

         Juggernaut 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.

         In a 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.

         Absent 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.).

         Appellants 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.).

         Alternatively, 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 judgment.

         JUDGMENT

          In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.

         It is 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 ...


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