Dao, Khanh and Derivative Parties v. Silva, Phil and Inventors Pho Partners, LLC and Pho Colonial 1623 Main, LLC

• Court: Court of Appeals of Texas
• Decided: November 29, 2012
• Docket: 05-12-00331-CV
• Status: Published

Opinion

AFFIRM; Opinion issued 1 ovember 29, 2012

In The Qtiitrt f iats .fiftI! District nf xas &tt a11t No. 05-12-00331-CV

KHANH DAO, Appellant

V. PHIL SILVA, Appellee

and

P110 PARTNERS, LLC and P110 COLONIAL 1623 MAIN STREET, LLC, Intervenors/Appellecs

On Appeal from the 192 Judicial District Court Dallas County, Texas Trial Court Cause No. DC-11-16235-K

MEMORANDUM OPINION Before Justices Bridges, Richter, and Lang Opinion By Justice Bridges

Appellant Khanh Dao appeals from the trial court’s order granting appellees’ application for

temporary injunction. In nine issues, Dao complains: (1) the relief granted is void, because the trial

court must rule on a motion to strike before considering other matters brought by the Intervenors;

(2) the temporary injunction should be dissolved because Silva has no standing to assert the pleaded

claims; (3) the Intervenors have no capacity to assert claims against Dao; (4) the Intervenors have

failed to show a justiciable interest; (5) the Intervenors cannot defend a derivative action on the merits, and there is a thial conflict of interest; (6) the trial court misapplied the law. governing its

equitable power to “balance the harms” (7) the trial court abused its discretion by entbrcing an

injunctive order that likely alters the status quo and fails to preserve the subject matter of the dispute

(8) the order violates rule 683 of the Texas Rules of Civil Procedure; and (9) the order improperly

asserts ‘findings” in violation of rules 296-299aofthe Texas Rules of Civil Procedure. We affirm.

Analysis

Under rule 34.6(b). an appellant must request in writing that the official reporter prepare the

reporter’s record. TEx. R. Apr. P. 34.6(h). If the appellant only requests a partial reporter’s record.

the appellant must include in the request a statement of the points or issues to be presented on appeal

and will then be limited to those points or issues. Id. at 34.6(c).

The record before us lacks any request for the reporter’s record. Further, the record only

contains a partial reporter’s record from the temporary injunction hearing. In this case, 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 document showing the points or issues relied upon. The partial reporter’s record

before us indicates the evidentiary portion of the hearing was not requested, and the partial record

begins only after the trial court closed evidence.

Generally. in an appeal with only a partial reporter’s record, we must presume the omitted

portions of the record are relevant and support the trial court’sjudgment. In reA. W..P., 200 S.W.3d

242. 244 (‘l’ex. App.—Dallas 2006. no pet.). When, as here, 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. See

Id. at 245; TEx. R. App. P. 34.6(c). Strict compliance with rule 34.6(c) is necessary to activate the

presumption the omitted portions of the record are irrelevant. $4,310 in US. Currency, et al. v. The

State of Texas, 133 S.W.3d 828, 829 (Tex. App.—Dallas 2004, no pet.). Because Dao neither filed a complete record on appeal nor complied with the partial reportefs record provisions of rule 34.6.

we must presume the omitted reporters record supports the judgment. See A. IV. P.. 200 S.W.3d at

245; 84,310 in US, Currency, 133 S.W.3d at 829-30; TEx. R. App. P. 34.6 (b), (c).

Without a record to review, we cannot say the trial court erred in ruling on appellees

application for temporary injunction prior to appellant’s motion to strike or abused its discretion in

granting the temporary injunction. See Amenclv. Wa/son, 333 S.\V.3d 625. 627 (Tex. App.—Dallas

2009, no pet.): TEx. R. App. P. 34.6(c). See also TEx. R. Civ. P. 683 (“The appeal of a temporary

injunction shall constitute no cause for delay of the trial.”). We. therefore. affirm the judgment of

the trial court.

DAViD L. BRIDGES’ JUSTICE

12033 IF.P05 (!tiitrt tif Appca1 .YiftIi Dhitrirt tif ixa tt aI1a JUDGMENT KHANI-l DAO. Appellant Appeal from the l921d Judicial District of Dallas County. Texas. (Tr.Ct.No. DC-Il -

No. 05-12-00331-CV V. 16235-K). Opinion delivered by Justice Bridges, PHIL SILVA, Appellee Justices Richter and Lang. and P110 PARTNERS. LLC AND PI1() COLONIAL 1623 MAIN STREET. LLC. intervenors/Appellees

In accordance with this Court’s opinion of this date. the judgment of the trial court is AFFIRMED. It is ORDERED that appellees Phil Silva, Pho Partners. LL C and Pho Colonial 1623 Main Street, LLC recover their costs of this appeal from appellant Khanh Dao.

Judgment entered November 29. 2012.

DAVID L. BRiDGES JUSTICE