Southwestern Bell Telephone Co. v. Cafi Co.

777 S.W.2d 778, 1989 WL 126333

• Court: Court of Appeals of Texas
• Decided: August 31, 1989
• Docket: No. 09-88-262-CV
• Status: Published

Opinions

OPINION

DIES, Chief Justice.

This suit involves a claim by appellant for damages to a telephone cable resulting when an employee of appellee drilled into an underground telephone cable owned by appellant. The jury found that appellee, Cafi Company, Inc., trespassed against the personal property of appellant, Southwestern Bell Telephone Company, and that such trespass was a producing cause of damages to appellant’s personal property. The jury awarded Southwestern Bell damages against Cafi in the amount of $1,148.17 as the reasonable cost of repairs to the cable. The trial court awarded judgment in accordance with the jury’s verdict. Appellant has perfected this appeal from the trial court’s judgment.

Appellant urges seven points of error, each of which, in essence, complains that the evidence was legally, or factually insufficient to support the jury’s verdict. Appellant argues "that the undisputed evidence shows that the reasonable cost of repairs was $9,962.80. Appellant argues that the jury awarded only the cost of materials and the cost of obtaining a contractor to dig down to the damaged cable as damages. Appellant complains that the jury improperly refused to award any recovery for the cost of the labor of Southwestern Bell employees who repaired the cable.

The statement of facts filed by appellant does not purport to contain all the evidence introduced at trial. An appellant has the burden of presenting a record on appeal which is sufficient to show error requiring reversal. TEX.R.APP.P. 50(d). When the complaint on appeal is that the evidence is insufficient to support the verdict, an appellant cannot discharge his burden of showing error in the absence of a complete or agreed statement of facts. Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968) (per curiam); Rowlett v. Colortek, Inc., 741 S.W.2d 206 (Tex.App—Dallas 1987, writ denied).

TEX.R.APP.P. 53(d) reads as follows:

“Partial Statement. If appellant requests or prepares a partial statement of facts, he shall include in his request or proposal a statement of the points to be relied on and shall thereafter be limited to such points. If such statement is filed, there shall be a presumption on appeal that nothing omitted from the record is relevant to any of the points specified or to the disposition of the appeal. Any other party may designate additional portions of the evidence to be included in the statement of facts.”

In the present case appellant did not include a statement of the points it intended to rely upon in its request for a partial statement of facts. Therefore, we hold that appellant cannot benefit from the presumption that nothing omitted from the record would support the verdict of the jury. Since appellant has not met its burden of presenting a sufficient record on appeal to show the error requiring reversal, we must presume in the absence of a complete statement of facts that the omitted evidence supports the judgment. Prather v. McNally, 757 S.W.2d 124 (Tex.App.—Dallas 1988, no writ); Patrick v. Patrick, 728 S.W.2d 864 (Tex.App.—Fort Worth 1987, writ ref’d n.r.e.).

Appellant’s brief contains statements that there was no evidence or insufficient evidence introduced to support the jury’s refusal to award damages for labor costs. Appellee has filed no brief; therefore, these statements are not refuted. Under TEX.R.APP.P. 74(f), we “may,” therefore, treat the statements in appellant’s brief as true. However, in the absence of a complete statement of facts and failure to comply with TEX.R.APP.P. 53(d)1, we will decline to accept as true statements in appellant’s brief that the evidence was legally and factually insufficient. See Saenz v. Saenz, 756 S.W.2d 93 (Tex.App. — San Antonio 1988, no writ). Therefore, appellant has not met its burden of showing reversible error.

The judgment of the trial court is affirmed.

Affirmed.

1 . We note that the only testimony included in the statement of facts was that of three of appellant’s own employees.