APPEALING A NO-EVIDENCE SUMMARY JUDGMENT? DON’T DO THIS.

Sung Sik Choi v. Juggernaut Transportation, Inc.
Dallas Court of Appeals, No. 05-16-01386-CV (June 26, 2017)
Justices Frances, Brown (Opinion, linked here), and Schenck

Ken Carroll

Plaintiffs suffered a no-evidence summary judgment in the trial court. On appeal, Plaintiffs argued they’d produced sufficient evidence to create a fact issue. The problem? Plaintiffs didn’t designate their summary judgment response for inclusion in the record on appeal. The appeals court, therefore, was required to presume that the omitted evidence supported the trial court’s judgment, rather than undermined it. Plaintiffs argued that the response should be considered because they included it in the appendix to their opening brief on appeal. But they took no action to supplement the record, and placing something in the appendix to one’s brief “is not formal inclusion in the appellate record.” Plaintiffs also asked the appeals court to take judicial notice of their summary judgment response. But the Court declined this invitation, explaining it would “not [be] an appropriate use of judicial notice and would render the rules and case law regarding designation of the appellate record meaningless.” So, the no-evidence summary judgment was affirmed. The moral? Be sure all necessary items are designated for inclusion in your record on appeal. And if you discover an omission, formally supplement under TEX. R. APP. P. 34.5(c); don’t try alternative shortcuts.