                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS

                                                       '
    EL PASO ACCENT HOMES, L.L.C.,
                                                       '                 No. 08-11-00061-CV
                           Appellant,
                                                       '                      Appeal from
    v.
                                                       '              County Court at Law No. 5
    PREFERRED GROUP PROPERTIES,
                                                       '
    INC., JULIE SKORDAS,                                               of El Paso County, Texas
    MICHAEL STROM, and                                 '
    KEVIN SANCHEZ,                                                         (TC # 2008-2948)
                                                       §
                           Appellees.


                                                OPINION

         El Paso Accent Homes L.L.C. appeals from a take-nothing judgment entered in favor of

Preferred Group Properties, Inc., Julie Skordas, and Michael Strom (the PGP Defendants).1

Finding no reversible error, we affirm the judgment of the trial court.

                                         FACTUAL SUMMARY

         Accent Homes contracted to buy land in El Paso and the PGP Defendants obtained

contracts and deposits from a group of California investors for the purchase of houses to be built

in the subdivision.       When the developer encountered difficulties with resulting delay, the

investors canceled their contracts. The investors sued Accent Homes and the PGP Defendants

for breach of contract alleging that the houses were not built within a reasonable period of time.

Accent Homes asserted cross-claims against the PGP Defendants for breach of fiduciary duty

and negligence.      After the investors settled their claims with Accent Homes and the PGP

1
  Accent Homes also sued Kevin Sanchez. The judgment reflects that the trial court granted Sanchez’s motion for a
directed verdict and rendered judgment in his favor. Accent Homes does not raise any issue with respect to the
judgment entered in favor of Sanchez.
Defendants, their claims were dismissed with prejudice. Accent Homes’ cross-claims against the

PGP Defendants were tried to a jury. The trial court submitted Accent Home’s claim for breach

of fiduciary duty against the PGP Defendants, but it refused to submit the proposed jury question

on negligence. The jury found against Accent Homes on its breach of fiduciary duty claim and

the trial court entered a take-nothing judgment on the verdict.

                                JURY QUESTION ON NEGLIGENCE

        In its sole issue on appeal, Accent Homes argues that the trial court erred by refusing to

submit a negligence question to the jury. Appellees respond, in part, that even assuming the trial

court erred by not submitting the jury question, any error is not reversible because Accent Homes

has not brought forward a complete reporter’s record on appeal, and therefore, it cannot be

determined that failure to submit the negligence question probably caused the rendition of an

improper verdict.

                                  Incomplete Reporter’s Record

        A judgment will not be reversed for charge error unless the error was harmful because it

probably caused the rendition of an improper verdict. Transcontinental Insurance Company v.

Crump, 330 S.W.3d 211, 225 (Tex. 2010); TEX.R.APP.P. 44.1(a). To determine whether the

instruction probably caused an improper judgment, an appellate court is required to examine the

entire case from voir dire through closing argument. Transcontinental Insurance, 330 S.W.3d at

225; see TXI Transportation Company v. Hughes, 306 S.W.3d 230, 242-43 (Tex. 2010)

(“Probable error is not subject to precise measurement, but it is something less than certitude; it

is a matter of judgment drawn from an evaluation of the whole case from voir dire to closing

argument, considering the state of the evidence, the strength and weakness of the case, and the

verdict.”).



                                               -2-
       In its written request for the reporter’s record, Accent Homes requested that the court

reporter prepare all of the trial except for voir dire, opening statements, and closing arguments.

Additionally, Accent Homes requested that the court reporter not include the exhibits in the

record but the record before us includes the exhibits.        Although Accent Homes requested

preparation of only a partial reporter’s record, it did not file a statement of the issues or points

which it intended to raise on appeal as required by TEX.R.APP.P. 34.6(c)(1). Consequently, we

will not indulge Rule 34.6(c)(4)’s presumption that the partial reporter’s record designated by the

parties constitutes the entire record for purposes of reviewing the stated points or issues.

TEX.R.APP.P. 34.6(c)(4). Instead, we will apply the presumption that the omitted portions of

the record are relevant and support the judgment on appeal. See Bennett v. Cochran, 96 S.W.3d

227, 229 (Tex. 2002); Christiansen v. Prezelski, 782 S.W.2d 842 (Tex. 1990). Stated in terms of

the harm analysis, we must presume that the omitted portions of the record are relevant to

determining whether the trial court’s refusal to submit a jury question on negligence probably

caused the rendition of an improper judgment. In the absence of these parts of the trial record,

we are unable to find reversible error. Accordingly, we overrule the sole issue on appeal and

affirm the judgment of the trial court.


May 16, 2012                              ________________________________________________
                                          ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.




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