Silk v. Terrill

• Decision Date: 27 April 1995
• Docket Number: No. 94-1136,94-1136
• Citation: 898 S.W.2d 764
• Parties: 38 Tex. Sup. Ct. J. 553 Holly SILK, Petitioner, v. Robert TERRILL, M.D., Respondent.
• Court: Texas Supreme Court

Page 764

898 S.W.2d 764

38 Tex. Sup. Ct. J. 553

Holly SILK, Petitioner, v.Robert TERRILL, M.D., Respondent.

No. 94-1136.

Supreme Court of Texas.

April 27, 1995.

Rehearing Overruled June 22, 1995.

Paul L. Smith, Kay L. Van Wey, and Matthew C. McKay, Dallas, for petitioner.

Richard A. Sayles and Steven E. Aldous, Dallas, for respondent.

ON APPLICATION FOR WRIT OF ERROR TO THE COURT OF APPEALS FOR

THE FIFTH DISTRICT OF TEXAS

PER CURIAM.

The issue in this case is whether the court of appeals abused its discretion in denying post-submission supplementation of the appellate record.Based on the facts in this record, we hold that it did.Accordingly, pursuant to Rule 122 of the Texas Rules of Appellate Procedure, without hearing oral argument, a majority of this Court reverses the judgment of the court of appeals and remands this case for consideration of the merits of the appeal.

This is a medical malpractice case brought by Holly Silk against Dr. Robert C. Terrill.Terrill filed a motion for summary judgment supported by his own affidavit.Silk's response included a controverting affidavit from a physician.The trial court granted Terrill's motion for summary judgment.

Silk perfected her appeal and specifically requested that the district clerk include Terrill's motion for summary judgment, which purported to have his supporting affidavit attached to it, as part of the record to be transmitted to the court of appeals.However, Terrill's affidavit was not in fact attached to his motion, but had been filed separately in the trial court.As a result, his affidavit did not become part of the appellate record.

Prior to filing her appellate brief, Silk discovered that Terrill's affidavit was missing from the record but decided to attach a copy of it to her brief rather than file a motion to supplement the record.Silk contacted Terrill's counsel to apprise him of these facts as a courtesy in the event Terrill wished to cite the affidavit in his response.Terrill's reply brief in the court of appeals did not raise a reply point regarding the omission of Terrill's affidavit from the record, nor did it challenge the sufficiency of the record for appellate review.Two minutes before oral argument, Terrill's counsel advised Silk's counsel for the first time that he would argue that the absence of Terrill's affidavit rendered the record insufficient for appellate review.

The court of appeals affirmed the summary judgment without reaching the merits because Silk failed to bring forward a sufficient record.The court concluded that it must presume the omitted affidavit supported the trial court's judgment.Silk then filed motions to supplement the record and for rehearing.The court of appeals denied both of these motions.

Silk contends in this Court that the court of appeals abused its discretion in failing to permit post-submission supplementation of the record to include the omitted...