Court of Appeals of Texas, San Antonio.

Don G. SILVEY, Appellant,

v.

The INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Appellee.

No. 04-00-00439-CV.

|

Aug. 22, 2001.

From the 285th Judicial District, Bexar County, Texas, Trial Court No. 97-CI-00470; Pat Boone, Judge Presiding.

HARDBERGER, Chief J., LÓPEZ and ANGELINI, JJ.

Opinion

ANGELINI, Justice.

*1 Don G. Silvey appeals two evidentiary rulings of the trial court, alleging that the trial court erred in excluding such evidence and that such error was harmful. We affirm the trial court’s judgment.

Background

The Insurance Company of the State of Pennsylvania (“ICP”) filed suit against Don G. Silvey, seeking review of a decision of the Appeals Panel of the Texas Workers’ Compensation Commission (“Appeals Panel”). In that decision, the Appeals Panel made several findings regarding injuries Silvey sustained in the workplace. Silvey responded, asserting a general denial, counterclaiming for attorney’s fees and costs of court, and praying the trial court affirm the findings of the Appeals Panel. At trial, Silvey attempted to use as a demonstrative exhibit the Employer’s First Report of Injury or Illness. ICP objected to the use of the report and, the trial court sustained the objection. Later, Silvey attempted to introduce his treating physician’s notes as well as 500 pages of other documents relied upon by his treating physician. Only the physician’s records were admitted. The jury returned a verdict in favor of ICP; the trial court entered judgment accordingly. Silvey appeals the judgment of the trial court, asserting: (1) the trial court erred in excluding the exhibit of the Employer’s First Report of Injury or Illness; (2) the trial court erred in excluding 500 pages of documents relied on by Silvey’s treating physician; and (3) such exclusions constituted harmful error.

Discussion

Silvey first argues that the trial court erred in excluding an exhibit of the Employer’s First Report of Injury or Illness. To preserve a complaint that the trial court improperly excluded evidence, the complaining party must make an offer of proof as to what the excluded evidence would have contained. Tex.R.App. P. 33.2; Tex.R. Evid. 103(b); Sims v. Brackett, 885 S.W.2d 450, 453 (Tex.App.-Corpus Christi 1994, writ denied). The failure to make an offer of proof containing a summary of the excluded evidence waives any complaint about the exclusion of the evidence on appeal. Akin v. Santa Clara Land Co., Ltd. 34 S.W.3d 334, 339 (Tex.App.-San Antonio 2000, pet denied); Sims 885 S.W.2d at 453.

Here, Silvey failed to offer the report into evidence. In fact, at trial, Silvey’s counsel indicated the report was “just demonstrative” and that he had no intention of entering it into evidence. Furthermore, Silvey’s counsel neither summarized for the record what the excluded report contained, nor did he make an offer of proof or a bill of exceptions. The report, therefore, is not part of the record before us. Silvey did not properly preserve the alleged error for appeal.

Silvey also argues that the trial court erred in excluding 500 pages of documents relied upon by the treating physician, alleging that such documents are not hearsay and fall into two separate exceptions to the hearsay rule. Again, Silvey’s counsel failed to make an offer of proof. Tex.R.App. P. 33.2; Tex.R. Evid. 103(b).

*2 In addition, Silvey neither identifies in his brief the hearsay exception the documents fall under, nor does he present any argument or authority to support this issue on appeal. Issues presented without argument or authority are waived. See Tex.R.App. P. 38.1(h); San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-210 (Tex.1990); Hartmann v. Solbrig, 12 S.W.3d 587, 598 (Tex.App.-San Antonio 2000, pet. denied) (citing Templeton v. Dreiss, 961 S.W.2d 645, 652 (Tex.App.-San Antonio 1998, pet. denied)). Accordingly, Silvey has waived this issue.

Because Silvey waived error on both evidentiary rulings, this court need not decide whether such exclusions of evidence were harmful.

Conclusion

We overrule Silvey’s evidentiary issues and affirm the judgment of the trial court.