Court of Appeals of Texas, Dallas.

Melvinnie Luecille BRYANT, Appellant,

v.

TRANSPORTATION INSURANCE COMPANY, Appellee.

No. 05-99-01581-CV.

|

Jan. 10, 2001.

Before Justices LAGARDE, FITZGERALD, and RICHTER.

OPINION

FITZGERALD.

*1 Melvinnie Luecille Bryant appeals a directed verdict in favor of Transportation Insurance Company (“Transportation”) in Transportation’s suit to set aside a Workers’ Compensation Commission Award. In three issues, Bryant contends the trial court erred in (1) granting CNA Insurance Company’s motion to quash her motion for non-party production; (2) excluding certain evidence at trial and directing a verdict on the basis of Transportation’s no-evidence motion; and (3) overruling her motion for continuance. We affirm.

Factual Background

In September of 1998, Lee Charles Bryant reported to work at Standard Manufacturing Company. He became ill and was taken to the hospital. He died of cardiac arrest brought on by a brain hemorrhage several weeks later. His widow, Melvinnie Luecille Bryant, filed a claim with the Industrial Accident Board, pursuant to the former workers’ compensation statute, alleging that her husband’s death was the result of a work-related injury. The board made an award in favor of Bryant against Transportation Insurance Company, the employer’s workers’ compensation insurance carrier. Transportation sued in district court to overturn the award. The trial court, in a de novo proceeding, after hearing evidence, directed a verdict in favor of Transportation. Bryant appealed.

Motion for Non-Party Production

In her first issue, Bryant contends the trial court erred by granting CNA Insurance Company’s motion to quash her motion for non-party production. Although the motion and the order denying it are attached as exhibits to Bryant’s brief, neither document is part of the record on appeal. We may not consider exhibits or appendices attached to briefs or motions that are not part of the appellate record. Till v. Thomas, 10 S.W.2d 730, 734 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 534 (Tex.App.-Dallas 1987, no writ).

Bryant had the burden to supply us with an appellate record demonstrating the trial court erred in granting CNA’s motion to quash her motion for non-party production. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.1990). Bryant was required to include in the appellate record the motion and order denying it. See Till, 10 S.W.3d at 734. Because the documents are not part of the record, we must presume the missing documents would sustain the trial court’s ruling. University of Texas at Austin v. Hinton, 822 S.W.2d 197, 202 (Tex.App.-Austin 1991, no writ). We resolve Bryant’s first issue against her.

Exclusion of Evidence and Directed Verdict

In her second point of error, Bryant complains the trial court erred in excluding certain evidence and in directing a verdict based on Transportation’s no-evidence motion. To obtain reversal of a judgment based upon an error of the trial court in admitting or excluding evidence, appellant must show (1) the trial court erred, and (2) the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). Because the appellate court must examine the entire record to determine whether the disputed evidence controlled the judgment, the excluded evidence itself must be a part of the record. See id; see also Tex.R.Civ.Evid. 103(a)(2) (error may not be based on a ruling that excludes evidence unless the substance of the evidence was made known to the court by offer of proof); Weng Enters., Inc. v. Embassy World Travel, Inc., 837 S.W.2d 217, 221 (Tex.App.-Houston [1st Dist.] 1992, no writ) (in the absence of a bill of exception or offer of proof, appellate court has no basis for reviewing a contention that the trial court committed reversible error in excluding evidence).

*2 Bryant made no offer of proof regarding the excluded evidence.¹ Therefore, her complaint as to the excluded evidence is waived. TEX.R.EVID. 103(a)(2). Even if Bryant had properly preserved her complaint for appeal, she fails to state why the trial court erred in excluding the evidence or the reasons the evidence should have been admitted. Bryant therefore fails to show how the trial court erred. Gee, 765 S.W.2d at 396 (to obtain reversal of a ruling excluding evidence, appellant must first show the trial court erred in excluding the evidence).

Bryant further complains that the trial court erred in directing a verdict because the excluded evidence should have been admitted to prove up the elements of her claim. We have already concluded she showed no error in the trial court’s exclusion of evidence. The record before us shows that there was no evidence that Bryant’s husband’s injury was work-related. Therefore, on the record before us, we hold the trial court did not err in directing a verdict. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983) (party is entitled to a directed verdict when there is no evidence to support a material issue). We resolve Bryant’s second issue against her.

Motion for Continuance

In her list of issues, Bryant includes, as issue number three, her contention that the trial court erred by overruling her motion for continuance filed twelve days before trial. However, the argument portion of her brief contains only “arguments and authorities” as to her first two issues. Because Bryant cited no argument or citations to authority to support issue number three, she waived any error on appeal as to this issue. See Tex.R.App.P. 38.1(h) ( “brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities”); Warehouse Partners v. Gardner, 910 S.W.2d 19, 26 (Tex.App.-Dallas 1995, writ denied). We resolve Bryant’s third issue against her.

We affirm the trial court’s judgment.

	Footnotes
1		Although some of the excluded documents are contained in the record as “exhibits offered but not admitted,” Bryant made no argument as to why the evidence was improperly excluded or why it should have been admissible. See TEX.R.EVID. 103(a)(2). In an offer of proof, “the party must specify the purpose for which the evidence is offered and give the trial judge reasons why the evidence is admissible.” Continental Coffee Prods. Co. v. Cazarez, 903 S.W.2d 70, 80 (Tex.App.-Houston [14th Dist.] 1995), rev’d in part on other grounds, 937 S.W.2d 444 (Tex.1996).