Court of Appeals of Texas, San Antonio.
Johnny BRILES, Appellant,
CHATEAU INTERNATIONAL, Etc. d/b/a Bender Creek Apartments, Appellee.
Appeal No. 04-95-00123-CV.
Nov. 13, 1996.
334th Judicial District Court of Harris County Trial Court No. 93-044787 Honorable Russell Lloyd, Judge Presiding
Before DUNCAN, JJ., and HILL, J.1
*1 Johnny Briles appeals the trial court’s summary judgment against him in his suit for personal injuries against Chateau International, etc., d/b/a Bender Creek Apartments. We affirm.
On December 9, 1992, Johnny Briles was sent by Peakload of Houston, Inc., a temporary placement service, to remove roof shingles at the Bender Creek Apartments. While on a ladder, Briles fell. He then sued Chateau International d/b/a Bender Creek Apartments for negligence and gross negligence, as well as violations of the federal and state occupational safety statutes. In its motion for summary judgment, Chateau International argued that Briles was limited to his remedy under the Workers’ Compensation Act, because the undisputed summary judgment evidence established that Briles was a borrowed servant as to Chateau International, which was a workers’ compensation subscriber at the time of the accident. Although the trial court granted Briles’ motion to file a late response, the transcript does not contain a response. The transcript does contain Briles’ Second Supplemental Response; however, it does not contain an order granting leave to file this second supplemental response. The trial court granted Chateau International’s motion, and Briles appealed.
In this court, Chateau International filed a motion to strike the transcript as untimely filed. By order dated July 13, 1995, this court held that the transcript was timely filed in the First Court of Appeals in which this appeal was originally filed. In the same order, this court denied Briles’ request that we order the transcript supplemented, because we could not “ascertain ... what materials necessary to the disposition of this appeal he believes have been omitted from the record.”2
In his sole point of error, Briles argues that the summary judgment evidence is insufficient to establish that Chateau International complied with the requirements of article 8308-3.24 of the Texas Workers’ Compensation Act.3 Chateau International responds that the judgment should be affirmed because (1) the transcript was untimely filed; and (2) Briles failed to bring forward a record showing reversible error, as required by Rule 50(d), Tex.R.App. P. We overrule Chateau International’s first reply point because, as noted above, this court previously held that the transcript was timely filed. However, we sustain Chateau International’s second reply point and therefore affirm the judgment.
Briles bore the burden of filing a record sufficient to establish reversible error. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). The judgment is therefore affirmed.
Assigned to this case by the Chief Justice of the Supreme Court of Texas pursuant to TEX. GOV’T CODE ANN., Justice § 74.003(b) (Vernon 1988).
Briles made the same request in his Response to Appellee’s Amended Brief. However, this request also fails to specify “what materials necessary to the disposition of this appeal he believes have been omitted from the record” or otherwise comply with Rule 55(b) or Local Rule 4. While we agree with Briles that the Texas Rules of Appellate Procedure should be liberally construed, see, e.g., Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121 (Tex.1991), we do not believe that Rule 55(b), even under a liberal construction, relieves the appellant of, and transfers to this court, the responsibility for ascertaining which matters omitted from a transcript are material to the disposition of an appeal. Accordingly, in line with this court’s July 13, 1995 order, the request in Briles’ response is denied.
Act of Dec. 11, 1989, 71st Leg., 2d C.S., ch. 1, §§ 3.24, 17.18, 1973 Tex. Gen. Laws 1, 22-23, 122 (effective Jan. 1, 1993), repealed by Act of May 22, 1993, 73rd Leg., ch. 269, §§ 5(2), 8, 1993 Tex. Gen. Laws 987, 1273 (effective Sept. 1, 1993) (current version at Tex. Lab.Code Ann. § 406.005 (Vernon Supp.1995)).