John and Hazel Scott v. Lenis and Holly Simpson ( 2005 )

NO. 07-04-0554-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
DECEMBER 12, 2005
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JOHN SCOTT and HAZEL SCOTT,
Appellants
v.
HOLLY SIMPSON and LENIS SIMPSON,
Appellees
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FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;
NO. 90,963-1; HON. W. F. ROBERTS, PRESIDING
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Memorandum Opinion
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Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
John and Hazel Scott (the Scotts), acting pro se, appeal from a judgment awarding
Holly and Lenis Simpson (the Simpsons) $10,674.67 plus attorney’s fees of $3,500.00.
The judgment was entered upon trial at which the Scotts failed to appear. They seek
reversal because they 1) received no notice of the trial date, and 2) did not breach their
contract with the Simpsons or commit fraud or deceptive trade practices. We affirm the
judgment of the trial court.
Regarding the contention that they did not receive notice of the trial setting, no
evidence of record illustrates as much. And, though the allegation was made in the motion
for new trial filed by the Scotts, the motion was neither verified nor accompanied by a
supporting affidavit. Nor do the allegations contained in the Scotts’ appellate brief fill the
void; factual statements and documents appearing only in the appellate brief are not
evidence upon which this court may act. See Castano v. San Felipe Agricultural, Mfg. &
Irr. Co., 147 S.W.3d 444, 452-53 (Tex. App.–San Antonio 2004, no pet.) (stating that an
appellate court may not consider evidence included in or attached to briefs that is not part
of the official record developed at trial); Custom-Crete, Inc. v. K-Bar Services, Inc., 82
S.W.3d 655, 659 (Tex. App.–San Antonio 2002, no pet.) (stating that one contending he
received no notice of the trial date must produce evidence, not simply allegation, to support
the contention). Indeed, we are limited to reviewing only that competent evidence
presented to and admitted by the trial court. See Castano v. San Felipe Agricultural, Mfg.
& Irr. Co., 147 S.W.3d at 452-53. Thus, the allegation that the Scotts received no notice
of the trial date is unsubstantiated and overruled.
Regarding the other issues raised by the Scotts, they appear as little more than
effort to attack the sufficiency of the evidence underlying the trial court’s finding of liability,
which the Scotts do simply by asserting factual allegations in and attaching documents to
their appellate brief. Again, such are not competent evidence upon which we can act since
they are not part of the appellate record. Id. Nor do we have a reporter’s record of the trial
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or documentation within the appellate record illustrating that the Scotts requested it.1 This
is fatal since the Scotts had the burden to provide us with a record sufficient to support their
contentions and establish the need for reversal. Pentes Design, Inc. v. Perez, 840 S.W.2d
75, 79 (Tex. App. –Corpus Christi 1992, writ denied). Without the reporter’s record, we can
only presume that the trial court had sufficient evidence before it to support its decision.
Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.–Houston [14th
Dist.] 1999, pet. denied) (holding that when there is neither a reporter’s record nor findings
of fact, the appellate court will assume the trial court heard sufficient evidence to make all
the necessary findings to support the judgment). Thus, we overrule these issues as well.
The judgment of the trial court is affirmed.
Per Curiam
1
The Scotts do assert in their brief that they w ere told by the reporter that no record of the trial was
made. Yet, they do not contend that the trial court heard no evidence at the proceeding. Nor does the record
establish that the trial court heard no evidence . See T E X . R. C IV . P. 243 (sta ting that if the dam ages are
unliquidated, then the trial court “shall hear evidence as to damages . . . unle ss th e defendant sha ll demand
and be entitled to a trial by jury . . .”).
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