John and Hazel Scott v. Lenis and Holly Simpson

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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