AFFIRMED; Opinion Filed October 20, 2016.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01286-CV
NANCY JEAN PETTERSON, Appellant
V.
JGMS INVESTMENTS LLC AND EL COPPELL, LLC, Appellees
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-03547-B
MEMORANDUM OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Myers
Nancy Jean Petterson appeals the trial court’s determination following a trial before the
court that JGMS Investments LLC recover on its suit against Petterson for breach of promissory
notes and that Petterson take nothing on her claims against JGMS and El Coppell, LLC for
wrongful foreclosure and trespass to try title. Petterson brings one issue on appeal contending
the foreclosure was void because the notice of foreclosure did not contain the notice required by
section 51.002(i) of the Texas Property Code. Because Petterson did not request the preparation
of the reporter’s record, and no reporter’s record was filed with the Court, we must presume the
evidence admitted during the bench trial supports the trial court’s judgment. Accordingly, we
affirm the trial court’s judgment.
BACKGROUND1
Petterson borrowed $300,000 from Town Center Bank on two promissory notes of
$150,000 each. The loans were secured by deeds of trust on Petterson’s real property. The bank
later assigned the notes and deeds of trust to JGMS. When Petterson defaulted on the notes, the
substitute trustee posted the property for foreclosure. JGMS purchased the property at the
foreclosure sale. JGMS also brought suit against Petterson for a deficiency from the foreclosure
sale. JGMS later sold the property to El Coppell for $600,000. Petterson filed a counterclaim
against JGMS for wrongful foreclosure asserting the foreclosure sale was void because (1)
JGMS’s notice of foreclosure did not comply with the requirements of section 51.002(i) of the
Property Code, and (2) the consideration received at the foreclosure sale for the property was
grossly inadequate. Petterson also sued El Coppell for trespass to try title.
The parties tried the case before the court. The court ordered that JGMS recover
$327,902.33 from Petterson plus attorney’s fees of $28,456.40. The court also ordered that
Petterson take nothing on her claims for wrongful foreclosure and trespass to try title. The court
declared that the foreclosure sale “was legally valid and effective, and that El Coppell has title in
fee simple to the Property to the exclusion of all legal and equitable interest of” Petterson.
ANALYSIS
In her issue on appeal, Petterson contends the foreclosure sale was void because the
notice of foreclosure failed to include the notice required by section 51.002(i) of the Property
Code. The Property Code requires a notice of foreclosure to contain the following statement:
Assert and protect your rights as a member of the armed forces of the United
States. If you are or your spouse is serving on active military duty, including
active military duty as a member of the Texas National Guard or the National
Guard of another state or as a member of a reserve component of the armed forces
1
These facts are derived from the party’s pleadings, the final judgment, and from the “Joint Stipulations” filed in the trial court.
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of the United States, please send written notice of the active duty military service
to the sender of this notice immediately.
TEX. PROP. CODE ANN. § 51.002 (West 2014). Petterson asserts the notice of foreclosure sent to
her did not contain this required statement, and although she was not a member of the armed
forces, the omission of the required statement made the foreclosure void. See Houston First Am.
Sav. v. Musick, 650 S.W.2d 764, 768 (Tex. 1983) (“Compliance with the notice condition
contained in the deed of trust and as prescribed by law is a prerequisite to the right of the trustee
to make the sale.”). Essentially, Petterson’s argument is that the evidence at the trial proved as a
matter of law that the foreclosure sale was void, which is a challenge to the legal sufficiency of
the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam)
(“When a party attacks the legal sufficiency of an adverse finding on an issue on which she has
the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of
law, all vital facts in support of the issue.”).
Petterson did not request the trial court to make findings of fact and conclusions of law,
and she did not request the court reporter to prepare a reporter’s record.2 When there is no
reporter’s record and findings of fact and conclusions of law are neither requested nor filed, we
assume the trial court heard sufficient evidence to make all necessary findings in support of the
judgment. Hebisen v. Clear Creek Indep. Sch. Dist., 217 S.W.3d 527, 536 (Tex. App.—Houston
[14th Dist.] 2006, no pet.); Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex.
App.—Houston [14th Dist.] 1999, pet. denied). Petterson cannot prevail on a challenge to the
sufficiency of the evidence without first meeting her burden of presenting a sufficient record on
appeal. See Hebisen, 217 S.W.3d at 536.
2
The court reporter notified the Court about the status of the record: “Although I have reported hearings in connection with the above-
styled case, I have not been requested to prepare a Reporter’s Record regarding any hearings in this case, and no payment arrangements have
been made regarding payment for a Reporter’s Record. Therefore, at this time there is no Reporter’s Record to be filed.”
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The supplemental clerk’s record contains a document styled “Joint Stipulations by JGMS
Investments, LLC & Nancy Jean Patterson,” but the record does not show that the document was
joined by El Coppell. The document stated that the parties “stipulate to the following matters
and to the admissibility of the evidence referenced herein for purposes of trial in this cause.”
During oral argument of this appeal, Petterson’s counsel stated the case was tried before the trial
court on the parties’ stipulations and that no oral testimony was presented. El Coppell’s counsel
stated in its brief that El Coppell submitted its own stipulations in the trial court that varied
materially from those presented by Petterson and JGMS. El Coppell’s stipulations are not
included in the record on appeal. Petterson’s counsel also stated the exhibits introduced into
evidence at the trial were those included in the appendix to Petterson’s brief. One of the
attachments to Petterson’s brief was a deed of trust that was not part of the appellate record.
Documents attached to a brief that are not formally included in the record are not properly before
the court of appeals and may not be considered by this Court. Bertrand v. Bertrand, 449 S.W.3d
856, 863 n.8 (Tex. App.—Dallas 2014, no pet.). Furthermore, the record does not show this case
was tried on an agreed record under Rule of Civil Procedure 263. See TEX. R. CIV. P. 263.
Without the reporter’s record of the bench trial, we cannot determine whether the parties
introduced the evidence referenced in the stipulations or whether they presented other evidence
contrary to the stipulations. The trial court’s final judgment states the court considered “the
pleadings, motions, responses, evidence, joint stipulations, and joint exhibits agreed to and
entered by all parties.” (Emphasis added.) Without a record of the bench trial, we must assume
the “evidence” admitted at the trial was sufficient to support the trial court’s judgment. See
Hebisen, 217 S.W.3d at 536. We overrule Petterson’s issue on appeal.
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CONCLUSION
We affirm the trial court’s judgment.
/Lana Myers/
LANA MYERS
151286F.P05 JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NANCY JEAN PETTERSON, Appellant On Appeal from the 44th Judicial District
Court, Dallas County, Texas
No. 05-15-01286-CV V. Trial Court Cause No. DC-14-03547-B.
Opinion delivered by Justice Myers. Justices
JGMS INVESTMENTS LLC AND EL Lang and Evans participating.
COPPELL, LLC, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees JGMS INVESTMENTS LLC AND EL COPPELL, LLC
recover their costs of this appeal from appellant NANCY JEAN PETTERSON.
Judgment entered this 20th day of October, 2016.
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