Affirmed and Memorandum Opinion filed March 26, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00783-CV

                        ROBERT BURTON, Appellant
                                        V.
     WAYMAN L. PRINCE, NAFISA YAQOOB, INDEPENDENT
   MANAGEMENT AND INVESTMENTS, LLC, AND THE LEAWOOD
         HOMEOWNERS ASSOCIATION, INC., Appellees

                    On Appeal from the 80th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-53221


                 MEMORANDUM OPINION

      This is a dispute over a notice of foreclosure sale filed and served on behalf
of Leawood Homeowners Association, Inc. (the Association) pertaining to a
condominium unit (the Property) purportedly owned by Robert Burton. After a
bench trial, the trial court found against Burton on his claim that the notice of
foreclosure sale was a fraudulent record filed in violation of Civil Practice &
Remedies Code section 12.002, which creates a private cause of action against a
person who makes, presents, or uses “a document or other record with . . .
knowledge that the document or other record is a fraudulent court record or a
fraudulent lien or claim against real or personal property or an interest in real or
personal property.” 1 We affirm.

      The Association began nonjudicial foreclosure proceedings on the Property
after Burton had failed to pay his dues. The Association served Burton with notice
of the foreclosure sale and filed the notice in the real property records of Harris
County, Texas.

      Burton then brought a claim against the Association; the Association’s
attorney and trustee, Wayman L. Prince; property manager Nafisa Yaqoob; and
property management company Independent Management & Investment LLC
(collectively, Leawood) for, among other things, filing a fraudulent record under
section 12.002. Burton alleged the notice of sale is a fraudulent record because it
includes “material representations of fact which Prince knew (or should have
known) to be false.”

      After the trial court rendered a take nothing judgment against Burton, Burton
filed a motion to modify the final judgment under Rule of Civil Procedure 329b
complaining of the trial court’s findings against him on his section 12.002 claim.
See Tex. R. Civ. P. 329b. Burton asserted that he presented evidence at trial
conclusively establishing his entitlement to judgment in his favor on his section
12.002 claim. The motion was overruled by operation of law. See Tex. R. Civ. P.
329b(c).

      On appeal, Burton did not order a reporter’s record of the bench trial. He


      1
          Tex. Civ. Prac. & Rem. Code § 12.002(a)(1).

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filed a letter stating that his appeal was limited to the trial court’s denial of his
motion to modify the judgment. No record was taken of the oral hearing on the
motion.2

       Burton argues in six issues that the trial court erred in finding against him on
his section 12.002 claim and should have awarded him prejudgment interest.
Burton relies on evidence presented at trial and in support of his motion to modify
the judgment to support his arguments. Construing Burton’s appellate brief
liberally, we interpret these complaints as legal and factual sufficiency challenges.
See Tello v. Bank One, N.A., 218 S.W.3d 109, 122 (Tex. App.—Houston [14th
Dist.] 2007, no pet.) (acknowledging that courts of appeals must construe appellate
brief reasonably and liberally); see also Locke v. Briarwood Vill., No. 14-17-
00113-CV, 2018 WL 5621379, at *2 (Tex. App.—Houston [14th Dist.] Oct. 30,
2018, no pet.) (mem. op) (“Because [appellant] is pro se, we construe her issues
liberally as a challenge to the legal and factual sufficiency of the evidence
supporting the trial court’s judgment.”).

       When a trial court does not make findings of fact and conclusions of law to
support its ruling after a bench trial, as here, we infer all findings necessary to
support the judgment. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,
795 (Tex. 2002). The judgment of the trial court must be affirmed if it can be
upheld on any legal theory that is supported by the evidence. In re W.E.R., 669
S.W.2d 716, 717 (Tex. 1984).

       We review the trial court’s decision for legal sufficiency of the evidence
using the same standards applied in reviewing the evidence supporting a jury’s
finding. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review the

       2
        In his reply brief and in a separate motion, Burton moved to strike Leawood’s brief and
moved for sanctions. This court denied the motion.

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evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d
802, 822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could
and disregard contrary evidence unless a reasonable factfinder could not. Id. at
827. A party attacking the legal sufficiency of an adverse finding on an issue on
which he had the burden of proof must demonstrate that the evidence conclusively
establishes all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001).

      In reviewing factual sufficiency, we examine the entire record, considering
both the evidence in favor of and contrary to the challenged findings. 2900 Smith,
Ltd. v. Constellation NewEnergy, Inc., 301 S.W.3d 741, 746 (Tex. App.—Houston
[14th Dist.] 2009, no pet.). When a party attacks the factual sufficiency of an
adverse finding on which he bore the burden of proof, he must establish that the
finding is against the great weight and preponderance of the evidence. In re Estate
of Parrimore, No. 14-14-00820-CV, 2016 WL 750293, at *5 (Tex. App.—Houston
[14th Dist.] Feb. 25, 2016, no pet.) (mem. op.). We may not pass upon the
witnesses’ credibility or substitute our judgment for that of the factfinder, even if
the evidence would support a different result. 2900 Smith, 301 S.W.3d at 746. If
we determine the evidence is factually insufficient, we must detail the evidence
relevant to the issue and state in what regard the contrary evidence greatly
outweighs the evidence supporting the trial court’s judgment; we need not do so
when affirming the judgment. Id.

      To establish that the trial court’s finding against Burton was not supported
by legally sufficient evidence, Burton was required to establish conclusively that
Leawood not only made, presented or used a fraudulent notice of sale but also
(1) knew it amounted to a fraudulent claim against real property or an interest in

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real property; (2) intended for the fraudulent claim to be given the same legal
effect as a document evidencing a valid claim against real property or an interest in
real property; and (3) intended to cause financial injury, mental anguish, or
emotional distress to Burton. 3 See Tex. Civ. Prac. & Rem. Code § 12.002(a);
Lance v. Robinson, 543 S.W.3d 723, 744 (Tex. 2018); see also Burton v. Prince,
No. 14-17-00181-CV, 2019 WL 1064868, at *1 (Tex. App.—Houston [14th Dist.]
Mar. 7, 2019, no pet. h.). As to his factual sufficiency challenge, Burton was
required to establish that the trial court’s finding is against the great weight and
preponderance of the evidence. See Parrimore, 2016 WL 750293, at *5.

       It was Burton’s burden to furnish this court with a record that supports his
allegations. See Maxim Crane Works, L.P. v. Berkel & Co. Contractors, Inc., No.
14-15-00614-CV, 2016 WL 4198138, at *1 (Tex. App.—Houston [14th Dist.]
Aug. 9, 2016, pet. denied) (mem. op.); Appleton v. Appleton, 76 S.W.3d 78, 87
(Tex. App.—Houston [14th Dist.] 2002, no pet.). Some circumstances obviate the
need for a complete record, such as a partial record appeal or the resolution of an
issue of law that does not require the review of evidence. See King’s River Trail
Ass’n v. Pinehurst Trail Holdings, L.L.C., 447 S.W.3d 439, 449–51 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied). Neither exception applies in a challenge to
the sufficiency of the evidence such as the one presented here. 4 See Renaud v.

       3
         Burton does not allege that Leawood intended to cause him physical injury. See Tex.
Civ. Prac. & Rem. Code § 12.002(a)(3)(A).
       4
          Under Rule of Appellate Procedure 34.6, an appellant may request a partial reporter’s
record and include a statement of the issues to be presented on appeal and that the appeal will be
limited to those issues. Tex. R. App. P. 34.6(c). Here, Burton filed a letter stating his appeal was
limited to challenging the trial court’s denial of his motion to modify the judgment. But such a
letter does not obviate the need to review the entire record on appeal in a sufficiency challenge.
See Kings River Trail Ass’n, 447 S.W.3d at 450-51 (holding that a reporter’s record is required
for matters that “require reference to the evidence at trial”); see also Renaud v. Estate of Brown,
No. 14-17-00019-CV, 2017 WL 6045566, at *3 (Tex. App.—Houston [14th Dist.] Dec. 7, 2017,
no pet.) (mem. op.) (holding complete record was required for factual sufficiency review).

                                                 5
Estate of Brown, No. 14-17-00019-CV, 2017 WL 6045566, at *3 (Tex. App.—
Houston [14th Dist.] Dec. 7, 2017, no pet.) (mem. op.).

       Absent a complete record, we must presume that the omitted portions of the
record are relevant to the disposition of the appeal and that they support the trial
court’s judgment. Id. Because our appellate record contains no reporter’s record of
the bench trial or hearing, we presume that those proceedings support the trial
court’s judgment. See King’s River Trail Ass’n, 447 S.W.3d at 451; see also
Renaud, 2017 WL 6045566, at *3. Here, the trial court stated in its judgment that it
found against Burton “after hearing the evidence.”

       Burton presented the following documentary evidence in support of his
motion to modify the judgment: notices of foreclosure sale, an email from Prince
indicating the Property needed to be put into foreclosure, emails from Burton to
Prince and Yaqoob alleging improper conduct, and an email from Yaqoob to
Burton telling Burton she would not provide him any information at that time.
Because the motion was overruled by operation of law, we do not know if the trial
court considered this evidence.5 Presuming for argument’s sake that the trial court
did so and presuming that the omitted portions of the record support the trial
court’s judgment, the evidence attached to the motion does not conclusively
establish that Leawood intended to cause financial injury, mental anguish, or
emotional distress to Burton or establish that the trial court’s findings are against
       5
          We generally do not consider evidence that was not before the trial court at the time it
rendered judgment. See, e.g., In re I.M.F., No. 14-17-00758-CV, 2018 WL 1165480, at *6 (Tex.
App.—Houston [14th Dist.] Mar. 6, 2018, pet. denied) (mem. op.) (holding evidence admitted at
hearing on motion for new trial could not be considered on appeal because it was not before the
trial court when it rendered judgment); see also McMahan v. Greenwood, 108 S.W.3d 467, 482–
83 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (holding evidence attached to
appellant’s “motion for new trial” was not before trial court when it granted summary judgment,
so court of appeals would not consider evidence in appeal from summary judgment). Here, we
do not know what evidence was before the trial court when it rendered judgment because we do
not have the reporter’s record of the trial.

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the great weight and preponderance of the evidence. See Renaud, 2017 WL
6045566, at *3. We therefore overrule Burton’s issues and affirm the judgment of
the trial court.




                                       /s/       Frances Bourliot
                                                 Justice



Panel consists of Justices Christopher, Bourliot, and Spain.




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