                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00649-CV

                             MORRELL MASONRY SUPPLY, INC.,
                                       Appellant

                                             v.
                                      WESTPORT GROUP,
                                    WESTPORT GROUP, INC.,
                                          Appellee

                     From the 225th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011-CI-00732
                             Honorable Laura Salinas, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: July 31, 2013

AFFIRMED

           Appellee Westport Group, Inc. (“Westport”) filed a lien removal suit against Appellant

Morrell Masonry Supply, Inc. (“Morrell”). A portion of Westport’s suit was resolved by the

granting of Westport’s interlocutory summary judgment. The remainder of the suit, which included

an award of attorney’s fees, was resolved in Westport’s favor by a bench trial. Morrell’s issues on

appeal concern only the award of attorney’s fees to Westport in the amount of $7,190.00 and costs

in the amount of $258.15. We affirm the trial court’s judgment.
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       Morrell, a masonry supplier, supplied materials to Westport, a contractor, during

September and October 2010 for a project in Bexar County. Claiming it had not been paid for

materials it furnished, Morrell filed a lien affidavit pursuant to Chapter 53 of the Texas Property

Code and a suit to foreclose the lien. Morrell later filed a nonsuit. Westport then filed this suit

against Morrell seeking to remove the lien. Westport alleged that the lien as to materials furnished

in September 2010 should be removed because Morrell failed to give the proper statutory notice.

Westport also alleged that the lien as to materials furnished in October 2010 should be removed

because Westport had paid for the materials.

       Westport obtained a default judgment on its claims against Morrell, but the default

judgment was later set aside. Westport then filed a no-evidence motion for summary judgment.

The trial court granted the motion as to the September 2010 materials, but reserved for trial issues

related to the October 2010 materials and attorney’s fees. Thus, the trial court’s granting of the no-

evidence summary judgment was interlocutory because it did not dispose of all claims.

       On May 10, 2012, a bench trial was held on Westport’s remaining claims, resulting in the

trial court’s order of July 11, 2012. In that order, the trial court recited that “[a]fter due

consideration of the evidence, including affidavits and documents in this cause, and the argument

of counsel,” it found that Westport had paid the October 2010 claim, ordered that the liens relating

to that claim be removed, and ordered that Westport be awarded attorney’s fees in the amount of

$7,190.00 and costs in the amount of $258.15. The trial court also entered findings of fact and

conclusions of law in which it found that Westport was entitled to attorney’s fees in the amount of

$7,190.00 and costs in the amount of $258.15.

       Morrell raises two issues on appeal, both of which relate to the trial court’s award of

attorney’s fees to Westport. In its first issue, Morrell states the trial court erred in finding that

Westport’s attorney’s fees were incurred in invalidating the lien under Section 53.156 of the Texas
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Property Code. In its second issue, Morrell argues that Westport should not recover “fees for

chasing fees.” Throughout its brief, however, it is clear that Morrell’s complaint on appeal relates

to insufficiency of the evidence. Specifically, Morrell claims the following:

           •   The trial court erred in finding that Westport was entitled to attorney fees
               against Morrell in the amount of $7,190.00 because the evidence is legally
               and factually insufficient to support the trial court’s conclusion of law
               number 5 regarding Westport’s attorney’s fees.
           •   The Court should grant a new trial because the attorney fees awarded to
               Westport were not supported by evidence that was legally and factually
               sufficient to comply with Tex. Prop. Code Ann. § 53.156.
           •   The record is completely devoid of any evidence in the record to support an
               attorney’s fee award of $7,190.00.
           •   No evidence appears in the record from the trial held on attorney’s fees on
               May 10, 2012.
           •   More importantly, there is no evidence in the record that Westport offered
               any evidence that its fees were incurred in invalidating the lien under Tex.
               Prop. Code Ann. § 53.156.
           •   [Westport] failed to segregate and offer any proof specifying the number of
               hours spent on the lien-removal claim.
           •   [Westport] failed to tender any proof of the details about the work
               performed specifically for the lien-removal claim.
           •   [T]here is no evidence of the $7,190.00 in fees awarded at trial.
           •   At trial, Westport failed to admit into the evidence any evidence as to its
               attorney’s fees sought in the amount of $7,190.00.
           •   Westport was awarded attorney’s fees of $7,190.00 without any proof in the
               record to support such fees and without segregation of those fees solely
               associated with its lien removal efforts . . . .

       There is not, however, a reporter’s record in this appeal to reflect what evidence was

introduced at trial. In its docketing statement filed in this court, Morrell indicated that there was

no reporter’s record; that none was requested; and that there was no electronic recording of the

trial. Thus, Morrell has brought this appeal without ensuring a reporter’s record was filed. When

an appellant brings a legal or factual sufficiency of the evidence challenge, it is the appellant’s

burden to show there was insufficient evidence submitted at trial. Schafer v. Conner, 813 S.W.2d

154, 155 (Tex. 1991). When there is no reporter’s record, we presume the evidence presented was

sufficient to support the trial court’s judgment. Willms v. Americas Tire Co., 190 S.W.3d 796, 803

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(Tex. App.—Dallas 2006, pet. denied). In the absence of a reporter’s record, Morrell cannot meet

its burden of showing insufficiency of the evidence to support the trial court’s award of attorney’s

fees. We therefore affirm the trial court’s judgment.



                                                  Karen Angelini, Justice




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