                                  NUMBER 13-10-00526-CV

                                     COURT OF APPEALS

                           THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


MIGUEL REGALADO,                                                                          Appellant,

                                                    v.

NOEHMI B. GUERRA,                                                                           Appellee.


                       On appeal from the 107th District Court
                            of Cameron County, Texas.


                                   MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Chief Justice Valdez
        In this appeal, appellant, Miguel Regalado, challenges the trial court’s order

granting appellate attorney’s fees to appellee, Noehmi B. Guerra.1                       By one issue,

        1
          Regalado characterizes the trial court’s judgment as interlocutory; however, based on the record
before us it does not appear that there are any pending issues before the trial court. Lehmann v. Har-
Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (“A judgment is final for purposes of appeal if it disposes of
all pending parties and claims in the record, except as necessary to carry out the decree.”). Moreover, if
the order were interlocutory, we would have no authority to review it and the cause would be dismissed
for want of jurisdiction. Lehmann, 39 S.W.3d at 195 (providing that appellate courts have jurisdiction over
final judgments and interlocutory appeals authorized by statute).
Regalado contends that the trial court erred by relying on a judgment that did not award

attorney’s fees to Guerra. We affirm.

                                      I.      BACKGROUND

       On September 2, 1997, the trial court awarded Guerra the sum of $13,836.15 by

a default judgment. In 2006, Guerra filed an application for turnover relief requesting

turnover of real property owned by Regalado in satisfaction of the 1997 default

judgment. Regalado filed a bill of review claiming that he had not been properly served

with citation of process before entry of the 1997 default judgment. In response, Guerra

filed a motion for summary judgment, which the trial court granted. On June 21, 2007,

the trial court granted turnover relief awarding Guerra real property in satisfaction of the

debt owed by Regalado pursuant to the 1997 judgment.                        Regalado appealed,

complaining that he had not been properly served in the 1997 cause of action, and

therefore, the 2007 judgment was void.               In a memorandum opinion, this Court

concluded that Regalado was attempting an impermissible collateral attack on the 1997

judgment and affirmed the 2007 judgment. See Regalado v. Guerra, No. 13-07-00526-

CV, 2010 Tex. App. LEXIS 6425, at **9-10 (Tex. App.–Corpus Christi Aug. 5, 2010, pet.

denied) (mem. op.) (op. on reh’g).

       Guerra then filed a motion for attorney’s fees and rents in the trial court

requesting, among other things, appellate attorney’s fees.              A hearing was held on

Guerra’s motion for attorney’s fees and rents on August 26, 2010.2 On September 2,

2010, the trial court ordered Regalado to pay Guerra $17,000 in attorney’s fees.

Regalado filed this appeal. Subsequently, Regalado filed a motion for rehearing in the

       2
          The record is incomplete, and the reporter’s record of the hearing on appellee’s motion for
attorney’s fees was not filed with this Court.


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trial court. A hearing was held on that motion on November 15, 2010. It does not

appear from the record that the trial court ruled on Regalado’s motion for rehearing;

therefore, it was overruled by operation of law. See TEX. R. APP. P. 329(c).

                                   II.     DISCUSSION

      An appellate court reviews a trial court’s decision to award or not award

attorney's fees under an abuse of discretion standard of review. Ridge Oil Co. v. Guinn

Invs., Inc., 148 S.W.3d 143, 163 (Tex. 2004). A trial court abuses its discretion when it

acts in an arbitrary and unreasonable manner, or when it acts without reference to any

guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241-42 (Tex. 1985).

      In applying the abuse of discretion standard, reviewing courts defer to the
      trial court's factual determinations; a reviewing court does not engage in
      its own factual review, but decides whether the record supports the trial
      court's resolution of factual matters. If the record supports the trial court's
      evidentiary findings, the reviewing court is not at liberty to disturb them. A
      reviewing court instead determines only whether the trial court properly
      applied the law to the facts in reaching its legal conclusion.

State v. $217,500 in U.S. Currency, 18 S.W.3d 631, 633-34 (Tex. 2000). A trial court

does not abuse its discretion when it makes its decision on conflicting evidence and

some evidence supports its judgment. Unifund CCR Partners v. Villa, 299 S.W.3d 92,

97 (Tex. 2009); Garcia-Udall v. Udall, 141 S.W.3d 323, 333 (Tex. App.–Dallas 2004, no

pet.) (citing Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); Burns v. Burns, 116

S.W.3d 916, 921 (Tex. App.–Dallas 2003, no pet.)). In determining whether the trial

court abused its discretion, we must examine the entire record. Mercedes Benz Credit

Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).




                                            3
        The burden of providing a record showing error requiring reversal is on the

appellant. Appleton v. Appleton, 76 S.W.3d 78, 87 (Tex. App.–Houston [14th Dist.]

2002, no pet.) (citing Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); Budd

v. Gay, 846 S.W.2d 521, 523 (Tex. App.–Houston [14th Dist.] 1993, no writ) (holding

that, without a sufficient record, the reviewing court cannot determine whether the trial

court committed error or whether error was properly preserved)).                       Here, the record

contains the reporter’s record from the hearing on appellant’s motion for rehearing 3;

however, appellant has not ensured that the appellate record contains a reporter’s

record of the hearing conducted on Guerra’s motion for attorney’s fees. 4 See Mercedes

Benz Credit Corp., 925 S.W.2d at 666; Appleton, 76 S.W.3d at 87.                             Without the

reporter’s record on Guerra’s hearing for attorney’s fees, we cannot determine whether

the trial court abused its discretion by awarding attorney’s fees to Guerra.5                           See

Appleton, 76 S.W.3d at 87; see also Wilms v. Americas Tire Co., Inc., 190 S.W.3d 796,

803 (Tex. App.–Dallas 2006, pet. denied) (explaining that the appellate court must



        3
           In his brief, Regalado cites only to portions of the hearing on his motion for rehearing and
portions of the hearing held in 2007 on Guerra’s motion for turnover relief. However, Regalado is not
appealing the trial court’s decision on his motion for rehearing. Moreover, in order to determine whether
the trial court abused its discretion in granting Guerra’s motion for attorney’s fees, we must review the
record of that hearing. See Mercedes Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).
        4
            We note that at the hearing on Regalado’s motion for rehearing, Guerra’s attorney stated:

        And on the record on June 1st and then again on August 26th, [Regalado’s attorney]
        stipulated to the reasonable and necessariness of [Guerra’s appellate attorney’s fees]
        that were incurred. I understand that they [Regalado’s attorney’s] weren’t promising to
        pay them at that point, but they stipulated to the reasonable and necessariness of them.

See Budd v. Gay, 846 S.W.2d 521, 523 (Tex. App.–Houston [14th Dist.] 1993, no writ) (providing that a
reviewing court cannot determine whether the error was properly preserved without a sufficient record).
        5
         At the hearing on Regalado’s motion for rehearing Regalado claimed that the 2007 judgment did
not award appellate attorney’s fees to Guerra. Guerra’s attorney argued that the 1997 default judgment
awarded appellate attorney’s fees. The 1997 default judgment has not been included in the record.


                                                      4
presume that the evidence is sufficient to support trial court’s decision when appellant

fails to bring reporter’s record). Accordingly, we overrule Regalado’s sole issue.

                                   III.    CONCLUSION

      We affirm the trial court’s order.


                                                        _____________________
                                                        ROGELIO VALDEZ
                                                        Chief Justice

Delivered and filed the
23rd day of June, 2011.




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