












 
 
 
 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-09-00076-CV
                                                ______________________________
 
 
                                 ROBERT MYRON MOORE,
JR., AND
REBECCA ROSE MOORE,
Appellants
 
                                                                V.
 
                                           DON HAWKINS, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the 336th
Judicial District Court
                                                             Fannin County, Texas
                                                      Trial Court No. CV-09-39086
 
                                                                                                   
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                            Memorandum Opinion by Justice Moseley




                                                     MEMORANDUM 
OPINION
 
            Robert
M. Moore, Jr., and Rebecca Rose Moore appeal an order declaring the cancellation
of their notice of lis pendens for failure to comply with the requirements of
Section 12.007 of the Texas Property Code and awarding money damages to Don
Hawkins.  Tex. Prop. Code Ann. § 12.007 (Vernon Supp. 2010).  Hawkins’ claim was based on his allegation
that the notice of lis pendens was supported by neither a pending eminent
domain proceeding, nor an action involving title to real property.  Tex.
Prop. Code Ann. § 12.007.[1]
            Their
points of error on appeal complain that the trial court erred in failing to
hear arguments upon their “Objection to Plaintiff’s Amended Petition and
Petition to Remove Lis Pendens and Cloud on Title to Land” and “Counterclaim to
Plaintiff’s Amended Petition to Remove Lis Pendens and Cloud on Title to Land”[2]
at a July 30, 2009, hearing.  They also
complain that the trial court erred in allowing Hawkins “great latitude in the
scope of evidence and testimony presented while restricting,” their cross-examination,
and in interrupting the hearing to entertain an unrelated divorce
proceeding.  
            Appellate
courts must base their decisions on the record as made and brought forward, not
on a record that should have been made or that could have been made.  Mar. Overseas
Corp. v. Ellis, 971 S.W.2d 402, 411 (Tex. 1998).  Examination of any of the Moores’ points of
error require a transcript of the court’s hearing.  It was the Moores’ burden to properly
initiate the completion of a record sufficient to demonstrate reversible error.
 Aguero
v. Aguero, 225 S.W.3d 236, 237 (Tex. App.––El Paso 2006, no pet.); see Willie v. Donovan & Watkins, Inc.,
No. 01-03-00890-CV, 2005 WL 375328, at *2 (Tex. App.––Houston [1st Dist.]
Feb. 17, 2005, no pet.) (mem. op.).  This
Court has determined that no transcript of the reporter’s record was requested
by the Moores.  Because the Moores have
failed to request a transcript of the hearing and have raised points of error
on appeal involving matters omitted from the record before us, their actions
have prevented us from adequately addressing their dispute.  Aguero,
225 S.W.3d at 237.  “By so inhibiting an
appellate court, the appellant waives his complaint.”  Id.;
see also Southland Lloyd’s Ins. Co. v.
Tomberlain, 919 S.W.2d 822, 832 n.6 (Tex. App.––Texarkana 1996, writ
denied).[3]  
            Accordingly, we affirm the trial
court’s judgment. 
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date Submitted:          January 6, 2011
Date Decided:             January 7, 2011
 




[1]An
opinion in this matter had been previously released in almost the same form as
this, but withdrawn November 23, 2010, after receiving the Moores’ motion for
rehearing based on Rule 37.3(c) of the Texas Rules of Appellate Procedure
requiring notice and reasonable opportunity to cure the failure to request or
file the reporter’s record necessary for the disposition of this appeal.  Tex.
R. App. P. 37.3(c).  On that date,
we sent the official notice contemplated by Rule 37.3(c), notifying the Moores
that “no request was ever made of a court reporter to prepare a record as
required by Tex. R. App. P. 34.6(b)(1),
and thus appellants did not pay the reporter’s fee or make satisfactory
arrangement to pay as required by Tex.
R. App. P. 35.3(b)(3).”  Our
letter stated, “If a reporter’s record is to be filed, appellants must pay for
its preparation or make adequate arrangements for its purchase and preparation,
and this Court must be informed that such has occurred within twenty days of
the date of this letter.  If such
arrangements are not made, then the case will be immediately submitted to the
Court and decided based on the briefing previously provided, without oral
argument, . . . and based solely upon the clerk’s record.”  The Moores were directed to respond on or
before December 13, 2010.  
                Although
it appears that the Moores made a preliminary inquiry of the clerk of the trial
court as to the cost of the reporter’s record, despite our explicit warning and
directions, we have no indication of any attempt by them to contact the
reporter to obtain the required record required by Rule 35.3(b)(3) of the Texas
Rules of Appellate Procedure.  Over
forty-five days have now elapsed since the date of our Rule 37.3(c) notice and
opportunity to cure letter without an indication of compliance.  Because the Moores have not complied with our
Rule 37.3(c) letter, the original opinion (with only slight revision) is being reissued.  


[2]The
Moores also argued that the court erred in “first refus[ing] to allow [these
documents] to be filed and then allowing filing.”  


[3]Moreover,
“[a]n appellant has the burden to bring forth sufficient record and authority
to support reversible error.” Rosenblatt
v. City of Houston, 31 S.W.3d 399, 407 (Tex. App.––Corpus Christi 2000,
pet. denied).  A point of error not
supported by authority is waived.  Id. (citing Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983)).  The only cited authority in the Moores’ brief
is the Fourteenth Amendment to the United States Constitution.


