Opinion issued February 11, 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00807
- CV

——————————— MIGUEL FL ORES , Appella nt

V. DAVID AGUE RO , Appell e e
On Appeal from Co unty Civil C our t at Law No . 3

Harris County, Texa s Trial Court Ca se No. 1097002

MEMORANDUM OPINION Appellant Miguel Flores challenges the trial court ’ s judgment in favor of appell ee David Aguero on Aguero ’ s breach

- of

- contract s uit a gainst Fl ores. In two issues, Flores argues that the trial court erred (1 ) in granting judgment in favor of
A guero be cause A guero presented insufficient evidence in support of his claim for2

breach of co nt ract and damages; and ( 2) “ by pre venting the ca s e from being decided on its merits by a traditional trier of facts. ” We af fir m. Background Flo res contracted with Aguero to install a n aerobic drip septic system at Flores ’ s home. The contract described the e xact services to be performed and stated that the total expense would be $8,800

. The contract further stated that “ additio nal requirements by county au thorities will be at an extra cost to owner. ” Aguer o required that Flores pa y $5,000 up front, which Fl or es paid . A guero installed the septic tank , and subseq uently, “ additional fees ” totaling $2,089.38 were incurred for servic es such as obtaining a “ variance request ” and a new s urvey of the property where the septic s ystem was being insta lled. A dispu te en su ed regarding preparation of land for the drip field, and Aguero never completed insta llation of the drip field

. Aguero sue d F l ores in the Harris County Justice Court , Preci nct 4, seeking $4,889.38, the remai ning amount due on the con tract

. Aguero alleged t hat Flores did not take certa in step necessary to prepare the land for installation of the drip filed. Flore s answere d, bu t d id not appear at trial, and the small claims court entered a default judgment in favor of Aguero. Flores appealed to the Co unty Civ il Court at Law No. 3 , where he again filed a general denial . Flores also asserted counter claim s against Aguero fo r f raud ,

ne gligent misrepresentation, and breach of contract alleging that Aguero failed to3

perform und er the terms of the ir agreement. The Co unty Civil Court notified the parties of the non

-

ju ry trial setting , and on July 12 , 2018, the court rendered its fi nal ju dgm ent

. The judgment rec ited that both parties appeared on March 5, 201 8, and stated, “ No jury fee having been paid, the parties proc eeded to trial without the intervention of a jury. ” The County Civil Court found in favor of Aguero, awarding
him $4, 889.38 on his breach of contract claim, plus post

- judgment interest. The court further ordered that Flores take nothing on his counterclaim s. Flores then appealed to this Court.
T his Court received the clerk ’ s record, but no reporter ’ s record was filed. T h e

cour t r eporter notified us that a re cord had been taken, but Flores had not requested the preparation of the reporter ’ s record , nor had h e paid for it . T his Court notifie d Flores of the issue, granting him an opportunity to provide the reporter ’ s re cord, but
h e f ailed to do so. Accordingly , we notified Flores in an order date d January 24, 2019, that the C ourt “ will consider and decide those issues or points that do not require a reporter’s record for a decision. ” See T EX
. R. A PP
. P. 37.3(c) (stating that, if cl erk ’s record has been filed, appellate court may consider and decide those issues or points that do not require a reporter ’s record). Analysis In his first issue and parts of his second issue , Flores asserts that the evidence was insufficient to sup port t he trial court ’ s judgm ent in favor of Aguero. Flores4

asserts that the trial court erred in interpreting the contract and in granting Aguero ’ s

“ unsubstantiated ” claim , and he argues that A guero never completed the work “ due
to no mate rial breach ” by F lores and , thus, it “ is eviden t that the balance of the contract consideration is still not due. ” He likew ise asserted that Aguero ’ s claims were false and that he could pro ve that Aguero was the breaching party. An appellant bears the burden of bringing for ward a record sufficient to show that the trial court erred. See Christiansen v. Prezelski , 782 S.W.2d 842, 843 (Tex. 1990) ; Nicholson v. Fifth Third Bank , 226 S.W.3d 581, 583 (Tex. App.

— Houston [1st Dist.] 2007, no pet.)

. T he appellate record con sists of the cle rk’s record and, if necessary to the appeal, the reporter’s record. T EX
. R. A PP
. P. 34.1

. Ev aluation of the sufficien cy of the evidence supporting the t rial court ’ s judgment requires that we review the evid ence submitted during trial

. S ee , e.g. , City of Ke ller v. Wilson , 168 S.W.3d 80 2, 810

– 11 , 822 (Tex. 2005) (setting out standard of revi ew), and Plas

- Tex

, Inc. v. U.S. Ste el Corp. , 772 S.W.2d 442, 445 (Tex. 1 989) (in determining factual suffici ency of evidence, we must consider all evidenc e that supports o r contrad icts fact

- finder ’ s determinat ion) . T hus, a reporter ’ s record is necessary to consider Flores ’ s complaints regar ding the evidence submitted at trial

. D espite notice from this C ourt, Flores failed to take the steps necessa ry to
p ro c ure the reporter ’ s record, and it was never filed

. See T EX
. R. A PP
. P

. 37

. 3 ( c )

. When, as here, th ere is no reporter ’ s record or findings of fact, we presume the trial5

court heard sufficient evidence to make all necessary findings in support of its jud gment

. 1 Curry v. Tex. Dep ’ t of Pub. Safety , 472 S.W.3d 346, 349

– 50 (Tex. App.

— Houston [1st Dist.] 2015, no pet.) (citing Bryant v. United Sho rtline Inc. Assurance Servs., N.A. , 972 S.W.2d 26, 31 (Tex. 1998) ) ; see Palla v. Bio

- One, Inc. , 424 S.W.3d 722, 727

– 78 ( Tex. App.

— Dallas 2014, no pet.) (when record is incomplete, we must presume that missing portion supports factual determinations made by fact finder) ; Vickery v. Comm ’ n for Lawyer Discipline , 5 S.W.3d 241, 251 (Tex. App.

— Houston [14th Dist.] 1999, pet . den ied)

. Accordingl y, we presume the trial court hear d sufficie nt evidence to support its judgment in favor of Aguero. See Curry , 472 S.W.3 d at 349

– 50; Nicholson , 226 S.W.3d at 583

. We overrule Flores ’ s app ellate issue s challenging the sufficiency of th e evi dence or the evi dentiary basis for the trial court ’ s judgment

. Flores further argues that the trial court e rred “ by pre venting the ca s e from being decided on its merits by a traditional trier of facts. ” The clerk ’ s record, however, does not support Fl ores ’ s contention. Se e, e.g. , T EX
. R. A PP
. P

. 37

. 3 ( c ) (providing that when appellant fails to file reporter ’ s record, appellate court may

1 Flores a ttached several exhibits as an appendix to his appellate brief , but these docume nts we re not i ncluded in the record on appeal . D ocuments atta ched to an appellate b rief that are no t part of the record in the trial court may not be considered on appeal. See WorldPeace v. Comm ’ n for Lawyer D iscipline , 183 S.W.3d 451, 465 n.23 (Tex. App.

— Houston [14th Dist.] 2005, pet. denied) (“[W]e cannot consider doc uments attached a s appendices to briefs and must consider a case based solely upon the record f

iled.”).6

con sider and decide those issues or points that do not require reporter ’ s record for decision)

. The final judgment sta tes t hat it was r e nde red following a bench trial . The trial

co urt is a proper trier of fact in a bench trial. See , e.g. , AKIB Constr. Inc. v. Shipwash , 582 S.W.3d 791, 805 (Tex. App.

— Houston [1st Dist.] 2019, no pet. ) (trial court ’ s fin ding s after bench tri al h ave same weight as jur y verdict, and trial court, as finder of fact in bench trial, is sole judge of witness credibility) . Nothing in th e clerk ’ s record in dicates that Flores was improperly denied a jury trial

— no jury request appears in the record, no paym e nt of a jury fe e was recorded, and the trial court notified the parties that they were set for a non

- jury trial

. We o verrule Flores ’ s r emaining complaint on appeal.7 Conclusion We affirm the judgment of the tri al court.

Richard Hightower J ustice Panel co nsists of Chief Justice Radack and Justices Landau and Hightower.