Affirmed and Memorandum Opinion filed January 5, 2012.

In The

Fourteenth Court of Appeals 

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NO. 14-11-00339-CV

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HABANERO, INC., Appellant

V.

JIM SCHWEITZER AND GEORGE WOOD, Appellees

On Appeal from the County Court at Law No. 2

Galveston County, Texas

Trial Court Cause No. CV-0062041A

M E M O R A N D U M O P I N I O N

This is an appeal from the trial court’s granting of summary judgments in favor of 

appellees, Jim Schweitzer and George Wood. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Our recitation of the facts in this appeal is limited by the paucity of the record on 

appeal. While this is an appeal from the granting of motions for summary judgment, the

motions, the responses, if any, and the summary judgment evidence, if any, are not 
2

included in the record on appeal.1In addition, the Original Petition and the defendants’ 

answers are not included in the record. As a result, we are unable to determine the facts 

underlying this appeal from the appellate record.2

Based on the parties’ briefs, this appeal grows out of appellant, Habanero, Inc.’s 

attempt to purchase a Galveston condominium. Litigation ensued, and each appellee 

moved for summary judgment, which the trial court granted.3 The trial court then severed 

the actions against appellees. Appellant filed a motion for new trial, which the trial court 

denied. This appeal followed.

DISCUSSION

In two issues on appeal, appellant asserts that the trial court erred in granting both 

appellees’ motions for summary judgment.4 We address the issues together.

In Enterprise Leasing Co. v. Barrios, the Supreme Court placed the burden squarely 

on the party challenging the grant of a summary judgment on appeal to ensure that all 

documents needed for the appellate court to review the correctness of the summary 

judgment are in the record. Enter. Leasing Co. v. Barrios, 156 S.W.3d 547, 549–50 (Tex. 

2004); Mallios v. Standard Ins. Co., 237 S.W.3d 778, 782 (Tex. App.—Houston [14th 

Dist.] 2007, pet. denied) (citing Enter. Leasing Co., 156 S.W.3d at 549–50). If the party 

 

1 We note at the outset of this opinion that the record on appeal consists only of the Clerk’s Record, 

which totals 18 pages. The documents found in the Clerk’s Record include: (1) Order to Sever; (2) Final 

Summary Judgment for Defendant Jim Schweitzer; (3) Final Summary Judgment for Defendant George 

Wood; (4) Plaintiff’s Motion for New Trial and to Set Aside Orders Granting Summary Judgment; (5) Jim 

Schweitzer’s Motion to Set Hearing on Plaintiff’s Motion for New Trial; (6) Order Setting Hearing; (7) 

Order Denying Plaintiff’s Motion for New Trial; and (8) Plaintiff’s Notice of Appeal.

2 Although Appellant attached a large number of documents in an appendix to its appellate brief, 

we may not consider documents attached to an appellate brief that are not part of the appellate record.

Ramex Constr. Co. v. Tamcon Servs., Inc., 29 S.W.3d 135, 138 (Tex. App.—Houston [14th Dist.] 2000, no 

pet.).

3 The record on appeal does not indicate whether the motions were traditional or no-evidence 

motions for summary judgment. See Tex. R. Civ. P. 166a(c) & (i).

4 Appellant does not raise an issue on appeal challenging the trial court’s denial of its motion for 

new trial.
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challenging the summary judgment on appeal fails to meet that burden, the appellate court 

may apply the presumption that the omitted documents support the trial court’s judgment 

and affirm the trial court’s summary judgment on that basis. Id. As in Mallios, based on the 

record before us, we do not know whether appellees’ motions for summary judgment were 

traditional or no-evidence motions. See id. at 783. We do not know the arguments appellees 

made in their motions and what evidence, if any, they presented. See id. Likewise, we do 

not have appellant’s summary judgment responses, if any, and do not know what 

arguments appellant made, and what evidence, if any, appellant submitted to demonstrate 

that appellees were not entitled to summary judgment. See id. Therefore, based on the state 

of the record before us, we must presume that the motions and evidence submitted by 

appellees support the trial court’s summary judgments. See id. We overrule appellant’s 

issues on appeal.

CONCLUSION

Having overruled appellant’s issues on appeal, we affirm the trial court’s summary 

judgments.

/s/ Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Christopher and McCally.