Lou D. Vasquez and Nilda A. Vasquez v. Firebird SFE I, LLC

• Court: Court of Appeals of Texas
• Decided: April 29, 2020
• Docket: 05-19-00057-CV
• Status: Published

Opinion

AFFIRMED; Opinion Filed April 29, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00057-CV

LOU D. VASQUEZ AND NILDA A. VASQUEZ, Appellants V. FIREBIRD SFE I, LLC, Appellee

On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-18-05077-E

MEMORANDUM OPINION Before Justices Schenck, Molberg, and Nowell Opinion by Justice Nowell This is a forcible detainer action. Following a bench trial, the county court at

law determined appellee Firebird SFE I, LLC (Firebird) had a superior right to

immediate possession of the property at issue. Appellants Lou D. Vasquez and Nilda

A. Vasquez appeal the trial court’s judgment. In three issues, appellants argue there

was not a statutorily sufficient pre-suit demand for possession; Firebird lacked

standing to prosecute its claim; and the trial court lacked jurisdiction due to apparent

defects in the title to the property. We affirm the trial court’s judgment. The record shows Firebird filed a verified petition for forcible entry and

detainer in the justice court, and the justice court found in Firebird’s favor. The

Vasquezes appealed and, following a bench trial, the trial court also found in favor

of Firebird. The trial court entered findings of fact stating: (1) Firebird purchased

the property at a foreclosure auction on April 3, 2018, (2) via Substitute Trustee’s

Deed dated April 12, 2018, Substitute Trustee Rick Montgomery conveyed the

property to Firebird; (3) according to the Substitute Trustee’s Deed, the Vasquezes

were the borrowers who were foreclosed upon; (4) via letter dated April 26, 2018,

the Vasquezes were notified to vacate the property within three days; and (5) the

Vasquezes failed to vacate the property. The trial court’s conclusions of law state:

(1) the Vasquezes are proper parties to the lawsuit; (2) Firebird provided the

Vasquezes with proper notice to vacate under the Texas Property Code; (3) the

Vasquezes have unlawfully detained the property; and (4) Firebird is entitled to

possession of the property.

In their first issue, the Vasquezes assert the trial court erred by hearing the

case and rendering judgment because Firebird failed to make a sufficient pre-suit

demand for possession. The Vasquezes argue Firebird did not have a superior right

to possession and, therefore, could not make a proper demand for possession. The

record on appeal does not include a reporter’s record from the trial. The trial court’s

findings of fact state Firebird notified the Vasquezes to vacate the property, and the

Vasquezes failed to do so. Because there is no reporter’s record in this appeal, we –2– presume the evidence supports the trial court’s finding. See Bennett v. Cochran, 96

S.W.3d 227, 230 (Tex. 2002) (“[C]ourt of appeals was correct in holding that, absent

a complete record on appeal, it must presume the omitted items supported the trial

court’s judgment.”); Lyons v. Polymathic Properties, Inc., No. 05–15–00408–CV,

2016 WL 3564210, at *2 (Tex. App.—Dallas June 29, 2016, no pet.) (mem. op.)

(“The absence of a reporter’s record obligates us to presume the evidence presented

supports the judgment.”); Heckendorn v. First Mortgage Co., No. 13–12–00451–

CV, 2013 WL 5593520, at *4 (Tex. App—Corpus Christi 2013, no pet.) (“The

reporter’s record does not appear in the appellate record. Because there is no

reporter’s record, we must presume the missing record would support the trial

court’s decision.”). In the absence of a reporter’s record in this case, we presume

the evidence supports the trial court’s finding and judgment. Doing this, we

conclude Firebird’s notice to the Vasquezes to vacate the property was sufficient.

We overrule the Vasquezes’ first issue.

In their second and third issues, the Vasquezes argue the substitute trustee’s

deed was issued in violation of a “temporary restraining order of a sister court to the

trial court.” Although the Vasquezes included the order that forms the basis of their

second issue in the appendix to their brief; the order does not appear in our record.

Because the document is not part of our record, we cannot consider it. See Bertrand

v. Bertrand, 449 S.W.3d 856, 863 n.8 (Tex. App.—Dallas 2014, no pet.) (“We

cannot consider documents cited in a brief and attached as an appendix if they are –3– not formally included in the record on appeal.”). Additionally, the trial court found

that via Substitute Trustee’s Deed dated April 12, 2018, Substitute Trustee Rick

Montgomery conveyed the property to Firebird. Absent a reporter’s record, we

cannot conclude this finding was in error. We conclude the Vasquezes have not

shown the substitute trustee’s deed was issued improperly or the trial court’s

judgment was in error. We overrule the Vasquezes’ second and third issues.

We affirm the trial court’s judgment.

/Erin A. Nowell/ ERIN A. NOWELL JUSTICE

190057F.P05

–4– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

LOU D. VASQUEZ AND NILDA On Appeal from the County Court at A. VASQUEZ, Appellants Law No. 5, Dallas County, Texas Trial Court Cause No. CC-18-05077- No. 05-19-00057-CV V. E. Opinion delivered by Justice Nowell. FIREBIRD SFE I, LLC, Appellee Justices Schenck and Molberg participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee FIREBIRD SFE I, LLC recover its costs of this appeal from appellants LOU D. VASQUEZ AND NILDA A. VASQUEZ.

Judgment entered this 29th day of April, 2020.

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