AFFIRMED; Opinion Filed June 29, 2016.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00408-CV
RICKEY A. LYONS, Appellant V. POLYMATHIC PROPERTIES, INC., Appellee
On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-15-00016-B
MEMORANDUM OPINION Before Justices Myers, Stoddart, and Whitehill Opinion by Justice Myers Appellant Rickey Lyons and/or all occupants of 610 Truman Court, Duncanville, Texas,
75137 appeal the trial court’s judgment awarding possession of the property to appellee
Polymathic Properties. Lyons brings two issues on appeal contending (1) Polymathic failed to
show it has standing to bring the forcible detainer action; and (2) Polymathic failed to
demonstrate a superior right to immediate possession of the property. We affirm the trial court’s
judgment.
BACKGROUND
Lyons owned the property located at 610 Truman Court, Duncanville, Texas 75137. On
August 7, 2012, the Bank of New York Mellon (“BONY”) acquired the property at a foreclosure
sale. Polymathic acquired the property from BONY on December 14, 2012.
Lyons filed suit in federal court against BONY, Polymathic and others alleging (1) that BONY wrongfully foreclosed on the property and (2) Polymathic’s purchase of the property at
the foreclosure sale should be declared invalid. Polymathic moved for summary judgment. On
October 28, 2014, the federal court partially granted summary judgment in favor of Polymathic,
dismissing with prejudice Lyons’s claim requesting a declaration that Polymathic is not the
owner of the property but denying the motion as to Lyons’s claims for violation of the Texas
Property Code and breach of contract.
On November 4, 2014, Polymathic sent to Lyons a notice to vacate and demand for
possession of the property by certified mail, return receipt requested. The notice informed Lyons
that if the property was not vacated within three days from the date of the notice, Polymathic
would file suit to enforce its rights. When Lyons failed to vacate the property within the allotted
time, Polymathic filed a forcible detainer suit against Lyons. Polymathic alleged in its verified
petition that it is the owner of the property by virtue of the deed establishing its ownership.
Lyons failed to file a written answer in the justice court case, and on December 15, 2014, the
justice court entered a judgment for possession in favor of Polymathic. Lyons appealed to the
county court at law, where he filed an answer and plea to the jurisdiction in which he argued that
Polymathic had not acquired title to the property because of a defect in the foreclosure process
(failing to send notice of default) and that the court was deprived of jurisdiction. Following a
hearing held on February 5, 2015, the court signed a judgment for possession in favor of
Polymathic on February 10, 2015. Lyons appealed the judgment to this Court.
DISCUSSION
The Record on Appeal
As a preliminary matter, we note that although an appellate record generally consists of
both the clerk’s and reporter’s record, see TEX. R. APP. P. 34.1 (stating that the appellate record
consists of the clerk’s record and the reporter’s record if the latter is necessary to the appeal),
–2– only the former was filed here. Our record shows that on April 28, 2015, we received notice
from the court reporter––sent in response to an email from our clerk’s office––that the reporter’s
record “has never been requested, nor have sufficient payment arrangements been made.” The
following day, April 29, 2015, we sent a letter to appellant’s counsel advising her the reporter’s
record had not been filed and giving her ten days to provide notice that appellant has requested
preparation of the reporter’s record and written verification that appellant has paid or made
arrangements to pay the reporter’s fee; or written documentation that appellant had been found to
be entitled to proceed without payment of costs. We specifically cautioned appellant’s counsel
that if we did not receive the requested documentation within the time specified, we “may order
the appeal submitted without the reporter’s record.” See TEX. R. APP. P. 37.3(c). On July 29,
2015, we entered an order stating, among other things, that we had received written verification
from the court reporter that appellant had not requested or paid for the reporter’s record, and that
appellant’s docketing statement indicated that the record was not requested and no payment or
arrangements for payment had been made. We accordingly ordered the appeal to be submitted
without a reporter’s record. See id.
When, as in this case, there is no reporter’s record and findings of fact and conclusions of
law are neither requested nor filed, the judgment of the trial court implies all necessary findings
of fact to sustain its judgment. Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex. App.––
Dallas 2008, no pet.); Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.––
Dallas 2006, pet. denied); Sharp v. Woodridge Props. Co., No. 05–13–00869–CV, 2015 WL
370026, at *2 (Tex. App.––Dallas Jan. 29, 2015, no pet.) (mem. op.); Reese v. Bank of America,
No. 05–13–00560–CV, 2014 WL 4057435, at *1 (Tex. App.––Dallas Aug. 15, 2014, no pet.)
(mem. op.). In other words, we must presume the missing reporter’s record supports the
decisions of the trial court. See Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002) (stating
–3– that the “court 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.”). Furthermore, the copy of
what appears to be a reporter’s record of a February 5, 2015 “trial on the merits and plea to
jurisdiction” that is appended to appellee’s brief does not change this fact; we cannot consider
attachments to briefs that are not part of the appellate record. Wilhoite v. Sims, 401 S.W.3d 752,
762 (Tex. App.––Dallas 2013, no pet.). Similarly, statements in a brief that are unsupported by
the record cannot be accepted as facts by an appellate court. Bard v. Frank B. Hall & Co., 767
S.W.2d 839, 845 (Tex. App.––San Antonio 1989, writ denied). With that said, we turn to the
issues at hand.
Standing
In his first issue, Lyons contends Polymathic failed to show it has standing to bring this
forcible detainer action. Standing is a component of subject-matter jurisdiction and is a
constitutional prerequisite to maintaining a lawsuit. In re I.I.G.T., 412 S.W.3d 803, 805 (Tex.
App.––Dallas 2013, no pet.). The plaintiff has the burden of alleging facts that, if taken as true,
affirmatively demonstrate a court’s jurisdiction to hear a case. Asshauer v. Wells Fargo Foothill,
263 S.W.3d 468, 471 (Tex. App.––Dallas 2008, pet. denied); Nausler v. Coors Brewing Co., 170
S.W.3d 242, 248 (Tex. App.––Dallas 2005, no pet.).
The absence of a reporter’s record obligates us to presume the evidence presented
Free access — add to your briefcase to read the full text and ask questions with AI
AFFIRMED; Opinion Filed June 29, 2016.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00408-CV
RICKEY A. LYONS, Appellant V. POLYMATHIC PROPERTIES, INC., Appellee
On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-15-00016-B
MEMORANDUM OPINION Before Justices Myers, Stoddart, and Whitehill Opinion by Justice Myers Appellant Rickey Lyons and/or all occupants of 610 Truman Court, Duncanville, Texas,
75137 appeal the trial court’s judgment awarding possession of the property to appellee
Polymathic Properties. Lyons brings two issues on appeal contending (1) Polymathic failed to
show it has standing to bring the forcible detainer action; and (2) Polymathic failed to
demonstrate a superior right to immediate possession of the property. We affirm the trial court’s
judgment.
BACKGROUND
Lyons owned the property located at 610 Truman Court, Duncanville, Texas 75137. On
August 7, 2012, the Bank of New York Mellon (“BONY”) acquired the property at a foreclosure
sale. Polymathic acquired the property from BONY on December 14, 2012.
Lyons filed suit in federal court against BONY, Polymathic and others alleging (1) that BONY wrongfully foreclosed on the property and (2) Polymathic’s purchase of the property at
the foreclosure sale should be declared invalid. Polymathic moved for summary judgment. On
October 28, 2014, the federal court partially granted summary judgment in favor of Polymathic,
dismissing with prejudice Lyons’s claim requesting a declaration that Polymathic is not the
owner of the property but denying the motion as to Lyons’s claims for violation of the Texas
Property Code and breach of contract.
On November 4, 2014, Polymathic sent to Lyons a notice to vacate and demand for
possession of the property by certified mail, return receipt requested. The notice informed Lyons
that if the property was not vacated within three days from the date of the notice, Polymathic
would file suit to enforce its rights. When Lyons failed to vacate the property within the allotted
time, Polymathic filed a forcible detainer suit against Lyons. Polymathic alleged in its verified
petition that it is the owner of the property by virtue of the deed establishing its ownership.
Lyons failed to file a written answer in the justice court case, and on December 15, 2014, the
justice court entered a judgment for possession in favor of Polymathic. Lyons appealed to the
county court at law, where he filed an answer and plea to the jurisdiction in which he argued that
Polymathic had not acquired title to the property because of a defect in the foreclosure process
(failing to send notice of default) and that the court was deprived of jurisdiction. Following a
hearing held on February 5, 2015, the court signed a judgment for possession in favor of
Polymathic on February 10, 2015. Lyons appealed the judgment to this Court.
DISCUSSION
The Record on Appeal
As a preliminary matter, we note that although an appellate record generally consists of
both the clerk’s and reporter’s record, see TEX. R. APP. P. 34.1 (stating that the appellate record
consists of the clerk’s record and the reporter’s record if the latter is necessary to the appeal),
–2– only the former was filed here. Our record shows that on April 28, 2015, we received notice
from the court reporter––sent in response to an email from our clerk’s office––that the reporter’s
record “has never been requested, nor have sufficient payment arrangements been made.” The
following day, April 29, 2015, we sent a letter to appellant’s counsel advising her the reporter’s
record had not been filed and giving her ten days to provide notice that appellant has requested
preparation of the reporter’s record and written verification that appellant has paid or made
arrangements to pay the reporter’s fee; or written documentation that appellant had been found to
be entitled to proceed without payment of costs. We specifically cautioned appellant’s counsel
that if we did not receive the requested documentation within the time specified, we “may order
the appeal submitted without the reporter’s record.” See TEX. R. APP. P. 37.3(c). On July 29,
2015, we entered an order stating, among other things, that we had received written verification
from the court reporter that appellant had not requested or paid for the reporter’s record, and that
appellant’s docketing statement indicated that the record was not requested and no payment or
arrangements for payment had been made. We accordingly ordered the appeal to be submitted
without a reporter’s record. See id.
When, as in this case, there is no reporter’s record and findings of fact and conclusions of
law are neither requested nor filed, the judgment of the trial court implies all necessary findings
of fact to sustain its judgment. Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex. App.––
Dallas 2008, no pet.); Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.––
Dallas 2006, pet. denied); Sharp v. Woodridge Props. Co., No. 05–13–00869–CV, 2015 WL
370026, at *2 (Tex. App.––Dallas Jan. 29, 2015, no pet.) (mem. op.); Reese v. Bank of America,
No. 05–13–00560–CV, 2014 WL 4057435, at *1 (Tex. App.––Dallas Aug. 15, 2014, no pet.)
(mem. op.). In other words, we must presume the missing reporter’s record supports the
decisions of the trial court. See Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002) (stating
–3– that the “court 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.”). Furthermore, the copy of
what appears to be a reporter’s record of a February 5, 2015 “trial on the merits and plea to
jurisdiction” that is appended to appellee’s brief does not change this fact; we cannot consider
attachments to briefs that are not part of the appellate record. Wilhoite v. Sims, 401 S.W.3d 752,
762 (Tex. App.––Dallas 2013, no pet.). Similarly, statements in a brief that are unsupported by
the record cannot be accepted as facts by an appellate court. Bard v. Frank B. Hall & Co., 767
S.W.2d 839, 845 (Tex. App.––San Antonio 1989, writ denied). With that said, we turn to the
issues at hand.
Standing
In his first issue, Lyons contends Polymathic failed to show it has standing to bring this
forcible detainer action. Standing is a component of subject-matter jurisdiction and is a
constitutional prerequisite to maintaining a lawsuit. In re I.I.G.T., 412 S.W.3d 803, 805 (Tex.
App.––Dallas 2013, no pet.). The plaintiff has the burden of alleging facts that, if taken as true,
affirmatively demonstrate a court’s jurisdiction to hear a case. Asshauer v. Wells Fargo Foothill,
263 S.W.3d 468, 471 (Tex. App.––Dallas 2008, pet. denied); Nausler v. Coors Brewing Co., 170
S.W.3d 242, 248 (Tex. App.––Dallas 2005, no pet.).
The absence of a reporter’s record obligates us to presume the evidence presented
supports the judgment. See Bennett, 96 S.W.3d at 230; Waltenburg, 270 S.W.3d at 312. This
presumption applies even to matters of standing. See Reese, 2014 WL 4057435, at *1 (because
no reporter’s record or findings of fact and conclusions of law were properly requested or filed,
court presumed sufficient facts supported the judgment and that there was standing to prosecute
claim); see also Weigand v. Kinnard, No. 07–15–00406–CV, 2016 WL 1238183, at *2 (Tex.
App.––Amarillo Mar. 29, 2016, no pet.) (mem. op.) (given pro se defendant’s refusal to secure
–4– reporter’s record and absence of pertinent findings, court presumed there was sufficient evidence
to support implicit finding plaintiff had standing and was otherwise competent to prosecute
claims). Given Lyons’s failure to file the reporter’s record and the absence of pertinent findings,
we must presume the evidence presented supports the trial court’s implicit finding that
Polymathic had standing to bring this forcible detainer action. We overrule appellant’s first
issue.
Tenancy at Sufferance and Notice of Default
In his second issue, Lyons argues Polymathic failed to demonstrate a superior right to
immediate possession of the property because it failed to present evidence of a tenancy at
sufferance and there is no evidence a notice of default was sent prior to the foreclosure sale.
Because there is no reporter’s record, we must presume the missing record supports the trial
court’s decision. See Bennett, 96 S.W.3d at 230; Waltenburg, 270 S.W.3d at 312.1 Accordingly,
we overrule appellant’s second issue.
/Lana Myers/ LANA MYERS JUSTICE 150408F.P05
1 Regarding alleged defects in the foreclosure sale, we note that any defects in the foreclosure process or with Polymathic’s title to the property may not be considered in a forcible detainer action. Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.––Dallas 2010, no pet.).
–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RICKEY A. LYONS, Appellant On Appeal from the County Court at Law No. 2, Dallas County, Texas No. 05-15-00408-CV V. Trial Court Cause No. CC-15-00016-B. Opinion delivered by Justice Myers. Justices POLYMATHIC PROPERTIES, INC., Stoddart and Whitehill participating. Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellee POLYMATHIC PROPERTIES, INC. recover its
costs of this appeal from appellant RICKEY A. LYONS.
Judgment entered this 29th day of June, 2016.
–6–