11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

Leo B. Montgomery 

Appellant

Vs.                   No. 11-03-00348-CV -- Appeal from Harris County

CBI Interiors   

Appellee

CBI Interiors (a general contractor) sued Leo B. Montgomery individually and d/b/a Riverside Kitchen & Bath (a subcontractor) for damages that allegedly occurred because Montgomery failed to provide work in a good and workmanlike manner.  After a nonjury trial, the trial court entered judgment awarding CBI damages in the amount of $4,500, as well as prejudgment interest and attorney=s fees.  Montgomery, proceeding pro se, challenges the judgment in this appeal.  We affirm.

Montgomery presents 27 issues for review.  The issues address whether the trial court considered, reviewed, or understood various evidentiary matters.  Montgomery argues that the evidence did not establish that he breached a contract.  In essence, Montgomery is complaining that the evidence was legally and factually insufficient to support the trial court=s finding that he breached a contract.  Montgomery also argues that the trial court erred in applying an incorrect measure of damages.

The appellate record does not contain a reporter=s record for the trial on the merits.  The court reporter informed this court in writing that no record was made of the trial on the merits.^[1]  Because Montgomery failed to bring a reporter=s record, we must presume that the evidence presented at trial was legally and factually sufficient to support the trial court=s judgment. See Bryant v. United Shortline Inc. Assurance Services, 972 S.W.2d 26, 31 (Tex. 1998); Murray v. Devco, Ltd., 731 S.W.2d 555, 557 (Tex. 1987); Ganesan v. Vallabhaneni, 96 S.W.3d 345, 352 (Tex.App. - Austin 2002, pet=n den=d).  Thus, Montgomery=s factual and legal sufficiency claims must fail.  Additionally, without a reporter=s record, Montgomery cannot demonstrate that the trial court applied an incorrect measure of damages.    

The trial court entered the judgment in this cause on August 19, 2003.  In this appeal, Montgomery relies upon documents that are contained in the first supplemental clerk=s record.  A review of the records in the first supplemental clerk=s record shows that they were filed on April 26, 2004, more than eight months after the entry of judgment.  We cannot consider documents that were not before the trial court during the trial of this cause.  In the absence of a reporter=s record, Montgomery cannot demonstrate that the documents in the first supplemental clerk=s record were before the trial court for consideration.  Montgomery=s issues are overruled. 

The judgment of the trial court is affirmed.            

TERRY McCALL

JUSTICE

August 18, 2005

Not designated for publication.  See TEX.R.APP.P. 47.2(a).

Panel consists of: Wright, J., and McCall, J.