AFFIRM and Opinion Filed June 29, 2006

In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01412-CV
............................
VICTORY-PHYLLIS DAVIS, Appellant
V.
KAUFMAN COUNTY, TERRELL INDEPENDENT SCHOOL DISTRICT
and TRINITY VALLEY COMMUNITY COLLEGE DISTRICT, Appellees
.............................................................
On Appeal from the 86th District Court
Kaufman County, Texas
Trial Court Cause No. 54390
.............................................................
OPINION
Before Justices FitzGerald, Francis, and Lang-Miers
Opinion By Justice FitzGerald

Victory-Phyllis Davis appeals the award to attorney Mary Gayle
Ramsey of $3500 fees and expenses taxed as costs in the trial court's
judgment distributing excess proceeds from a tax sale of real property
under chapter 34 of the Texas Tax Code. We affirm the trial court's
judgment.
BACKGROUND
Raymond Brown owned real property when he died intestate in
1970. Ownership of the property passed to his wife, Essie Brown, and
twelve children, including appellant's mother. Essie Brown died in 2000,
and her will divided her estate amongst eight devisees, but not
appellant or appellant's mother. Appellant's mother later died leaving
five surviving heirs, including appellant. Appellant's share of the
property was approximately .00909.
In April 2003, the property taxes were delinquent, and the
taxing districts seized the property and sold it. The sale generated

excess proceeds of $28,024.91. In December 2003, appellant filed a pro
se motion for distribution of the excess proceeds and prayed that she be
awarded on behalf of her mother's estate a 1/13 share of the excess
proceeds. On June 25, 2004, Thomas Brown, an heir of both Raymond Brown
and Essie Brown, filed a motion to claim the excess funds. Thomas
Brown's motion was signed by his retained attorney, Mary Gayle Ramsey.
In July 2004, the trial court ordered the excess proceeds “be disbursed
and paid to the Escrow Account of Mary Gayle Ramsey, P.C. to be
disbursed in equal interests to Applicants after the payment of fees and
expenses to Mary Gayle Ramsey, P.C.” In February and April 2005,
appellant filed further motions for distribution of excess proceeds, now
praying that the court “determine the parties of interest and the former
owners of said Property . . . [and] issue an order disbursing claims for
such excess proceeds . . . to all parties of interest that they may be
determined by this Court.”
On July 8, 2005, the trial court held a hearing on appellant's
motions to distribute the proceeds. We have only a partial reporter's
record of that hearing. The partial reporter's record shows Ramsey was
hired by Thomas Brown and Annie Brown Mays. Annie Brown Mays testified
that Ramsey told her that Ramsey's fee “would come off the top.” Ramsey
told the trial court she represented all the heirs of Essie Brown but
not appellant and some of the other heirs, but Ramsey stated, “I believe
I have provided a service to these heirs.” The trial court stated the

fee of $3500 “certainly is reasonable for the amount of work you've
done, and this is very difficult and very time consuming and very
detailed work to do.” The trial court then stated judgment would be
granted “as set forth on the disbursement sheet.” On August 3, 2005,
Ramsey filed a statement of her fees and expenses totaling $3500.
On August 15, 2005, Ramsey, representing four of the heirs other than
appellant, filed a motion to enter judgment. The motion stated the
proposed judgment attached to the motion had been approved by all
parties except appellant. The proposed judgment awarded Ramsey $3500 as
costs and distributed the remaining funds to the heirs according to
their percentage of ownership of the property.
On August 31, 2005, appellant filed a response to the motion for
judgment. In the motion, appellant asserted Ramsey was not entitled to
fees because (a) appellant was not served with Thomas Brown's June 25,
2004 motion to claim excess funds, denying appellant due process; (b)
Ramsey's statement of fees and expenses submitted on August 3, 2005
varied from her testimony at the July 8, 2005 hearing; (c) Ramsey was
engaged by four of the heirs, and not appellant, and they should be the
only ones required to pay Ramsey's fees; and (d) under section 34.04(i)
“Texas Property [sic] Code,” See Footnote 1 Ramsey is entitled to a
fee of no more than $1000. Appellant prayed that the trial court set
aside its oral rendition of judgment or declare it null and void because
Ramsey's statement of fees and expenses did not agree with her testimony

at the July 8, 2005 hearing.
On September 6, 2005, the trial court entered judgment in
accordance with the motion for judgment prepared by Ramsey. See
Footnote 2
PAYMENT OF RAMSEY'S FEES
In her first issue, appellant questions “[w]hether the trial
court erred in interpreting the law by awarding judgment for attorneys'
fees in the amount of $3,500 from the total amount of excess proceeds.”
In her third issue, appellant asks “[w]hether clients who engage the
legal services of counsel have the responsibility to pay for these
services.” Appellant argues (a) Ramsey was not entitled to $3500 for
fees and expenses because Tax Code section 34.04(i) limits the fee to
$1000, (b) none of Ramsey's fees and expenses should have been awarded
from the total amount of excess proceeds; and (c) only the heirs who
hired Ramsey should be responsible for her fees and expenses. Appellant
also asserts the evidence is insufficient to support the $3500 award.
Section 34.04 of the Tax Code governs the distribution of excess
proceeds from tax sales. Section 34.04(i) states, “A fee charged to
obtain excess proceeds for an owner may not be greater than 25 percent
of the amount obtained or $1,000, whichever is less.” Tex. Tax Code Ann.
§ 34.04(i) (Vernon Supp. 2005). Appellant argues this provision limits
Ramsey's fee to $1000. Thus, the issue is whether, in distribution of
excess proceeds under Tax Code section 34.04 to multiple owners, the fee
for obtaining the proceeds for multiple owners is capped at 25 percent
or $1000 for the entire fund or at 25 percent or $1000 for each owner.

There are no cases interpreting this provision. The statute states the
cap on fees applies to a fee charged for obtaining the proceeds for “an
owner.” We conclude this language authorizes a charge of up to 25
percent or $1000 for each owner of the property for whom the person
charging the fee obtained the excess proceeds. In this case, the
judgment distributed the excess proceeds to at least 16 owners of the
property. Under the language of section 34.04(i), Ramsey's fee was
limited to twenty-five percent of $28,024.91, which is $7006.23, or
$1000 from each of the owners, whichever is less. The award of $3500 is
less than half of the allowable fee of twenty-five percent under section
34.04(i), and when the fee is divided among all the owners, no single
owner was responsible for more than $1000. Accordingly, we conclude the
$3500 award to Ramsey did not violate the cap on fees of section
34.04(i).
Appellant next argues the trial court should not have paid
Ramsey from the total amount of excess proceeds, thereby reducing the
amount of proceeds to which appellant was entitled. See Footnote 3
Appellant also argues that Ramsey's fee is owed by the four heirs who
hired her and not by appellant or the other heirs who did not hire
Ramsey. Appellant cites no authority in support of these arguments.
Accordingly, they are not properly briefed and are waived. See Tex. R.
App. P. 38.1(h) (“The brief must contain a clear and concise argument
for the contentions made, with appropriate citations to authorities and

to the record.”); Abdelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237,
242 (Tex. App.-Houston [1st Dist.] 2006, no pet.); Wolfe v. C.S.P.H.
Inc., 24 S.W.3d 641, 646-47 (Tex. App.-Dallas 2000, no pet.).
Sufficiency of the Evidence
Appellant also argues Ramsey failed to present sufficient
evidence to support her claim for attorney's fees. Appellant presents no
argument, cites no authority, and does not cite to the record in support
of her sufficiency challenge. Accordingly, she has failed to properly
brief this assertion, and it is waived. See Tex. R. App. P. 38.1(h);
Abdelnour, 190 S.W.3d at 242; Wolfe, 24 S.W.3d at 646-47.
Appellant's challenge to the sufficiency of the evidence also
fails because she requested only a partial reporter's record and failed
to follow the requirements of rule of appellate procedure 34.6(c). Rule
34.6(c)(4) provides a presumption that a partial reporter's record
constitutes the entire record for purposes of reviewing the stated
issues, including issues complaining of the legal or factual sufficiency
of the evidence. See Tex. R. App. P. 34.6(c)(4). However, to be entitled
to this presumption, the appellant must file a “statement of points or
issues.” Tex. R. App. P. 34.6(c)(1). The appellant is then limited to
the points or issues presented in the statement. Id. This statement of
points or issues should be included in the request for the reporter's
record. Id. A late-filed statement of points or issues is sufficient to
maintain the presumption that the record is complete unless the appellee

shows the late filing of the statement affected him. Bennett v. Cochran,
96 S.W.3d 227, 229-30 (Tex. 2002) (per curiam). If the appellant
entirely fails to present the statement of points or issues, then the
presumption that the record is complete for appellate-review purposes
does not apply, and the appellate court applies the presumption that the
material missing from the reporter's record is relevant and supports the
trial court's judgment. Id. at 229 (“There is no question that, had
Bennett completely failed to submit his statement of points or issues,
Rule 34.6 would require the appellate court to affirm the trial court's
judgment.”); see also Wheeler v. Greene, No. 12-03-00171-CV, 2006 WL
628821, at *1-2 (Tex. App.-Tyler 2006, no pet.); Mason v. Our Lady Star
of Sea Catholic Church, 154 S.W.3d 816, 820 (Tex. App.-Houston [14th
Dist.] 2005, no pet.).
In this case, appellant's request for preparation of the
reporter's record is attached to the reporter's record. That request
does not contain a statement of the points or issues on which appellant
would rely. No request for the reporter's record was included (or
requested to be included) in the clerk's record. Since requesting a
partial reporter's record, appellant has not filed a statement of the
points or issues on appeal as required by rule 34.6(c). As the supreme
court observed in Bennett, “litigants who ignore our rules do so at the
risk of forfeiting appellate relief.” Bennett, 96 S.W.3d at 230. Because
appellant failed to follow the requirements for rule 34.6(c)(1), we

cannot apply the presumption of rule 34.6(c)(4) that the record is
complete but must apply the presumption that the omitted portions of the
record support the trial court's judgment. Accordingly, we must overrule
appellant's challenge to the sufficiency of the evidence. We
overrule appellant's first and third issues.
DUE PROCESS
In her second issue, appellant questions “[w]hether the trial
court erred in disbursing the excess proceeds to Thomas G. Brown through
his attorney without giving Appellant due process.” Appellant asserts
she received no notice of Thomas Brown's June 25, 2004 motion for
disbursement of excess proceeds until she discovered it in the file in
March 2005. The record, however, contains no evidence that appellant
lacked adequate notice. Appellant does not explain how any late notice
she received affected her. As she states in her brief, she discovered
Thomas Brown's motion in March 2005 and responded to his motion by
amending her motion for disbursement of excess proceeds.
Appellant also asserts her due process rights were violated
because she received no notice that Ramsey was seeking fees and expenses
until July 7, 2005, the day before the hearing. The record contains no
evidence that appellant did not receive adequate notice. The partial
reporter's record contains no objection by appellant to the trial
court's proceeding with the hearing, nor does the record show appellant
filed a motion for continuance or otherwise requested a continuance. Nor
does the record show the allegedly late notice affected appellant's

ability to adequately represent herself at the hearing. Likewise,
appellant does not argue on appeal that the single-day's notice affected
appellant's self-representation or in any way affected the outcome of
the case.
Under rule of appellate procedure 44.1(a), No judgment may be
reversed on appeal on the ground that the trial court made an error of
law unless the court of appeals concludes that the error complained of:
(1)probably caused the rendition of an improper judgment; or
(2)probably prevented the appellant from properly presenting the case
to the court of appeals.
Tex. R. App. P. 44.1(a). In this case, after reviewing the entire
record on appeal, we cannot conclude that any lack of notice probably
caused the rendition of an improper judgment or prevented appellant from
properly presenting the case on appeal. We overrule appellant's second
issue.
DENIAL OF APPELLANT'S MOTION FOR DISBURSEMENT
In her fourth issue, appellant asks “[w]hether the trial court
erred in denying Appellant's Motion for Disbursement of Excess [sic] and
granting Brown's Motion for Excess Proceeds.” Appellant's brief contains
no argument or authorities in support of this issue. Accordingly, this
issue is not properly briefed and is waived. See Tex. R. App. P.
38.1(h); Abdelnour, 190 S.W.3d at 242; Wolfe, 24 S.W.3d at 646-47.
Furthermore, appellant's April 13, 2005 amended motion for disbursement
of excess proceeds requested that the trial court “determine the parties
of interest and the former owners of said Property . . . [and] issue an

order disbursing claims for such excess proceeds to all parties of
interest that may be determined by this Court.” The trial court's
judgment did what appellant's amended motion requested. We conclude the
record does not show the trial court denied appellant's motion. We
overrule appellant's fourth issue.
OTHER ASSERTIONS
Appellant's brief contains other assertions that do not fall
under any of the issues, including, “[t]he District Clerk should not
have distributed excess proceeds of tax sale to Brown when Appellant had
filed a claim to the excess proceeds within two years and such claim was
pending before the trial court”; “Ramsey failed to comply with the
court's Order of July 20, 2004 which ordered excess proceeds 'to be
disbursed in equal interests to applicants after the payment of fees and
expenses . . .'”; and “Ramsey never produced evidence that supported the
distribution arrangement of the excess proceeds.” Each of these
assertions is unsupported by argument, citation to the record, or
citation to authority. Accordingly, these assertions are waived. See
Tex. R. App. P. 38.1(h); Abdelnour, 190 S.W.3d at 242; Wolfe, 24 S.W.3d
at 646-47.
We affirm the trial court's judgment.

KERRY P.
FITZGERALD
JUSTICE
051412F.P05
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Footnote 1
We presume appellant means the Texas Tax Code. The Property Code does
not contain a section 34.04.
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Footnote 2
The judgment, awarded appellant $222.96 as an heir of Raymond Brown,
and it awarded Thomas Brown $1114.77 as an heir of Raymond Brown and
$1532.81 as an heir of Essie Brown.

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Footnote 3
On appeal, appellant does not challenge the calculation of her
interest in the excess proceeds, 0.909 percent. If Ramsey's fees and
expenses had not been ordered paid from the excess proceeds, appellant's
share of the excess proceeds would have increased by $31.82.