Brian Robert Cunningham v. Brent Cunningham

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00180-CV

Brian Robert Cunningham, Appellant

v.

Brent Cunningham, Appellee

FROM THE COUNTY COURT OF CALDWELL COUNTY
NO. 25CV-07658, THE HONORABLE RICHARD R. HICKS, III, JUDGE PRESIDING

MEMORANDUM OPINION

In this forcible-detainer case, Brian Robert Cunningham, appearing pro se,

appeals from the trial court’s judgment awarding possession of the subject premises to Brent

Cunningham.1 For the following reasons, we affirm the judgment.

BACKGROUND

Brent, as Successor Trustee of the Lock Trust (Trust), filed a petition for forcible

detainer against Brian in justice court. In his petition, Brent alleged that the Trust owns the

premises at issue and that Brian has no lease or right of possession to it. He attached to his

petition a copy of the Trust and a November 12, 2024 court order finding Patricia Louise Lock—

the parties’ mother and the Trust’s settlor and original trustee—incapacitated and appointing a

guardian of the person and of the estate. The Trust specifies that upon Lock’s incapacity, Brent
1
Because the parties share a surname, for clarity we will refer to them by their first
names.
is to become the Successor Trustee. Brent alleged that he had provided Brian with the required

written notice to vacate but that Brian had refused to vacate. See Tex. Prop. Code § 24.005

(“Notice to Vacate Prior to Filing Eviction Suit”). The justice court rendered judgment against

Brian, and Brian filed a de novo appeal with the county court at law (trial court). See Tex. R.

Civ. P. 510.9, 510.10(c).

Brian filed an answer in the trial court but did not appear for the bench trial,

despite the record’s demonstrating that he was sent notice by certified mail. After the bench

trial, the trial court rendered a default judgment against Brian.2 He did not file a motion for new

trial, although he filed two other post-judgment motions: a “Motion for Reconsideration” and a

“Motion for Relief of Judgment.” He did not support either of those motions with evidence.

After posting bond in the amount set by the trial court, Brian perfected this appeal.

DISCUSSION

Brian raises five issues on appeal, which we address together because they rest on

the same fundamental argument: that the Trust has been revoked and voided by a “properly

executed Certificate of Trust dated March 11, 2025.” This purported Certificate of Trust, Brian

contends, both deprived Brent of standing to bring this action and demonstrated that Brian has a

superior right to possession of the premises. In his answer filed with the trial court, Brian

contended that Brent “does not have any standing” because “the governance of the Lock Trust”

was “changed,” “voided,” and “nullified.”

2
No reporter’s record of the trial was filed with this Court because Brian did not pay for
it or make arrangements to pay for it; he also did not demonstrate that he was entitled to proceed
without payment, as was his responsibility. See Tex. R. App. P. 34.6(b), 35.3(b).
2
Despite referencing in his brief a March 11, 2025 “Certificate of Trust”

purportedly demonstrating that the Trust was voided, Brian does not cite any evidence in the

record supporting his contention that the Trust had been voided by this instrument or by any

other instrument before the judgment was rendered on February 18, 2025. Therefore, he has not

supported his argument that Brent lacked standing as the Trust’s successor trustee to bring this

action, and we accordingly uphold the trial court’s implied determination that Brent had

standing. See Tex. Prop. Code §§ 113.083(a) (providing that on trustee’s incapacity, “a

successor trustee shall be selected according to the method, if any, prescribed in the trust

instrument”), .084 (providing that successor trustee has “the rights, powers, authority, discretion,

and title to trust property conferred on the trustee”); Farmers Tex. Cnty. Mut. Ins. v. Beasley,

598 S.W.3d 237, 240 (Tex. 2020) (noting that appellate courts review standing determinations

de novo and construe pleadings in plaintiff’s favor as well as consider relevant evidence offered

by parties).

For the same reason, Brian’s argument that he holds a “superior right of

possession” based on the March 11, 2025 “Certificate of Trust” fails. In the absence of a

reporter’s record, we must presume that the trial court heard sufficient evidence to make all

necessary findings in support of its judgment, including that Brent was the successor trustee with

a superior right to possession of the premises owned by the Trust. See Bennett v. Cochran,

96 S.W.3d 227, 230 (Tex. 2002); De Leon v. De Leon, No. 03-15-00027-CV, 2016 WL 4506783,

at *1 (Tex. App.—Austin Aug. 24, 2016, no pet.) (mem. op.); see also Tex. R. App. P. 37.3(c)

(if no reporter’s record is filed due to appellant’s fault, appellate court may consider those issues

that do not require reporter’s record).

3
Also, although Brian argues that the trial court’s judgment deprived him of “due

process” and that “public policy” requires reversal of the judgment, he supports those arguments

with nothing more than the same contentions he makes to support his standing argument: that the

Trust was voided and that he therefore has a superior right to possession of the premises. Again,

he cites no evidence in the record to support these arguments. Furthermore, even construing

either of Brian’s post-judgment motions as a motion for new trial, he did not attach any evidence

to the motions in support thereof. Cf., e.g., In re Marriage of Ordaz & Cuba, No. 13-23-00177-

CV, 2024 WL 3963900, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 28, 2024, no pet.)

(mem. op.) (noting that motion for new trial is proper vehicle to set aside post-answer default

judgment and that such motion preserves issues properly asserted therein if supported by

affidavits or other competent evidence).

Because Brian has not demonstrated any reversible error by the trial court, we

overrule his appellate issues.

CONCLUSION

We affirm the trial court’s judgment.

__________________________________________
Karin Crump, Justice

Before Justices Triana, Theofanis, and Crump

Affirmed

Filed: December 9, 2025

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