MYLES MCQUIDDY, LISA JUDD, JERRIE C. HAWLEY, LARRY CHURCH, DENNIS KLEINGARTNER, HOMER FEUCHTER, ELOISE HARGADINE AND LARRY WADE, Appellants v. PATRICK SERVICES, INC., Appellee

Affirmed and Opinion filed October 19, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00465-CV
............................
MYLES MCQUIDDY, LISA JUDD, JERRIE C. HAWLEY,
LARRY CHURCH, DENNIS KLEINGARTNER, HOMER FEUCHTER,
ELOISE HARGADINE AND LARRY WADE, Appellants
v.
PATRICK SERVICES, INC., Appellee
 
.................................................................
On Appeal from County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC87-8488-C
.................................................................
O P I N I O N
Before Justices McClung, Thomas and Whittington
Opinion By Justice Whittington
        Appellants, Myles McQuiddy, et al., brought an action against appellee, Patrick Services, Inc., seeking to recover for an alleged overpayment made to appellee upon withdrawal of its partnership share in the Epiphyses Fund I partnership. The trial court rendered judgment in favor of appellants in the amount of the overpayment but denied appellants' request for attorney's fees. In their sole point of error, appellants contend that the trial court erred as a matter of law in ruling that appellants were not entitled to attorney's fees. We reject appellants' contention and affirm the judgment of the trial court.
        Section 38.001 et seq. of the Texas Civil Practice and Remedies Code provides for the award of attorney's fees in an action based on an oral or written contract. To recover attorney's fees the claimant must (1) be represented by an attorney; and (2) present his claim to the opposing party or to a duly authorized agent of the opposing party, and payment of the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented. Tex. Civ. Pract. & Rem. Code Ann. § 38.002 (Vernon 1986). Proper presentment is the assertion of a claim and request for payment made thirty days before initiation of a suit. Karol v. Presidio Enterprises, Inc., 622 S.W.2d 638, 640 (Tex. App.--Austin 1981, no writ). The purpose of presentment is to make a person aware that a claim is being made against him so that he may pay the claim within thirty days and avoid incurring an obligation for attorney's fees. Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981).
        This court is called upon to review and weigh the evidence in the record to determine whether proper presentment was made. The record on appeal consists of the transcript and, where necessary to the appeal, a statement of facts. Tex. R. App. P. 50(a). It is appellants' burden to bring forward a record sufficient to establish that proper presentment was made and that the trial court erred in refusing to award attorney's fees. See Tex. R. App. P. 50(d). An award of reasonable attorney's fees to a party recovering on a valid claim founded on a written or oral contract, preceded by proper presentment of claim, is mandatory. Kimbrough v. Fox, 631 S.W.2d 606, 609 (Tex. App.--Fort Worth 1982, no writ); Caldwell & Hurst v. Meyers, 714 S.W.2d 63, 65 (Tex. App.--Houston [14th District] 1986, writ ref'd n.r.e.).
        In the present case, appellants have provided this Court with the transcript and a partial statement of facts consisting only of demand letters which are marked with exhibit numbers. The record does not affirmatively reflect that these exhibits were admitted into evidence. As a general rule, the statement of facts is conclusive on the question of whether a document was introduced into evidence. G. & H. Equip. Co. v. Alexander, 533 S.W.2d 872, 878 (Tex. Civ. App.--Fort Worth 1976, no writ). Exhibits tendered to the Court, absent a showing that they were properly offered into evidence and that the trial court admitted them during trial, are loose exhibits, and form no part of the record proper. Dallas Market Center v. The Swing, Inc., No. 05-88-00676-CV (Slip op. at 2) (Tex. App.--Dallas Aug. 9, 1989, no writ) (not yet reported). Therefore, we do not look to those exhibits as evidence of proper presentment or failure to tender.
        The record before this Court consists merely of pleadings. Neither filing suit based upon a contract nor pleading allegations of a demand can constitute the presentment of a claim or demand that the claim be paid within the meaning of § 38.002. Western Casualty and Surety Co. v. Preis, 695 S.W.2d 579, 589 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.); Mackey v. Mackey, 721 S.W.2d 575, 579 (Tex. App.--Corpus Christi 1986, no writ). Here, the record on appeal does not establish that the presentment requirements of section 38.002 have been met. Absent a sufficient record, the reviewing court must presume that the evidence before the trial judge supported his decision. Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79, 82 (1955); The Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex. 1968). We therefore overrule appellants' sole point of error.
        In its cross-point, appellee asserts that the trial court erred in permitting appellants to recover for the overpayment because appellants' claim is barred by the two year statute of limitations. Pursuant to Texas Rule of Appellate Procedure 40(a)(4), appellants limited their appeal to the issue of attorney's fees. Appellee did not perfect a separate appeal by filing its own cost bond under Texas Rule of Appellate Procedure 40(a)(1).
        An appellee may use cross-points to bring forward complaints of some ruling or action of the trial court that appellee alleges constituted error as to him. Hernandez v. City of Fort Worth, 617 S.W.2d 923, 924 (Tex. 1981); Jackson v. Ewton, 411 S.W.2d 715, 717 (Tex. 1967). It is not necessary to perfect two separate and district appeals, unless the judgment of the trial court is definitely severable, and appellant strictly limits the scope of his appeal to a severable portion. Hernandez, supra at 924. When an appellant limits his appeal pursuant to Rule 40(a)(4), an appellee must perfect an independent appeal in order to complain by cross-point of any additional error committed by the trial court. See Donwerth et ux. v. Preston II Chrysler-Dodge, Inc., 32 Tex. Sup. Ct. J. 517, 520 (July 5, 1989). In our present case, appellants limited their appeal pursuant to Rule 40(a)(4), hence, in order to preserve error with regard to the statute of limitations cross-point, appellee was obligated to perfect an independent appeal by filing a separate cost bond. In the absence of a cost bond, appellee has failed to perfect its cross-appeal. We therefore dismiss appellee's cross-point for want of jurisdiction.
        The judgment of the trial court is affirmed.
 
 
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
890465.U05
 
 
File Date[10-18-89]
File Name[890465F]