Jake D. Kinnard, Individually and dba Triple J Convenience Store v. Braziel Cooler-Freezer Mfg., Inc.--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00103-CV

Jake D. Kinnard, Individually

and dba Triple J Convenience Store,

Appellant

v.

Braziel Cooler-Freezer Mfg., Inc.,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court No. 05-12-30205BCCV

MEMORANDUM Opinion

Kinnard appeals the trial court s judgment in favor of Braziel in Braziel s suit on a sworn account. See Tex. R. Civ. P. 185. We affirm as modified.

In Kinnard s first issue, he contends that the trial court overruled Kinnard s motion to amend his pleadings and so erred.

As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion . . . ; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Tex. R. App. P. 33.1(a). Absent an adverse ruling from the trial court, nothing is preserved for appellate review. One Call Sys., Inc. v. Houston Lighting & Power, 936 S.W.2d 673, 677 (Tex. App. Houston [14th Dist.] 1996, writ denied); accord In re L.R., 84 S.W.3d 701, 708 (Tex. App. Houston [1st Dist.] 2002, no pet.) (juvenile adjudication). The trial court granted Kinnard s motion, and filed Kinnard s second amended pleading. We overrule Kinnard s first issue.

In Kinnard s second issue, he contends that the evidence was insufficient.

First, Kinnard contends that the evidence supporting certain of the trial court s findings of fact was factually insufficient. Kinnard attempts to challenge the following findings of fact:

13. In the Spring of 2005, Kinnard ordered several pieces of additional equipment to be used in [Kinnard s] store, the equipment contract.

14. Braziel s employees delivered the additional equipment ordered by Kinnard.

15. Kinnard refused to accept Braziel s invoice for the $9,075.24 additional equipment.

16. Kinnard refused to pay for the additional equipment.

17. Braziel was damaged under the equipment contract in the amount of $9,075.24.

([sic] C.R. at 19 (bracketed alteration added).)

The failure to file a verified denial of Braziel s sworn account would prevent Kinnard from challenging those findings. Cf. Tex. R. Civ. P. 93(10), 185; Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979); Double Diamond, Inc. v. Hilco Elec. Co-op, Inc., 127 S.W.3d 260, 268 (Tex. App. Waco 2003, no pet.); Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 562 (Tex. App. Dallas 2003, pet. denied). Kinnard contends that the parties tried those issues by consent, or that Braziel s suit was not properly one on a sworn account. Assuming without deciding that Kinnard may challenge those findings, we hold that the evidence supporting the findings was factually sufficient.

When we review factual sufficiency, we consider and weigh all of the evidence and will set aside the verdict only if it so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. City of Keller v. Wilson, 168 S.W.3d 802, 826 (Tex. 2005) (quoting Carter v. Steverson & Co., 106 S.W.3d 161, 166 (Tex. App. Houston [1st Dist.] 2003, pet. denied)); see In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re King s Estate, 150 Tex. 662, 665, 244 S.W.2d 660, 661 (1951).

Kinnard challenges the sufficiency of the evidence only concerning one piece of equipment, a fryer. Kinnard points to evidence that he told Braziel that Kinnard intended to purchase a fryer from someone other than Braziel; that Kinnard did purchase a fryer from someone else; that Kinnard accepted delivery of the equipment, including the fryer, as an accommodation to Braziel; and that after Kinnard rejected the equipment, Braziel did not pick up the equipment, either because Kinnard said he was buying the equipment, or because the equipment was a fixture. Braziel points to evidence that Kinnard requested a list of equipment, for which Braziel quoted a price of $9,075.24, including a fryer; that Kinnard accepted delivery of the equipment; that Kinnard said, after delivery, that he was going to pay for the equipment; and that when Kinnard did not pay, Braziel attempted to pick up the equipment, but Kinnard would not let Braziel, on the ground that the equipment was a fixture. Considering all of this evidence, we hold that the evidence supporting the trial court s findings of fact Nos. 13 through 17 was not contrary to the great weight and preponderance of the evidence. The evidence supporting those findings was factually sufficient.

Next, Kinnard contends that the evidence supporting certain of the trial court s findings of fact was legally insufficient. Kinnard complains of the following finding:

Braziel retained the law firm of Robertson, Robertson & Silas, Attorneys, L.L.P. to represent them in this suit and incurred reasonably and necessary attorney s fees and expenses in the amount of $3,500 through date of trial.

([sic] C.R. at 19.) Kinnard challenges the sufficiency of the evidence of the amount of reasonable attorney s fees.

A challenge to the legal sufficiency of the evidence by the party not having the burden of proof at trial is to be addressed by the reviewing court as a no evidence issue. Acadian Geophysical Servs., Inc. v. Cameron, 119 S.W.3d 290, 301 (Tex. App. Waco 2003, no pet.) (quoting Gooch v. Am. Sling Co., 902 S.W.2d 181, 183-84 (Tex. App. Fort Worth 1995, no writ)); see Hazlewood Patterson Co. v. Hancock, No. 10-03-00274-CV, 2004 Tex. App. LEXIS 11314, at *14 (Tex. App. Waco Dec. 15, 2004, pet. denied) (mem. op.) (attorney s fees); Checker Bag Co. v. Washington, 27 S.W.3d 625, 640 (Tex. App. Waco 2000, pet. denied) (attorney s fees).

No evidence points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.

City of Keller, 168 S.W.3d at 810 (quoting Robert W. Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)); see Kroger Tex. Ltd. P ship v. Suberu, 49 Tex. Sup. Ct. J. 592, 594, 2006 Tex. LEXIS 441, at *9 (Tex. May 5, 2006). The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. City of Keller at 827. The reviewing court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support the verdict. Id. at 822. [L]egal-sufficiency review . . . must credit favorable evidence if jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. at 827.

Braziel s attorney testified that before the time of the first trial setting, Braziel had expended $2,320.75 in attorney s fees, that $150.00 per hour was a reasonable fee for the work, that he had contracted with Braziel at that rate, and that he had spent eight or nine hours on the case since the first setting, so that $3,500.00 was a reasonable total fee in this case. (1 R.R. at 59.) Viewing the evidence in the light most favorable to the trial court s finding, and crediting that evidence that a reasonable factfinder could, we hold that there was more than a scintilla of probative evidence of reasonable attorney s fees in the amount of $3,500.00. The evidence of Braziel s attorney s fees was legally sufficient.

We overrule Kinnard s second issue.

In Kinnard s third issue, he contends that the trial court erred in ordering the amount of attorney s fees and prejudgment interest included in the amount to be paid out of the proceeds of the lien foreclosure. Braziel agrees. We sustain Kinnard s third issue.

Having overruled Kinnard s first and second issues and sustained his third issue, we modify the judgment as prayed for by Kinnard and affirm the judgment as so modified.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Modified and affirmed as modified

Opinion delivered and filed February 14, 2007

[CV06]