David Hoelscher v. Ackerly Oil Company, Inc. D/B/A Trio Fuels

• Court: Court of Appeals of Texas
• Decided: March 6, 2003
• Docket: 11-02-00276-CV
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

David Hoelscher

Appellant

Vs.                   No. 11-02-00276-CV B Appeal from Howard County

Ackerly Oil Company, Inc. d/b/a Trio Fuels

Appellee

This is an appeal of a default judgment.  Ackerly Oil Company, Inc. d/b/a Trio Fuels sued  David Hoelscher, seeking the unpaid balance of $16,908.78 owed Ackerly Oil on Hoelscher=s account.  The trial court entered a default judgment in favor of Ackerly Oil for $16,908.78 plus interest and attorney=s fees.  Hoelscher appeals.  We affirm.

In a single issue, appellant contends that the evidence was insufficient to support the default judgment.  We will treat appellant=s complaint as a Ano-evidence@ or Alegally insufficient@ contention because appellant did not include in his motion for new trial a point complaining of the Afactual insufficiency@ of the evidence.  TEX.R.CIV.P. 324(b)(2).

Citing Cook v. Goodyear Service Stores, 624 S.W.2d 761 (Tex.App. - Houston [14th Dist.] 1981, no writ), appellant argues that the sworn account was defective and that the trial court was required to hear evidence as to damages pursuant to TEX.R.CIV.P. 243.  Appellee correctly points out that the trial court did hear evidence and that the judgment reached by the court was based upon testimony.

Charles Wesley Dunnam testified that he was president of Ackerly Oil Company, Inc. d/b/a Trio Fuels and that Ackerly Oil provided appellant with certain petroleum products.  Dunnam stated that charges made for the products were the usual and customary charges for similar products in the Big Spring area.  Dunnam testified that the balance due for the products was $16,908.78.  Dunnam stated that $16,908.78 was the balance owed after all payments and credits had been given to appellant.  Dunnam=s testimony of the total amount due is legally sufficient to support the default judgment.  Texas Commerce Bank National Association v. New, 3 S.W.3d 515, 517 (Tex.1999).  Appellant=s issue is overruled.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

March 6, 2003

Panel consists of:  Wright, J., and

McCall, J., and McCloud, S.J.^[1]

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^[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.