Lynn Owens, Individually v. W.A. Poe

• Court: Court of Appeals of Texas
• Decided: April 19, 1995
• Docket: 10-95-00060-CV
• Status: Published

Opinion

Ownes-L v. Poe

IN THE

TENTH COURT OF APPEALS

No. 10-95-060-CV

     LYNN OWENS, INDIVIDUALLY, ET AL.

                                                                                              Appellants

     v.

     W.A. POE,

                                                                                              Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 93-00-03805-CV

                                                                                                    

MEMORANDUM OPINION

                                                                                                    

      Lynn Owens attempts to appeal from an order denying his motion to recuse the presiding judge of the 13th District Court. See Tex. R. Civ. P. 18a(a). After Owens filed a "Verified Demand for Recusal Notice and Caveat," the court referred the request to the Presiding Judge for the Third Administrative Judicial Region, who designated a judge to hear the motion. See id. 18(d). The designated judge denied the motion on February 17, 1995. Owens filed a cost bond and a notice of appeal specifically stating that he wished to appeal from the order denying the motion to recuse.

      An order denying a motion to recuse is interlocutory. See Means v. State, 825 S.W.2d 260, 260 (Tex. App.—Houston [1st Dist.] 1992, no pet.). The Rules of Civil Procedure specifically provide that, "[i]f the motion is denied, it may be reviewed for abuse of discretion on appeal from the final judgment." Tex. R. Civ. P. 18a(f) (emphasis added). We do not have jurisdiction over interlocutory orders except for certain enumerated exceptions that do not include a motion to recuse. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.012, 51.014 (Vernon 1986 & Supp. 1995).

      We notified the parties of this defect by a letter from our clerk dated April 4, 1995, allowing ten days for either party to respond showing grounds for continuing the appeal. See Tex. R. App. P. 60(a)(2), 83. By an unsigned motion filed April 14, Owens requests ten additional days in which to respond. He has not shown why he needs the additional time or how the additional time will aid him in avoiding the plain language of the statute. See Tex. R. Civ. P. 18a(f). His request for more time is denied.

      Therefore, we dismiss this appeal for want of jurisdiction.

                                                                               PER CURIAM

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed April 19, 1995

Do not publish

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]