4M Linen & Uniform Supply Co., Inc. v. W.P. Ballard & Co., Inc., 01-88-00855-CV

• Decision Date: 10 May 1990
• Docket Number: No. 01-88-00855-CV,01-88-00855-CV
• Citation: 793 S.W.2d 320
• Parties: 4M LINEN & UNIFORM SUPPLY CO., INC., Appellant, v. W.P. BALLARD & CO., INC., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 320

793 S.W.2d 320

4M LINEN & UNIFORM SUPPLY CO., INC., Appellant, v. W.P. BALLARD & CO., INC., Appellee.

No. 01-88-00855-CV.

Court of Appeals of Texas Houston (1st Dist.).

May 10, 1990.

Rehearing Denied May 10, 1990.

Andrew J. Mytelka, John A. Buckley, Jr., Galveston, for appellant.

Robert E. Lapin, Galveston, for appellee.

Before EVANS, C.J., and DUGGAN and O'CONNOR, JJ.

ON MOTION FOR REHEARING

O'CONNOR, Justice.

This is an appeal from a suit on a sworn account. We grant appellant's motion for rehearing, withdraw our original opinion issued November 16, 1989, and substitute the following opinion.

W.P. Ballard & Co., Inc. (Ballard & Co.) filed suit on a sworn account against 4M Linen & Uniform Supply Co., Inc. (4M Linen). In response, 4M Linen filed a counterclaim alleging breach of implied warranty, breach of contract, and violation of the Deceptive Trade Practices Act (DTPA). ¹ Before trial, on stipulated facts, the court entered an instructed verdict for Ballard & Co. for $51,996.11 on its sworn account claim and on 4M Linen's counterclaim. After the evidence, the trial court submitted Ballard & Co.'s issue on attorney's fees, and 4M Linen's defensive issues on misrepresentations and breach of warranties. The jury answered all the issues in favor of Ballard & Co. The trial court disregarded the finding on attorney's fees, and signed a judgment awarding Ballard & Co. $51,996.11, plus interest. Both parties appealed. We modify and affirm the judgment.

This suit arises out of a contract between Ballard & Co. and 4M Linen, under which Ballard & Co. supplied laundry products, produced and recommended by Diamond Shamrock, to 4M Linen. A sales representative for Ballard & Co. visited the 4M Linen plant each week to inventory 4M Linen's supplies. Based on that inventory, Ballard & Co. delivered chemicals. 4M Linen paid Ballard & Co. for the chemicals until July 1985. Beginning in June, 4M Linen started having problems with mildew. 4M Linen refused to pay Ballard & Co. for the supplies that it delivered from July 1985 through October 1985. The main issue at trial was whether Ballard & Co. had a duty to tell 4M Linen that Tex-Stat, one of the chemicals recommended by Diamond Shamrock and supplied by Ballard & Co., was not a mildewcide.

1. Plea in abatement

In its first point of error, 4M Linen claims the trial court erred when it overruled its plea in abatement. Before this case went to trial, 4M Linen filed a plea in abatement in this suit (the Harris County suit), arguing that another suit involving the same facts was already on file in Galveston County (the Galveston County suit). In its plea in abatement, 4M Linen alleged that: it filed the Galveston County suit 13 days before Ballard & Co. filed the Harris County suit; Ballard & Co. was served with citation in the Galveston County suit the day before 4M Linen was served with the citation in the Harris County suit. Both sides admit there was a hearing and that the trial court overruled the plea.

The general rule is that the first court in which a suit is filed has dominant jurisdiction over other courts of equal stature. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974); Lamar Sav. Ass'n v. White, 731 S.W.2d 715, 716 (Tex.App.--Houston [1st Dist.] 1987, orig. proceeding). The party who filed the first suit may, however, be estopped from asserting the jurisdiction of the first court. See V.D. Anderson Co. v. Young, 128 Tex. 631, 636-37, 101 S.W.2d 798, 800 (1937).

Estoppel is a fact issue that must be determined by the trial court where the plea in abatement is filed. Parr v. Hamilton, 437 S.W.2d 29, 31 (Tex.Civ.App.--Corpus Christi 1968, no writ). If a defendant files a plea in abatement in the second trial court, and the second court resolves the fact issue against the proponent of the plea, the second court becomes vested with dominant jurisdiction. Id. That ruling postpones the action in the first court until the second court finally disposes of the case. Id.

In order to judge the propriety of the trial court's ruling on the plea in abatement, we must review a statement of facts. Advance Ross Electronics Corp. v. Green 624 S.W.2d 316, 317 (Tex.App.--Tyler 1981, writ ref'd n.r.e.). Without a statement of facts, we must presume the evidence supported the court's ruling. Id. at 317.

We have no statement of facts from the hearing on the plea in abatement. Nor do we have the benefit of the response filed by Ballard & Co. to 4M Linen's plea. The only documents 4M Linen brought forward for the appeal on this issue are the plea in abatement and the order overruling it. 4M Linen argues that it was Ballard & Co.'s burden to bring forward a record of the hearing on the plea in abatement to prove that it raised the estoppel exception.

Not so. Under TEX.R.APP.P. 50(d), the party who asks us to review a ruling of the trial court must provide the record that shows error. Petitt v. Laware, 715 S.W.2d 688, 690 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.); see also Green, 624 S.W.2d at 317. Because 4M Linen asks us to review a ruling the trial court made in Ballard & Co.'s favor, it was 4M Linen's burden to provide us with a record showing reversible error.

We overrule 4M Linen's first point of error.

2. The bill of exception

In its second point of error, ² 4M Linen contends the trial court erred in excluding part of the testimony of its expert witness, Chad Keith, which it preserved in an informal bill of exceptions. In our earlier opinion, we overruled the point because 4M Linen did not make an informal bill before the court submitted the charge to the jury. On rehearing, 4M Linen contends the trial court erred when it refused to permit it to make an informal bill of exceptions before the jury retired to consider the charge. We agree and reconsider our holding on appellant's second point of error.

When 4M Linen tried to question Keith about a statement in a letter Diamond Shamrock sent to 4M Linen, Ballard & Co. objected. After the court sustained the objection, 4M Linen deferred further questions of that witness on that subject until a later bill of exceptions. 4M Linen did not outline what it planned to prove through Keith's testimony.

At the charge conference, 4M Linen reminded the court that it wanted to make its bill of exceptions before the court submitted the charge to the jury. The court refused, but said it would permit 4M Linen to make a bill during the jury's deliberations. The court noted that if it decided it was error to exclude the evidence, it could grant 4M Linen a new trial.

After the jury retired to consider the charge, 4M Linen made its bill of exceptions by eliciting testimony from Keith before the court and opposing counsel, for the court reporter to include in the statement of facts. To begin the bill, 4M Linen asked that the two questions 4M Linen asked Keith during the trial be read to him from the court reporter's notes. In response to those questions, Keith testified that a product identified as a mildewcide should kill and prevent mildew, and that the letter did not supply a lot of information about the product. In response to questions that were not asked during the trial, Keith testified that a linen supply dealer in the Gulf Coast area would have reason to know that a linen company required a mildewcide, and that a linen supply company in this area would have run across the mildew problem many times.

There are two kinds of bills of exception: the informal bill and the formal bill. Compare TEX.R.APP.P. 52(b ) to 52(c ). An informal bill of exception preserves error if: (1) an offer of proof is made before the court, the court reporter, and the opposing counsel, outside the presence of the jury; (2) it is preserved as part of the statement of facts; (3) and it is made before the charge is read to the jury. TEX.R.APP.P. 52(b).

Rule 52(b) permits a party to make an informal bill of exception before the court reads the charge to the jury. McKinney v. National Union Fire Ins. Co., 747 S.W.2d 907, 910 (Tex.App.--Fort Worth 1988), aff'd, 772 S.W.2d 72 (Tex.1989). 4M Linen made its informal bill of exception after the charge was read to the jury.

Rule 52(b) states:

When the court excludes evidence, the party offering same shall as soon as practicable, but before the court's charge is read to the jury, be allowed to make, in the absence of the jury, an offer of proof in the form of a concise statement.

(Emphasis added.)

The rule is mandatory. The trial court must permit a party to make an informal bill before the jury is charged. Dorn v. Cartwright, 392 S.W.2d 181, 185-86 (Tex.Civ.App.--Dallas 1965, writ ref'd). Here, 4M Linen specifically reminded the court that it wanted to make an informal bill before the court read the charge to the jury. The court refused, and granted 4M Linen permission to make the bill after the charge was read.

Under rule 52, it was error to refuse 4M Linen permission to make an informal bill. Our task now is to determine whether the error was reasonably calculated to cause and probably did cause harm. TEX.R.APP.P. 81(b)(1); see also Houston Lighting & Power Co. v. Russo Properties, Inc., 710 S.W.2d 711, 717 (Tex.App.--Houston [1st Dist.] 1986, no writ).

To appeal the trial court's exclusion of evidence, the complaining party must present the evidence that was excluded to the appellate court in a bill of exception. Huckaby v. Henderson, 635 S.W.2d 129, 131 (Tex.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.). Because the appellate courts cannot evaluate excluded evidence unless it is preserved in a bill, it is reversible error for the trial court to refuse to permit a party to make a bill of exceptions. Here, however, although the trial court incorrectly prevented 4M Linen from making an informal bill before the charge was read to the jury, 4M Linen made a late informal bill, preserving that testimony.

On the late informal bill, Keith testified that a linen supply dealer in...