Goodin v. Geller
| Decision Date | 06 March 1975 |
| Docket Number | No. 5413,5413 |
| Citation | 521 S.W.2d 158 |
| Parties | Troy GOODIN, d/b/a Troy Goodin Used Cars, Appellant, v. Carl B. GELLER, Appellee. |
| Court | Texas Court of Appeals |
Charles E. Hughes, Sherman, for appellant .
Kennedy & Minshew, Sherman, for appellee.
This is an appeal by defendant Goodin from judgment for damages, punitive damages, and attorney's fees in a suit filed under the Texas Deceptive Trade Practices--Consumer Protection Act, Texas Business & Commerce Code, Section 17.46, V.T.C.A.
After trial to a jury the trial court entered judgment on the verdict for $4,275.75 for plaintiff against defendant.
Defendant appeals on 13 points contending among other things that a major portion of the Statement of Facts has been irrevocably lost through no fault of the appellant or his attorney and that this court does not have a record or Statement of Facts to properly rule on the sufficiency of the evidence to sustain the findings of the jury.
Defendant has the burden to bring forward a statement of facts, and ordinarily in the absence of a statement of facts we must presume the evidence adduced supports the judgment. Ehrhardt v. Ehrhardt, CCA, Er.Ref., Tex.Civ.App., 368 S.W.2d 37; and when the complaint on appeal is that the evidence is legally or factually insufficient to support vital findings of fact, this burden cannot be discharged in the absence of a complete or an agreed statement of facts. Englander v. Kennedy, S.Ct., Tex., 428 S.W.2d 806.
In Englander, appellant contended that a vital fact finding of the trial court was not supported by the evidence; however only a partial statement of facts was before the appellate court.
In the instant case only a partial statement of facts is before this court. It is undisputed and the court reporter has certified that the testimony taken during the proceedings of the following witnesses has been lost: Troy Goodin, Mrs. Florence Geller, Bill Starr, Jim Fry, Jimmy Meeks, Roger Sanders, and Mrs. Troy Goodin. Troy Goodin was the defendant and Mrs. Florence Geller was mother and agent of the plaintiff.
Defendant is entitled to a complete statement of facts in question and answer form, and if through no fault of his own, he is unable to procure such a statement of facts, his right to have the cause reviewed on appeal can be preserved to him in no other way than a reversal and retrial of the case. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697; ...
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...of the case. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697 (Tex.Comm'n App.1936, opinion adopted); Goodin v. Geller, 521 S.W.2d 158 (Tex.Civ.App.--Waco 1975, writ ref'd n.r.e.); James Edmond, Inc. v. Schilling, 501 S.W.2d 432 (Tex.Civ.App.--Waco 1973, no writ); Waller v. O'Rear, 472 S.W.......
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Tenngasco Gas Gathering Co. v. Fischer, 1934
...He cites O'Neal v. County of San Saba, 594 S.W.2d 185 (Tex.Civ.App.--Austin 1980, writ ref'd n.r.e.); Goodin v. Geller, 521 S.W.2d 158 (Tex.Civ.App.--Waco 1975, writ ref'd n.r.e.); and Waller v. O'Rear, 472 S.W.2d 789 (Tex.Civ.App.--Waco 1971, writ ref'd In Waller, a new trial was granted w......
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