Vickery v. Texas Carpet Co., Inc.
| Decision Date | 31 May 1990 |
| Docket Number | No. B14-89-00074-CV,B14-89-00074-CV |
| Parties | Constance VICKERY, Charles R. Vickery, Jr., G. Warren Coles, Jr., First National Bank of Bellaire and Mayde Creek Bank, N.A., Appellants, v. TEXAS CARPET CO., INC., Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Peter J. O'Loughlin, Houston, for appellants.
Alan Magenheim, Donna Bolding, Robert W. Davidson, Houston, for appellee.
Before ROBERTSON, SEARS and DRAUGHN, JJ.
Constance and Charles Vickery and G. Warren Coles appeal from a judgment rendered in favor of Texas Carpet. In thirty-six points of error, the Vickerys and Mr. Coles allege (1) the trial court erred in failing to grant their motion for new trial, (2) the evidence was factually and legally insufficient to support the judgment, (3) the trial court erred in failing to file findings of fact and conclusions of law, and (4) the trial court erred in not acting on their motion to recuse the trial judge. We affirm.
In the spring of 1985, Warren Coles and Charles Vickery began plans to construct Mayde Creek Bank. Constance Vickery planned the decoration of the bank. Mrs. Vickery ordered the carpet for the bank from Texas Carpet Co. Some of the carpet she ordered had to be specially dyed to coordinate with the decor of the bank. When the carpet was to be installed, Texas Carpet installed only part of the carpet. That part of the carpet that had to be specially dyed was faulty so Texas Carpet sent it back to the manufacturer. Texas Carpet installed the tacking strips for the remaining carpet and left the padding for that carpet in the bank. When the remaining carpet was ready to be installed, appellants did not allow Texas Carpet to install the carpet because they had not yet received a charter for the bank. Appellants then refused to pay for any of the carpet. Subsequently, appellants sold the bank building to Mayde Creek Bank, N.A. without compensating Texas Carpet for the padding and carpet installed, or the padding delivered to the site.
Texas Carpet filed suit against the Vickerys, the Coles, First National Bank of Bellaire, and Mayde Creek Bank for the money owed on the carpet, padding, and installation. The trial court entered partial summary judgment for Texas Carpet for the value of the delivered and installed carpeting and padding, and the additional padding delivered. At the hearing on that motion, on August 1, 1988, the trial judge ordered the case set for trial the week of October 1, 1988. At that time, Charles Vickery was attorney of record, but Ruben Valdes appeared at the hearing instead of Mr. Vickery because Mr. Vickery was ill. On October 3, 1988, the court called the case for trial at 9:00 a.m. on October 4, 1988. The court coordinator advised Texas Carpet's counsel to appear and Texas Carpet's counsel called Mr. Vickery and advised him of the setting. Mr. Valdes did not file a motion to substitute as counsel until the morning of the trial, and he declared that his substitution would not operate as a delay in the trial of the case. However, at approximately the same time, Mr. Valdes filed a motion for continuance seeking a postponement of the trial setting because he was previously set for trial in another court at that time. Neither of these motions were submitted to the trial judge. Neither Mr. Valdes, nor any of his clients appeared for trial. The court heard Texas Carpet's evidence and found in favor of Texas Carpet.
Appellants filed a motion for new trial, alleging their failure to appear was not intentional or the result of conscious indifference, that they had a meritorious defense, and that the granting of a new trial would not prejudice the opposing party. Appellants further alleged that the evidence was legally and factually insufficient to support the judgment. Appellants also filed a request for findings of fact and conclusions of law and a motion to recuse the trial judge. The trial court denied the motion for new trial.
In their first eight points of error appellants challenge the trial court's denial of their motion for new trial with regard to setting aside the default judgment. A motion for new trial is addressed to the trial court's sound discretion; therefore, we do not disturb the court's ruling on that motion absent a finding of abuse of discretion. Mission Ins. Co. v. Hill, 679 S.W.2d 578, 579 (Tex.App.--Texarkana 1984, writ ref'd n.r.e.). A new trial should be ordered and a default judgment set aside when the defendant's failure to appear was not intentional or the result of conscious indifference on his part, but was due to a mistake or accident. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). The defendant's motion for new trial must set up a meritorious defense and must be filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Id. at 126. In reviewing this case in which the attorney did not appear for trial, we treat it the same as one in which a default judgment is entered after a defendant fails to answer. Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966). In determining whether there was intentional disregard or conscious indifference, the trial court looks to the knowledge and acts of the defendant. Id.
Appellants have not demonstrated they conclusively established at the hearing on their motion for new trial that the failure of their attorney to appear for trial was not the result of conscious indifference. Appellants' argument is that they presented undisputed testimony at the hearing on motion for new trial that their attorney was not present for trial in this case because he was in another court on another matter. Appellants' evidence falls short of establishing that the appellants' attorney's failure to appear for trial was not intentional or the result of conscious indifference.
The morning of trial, Ruben Valdes filed a motion for substitution of counsel, replacing Charles R. Vickery, Jr. as counsel. Valdes then filed a motion for continuance citing as his reason for continuance that he was scheduled for trial that day in another court on another matter. Valdes did not present the motion for continuance to the court or in any way call it to the attention of the judge before the time of trial. The trial judge had no duty to rule on the motion for continuance in the absence of Valdes or the appellants. See Guidry v Massey, 572 S.W.2d 47, 49 (Tex.Civ.App.--Houston [1st Dist.] 1978, no writ). Valdes also testified that he made no effort to have the judge of the court in which he was previously set for trial release him to present his motion for continuance to the trial court in this case. Because appellants failed to present their motion for continuance to the court and they did not even appear for trial, appellants have not shown that their failure to appear was not the result of conscious indifference. The trial court did not abuse its discretion by proceeding to trial. Points of error one through eight are overruled.
In points nine through twenty-nine appellants claim the evidence was legally and factually insufficient to support the trial court's findings that (1) a contract existed, (2) the contract satisfied the statute of frauds, (3) the amount of actual damages, (4) plaintiff's performance of the contract, (5) an authorized agent contracted to purchase the carpet, (6) misrepresentations by appellants, and (7) the amount of attorney's fees.
With regard to legal insufficiency points, we will consider only the evidence tending to support the finding, viewing it in the most favorable light in support of the finding, giving effect to all reasonable inferences that may properly be drawn therefrom and disregarding all conflicting evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).
Where the challenge to a finding is framed as an insufficient evidence point, the appellate court is to consider all the evidence in the case, both that in support of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).
Although the defendants filed an answer, they failed to...
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