Wenk v. City Nat. Bank

• Decision Date: 26 February 1981
• Docket Number: No. 1402,1402
• Citation: 613 S.W.2d 345
• Parties: Ted W. WENK, Appellant, v. CITY NATIONAL BANK, Appellee.
• Court: Texas Court of Appeals

Page 345

613 S.W.2d 345

Ted W. WENK, Appellant, v. CITY NATIONAL BANK, Appellee.

No. 1402.

Court of Civil Appeals of Texas, Tyler.

Feb. 26, 1981.

Christoper M. Maisel, Austin, for appellant.

Thomas H. Watkins, H. Kirk Hays, Hilgers, Watkins & Hays, Austin, for appellee.

SUMMERS, Chief Justice.

This is a bank credit card case. Plaintiff, City National Bank (appellee or Bank), sued defendant, Ted E. Wenk (appellant or Wenk), for his alleged non-payment of charges on Master Charge and Visa credit cards issued to him.

Although the Bank's petition was in the format of a sworn account, it included a claim for debt, allegedly past due, in the amount of $1,931.02, interest, reasonable attorney's fees in the amount of $650.00, and costs of court. Plaintiff Bank proceeded to trial for recovery on its claim for such debt which it contends was created by the money which the Bank advanced as loans on behalf of Mr. Wenk to pay the charges incurred by him in his use of such credit cards. Defendant Wenk answered with a sworn denial in the following form:

That the entire claim as alleged in Plaintiffs (sic) Orginal (sic) Petition and exhibits thereto and which claim is the foundation of Plaitiff's (sic) action is wholly not just or true and further that the attorney's fees prayed for in the amount of $650.00 is [Sic] unreasonable.

Wenk's sworn denial does not effectively trace the language of Rule 185; ¹ its statement that the claim is "wholly not just or true" is nothing more, in effect than a sworn general denial. Solar v. Petersson, 481 S.W.2d 212, 215 (Tex.Civ.App. Houston (14th Dist.) 1972, no writ).

In answer to the Bank's request for admissions, Wenk admitted that the Bank issued the Master Charge and Visa cards to him and he retained and used them.

Trial was to the court, which rendered judgment for plaintiff Bank in the total sum of $2,741.88, which includes plaintiff's principal claim of $1,931.02, interest to date of $160.86, and attorney's fees of $650.00. From this adverse judgment, defendant Wenk has appealed.

As reformed, affirmed.

The record before us is without findings of fact or conclusions of law. Under these circumstances, the well-settled rule is that the appellate court is required to affirm the judgment rendered by the trial court if it can be sustained on any reasonable theory authorized by law and supported by the evidence. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962); Sanders v. Republic National Bank of Dallas, 389 S.W.2d 551, 554 (Tex.Civ.App. Tyler 1965, no writ).

Defendant Wenk predicates his appeal on five points of error, several of which are clearly multifarious. A point of error is multifarious if it embraces more than one specific ground of error, or if it attacks several distinct and separate rulings of the trial court. Rio Delta Land Co. v. Johnson, 566 S.W.2d 710, 713 (Tex.Civ.App. Corpus Christi 1978, writ ref'd n.r.e.); Kroger v. Cellan, 560 S.W.2d 505, 507-508 (Tex.Civ.App. Tyler 1977, writ ref'd n.r.e.); City of Houston v. Jean, 517 S.W.2d 596, 598 (Tex.Civ.App. Houston (1st Dist.) 1974, writ ref'd n.r.e.); 5 Tex.Jur.3d Appellate Review § 473 (1980). In disposing of these points, we apply the liberal rule with respect to the construction of points laid down in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943) and reaffirmed by the Supreme Court in O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976). The rule so established, simply stated, is that if a point is sufficient to direct the court's attention to the matter complained of, the court will "look to the 'point' and the statement and argument thereunder to determine the question of reversible error." Eoff v. Muskiet, 561 S.W.2d 542, 544 (Tex.Civ.App. Beaumont 1977, writ ref'd n.r.e.); Nueces County Drainage & Con. Dist. No. 2 v. Bevly, 519 S.W.2d 938, 941 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n.r.e.).

In his first point of error, Wenk asserts that the trial court erred in overruling defendant's objection to the admissibility of Plaintiff's Exhibit 1 because:

(A) The evidence was clearly hearsay and no proper predicate was laid for admission of a record by an affidavit pursuant to Article 3737e, § 5. ²

(B) The affidavit purporting to lay the business record exception or any other exception to the hearsay rule was insufficient to overcome the objection to hearsay.

We disagree.

Plaintiff proffered and over defendant's hearsay objection the trial court admitted Plaintiff's Exhibit 1. It consisted of the following four items: an affidavit tracking the language of Article 3737e; a Master Charge statement reflecting a balance past due of $875.38; a Visa statement reflecting a balance past due of $1,037.27; and the credit agreement for the Visa and Master Charge cards. Plaintiff asserted admissibility under Article 3737e § 5, which reads as follows:

Any record or set of records or photographically reproduced copies of such records, which would be admissible pursuant to the provisions of Sections 1 through 4 shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Sections 1 through 4 above, that such records attached to such affidavit were in fact so kept as required by Sections 1 through 4 above, provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen (14) days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying. The expense for copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who files the records and serves notice of said filing, in compliance with this Act. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule 21a, Texas Rules of Civil Procedure, fourteen (14) days prior to commencement of trial in said cause.

The statute provides that notice shall be deemed to have been given if it is served in the manner contemplated by Rule 21a fourteen days prior to commencement of trial in said cause. Rule 21a specifically provides for service "by the proper sheriff, or constable" and that "the return of the officer ... shall be prima facie evidence of the fact of service."

On January 22, 1979, plaintiff Bank filed its original petition including therewith Plaintiff's Exhibit 1 (the records sought to be introduced) with the clerk of the court for inclusion with the papers in the cause. This date was more than fourteen (14) days prior to the date trial of the cause commenced on September 18, 1979. Defendant Wenk, having been served with a copy of plaintiff's original petition including Plaintiff's Exhibit 1 on January 25, 1979, as evidenced by the officer's return of citation, was given prompt notice as contemplated by the statute. Such notice identified the name and employer of the person making the affidavit as Jim Greenwood, an Assistant Vice President of City National Bank.

Furthermore, Mr. Greenwood as Assistant Vice President of plaintiff Bank was a qualified witness within the meaning and intent of Article 3737e. University Savings & Loan Assn. v. Security Lumber Co., 423 S.W.2d 287, 290 (Tex.1967); Rippetoe v. White Rock National Bank, 555 S.W.2d 934, 936 (Tex.Civ.App. Waco 1977, no writ). His affidavit set forth specifically that the records attached thereto were in fact so kept as required by Article 3737e for the admissibility of business records. In its pertinent part, Mr. Greenwood stated upon oath in his affidavit that "such documents were made in the regular course of business, that it was the regular course of business for an employee or representative of the business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record, and that it was made at or near the time of the act, event or condition or reasonably soon thereafter." It was incumbent upon plaintiff to prove to the trier of fact that all requirements of Article 3737e had been satisfied by a preponderance of the evidence. The trial court, in admitting the business records, implicitly held that the affidavit provided satisfactory proof of each required element. Any question regarding the affiant's personal knowledge as to the various items or contents of such records may be shown to affect the weight and credibility of the record but not its admissibility. Article 3737e, § 2. Defendant's first point of error is overruled.

In his second point of error, defendant Wenk contends that the trial court erred in denying defendant's motion for a directed verdict.

The statement of facts reveals that after the plaintiff rested its case the defendant moved for a directed verdict. When the trial court stated that he overruled the defendant's motion for a directed verdict, defendant then proceeded to put on his evidence. When both sides rested their cases, the defendant did not reurge his motion for a directed verdict. Under that set of facts the defendant waived his motion for an instructed verdict.

The law is well settled that a defendant by electing not to stand on his motion for an instructed verdict made after the plaintiff had introduced its evidence and rested its case, and by proceeding with the introduction of his own evidence, waives his motion for instructed verdict unless the motion is reurged at the close of his case. Texas Steel Company v. Douglas, 533 S.W.2d 111,...