Winslar v. Bartlett, 5935

• Decision Date: 09 November 1978
• Docket Number: No. 5935,5935
• Parties: Dorothy L. WINSLAR, Appellant, v. Donald BARTLETT, Appellee.
• Court: Texas Court of Appeals

Page 608

573 S.W.2d 608

Dorothy L. WINSLAR, Appellant, v. Donald BARTLETT, Appellee.

No. 5935.

Court of Civil Appeals of Texas, Waco.

Nov. 9, 1978.

Rehearing Denied Nov. 30, 1978.

Andy J. McMullen, Steve Johnson, McMullen, Connally, Robertson, Jordan, Holliman & Campbell, Inc., Hamilton, for appellant.

Robert F. Salter, Gatesville, for appellee.

OPINION

JAMES, Justice.

This is a suit by a landlord against his tenant for damages caused by the tenant to a rented apartment. Trial court judgment was in favor of the plaintiff landlord against the defendant tenant for $2239.00 plus interest and costs, from which the tenant appeals. We affirm.

Plaintiff-Appellee Donald Bartlett (the landlord) brought this suit against Defendant-Appellant Dorothy L. Winslar (the tenant) for damages to the apartment together with the furniture therein, allegedly caused by the wilful acts of defendant tenant.

At the trial before the court without a jury, Plaintiff Bartlett testified that he was the owner of an apartment located at 405 Main Street in the City of Gatesville, Coryell County, Texas; that at times material to this controversy Defendant Mrs. Winslar was the tenant who rented and was in possession of said apartment; that on October 3, 1977, while Defendant Mrs. Winslar was the occupant of said apartment, Plaintiff personally went with law enforcement officers to acquire control over the Defendant; that the peace officers had requested Plaintiff to accompany them; whereupon, when Plaintiff and the officers first knocked on the front door and then went to the back door, Defendant Mrs. Winslar shot through the back door of said apartment, wounding a policeman; that after Defendant had done such shooting, the officers threw tear gas into the apartment, and then entered the apartment and thereupon took possession of the person of the Defendant for the purpose of transporting her to the Austin State Hospital. Plaintiff further testified concerning the amounts spent by him in repairs and replacements, including amounts spent on new furniture, repainting the apartment, replacing all the carpeting in the apartment, and the expense of cleaning the air conditioner therein. The damages to the apartment were caused by the tear gas, plus the expense to repair the back door and lock caused by Defendant's shooting.

Mr. Barlettt testified that the actions of the police officers appeared logical to him, including the use of tear gas, in their efforts to get Mrs. Winslar out of the apartment, especially in view of Mrs. Winslar having shot through the door and having wounded the policeman.

With reference to the damages, Plaintiff Barlett showed an estimate from Dixon Lumber Company for $1850.00 for the materials necessary to put the apartment in substantially the condition it was in before such damage occurred; that he actually spent said amount for such materials and personally performed the labor himself; that in addition thereto he paid $674.00 for new furniture to replace the damaged furniture, against which he was allowed a credit for $264.00 for the damaged furniture as salvage, making a net cash outlay by him of $410.00 for the new furniture used to replace the damaged furniture. From this testimony we see that Barlett's proof showed he suffered out-of-pocket expense of $2260.00 with no claim having been asserted by him for his own labor, for which the trial court awarded him judgment for $2239.00.

Mrs. Winslar did not dispute any of the expense testified to by Plaintiff, nor the necessity therefor nor the reasonableness thereof. She did testify that any damage to Plaintiff's apartment had taken place at a time prior to her taking occupancy of said apartment. She testified that she had passed by said apartment sometime prior to her moving in and had witnessed a scene which was apparently exactly like the incident for which she was being sued. Plaintiff Bartlett then denied that any such incident had taken place prior to the time Defendant first occupied the apartment.

Defendant-Appellant asserts error of the trial court in proceeding to trial after granting Defendant-Appellant's Attorney's Motion to Withdraw and asserts the trial court was put on notice of such facts as should have caused the court to inquire into Defendant-Appellant's mental competency. We overrule these contentions.

This case was originally filed by Plaintiff Bartlett on November 2, 1977. Thereafter, on December 2, 1977, Defendant Mrs. Winslar filed an answer by and through her attorney, to wit, John D. Wooddell. Said attorney represented Mrs. Winslar in this cause until some time prior to March 17, 1978. At some time prior to March 17, 1978, Mrs. Winslar filed a complaint with the State Bar Grievance Committee of Travis County, Texas, concerning Mr. Wooddell and his representation of her, which complaint prompted Mr. Wooddell to file a Motion to Withdraw as her Counsel in the case at bar.

The trial court set a hearing on the merits as well as to consider Mr. Wooddell's Motion to Withdraw as Counsel for March 17, 1978, and Defendant-Appellant Mrs. Winslar was notified of such setting and appeared in her own behalf. At said hearing she announced to the court that she had previously made complaint to the State Bar Grievance Committee against Lawyer Wooddell; whereupon the trial court determined not to grant the Motion to Withdraw until the court had communication with Mr. Wooddell; and in addition, the trial court reset the case for trial for March 31, 1978, stating that the court would dispose of the Motion to Withdraw at that time. The case was again called for trial on March 31, 1978, at which time Defendant-Appellant Mrs. Winslar again appeared pro se; and at said hearing the trial court announced to her that it...