Lead Opinion
ON MOTION FOR REHEARING
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).
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,
Estoppel is a fact issue that must be determined by the trial court where the plea in abatement is filed. Parr v. Hamilton,
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,
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,
We overrule 4M Linen’s first point of error.
2. The bill of exception
In its 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(6) 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.,
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,
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.,
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,
On the late informal bill, 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. We hold this testimony was not relevant. There was no evidence in this case that Ballard & Co. had a duty to 4M Linen to do anything but supply the chemicals 4M Linen ordered. The laundry products were recommended to 4M Linen by Diamond Shamrock, not by Ballard & Co.
We overrule 4M Linen’s second point of error.
3. Right to open and close
In its third point of error, 4M Linen argues the trial court erred in denying it the opportunity to open and close on final argument, in violation of Tex.R.Civ.P. 266 and 269. Before trial, the court granted a motion for directed verdict on 4M Linen’s stipulation of liability on the sworn account. Ballard & Co.’s only remaining issue to go to the jury was attorney’s fees. 4M Linen contends the trial court should have permitted it to open and close the argument because the central issue was its DTPA claim.
There are two rules that control the order of final argument: Tex.R.Civ.P. 266, which governs both the order of presenting evidence and final argument; and Tex.R.Civ.P. 269, which governs the argument.
Rule 266, which is subject to rule 269, provides that the plaintiff has the right to open and close argument. There are two exceptions in rule 266. First, a defendant has the right to open and close if the burden of proof for the entire case under the pleadings is on defendant. Tex.R.Civ.P. 266. Second, a defendant has the right to open and close if, before trial begins, defendant admits that plaintiff is entitled to recover, subject to proof of defensive allegations in the answer. Id.
Rule 269 provides that the party who has the burden of proof on the whole case, or the party who has the burden on all matters in the charge, has the right to open and close the argument. Tex.R.Civ.P. 269(a). There is an exception in rule 269: When there are several parties who have
4M Linen claims that it had the right to open and close the argument because it had the burden of proof on the whole case and cites three cases in support of its point of error. In Community Public Serv. Co. v. Andrews,
In Dreeben v. Sidor,
4M Linen also cites Meece v. Wade,
The same is true here. As in Meece, plaintiff proved its case as a matter of law, and defendant’s counterclaims were submitted to the jury, along with one issue for plaintiff. Meece supports the trial court’s ruling.
Ballard & Co. cites us to Horton v. Dental Capital Leasing Corp.,
In this case, the trial court submitted six issues to the jury, one of which was Ballard & Co.’s issue on attorney’s fees. 4M Linen had the burden of proof on the remainder of the issues submitted. After looking to the pleadings of the case, we determine that Ballard & Co. carried the burden of proof on the whole case. The trial court properly denied 4M Linen’s request to open and close final arguments.
We overrule 4M Linen’s third point of error.
4. Refusal to submit issues
4M Linen’s fourth point of error urges the trial court erred in refusing to submit special issues on its DTP A, breach of warranty, and contract claims. Specifically, 4M Linen challenges jury question number one:
Do you find that W.P. Ballard represented that Tex-Stat had characteristics, ingredients, and uses which it did not have?
Answer “Yes” or “No”.
*326 ANSWER: No
According to 4M Linen, this issue was an impermissible comment on the weight of the evidence and prevented the jury from finding a misrepresentation based upon omission. The court refused the issue 4M Linen offered:
Did W.P. Ballard & Company, Inc. engage in a false, misleading or deceptive act or practice in the selection or supply of a cleaning product to 4M Linen?
INSTRUCTION: You are instructed that a “false, misleading or deceptive act or practice” is limited to the following conduct:
a. Representing that the product supplied had characteristics, ingredients or uses which it did not have;
b. Representing that the product supplied was of a particular standard, quality or grade, which it did not have;
c. Failing to disclose information concerning the product supplied which was known to Ballard at the time of the transaction and which was intended to induce 4M Linen into the transaction.
ANSWER “YES” OR “NO”: _
The trial court must fairly submit the disputed issues for the jury’s determination. Baker Marine Corp. v. Moseley,
This Court must determine if there is any evidence in the record to support 4M Linen’s “failure to disclose” claim. 4M Linen points to the letter from John McKinney, a representative of Ballard & Co., that has the notation “mildewcide” beside Tex-Stat. We presume that 4M Linen is claiming that this notation proves Ballard & Co. knew that Tex-Stat was not a mildewcide.
Ballard & Co. introduced the testimony of George Cain, general manager of Ballard & Co.’s Houston office and sales representative to 4M Linen. Cain testified that Ballard & Co. only distributed chemicals, and did not make recommendations about products to use. He stated Ballard & Co. relies on the technical expertise provided by the manufacturer. Cain did not know if Tex-Stat was a mildewcide; Ballard & Co. did not have a technical expert who knew the chemical properties of Tex-Stat.
4M Linen directs us to testimony about a meeting attended by representatives of 4M Linen, Ballard & Co., and Diamond Shamrock. When testifying about that meeting, Max Reyna, a 4M Linen employee, stated:
A. We all thought [Tex-Stat] was a mil-dewcide. When I say we, we’re talking about Diamond Shamrock representatives, W.P. Ballard and us.
Q. Did anyone discuss at that meeting, discuss Tex-Stat or describe it in any chemical properties as to what it really was?
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A. At that meeting, no.
This meeting was held in October 1985, four months after 4M Linen became dissatisfied with Tex-Stat. We do not see how this testimony raises the issue of Ballard & Co.’s knowledge and failure to disclose information that induced 4M Linen to order Tex-Stat. The evidence that an employee of 4M Linen thought Ballard & Co. knew Tex-Stat was a mildewcide four months after the problem arose, is less than a scintilla of evidence. The trial court properly refused to submit the instruction.
We overrule 4M Linen’s fourth point of error.
5. Cumulative error
The fifth point of error asserts that the cumulative effect of the errors produced reversible error. Because we have found
6. Attorney’s fees
Ballard & Co. perfected appeal on the issue of attorney’s fees. It argues it was entitled to recover attorney’s fees under Tex.Civ.PRAc. & Rem.Code Ann. sec. 38.001 (Vernon 1986). Ballard & Co. requested attorney’s fees in its pleadings and offered proof of them at trial. After trial, but before the charge was submitted to the jury, 4M Linen moved for an instructed verdict on attorney’s fees. 4M Linen claimed Ballard & Co. did not segregate the fees for the suit on the sworn account from those related to the defense of 4M Linen’s counterclaim. The trial court reserved its ruling on the motion and submitted the issue to the jury. The jury found that Ballard & Co. was entitled to $19,615.77 in attorney's fees. The trial court granted 4M Linen’s motion for instructed verdict and entered a judgment without attorney’s fees.
A party may recover attorney’s fees only if permitted by contract or by statute. New Amsterdam Casualty Co. v. Texas Indus., Inc.,
The Dallas Court of Appeals stated the corollary to this rule in Flint & Assoc. v. Intercontinental Pipe & Steel, Inc.,
Robert Lapin, Ballard & Co.’s counsel, testified he spent 201 hours preparing the case at a rate of $90 per hour. Ballard & Co. introduced a summary of expenses, which, when added to the attorney’s hourly fees, amounted to a total of $19,615.77 (the amount awarded by the jury). During cross-examination, 4M Linen attempted to establish that some of the time included in the bill related only to 4M Linen’s counterclaim. Lapin testified that, in its counterclaim, 4M Linen disputed whether it was legally obligated to pay the bill.
Ballard & Co. sought attorney’s fees only for its suit on a sworn account, as authorized by section 38.001 of the Texas Civil Practice and Remedies Code. The facts involved in 4M Linen’s counterclaim go to the issue of whether it was obligated to pay Ballard & Co. for the chemicals it delivered. 4M Linen did not offer any proof that the counterclaim was a separate matter, distinguishable from the suit on the
We overrule 4M Linen’s remaining points of error in its motion for rehearing.
We modify the judgment to reinstate the jury’s award of attorney’s fees for Ballard & Co., and, as modified, affirm the judgment.
Notes
. Tex.Bus. & Com.Code Ann. sec. 17.46 (Vernon 1987).
. First point of error on rehearing.
Lead Opinion
ON SECOND MOTION FOR REHEARING
On appellant’s first motion for rehearing, we held the trial court erred in refusing to allow 4M Linen to make an informal bill of exception, but we found the error was harmless. On second motion for rehearing, appellant claims the error was harmful. 4M Linen refers us to In re Marriage of Goodwin,
In all three cases cited by 4M Linen, the party who attempted to make a bill to preserve excluded testimony was prevented from preserving a record of the excluded testimony. Dorn directly supports our holding. In Dorn, the Dallas Court of Appeals held it was not reversible error to refuse a bill of exception when the information appellant attempted to offer was immaterial to the outcome of the suit.
We do not think Ledisco assists 4M Linen’s cause either. In Ledisco, the trial court refused to permit appellant to make a bill of exception to preserve cross-examination testimony of a witness.
Neither should Goodwin offer 4M Linen any comfort. In Goodwin, the trial court announced it would render judgment without taking any evidence.
4M Linen complains about the timing of the bill: it was not permitted to make a bill before the trial court charged the jury, as required in Tex.R.App.P. 52(b). 4M Linen, however, was permitted to present the excluded evidence to the trial court after the charge was read to the jury. That evidence was brought forward for our consideration in the statement of facts.
After finding the trial court erred, we reviewed the evidence in the late bill and held the evidence was not relevant. 4M Linen now insists it has a right to a reversal and retrial because the trial court did not permit it to make a timely bill of exception.
If the purpose of the procedure for a bill of exception is to afford a party the opportunity to preserve excluded testimony for appellate review, the late informal bill did so. We find the late informal bill was the equivalent of a formal bill of exception, which can be filed as late as 60 days after the judgment is signed or, if a motion for new trial was filed, as here, 90 days after the judgment was signed.