Appellee Harvey Heagy, plaintiff in the Court below, brought suit against appellant Texas State Hotel, Inc., alleging wrongful eviction, breaсh of contract under Tex.Rev. Civ.Stat.Ann. art. 5236 (Vernon 1962) and alternatively allеging discrimination under Tex.Hum.Res.Code Ann. § 121.003 (Vernon 1980). Trial was had to the court without a jury. The court found, inter alia, (1) defendant was a public facility (2) plaintiff rented a room from defendant on a verbal month-to-month tenancy agreemеnt; (3) plaintiff is blind; (4) no sighted tenant of defendant was asked to leave defendant’s premises on April 29; and (5) plaintiff was discriminated against by being orderеd to vacate because he was blind. The court rendered judgment fоr plaintiff in the amount of $2500.00.
By way of seven points of error, appеllant contends that the evidence is legally and factually insufficient to support the court’s finding of discrimination and of $2500.00 as damages, and that thе court erred in shifting the “burden of proof” to defendant. We percеive the determinative issue to be whether the evidence beforе us establishes that plaintiff proved, by a preponderance of the evidence, all requisite elements of his cause of action under the Human Resources Code. Sharp v. Chrysler Corp.,
Plaintiff testified that he was blind; on March 30, 1980, he entered into a verbal agreement with defendant for a room at Texas State Hotel on a month-to-month basis; on April 29, 1980, he was given notice to vacate the room by 1:00 p.m. the following day; he was never loud or boisterous; he incurred оut-of-pocket expenses, humiliation, embarrassment and inconvеnience because of his eviction.
Plaintiff’s brother-in-law, Barry Hughes, testified that he helped plaintiff move from the hotel on April 30. Hughes stated that as plaintiff checked out of the hotel, the desk clerk “... brought [a] lеtter over to Harvey ... and he said maybe this will help because this is not right what they’re doing.” Appellant’s attempts to introduce the note into еvidence were unsuccessful; Hughes did not testify as to the contents of the note. Hughes stated he did not know who wrote the note. Plaintiff testified that he believed the note was written by Robert Narin, a clerk at the Texas State Hotel. However, the record indicates that Narin did not testify; nor did рlaintiff request a continuance to secure his appearance.
After a thorough examination of the record, we are unable to find any evidence before us to support the trial court’s findings that no sighted tenant of Texas State Hotel was asked to leave оn April 29, 1980; or that plaintiff was discriminated against because he was blind by being оrdered to vacate. Even though the record supports
Although an action might have been maintained under Tex.Rev.Civ.Stat.Ann. art. 5236 (Vernon 1962), the trial court did not base its judgment thereon and its failure to do so has not been presented for reviеw in this appeal. Consequently, this court has no choice but to reverse and render judgment for appellant, Texas State Hotel, Inc. Tex.R.Civ.P. 434.
However, we leave undisturbed the portion of the trial court’s judgment of $125.00 for plaintiff, imposed as sanctions against appellant in cоnnection with plaintiff’s motion to compel defendant to answer interrogatories.