FLESHER CONSTRUCTION COMPANY, INC. v. Hauerwas
FLESHER CONSTRUCTION COMPANY, INC. v. Hauerwas
Opinion of the Court
Coffee Hauerwas brought this action against Flesher Construction Company, Inc. (hereinafter called Flesher) and Carter Management Company (hereinafter called Carter) seeking to recover the balance allegedly due him upon an oral contract between the parties pursuant to which Hauerwas agreed to furnish and supervise all labor necessary to perform the masonry construction phase of a building being erected in Dallas by Flesher, as general contractor, for Carter, as owner. The case was tried before the court and a jury and submitted upon nineteen special issues all of which were answered favorably to Hauerwas. Final judgment was granted on April 20, 1972 awarding Hauerwas a judgment against Flesher and Carter, jointly and severally, for $12,844.98 together with attorney’s fees of $4,281.66. It was also ordered that Flesher and Carter take nothing from Hauerwas by reason of the counterclaim asserted. From this judgment Flesher and Carter appeal.
MOTION TO DISMISS FOR WANT OF JURISDICTION
At the outset we are confronted with ap-pellee’s motion to dismiss this appeal on the ground that this court lacks jurisdiction. Essential to the resolution of this question is the following statement of events set forth in chronological order:
The case proceeded to trial on January 31, 1972. The jury returned its verdict February 1, 1972. Hauerwas filed his motion for judgment on the verdict February 3, 1972. Flesher and Carter filed their motion for judgment non obstante veredic-to on February 11, 1972. On March 10, 1972 the court signed and entered a judgment. On March 20, 1972 Flesher and Carter filed “Defendants’ Motion for New Trial.” On April 10, 1972 Flesher and Carter filed “Defendants’ Amended Motion for New Trial.” On April 20, 1972 the court rendered “Final Judgment” in which it was recited that the judgment dated March 10, 1972 was interlocutory in that disposition of all parties and actions was not therein made. The court then proceeded to enter a final judgment
Appellee contends that having filed their original and one amended motion for new trial prior to the entry of the final judgment on April 20, 1972 that appellants could legally only file one motion for new trial following the entry of such judgment so that the filing of the transcript in this court, pursuant to the rules, would have been required by August 14, 1972. Appel-lee concedes that if appellants had the right to file two motions for new trial after the entry of the final judgment that the appeal has been validly perfected by the filing of the transcript on August 23, 1972 which would have been within sixty days following the overruling of the second motion for new trial by operation of law forty-five days after the file date thereof. Appellee takes the position that the original motion for new trial and the first amended motion for new trial, having been filed prior to the rendition of the final judgment on April 20, 1972, should be treated as a motion filed pursuant to Rule 306c, Texas Rules of Civil Procedure. Under this contention they argue that such motion or motions could be considered as having been filed on April 20, 1972 following the entry of the final judgment and that, since Rule 329b, Tex.R.Civ.P., only allows one amended motion for new trial, we may not consider more than the first motion filed after the entry of the final judgment.
We cannot agree with appellee’s contention. Appellee candidly concedes that there was only one final judgment rendered by the court in this case and that was the one dated April 20, 1972. It is un-controverted that the judgment dated March 10, 1972 was interlocutory in nature and therefore not a final judgment which was appealable. Accordingly, the original motion for new trial and the first amended motion for new trial, both filed after March 10, 1972 and both being addressed to the March 10 judgment, were not and cannot be considered prematurely filed motions pursuant to Rule 306c, Tex.R.Civ.P. The judgment dated April 20, 1972, being the only final judgment rendered by the court, was subject to be attacked by a motion for new trial and one amended motion for trial. This was accomplished by appellants although they erroneously styled the first motion for new trial attacking the April 20 judgment as “Defendants’ Amended Motion for New Trial.” We look to the substance rather than the form of the motion and conclude that such motion filed by appellants on May 1, 1972 constituted a timely filed original motion for new trial directed at the April 20 judgment and that the motion thereafter filed on May 11, 1972 was timely filed as an amended motion for new trial. The record was therefore filed in this court within proper time. Our conclusion in this matter is supported by the case of Dubert v. Adkins, 475 S.W. 2d 383 (Tex.Civ.App., Corpus Christi 1971, no writ). Appellee’s motion to dismiss is overruled.
Opinion on the Merits
OPINION ON THE MERITS
The record is undisputed that appellee Hauerwas orally agreed with Mr. Otis Flesher, president of Flesher, general contractor for Carter, that he would provide, pay for and supervise all of the labor necessary for the masonry construction of a building in Dallas which consisted of ap
In their first four points of error appellants complain of the action of the trial court in overruling their motion for judgment non obstante veredicto and in refusing to grant their motion for new trial. Points 1 and 4, being “non obstante vere-dicto” points, base their objection on the “overwhelming weight of the evidence.” Points 2 and 3 complain of the court’s overruling the motion for new trial “in that the verdict of the jury was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust” and “there was no evidence or insufficient evidence to support the finding of the jury that Appellee was in any manner misled by the conduct of Appellants’ conduct to his detriment.” Appellee objects to our consideration of these points because said points do not comply with briefing rules. It is, of course, true that any attack upon the action of the trial court in overruling a motion for judgment non obstante veredicto must, of necessity, constitute a “no evidence” point as opposed to an “insufficiency of the evidence” point. To sustain a judgment notwithstanding the verdict, the reviewing court must determine that there was "no evidence” of probative force on which the jury could have made its findings. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955); and Shelton v. Ector, 364 S.W.2d 425 (Tex.Civ.App., Dallas 1963). Further
In view of our long-standing policy of liberal construction of the briefing rules and in an effort to determine from the entire contents of appellants’ brief the exact nature of the complaint or complaints set forth, we have carefully reviewed the statement, argument and authorities set forth under appellants’ first four points of error and conclude that three complaints are advanced: (1) that the “overwhelming weight” of the evidence shows that it would have been impossible for appellee to have supervised the construction work and also to have labored as a bricklayer for the number of hours he claimed; (2) that the “overwhelming weight” of the evidence shows that appellee was compensated for his services as agreed or was tendered compensation therefor; and (3) that there was “no evidence” or “insufficient evidence” to support the finding of the jury that appellee was in any manner misled by appellants’ conduct to his detriment. We have carefully examined the record in the light of these contentions and find that they cannot be sustained.
As to the first contention we find that appellee testified that it was customary for the contractor to not only supervise the work but to perform actual work himself and that on this particular job he did just that. He stated that it was not only possible but that he actually did perform bricklaying work and supervised the work of others on the job. Mr. Pfeffer, an employee of Flesher, and the superintendent in charge of the whole project, testified that he observed appellee doing brick mason work on the job and that he also supervised his personnel in the work being done. Such testimony is more than adequate to 'support the answers of the jury to the issues submitted.
As to the second contention that appellee was compensated “as agreed” we find the testimony of appellee who said that the unpaid indebtedness due him by Flesher was $12,844.99. Otis Flesher, president of Flesher, testified that he offered Hauerwas a check for $3,000 as “the balance due under the contract” which was refused by appellee. Such testimony creates an issue of fact and was sufficient for the jury to consider in arriving at its verdict.
As to the third contention we find ample evidence to support the finding of the jury in response to special issues 8 through 14 concerning appellee’s reliance upon statements and conduct on the part of appellant Flesher. There is abundant evidence from appellants’ witnesses that appellants knew that Hauerwas was performing personal labor on the job and that he was making claim in the various time sheets submitted. Mr. Flesher himself testified that even after he discovered that Hauerwas was performing personal labor and getting paid therefor he allowed him to continue and did not tell him to stop. The record is silent with respect to any objection being made by Flesher concerning Hauerwas performing personal labor on the job and receiving wages therefor.
Giving appellants the benefit of every doubt concerning the meaning of their various points of error we find the same to be without merit and overrule them.
In their points 5, 6 and 7 appellants say that the court erred in submitting special issue No. 19 to the jury in that there was
Again, these points of error are general, multifarious, and not in compliance with briefing rules. However, we have, as we did before, carefully examined the statement under such points in an effort to determine the real thrust of the objection advanced by appellants.
At the outset it must be observed that appellants filed no pleadings or special defenses directed against the claim of attorney’s fees. The only evidence introduced concerning attorney’s fees was offered by appellee. In this regard he testified concerning the services rendered and labor done by him; that he submitted his claims to appellants for payment more than thirty days before suit was filed; that appellants refused to pay his claims; that he employed an attorney to represent him in the suit; that he agreed to pay a reasonable fee. There was evidence that the attorneys for appellee performed 111.7 hours of work and that the State Bar of Texas fee schedule justified them in asking for $40 per hour for their services.
The “non obstante veredicto” point is obviously without merit because, as stated heretofore, such is a “no evidence” point and since there is ample evidence of probative value to the effect that appellee actually performed work and labor as well as evidence concerning the reasonableness of attorney’s fees, such point is without merit. Pursuant to art. 2226, Tex.Rev.Civ.Stat. Ann., and the opinion of the Supreme Court in Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814 (Tex.Sup. 1970), appel-lee Hauerwas, an individual, who performed labor and services and who obtained a judgment for any amount thereof, is entitled also to recover a reasonable amount as attorney’s fees. The statute expressly provides that “The amount prescribed in the current State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney’s fees.”
The record is undisputed that ap-pellee furnished labor and services to appellants which the jury found, based upon evidence, to be valued at $12,844.98. Ap-pellee’s claim was presented more than thirty days before the suit was filed and upon refusal appellee employed an attorney and did obtain a judgment. Thus the statutory requirements have been complied with. Appellants’ contention that the amount of the fee is excessive obviously cannot be sustained.
We have carefully examined all of appellants’ points of error and overrule same.
The judgment of the trial court is affirmed.
Reference
- Full Case Name
- FLESHER CONSTRUCTION COMPANY, INCORPORATED and Carter Management Co., Appellants, v. Coffee HAUERWAS, Appellee
- Cited By
- 6 cases
- Status
- Published