Opinion
No. 05-03-00349-CV.
Opinion Issued January 28, 2004.
On Appeal from the County Court at Law No. 2 Dallas County, Texas, Trial Court Cause No. cc-00-10281-b.
Reversed and Rendered.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
MEMORANDUM OPINION
Martha Phillips appeals the trial court's judgment in favor of Educational Resources Institute, Inc. ("ERI"). After suing Phillips for nonpayment of a loan, ERI filed a motion for summary judgment. Thereafter, Phillips also filed a motion for summary judgment. After a hearing on the motions on December 16, 2002, the judge orally granted summary judgment in favor of ERI and denied Phillips's motion for summary judgment. It is undisputed that the judge did not sign an order, at any time during the proceedings, granting summary judgment. Immediately following the summary judgment hearing, the judge held a nonjury trial on the issue of attorney fees. The judge then signed a document entitled, "Final Trial Judgment." The trial judgment states:
This case was regularly called, in open court, in its order on the docket, and Plaintiff, through its attorney, announced ready for trial. Defendant, through her attorney, also announced ready for trial. The parties submitted all matters in controversy, legal and factual, to the Court. The Court heard the evidence and arguments of counsel, the Court is of the opinion that the Plaintiff ought to recover the damages sought.
(Emphasis added.) The judgment awards ERI $25,252.59 in damages plus $2500 in attorney's fees. The trial judge did not enter findings of fact and conclusions of law. This appeal ensued.
In her first issue, Phillips contends the evidence is legally and factually insufficient to support the trial court's judgment. In a nonjury trial, where findings of fact and conclusions of law are neither filed nor timely requested, we imply the trial judge made all necessary findings to support the trial court's judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980). When, as in this case, a reporter's record is brought forward, these implied findings may be challenged by factual or legal sufficiency points, the same as jury findings or a trial court's findings of fact. Holt Atherton, 835 S.W.2d at 84 (citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989)); Burnett, 610 S.W.2d at 736. When both legal and factual sufficiency issues are raised, we are required to rule on the legal insufficiency issue first. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981). A legal sufficiency point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
The judgment states the "Court heard the evidence and arguments of counsel" and makes no reference to the summary judgment motions or evidence. During the nonjury trial, the trial judge did not take judicial notice of the pleadings, documents, or evidence on file. The reporter's record reflects that the only evidence admitted at trial related to attorney's fees. Because there was no evidence introduced or admitted at trial supporting the trial court's judgment awarding ERI $25,252.59 in damages, we sustain Phillips's first issue to the extent it challenged the legal sufficiency of the evidence to support the damages award.
In reaching this conclusion, we reject ERI's arguments that a written summary judgment is merely a "ministerial act" and that a docket sheet notation may vary the terms of a written final judgment. See N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977) (docket entries "cannot be used to contradict or prevail over a final judicial order."); cf. Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) ("A trial judge's oral pronouncement granting a motion for new trial or motion to modify, reform, or correct a judgment and a docket entry indicating that such motion was granted cannot substitute for a written order required by Rule 329b."); Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta, 776 S.W.2d 577, 578 (Tex. 1989) (holding that oral pronouncement and docket entry may not be used in lieu of written order to reinstate cause previously dismissed for want of prosecution); Grant v. Am. Nat'l Ins. Co., 808 S.W.2d 181, 184 (Tex. App.-Houston [14th Dist.] 1991, no writ) (holding trial judge's notation in docket sheet did not constitute signed order as contemplated by rules of civil and appellate procedure). Furthermore, because the trial court's "Trial Judgment" awarding ERI damages is not supported by evidence, ERI is not a prevailing party and is not entitled to attorney's fees. See Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997) ("To recover attorney's fees under Section 38.001, a party must (1) prevail on a cause of action for which attorney's fees are recoverable, and (2) recover damages.").
We reverse the trial court's judgment and render judgment that ERI take nothing.