Opinion
No. 04-05-00284-CV
Delivered and Filed: December 14, 2005.
Appeal from the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-12508, Honorable Karen Pozza, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Henry G. Moreno and Carol Ann Moreno challenge the legal and factual sufficiency of the evidence to support the damage award in the underlying action by Towne Lake Garden Association, Inc. to recover unpaid subdivision assessments. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
In conducting a legal sufficiency review, we review the evidence in the light most favorable to the verdict giving "credit [to] favorable evidence if reasonable jurors could, and disregard[ing] contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 827-28 (Tex. 2005). Evidence is legally insufficient when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810. In considering a factual sufficiency challenge, we assess all the evidence, and we reverse the trial court's judgment only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Under this analysis, we do not serve as a fact finder, pass upon the credibility of witnesses, or substitute our judgment for that of the trier of fact, even if there is conflicting evidence upon which a different conclusion could be supported. Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 21 (Tex.App.-San Antonio 2000, no pet.).
The Morenos challenge the trial court's finding that the damages were liquidated and that the amount of damages was $1,747.38. A claim is liquidated if the amount of damages may be accurately calculated by the trial court from the factual, as opposed to the conclusory, allegations in plaintiff's petition and the instrument in writing. Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex.App.-Houston [14th Dist.] 2001, no pet.). In this case, no written instrument was introduced into evidence to support the trial court's finding that the claim regarding the assessments was liquidated; however, the erroneous recitation that the cause of action was liquidated does not require reversal because the trial court heard evidence as to damages during the bench trial. See Tex. R. Civ. P. 243 (unliquidated cause of action requires trial court to hear evidence as to damages and render judgment); see also Ingram Industries, Inc. v. U.S. Bolt Mfg., Inc., 121 S.W.3d 31, 37 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (affirming trial court's judgment despite erroneous recitation that damages were liquidated where trial court considered evidence of the amount of damages).
Maribel Perez, the current association manager and custodian of records for the Association, identified the Declaration of Covenants, Conditions and Restrictions authorizing the assessments, which was introduced into evidence. Perez reviewed her records and testified that the amount of the Morenos' delinquent assessments was $1,747.38. During cross-examination, Perez testified that she computed the balance owed from the records on file which included the records from the prior management companies. Perez explained that the assessments are $30.00 per month, plus a $5.00 per month late fee. The total amount of the delinquent assessments included amounts unpaid through February 4, 2005. Although the Morenos testified that they had made all of the payments and alluded to bank statements as proof of those payments, the bank statements were not introduced into evidence.
Although the Morenos assert numerous complaints with regard to Perez's testimony in their brief, including a complaint based on hearsay, no objections were made at trial regarding Perez's testimony. See Tex.R.App.P. 33 (to preserve complaint for appellate review, trial court must rule or refuse to rule on a timely request, objection or motion). Furthermore, "[i]nadmssible hearsay admitted without objection shall not be denied probative value merely because it is hearsay." Tex. R. Evid. 802.
As the trier of fact, the trial court considered the conflicts in the testimony between Perez and the Morenos and the credibility of the witnesses in determining the amount of the delinquent assessments. We cannot substitute our judgment for that of the trier of fact, even if there is conflicting evidence upon which a different conclusion could be supported. Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d at 21. Perez's testimony is legally and factually sufficient to support the trial court's damage finding, and the trial court's judgment is affirmed.