Cal L. Fieseler v. Thomas D. Whitworth

Fieseler v. Whitworth AFFIRMED OCTOBER 11, 1990 NO. 10-90-048-CV Trial Court # 249-312-87 IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * * CAL L. FIESELER,    Appellant v. THOMAS D. WHITWORTH,    Appellee * * * * * * * * * * * * * From 249th Judicial District Court Johnson County, Texas * * * * * * * * * * * * * O P I N I O N * * * * * * * This is a suit on a contract for consultant services. The trial court entered a summary judgment in favor of the Defendant to the effect that the Plaintiff take nothing, from which the Plaintiff appeals. We affirm the trial court's judgment. On or about February 4, 1985, Plaintiff-Appellant Cal L. Fieseler sold to Defendant-Appellee Thomas D. Whitworth a retail convenience store known and identified as "Vines No. 4," same being located in Burleson, Texas. In essence said contract provided that Plaintiff-Appellant Fieseler agreed to perform consultant services to or for Defendant-Appellee Whitworth concerning the beer, wine, and convenience store in question, at Whitworth's request, such services not to exceed ten hours per week; and for such services Whitworth agreed to pay Fieseler $550.00 per month, until the termination date of the contract, same being February 28, 1994. Whitworth made the payments pursuant to the terms of the contract until August 1987, since which last-named date Whitworth has made no payments. On or about February 4, 1985, Fieseler and Whitworth entered into two separate contracts, one being a purchase and sale agreement in which Fieseler sold to Whitworth the beer, wine, and convenience store known as "Vines No. 4." This contract is not in issue. The second contract, same being the one sued upon in the case at bar, was entitled, "Consultant Agreement," which provided for consulting services to be rendered by Fieseler as hereinbefore set out. The Vines No. 4 store was located in the Tarrant County part of the City of Burleson, Texas. Said city extends about one-quarter mile into Tarrant County, Texas, on U.S. Highway Interstate 35. In other words, the store was located on Highway I-35 in Tarrant County, which is a "wet" county. The remainder of Burleson is in Johnson County, which is a "dry" county in which the sale of beer or wine is not permitted. Plaintiff-Appellant Fieseler provided consultant services for about two weeks following February 5, 1985. Within ninety days from the beginning date of the contract in question, Plaintiff-Appellant Fieseler had moved from Burleson, Texas, to Glen Rose, Texas, where he went to work and has been employed there up to the time of trial. As stated, Defendant-Appellee Whitworth made the monthly payments under the terms of the contract until August 1987. At the time the consultation contract was entered into and thereafter, the "Vines No. 4" store was located in leased premises owned by a third party named Dorothy Davenport. By letter to Defendant-Appellee Whitworth dated June 15, 1987, Ms. Davenport notified Whitworth that she would not renew the lease on the premises. Whitworth replied to Ms. Davenport by letter of June 29, 1987, endeavoring to persuade Ms. Davenport to renew the lease; however, the lease was terminated in August 1987, and thereafter the building was demolished by the landowner in January 1988. Plaintiff-Appellant Fieseler brought this suit against Defendant-Appellee Whitworth for the unpaid monthly installments and for attorney fees. Whitworth's pleadings included a defense of impossibility of performance, based upon the lessor's refusal to renew the lease and subsequent demolition of the building where Vines No. 4 was located. Thereafter, Whitworth filed a motion for summary judgment accompanied by summary judgment proof setting up inter alia, the defense of impossibility of performance, setting out substantially the facts hereinabove stated. The summary judgment proof showed that Fieseler admitted that the consultation agreement applied only to the Vines No. 4 store. The undisputed summary judgment evidence as set up by Defendant-Appellee Whitworth showed that Whitworth no longer leased the building and did not operate the store after September 1, 1987, and that the building was demolished by the landowner in January 1988 and was not rebuilt. After hearing, the trial court granted Defendant-Appellee Whitworth's motion for summary judgment and entered judgment that Plaintiff-Appellant Fieseler take nothing, from which Fieseler appeals on one point of error, to-wit, that the trial court erred in granting the motion for summary judgment because (he asserts) there existed genuine issues of fact and therefore Whitworth was not entitled to judgment as a matter of law. In view of Rule 166A, Texas Rules of Civil Procedure, as it is now constituted, we disagree with Appellant and affirm the trial court's judgment. We have carefully examined Plaintiff-Appellant's summary judgment proof, and do not find any summary judgment evidence which would rebut movant Whitworth's summary judgment proof of impossibility of performance, so as to set up a fact issue. Plaintiff-Appellant Fieseler as non-movant had a duty to come forward with summary judgment proof to rebut (movant) Defendant-Appellee Whitworth's summary judgment proof of impossibility of performance in order to raise a fact issue. This he did not do. Rule 166A, Texas Rules of Civil Procedure; City of Houston v. Clear Creek Basin Authority (Tex. 1979) 589 S.W.2d 671. Pleadings do not constitute summary judgment proof. Hidalgo v. Sur. Savings and Loan Assn (Tex. 1971) 462 S.W.2d 540. With the exception of an attack on the legal sufficiency of the grounds expressly raised by the movant in his motion for summary judgment, the non-movant must expressly present to the trial court any reasons seeking to avoid movant's entitlement, and he must present summary judgment proof when necessary to establish a fact issue. City of Houston v. Clear Creek Basin Authority, supra, at page 678. Moreover, Rule 166A as it now exists precludes from consideration on appeal grounds not raised in the trial court in opposition to a summary judgment motion. Also see Westland Oil Development Corporation v. Gulf Oil Corporation (Tex. 1982) 637 S.W.2d 903; O'Shea v. Coronado Transmission Co. (Corpus Christi CA 1983) 656 S.W.2d 557, NRE; Kehoe v. Lambert (Houston 14th CA 1982) 633 S.W.2d 576, NRE. For the reasons herein stated, judgment of the trial court is affirmed. AFFIRMED                            JOHN A. JAMES, JR. DO NOT PUBLISHJustice (Retired) [Participating: Chief Justice Thomas, Justices Hall and Means and Justice James (Retired)] t. 2052, 80 L.Ed.2d 674 (1984). To prevail, a defendant must first show that his counsel’s performance was deficient and fell below an objective standard of reasonableness. Id. at 687, 104 S.Ct. at 2064; see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Then it must be shown that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We have previously held that defense counsel’s failure to request notice under article 37.07, § 3(g) is unreasonable and not justifiable as sound trial strategy. See Loredo v. State, 157 S.W.3d 26, 29-30 (Tex. App.—Waco 2004, pet. ref’d). Walker has thus met his burden on the first prong. The second prong of Strickland requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial—a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Loredo, 157 S.W.3d at 30. The appellant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.  A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 669, 104 S.Ct. at 2056. The State called two punishment witnesses, Helen Sullivan and Gary Greene. Sullivan, a loss prevention officer, testified that Walker had participated in shoplifting clothing at Kohl’s. Walker’s trial counsel, who later admitted to having previously seen the video or still photos of the shoplifting episode in the prosecutor’s file and thus knew about it, adequately cross-examined Sullivan. Greene, a police officer, testified that he had stopped Walker for an expired license plate and that Walker smelled of marihuana. The trial court excluded a video of the traffic stop because of lack of notice. Greene said that he gave Walker citations for no license and no liability insurance, and as of the time of trial, an arrest warrant was out for those citations. Greene was adequately cross-examined. Nothing in the record indicates, and Walker does not argue, that his trial counsel would have taken different steps to rebut or object to the State’s evidence had he received written notice of these extraneous bad acts. See Loredo, 157 S.W.3d at 31; see also Hinton v. State, 166 S.W.3d 331, 333 (Tex. App.—Waco 2005, pet. ref’d). There is also nothing in the record to indicate that the jury might have assessed less than 30 years; he was facing up to life imprisonment and a $10,000 fine. Based on the record, it is not reasonably probable that Walker’s sentence would have been any less. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Loredo, 157 S.W.3d at 31. Therefore, counsel’s error was not so serious that it deprived Walker of a fair trial. 466 U.S. at 687, 104 S.Ct. at 2064; Loredo, 157 S.W.3d at 31.  This error was not of a magnitude significant enough to render Walker’s trial counsel ineffective. Loredo, 157 S.W.3d at 31. We overrule issue two. We affirm the trial court’s judgment.   BILL VANCE Justice  Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs only in the judgment and not this opinion. No separate opinion will be issued.) Affirmed Opinion delivered and filed December 6, 2006 Do not publish [CRPM]