author: LEVY, Justice.

text:
    Juanita SANTOS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-00030-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 4, 1984.

      Tony Aninao, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Calvin A. Hartmann, Cheryl Turner, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before WARREN, COHEN and LEVY, JJ.
   OPINION

LEVY, Justice.

This is an appeal from a conviction by jury of the offense of burglary. Punishment was assessed by the court at five years confinement, probated.

Appellant does not challenge the sufficiency of the evidence. She was seen by several witnesses with a male accomplice at the house of the complainant, Mary Rojero, the woman whose home was burglarized on July 12, 1983.

Appellant alleges in her first ground of error that the trial court erred by setting a thirty-minute time limit on voir dire and that additional time should have been allowed for challenges for cause, since eleven veniremen were victims of crime. Appellant principally relies on De La Rosa v. State, 414 S.W.2d 668 (Tex.Crim.App.1967); Clark v. State, 608 S.W.2d 667 (Tex.Crim.App.1980); and Thomas v. State, 658 S.W.2d 175 (Tex.Crim.App.1983).

In De La Rosa, 414 S.W.2d 667, an unlawful drug possession case, the defense counsel objected in writing to the thirty-minute time limitation imposed before voir dire began. Twenty-one minutes of voir dire were spent on questioning individual jurors. Counsel did not have the use of juror information cards. The Court of Criminal Appeals held the voir dire time limitation to be an abuse of discretion.

In Clark v. State, 608 S.W.2d 667, defendant was charged with burglary, and his counsel was permitted only thirty minutes to voir dire the jury. Defense counsel had no juror information sheets and was neither aware of the time limitation prior to the start of voir dire nor had he anticipated such a limitation. The court held that the trial judge had abused his discretion in not permitting.additional time.

In Thomas v. State, 658 S.W.2d 175, defense counsel was able to individually examine only eight'jurors under a thirty-five minute time limitation. As the Court of Criminal Appeals points out in its rationale for reversing Thomas, counsel (for Thomas) was able to examine less than 12 panel members, fewer even than in De La Rosa, Defendant preserved his error by filing a bill of exception showing that he had relevant questions to ask individual jurors he was not allowed to examine by reason of the time limitation.

In the instant case, juror information sheets were available to defense counsel. The time limitation was announced by the trial judge before voir dire, unlike Clark. Defense counsel directed most of his questions to the panel as a whole, instead of to individual jurors. Also, counsel did not file a bill of exceptions to show the questions he would have asked if he had been allowed additional time. The docket sheet shows that he was given one hour for voir dire, not thirty minutes as alleged. This was twenty minutes more than the State used for voir dire. Reasonable time limits may, within the trial court’s discretion, be placed on voir dire examination. Abron v. State, 523 S.W.2d 405 (Tex.Crim.App.1975). The very unpredictability of what voir dire will reveal makes it impossible to say beforehand that any particular time period will not reveal itself to be unreasonable as the events of voir dire unfold. Thomas, 658 S.W.2d at 176. The voir dire time limitation imposed in this case was not an abuse of discretion.

The first ground of error is overruled.

The second ground of error argued by appellant is that the trial court erred in overruling appellant’s challenge for cause of a jury panel member who admitted that he was biased against appellant because she had an alias. Juanita Santos was also known as Janie Santos Camacho and was indicted under both names. Juror number eighteen, Mr. Golczynski, made various biased comments against people with aliases. Golczynski was challenged for cause, Tex. Code Crim.P. 35.16(a)(9) (Vernon Supp. 1983), but the trial judge denied the challenge. Appellant’s counsel then used his ten peremptory strikes against other veniremen on the panel. He asked for additional peremptory strikes, which were denied. Appellant’s counsel stated that other jurors were objectionable. The challenged juror, Golczynski, sat on the jury that convicted appellant.

The trial procedure that must be followed by a defendant to preserve error when his challenge for cause is denied includes:

1. use of a peremptory strike on the veniremen he has unsuccessfully challenged for cause;
2. exhaustion of his remaining peremptory strikes on other veniremen; and,
3. then filing a motion requesting an additional peremptory challenge for the purpose of striking an additional named venireman who is unacceptable to the defendant.

Williams v. State, 565 S.W.2d 63, 65 (Tex.Crim.App.1978); Hernandez v. State, 563 S.W.2d 947, 948 (Tex.Crim.App.1978); Wolfe v. State, 147 Tex.Crim. 62, 178 S.W.2d 274, 281 (1944). Appellant failed to use a peremptory strike on juror Golczynski and therefore did not meet the requirements of Williams, supra.

The second ground of error is overruled.

In her third ground of error, appellant argues that, being indigent, she should have been provided a free transcript of the prior separate trial of the acquitted co-defendant, Jose Morino. Appellant was not charged as a party in the indictment, nor did the jury charge contain an instruction on the law of parties. There were common witnesses and identical charges in the Mori-no prosecution, and the burglary charge against appellant arose out of the same alleged transaction involving the co-defendant.

The State must provide an indigent defendant with a free transcript of his own prior trial when that transcript is needed for an effective defense or appeal. Abdnor v. Ovard, 653 S.W.2d 793 (Tex.Crim.App.1983). Relevant factors in the determination of need for a free transcript are the value of the transcript of the former trial in connection with the trial or appeal for which it is sought, and the availability of alternative devices that would fulfill the same function as the transcript. Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971); See Billie v. State, 605 S.W.2d 558 (Tex.Crim.App.1980); Armour v. State, 606 S.W.2d 891 (Tex.Crim.App.1980). However, the above cases granted a defendant a free transcript of his prior proceedings. The only case cited by appellant that grants an indigent defendant a free transcript of a co-defendant’s trial is from a court of another state, State v. Campbell, 215 N.W.2d 227 (Iowa 1974). We are referred to no other cases that have followed Campbell, nor have we found any. Moreover, the record contains no bill showing specifically why appellant needed the other transcript or how she would be harmed by its unavailability.

We overrule appellant’s third ground of error and conclude that an indigent defendant is not entitled to a free transcript of an acquitted co-defendant’s trial under these particular facts and circumstances. We need not decide whether the same result would be reached if the appellant had been indicted as a party or if the jury charge had contained an instruction authorizing the appellant’s conviction for the criminal acts of Morino under Texas Penal Code Ann. sections 7.01 and 7.02 (Vernon 1974).

The fourth ground of error was that the trial court should have allowed a continuance to secure the testimony of the co-defendant. Appellant previously had been granted two continuances on November 28, 1983, and December 12, 1983. The co-defendant, Jose Morino, was allegedly at an unknown location in Mexico. Tex.Code Crim.P.Ann. arts. 29.06 and 29.07 (Vernon 1966) provide that a motion for continuance must contain, inter alia, the facts which are expected to be proved by the witness, that it must appear to the court that such facts are material, and that the testimony cannot be proved from any other source known to the defendant. There is no such statement in appellant’s motion for continuance under review here.

The fourth ground of error is overruled.

The trial court’s judgment is affirmed.


source: Caselaw Access Project

author: SEARS, Justice.

license: Public Domain

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Frederick SCHAEJBE, Appellee.
    No. 14-83-834-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 4, 1984.

      Mike Driscoll, Co. Atty., Roderick Q. Lawrence, Asst. Co. Atty., Houston, for appellant.
    Larry D. Hatley, Houston, for appellee.
    Before JUNELL, SEARS and SHARPE, JJ.
   OPINION

SEARS, Justice.

This is an appeal from a driver’s license suspension proceeding.

In August 1982, Frederick Schaejbe (Appellee) was found by the municipal court of Houston to be an habitual violator of the state traffic laws pursuant to TEX.REV. CIV.STAT.ANN. art 6687b, § 22(b)(4) (Vernon Supp.1984). The court ordered that Schaejbe’s license be suspended for a period of twelve months; however, pursuant to Article 6687b § 22(e), Appellee’s suspension was probated.

Subsequently, during the probationary period, Schaejbe was cited for speeding in Harris County, and was convicted for this violation. On June 15, 1983, the Harris County municipal court found Schaejbe guilty of violating his probation. Upon receiving such finding, the Texas Department of Public Safety, under authority of Article 6687b, § 22(f), suspended Appellee’s driver’s license. An appeal was taken from this order of suspension to the Harris County civil court at law. Following a trial de novo wherein Schaejbe stipulated that he violated his probation, the court ordered the suspension of Appellee’s license for twelve months, but probated the suspension for the same twelve month period. The Texas Department of Public Safety appeals from this judgment granting Ap-pellee a second probationary term. We affirm.

In its sole point of error, Appellant argues the trial court erred in probating Ap-pellee’s driver’s license suspension upon finding he had violated the terms and conditions of the original probated order of suspension. It is Appellant’s contention that once violation of a probation was established, it was mandatory that Appellee’s license be suspended pursuant to TEX. REV.CIV.STAT.ANN. art. 6687b, § 22(f) (Vernon 1977). It is Appellant’s position that because Section 22(f) provides that the sole issue to be determined at a probation revocation hearing is whether appellee violated a condition of his probation, it logically follows that this is the sole issue to be determined at a trial de novo. See Tex. Atty.Gen.No. JM-31 (1983). Appellant notes that the Texas Department of Public Safety has followed this interpretation since 1969 when Section 22(f) was enacted. It cites Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269 (1944), for the proposition that while a contemporaneous construction of an act by those charged with its enforcement is not absolutely controlling in interpreting such, it is nevertheless highly persuasive and is entitled to great weight in determining the meaning of statute that is ambiguous or uncertain. Stanford, 181 S.W.2d at 273.

While the construction given a statute (or portion thereof) by both an administrative agency and the attorney general may be important when a statute is ambiguous, the court may overturn such interpretation if contrary to the plain meaning of the statute. Citizens National Bank of Paris, Illinois v. Calvert, 527 S.W.2d 175 (Tex.1975); Brown Express, Inc. v. Railroad Commission, 415 S.W.2d 394 (Tex.1967); Columbia—Southern Chemical Corp. v. Corpus Christi Shell Co., 297 S.W.2d 191 (Tex.Civ.App.—San Antonio 1956, writ ref’d n.r.e.). Upon reviewing the provisions of Article 6687b concerning a licensee’s right of appeal, we cannot support Appellant’s interpretation of Section 22(f). Section 22(a) of the same article authorizes the Texas Department of Public Safety to summon a licensee to appear for an administrative hearing before the mayor of the city, judge of the police court, or a Justice of the Peace in order to determine whether his license should be suspended or revoked. If a determination is made to suspend or revoke a party’s license, the licensee may appeal to the county court. Section 22(c) of Article 6687b provides that this appeal will be tried de novo. When the county court acquires jurisdiction of the appeal, Section 22(c) further states that all administrative or executive action taken prior to the appeal shall be null and void, and the rights of the parties thereto shall be determined by the court as if there had been no intervening administrative or executive hearing.

Section 22(e) states as follows:

The judge or officer holding a hearing under Subsection (a), (b), or (d) of this section, or the court trying an appeal under Subsection (c) of this section, on determining that the License shall be suspended or revoked, may, when it appears to the satisfaction of the court that the ends of justice and the best interests of the public as well as the defendant will be subserved thereby,' recommend that the revocation or suspension be probated on terms and conditions deemed by the officer or judge to be necessary or proper. The report to the department of the results of the hearing must include the terms and conditions of such probation. When probation is recommended by the judge or officer presiding at a hearing, the department shall probate the suspension or revocation (emphasis added.)

In turn, Section 22(f) reads as follows:

When the director believes that a licensee who has been placed on probation under Subsection (e) of this section has violated a term or condition of the probation, the director shall notify the licensee and summons him to appear at a hearing as provided in Subsection (a) or (d) of this section, after notice as provided in Subsection (a) of this section. The issue at the hearing shall be whether a term or condition of the probation has been violated. The officer or judge presiding at the hearing shall report his finding to the department and if the finding is that a term or condition of the probation is violated, the department shall revoke or suspend the license as determined in the original hearing (emphasis added.)

While Section 22(f) restricts the hearing officer at an administrative hearing to a determination of whether a term or condition of a licensee’s probation has been violated, it places no such limits on the appellate court upon a trial de novo. If the legislature had intended such a restriction to apply to the court trying an appeal pursuant to Sec. 22(c) and (e) it would have so stated. We believe the plain meaning of Section 22(f) does not preclude the county court, pursuant to Section 22(e), from granting probation to a licensee after concluding that the licensee has violated a term or condition of a prior probation of a license suspension. We overrule Appellant’s point of error.

The judgment of the trial court is affirmed.


text:
    Shadrick Lee ANDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-390-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 4, 1984.
    Reo Harris, Jr., David P. Zavoda, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before JUNELL, SEARS and T. GILBERT SHARPE, retired, JJ.
   OPINION

SEARS, Justice.

Appellant was convicted of burglary of a habitation under TEX.PENAL CODE ANN. § 30.02 (Vernon 1974), and was sentenced to twenty years confinement. On appeal, he argues that his conviction should be reversed because his attorney was not appointed at least ten days prior to trial, pursuant to TEX.CODE CRIM.PROC. ANN. art. 26.04(b) (Vernon 1966). We find no error and affirm the conviction.

A recitation of the facts is unnecessary to an understanding of our disposition of Appellant’s single ground of error.

Appellant was first indicted in Cause No. 358,241, alleging that Appellant, on or about June 21, 1982, did:

with intent to commit theft, enter a habitation owned by MARILYN R. MAC-&ENZIE, a person having a greater right to possession of the habitation than the Defendant and hereafter styled the Complainant, without the effective consent of the Complainant, namely, without any consent of any kind.

The enhancement paragraph alleged that:

Before the commission of the offense alleged above on January 17, 1978 in Cause No. 3235 in the Van Burén County Circuit Court of Van Burén County, Texas, the Defendant was convicted of the felony of Breaking and Entering occupied dwelling.

On June 22, 1982, the court appointed Reo Harris, Jr. to represent Appellant. Harris made several appearances for Appellant between June 22, 1982, and January 25, 1983, the date that Appellant was reindicted in Cause No. 372,939. The reindictment alleged that Appellant did:

with intent to commit theft enter, by prying open a sliding glass door and intruding his entire body, a habitation owned by MARILYN R. MACKENZIE, a person having a greater right to possession of the habitation than the Defendant and hereafter styled the Complainant, without the effective consent of the Complainant, namely, without any consent of any kind.

That enhancement paragraph alleged that:

Before the commission of the offense alleged above on January 17, 1978 in Cause No. 3235 in the Van Buren County Circuit Court of Van Buren County, Michigan,1 the Defendant was convicted of the felony of Breaking and Entering, unoccupied dwelling.

The transcript does not contain an order appointing Harris to represent Appellant after the January 25 indictment. However he continued to serve as Appellant’s attorney and made several appearances for Appellant between January 25 and April 29, 1983. On April 29, 1983, Appellant was reindicted in Cause No. 379,564. The first' paragraph of this final indictment was identical to the first paragraph of the rein-dictment in Cause No. 372,939. The enhancement paragraph was changed to read:

Before the commission of the offense alleged above on January 17, 1978 in Cause No. B1451491 in the Van Burén County Circuit Court of Van Burén County, Michigan, the Defendant was convicted of the felony of Breaking and Entering.

The record reflects that Mr. Harris was formally appointed to represent Appellant in Cause No. 379,564 on May 13, 1983. Appellant’s trial began on May 23, 1983, which Appellant alleges was only nine days after the appointment.

Appellant correctly points out that art. 26.04(b) entitles court-appointed counsel to ten days to prepare for trial, which time period is subject to a written waiver signed by the defendant and attorney. However, the court of criminal appeals has repeatedly held that the attorney’s actual preparation time, rather than the time of formal appointment, determines whether art. 26.04(b) has been satisfied. See, e.g., Hamel v. State, 582 S.W.2d 424, 428 (Tex.Crim.App.1979); Henson v. State, 530 S.W.2d 584, 585 (Tex.Crim.App.1975).

Mr. Harris was appointed to represent Appellant on June 22, 1982, and continued to represent him for over eleven months. The change in cause numbers in the final enhancement paragraph did not require additional time to prepare for trial. In the event such a change requires additional time for investigation and preparation, Appellant’s appointed counsel could have asked for a continuance. Appellant's attorney announced ready for trial and there is nothing in the record to indicate he was not ready, or that Appellant’s rights were in any way prejudiced by the final change in the enhancement portion of the indictment. The fact that the trial judge did not perform the ministerial task of formally reappointing Harris to represent Appellant in the final indictment until nine days before trial began is inconsequential. See Meeks v. State, 456 S.W.2d 938 (Tex.Crim.App.1970).

Appellant’s ground of error is overruled and his conviction is affirmed.

      . Changes are underscored.


author: WARREN, Justice.

text:
    POOL COMPANY, d/b/a Pool Well Servicing Company, Appellant, v. SALT GRASS EXPLORATION, INC., Appellee.
    No. 01-84-0352-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 18, 1984.
    Rehearing Denied Nov. 8, 1984.

      Frank H. Pope, Jr., Dallas, for appellant.
    Carlton E. Curry, Curry & McCarthy, Houston, for appellee.
    Before WARREN, COHEN and LEVY, JJ.
   OPINION

WARREN, Justice.

This is an appeal from a judgment rendered in favor of the appellee for appellant’s violations of the Texas Business and Commerce Code (Texas Deceptive Trade Practices Act).

The appellant raises four points of error: fundamental error in the trial court’s rendering a judgment unsupported by pleadings, error in awarding attorney’s fees since no notice was proven as required by statute, error in awarding treble damages for the same lack of notice, and no evidence or insufficient evidence to support the judgment.

The appellant Pool Company is a Texas corporation in the business of supplying equipment and services for the drilling of oil wells. Appellee Salt Grass Exploration, also a Texas corporation, is an independent oil exploration firm.

On and before October 2,1980, the appellant and appellee negotiated a contract under which the appellant would supply a drilling rig and personnel to operate the rig for the drilling of a well in Sutton County, Texas. Randall Shawell, president of ap-pellee corporation, and Scott Robinson, a consulting engineer, communicated with representatives of the appellant corporation and Ensearch Corporation concerning the details of the drilling operation on several occasions prior to entering into the contract.

On October 2, 1980, the appellant and appellee executed a written contract encompassing the terms of the pre-contract negotiations. Under the terms of the contract, the appellant would supply a drilling rig, including a “Bowen S-3 Power Swivel” rotary drive. The “power swivel” rig was to be used to drill a hole to a depth of 3,600 feet. The appellee was also to provide certain equipment and to pay $4,500 per work day for appellant's services.

On or about October 9, 1980, the appellant corporation “rigged up” the drilling equipment and “spudded” the well at the appellee’s well site. The appellee retained Gerald Dean “Curly” Meredith as an on-site observer. After several days of limited progress, operations were terminated at a depth of 252 feet. The appellant “rigged down” the drilling equipment and requested payment of approximately $39,000 for services rendered appellee prior to the termination of drilling of the appellee’s well. The appellee made the payment as requested and shortly thereafter filed suit in the court below.

The appellee’s petition sought actual damages in the amount of $39,119.27 plus statutory treble damages and attorney’s fees under the Texas Business and Commerce Code. After a nonjury trial, the court entered a judgment in favor of appel-lee in the amount of $39,119.27 actual damages, $2,000 in statutory damages, plus $13,000 in attorney’s fees.

In his first point of error the appellant argues that the trial court fundamentally erred in rendering a judgment that did not conform to the pleadings.

The appellee’s petition alleged, among other things:

IV.
Plaintiff entered into said contract with Defendant based on the representations of Defendant and his agents as to their quality of workmanship and ability to perform and drill such well.
At the time of the execution of said contract Defendant’s agents assured Plaintiff and its agents that Defendant was well familiar with the area in which the well was to be drilled and the Defendant’s equipment was entirely capable to drill such well.
VI.
Plaintiff relied upon Defendant’s fraudulent representations to enter into said drilling contract and as a result of Defendant’s breach of said contract Plaintiff has been caused to suffer monetary losses in the amount of at least $39,119.27.
VII.
Plaintiff would further show that Defendant’s actions and misrepresentations regarding the drilling rig’s ability to perform constitute a deceptive trade practice violation of Article 17.45(5) and Article 1746(b)(23), Texas Business and Commerce Code, in which a fraudulent, misleading or deceptive act or practice includes “the failure to disclose information concerning goods or services which was known at the time of the transaction, if such failure to disclose information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed, [sic] Plaintiff maintains that had he known the capabilities and limitations of Defendants [sic] drilling rig and had these capabilities and limitations been made known to Plaintiff, he would never have entered into the said Drilling Contract with Defendant.
Plaintiff further states that defendant knowingly and intentionally misrepresented the limitations and capabilities of his drilling rig. Accordingly, Plaintiff seeks three times the amount of his actual damages pursuant to Article 17.50(b)(1) Texas Business and Commerce Code, (emphasis added)

The court’s judgment recited that the court “is of the opinion and finds that:”

The Plaintiff has established its claim under the Deceptive Trade Practices Act, and that, the Plaintiff is therefore entitled to recover of and from the Defendant the sum of THIRTY-NINE THOUSAND ONE HUNDRED NINETEEN AND 27/100 ($39,119.27) DOLLARS in actual damages, TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS in additional statutory damages and THIRTEEN THOUSAND AND NO/100 ($13,-000.00) DOLLARS in attorney’s fees, as damages for violations under the Deceptive Trade Practices Act. It is therefore,
ORDERED, ADJUDGED and DECREED by the Court that SALT GRASS EXPLORATION, INC., Plaintiff, have and recover of and from the Defendant, POOL COMPANY D/B/A POOL WELL SERVICING COMPANY, the sum of FORTY-ONE THOUSAND ONE HUNDRED NINETEEN AND 27/100 ($41,-119.27) DOLLARS together with attorney’s fees in the sum of THIRTEEN THOUSAND AND NO/100 ($13,000.00) DOLLARS, with interest thereon at the rate of nine (9%) percent per annum from the date of this Judgment until paid, together with all costs of Court in this behalf expended.

We find the pleadings were sufficient to support the judgment.

The appellant contends in his second and third points of error that the trial court erred in awarding statutory treble damages and attorney’s fees since the plaintiff failed to prove the required notice pursuant to sec. 17.50A(a), Tex.Bus. & Com.Code.

The statute provides as follows:

(a) As a prerequisite to filing a suit seeking damages under Subdivision (1) of Subsection (b) of Section 17.50 of this subchapter against any person, a consumer shall give written notice to the person at least 30 days before filing the suit advising the person of the consumer’s specific complaint and the amount of actual damages and expenses, including attorneys’ fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant.

Tex.Bus. & Com.Code Ann. sec. 17.50A(a) (Vernon Supp.1984).

The appellant correctly argues that notice is a prerequisite to filing suit under the DTPA. See Hollingsworth Roofing Co. v. Morrison, 668 S.W.2d 872, 875 (Tex.App.—Dallas 1984, no writ); Blumenthal v. Ameritex Computer Corporation, 646 S.W.2d 283, 286 (Tex.App.—Dallas 1983, no writ); Lubbock Mortgage and Investment Co., Inc. v. Thomas, 626 S.W.2d 611, 614 (Tex.App.—El Paso 1981, no writ); Jim Walter Homes, Inc. v. Geffert, 614 S.W.2d 843 (Tex.Civ.App.—Corpus Christi 1981, writ ref’d n.r.e.).

Appellant is incorrect, however, in asserting that failure to plead and prove notice, in the absence of defendant’s objection as to lack of notice, is fatal to a cause of action brought under the DTPA. Appellant filed no special exceptions to appellee’s petition, it filed no plea in abatement, it did not object to testimony pertaining to appel-lee’s cause of action under the DTPA or as to attorney’s fees, and it filed no trial court motions expressing disagreement with the pleadings or the testimony. Rule 90 of the Rules of Civil Procedure provides that any defect, omission or fault in a pleading, either of form or substance, which is not pointed out by exception, in writing, and brought to the attention of the trial court, shall be deemed waived by the party seeking reversal on such account.

The pleading and proof of notice under section 17.50A of the DTPA is not proof of the claim asserted, but merely a prerequisite to bringing the suit on the claim. Its purpose is to facilitate the settlement of claims by giving the alleged wrongdoer an opportunity to compromise the claim rather than expose itself to a claim for additional damages and attorney’s fees allowed by the Act. Appellant may not initially claim on appeal that he was deprived of that right.

Moreover, in order to contest a party’s right to sue, an objection must be made by a plea in abatement in the trial court and the issue cannot be urged for the first time on appeal. That principle has been consistently followed by Texas courts. Regal Construction Co. v. Hansel, 596 S.W.2d 150, 151 (Tex.Civ.App.—Houston [1st Dist.] 1979, no writ); Rimco Enterprises, Inc. v. Tex. Electric Service, 599 S.W.2d 362 (Tex.Civ.App.—Ft. Worth 1980, writ ref’d n.r.e.) (failure to object that corporation whose charter had been forfeited had no capacity to sue or defend); Gonzales v. Gonzales, 484 S.W.2d 611 (Tex.Civ.App.—El Paso 1972, no writ) (failure to object to averment of residence requirement in divorce case); Kaherl v. Kaherl, 357 S.W.2d 622 (Tex.Civ.App.—Dallas 1962, no writ); Lobstein v. Watson, 186 S.W.2d 999 (Tex.Civ.App.—Eastland 1945, no writ) (failure of real estate dealer suing for commission to allege that he was licensed).

As appellant made no objection in the trial court concerning appellee’s failure to plead and prove 30 days notice before filing suit, as required by section 17.50A(a), all objections were waived.

Appellant’s second and third points of error are overruled.

Appellant contends in point of error number four that there was no evidence, or alternatively, that there was insufficient evidence to support the trial court’s findings that appellant represented to appellee both that its services would be of a particular standard when they were of another, and that its drilling rig would have characteristics, uses, and benefits that they did not have.

In reviewing the appellant’s “no evidence” point, “only evidence and reasonable inferences therefrom supporting findings are considered. If there is probative force, more than a scintilla, to support the finding, the no evidence argument should be overruled.” Lubbock Mortgage & Investment Company, Inc., supra, at 613. Here, the record, viewed in a light most favorable to the finding, contains more than a scintilla of evidence that the appellant represented that the “power swivel” drilling rig was capable of drilling a 3,600 foot deep well in Sutton County, Texas when, in fact, such a rig was incapable of drilling such a well. Testimony by Randall Shawell, president of appellee corporation, revealed that these representations were made, and Scott Robinson, a consulting engineer, testified that the rig used was incapable of performing the work.

The record also contains more than a scintilla of evidence that the appellant represented that those services were of a particular standard when they were of another. “Standard” is not defined by statute or case law but would seem to denote a “definite level or degree of quality that is proper and adequate for a specific purpose.” Webster’s Third New Inter’l Dictionary 2223 (1976 ed.). The record is clear that the appellee contracted for drilling services to a depth of 3,600 feet. The record also shows that the services rendered fell short of the specific depth contracted for.

In reviewing factual sufficiency, this' court will consider all of the evidence in the record that is relevant to the facts being challenged. Lubbock Mortgage & Investment Company, Inc., supra, at 613; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Here again, the record viewed as a whole demonstrates support for the proposition that the drilling rig was represented as capable of drilling wells in Sutton County, Texas when, in fact, the rig was incapable of doing so. The representative of the appellant corporation, Mr. Tinney, admitted during cross examination that this drilling rig was never used again to initiate drilling in Sutton County after the failure at appellee’s site. The appellant’s witness Sidney Meeks, the on-site foreman, admitted that the “power swivel” rig was ordinarily used on existing wells as a “work over” rig rather than as a tool to drill oil wells from surface to well.

The assertion by the appellant that the cause of failure of the “power swivel” rig was the appellee’s refusal to pump greater volumes of water into the well to enhance “circulation” is directly contradicted by the appellee’s engineer’s testimony. Mr. Robinson testified that pumping greater volumes of water would not have assisted “circulation” and that the real cause of the shutdown was the use of a “power swivel” rig.

The record also supports the finding that the appellant’s services were not of the quality represented. The testimony supporting this finding is that previously discussed concerning the characteristics of the drilling rig. The appellant’s “services” consisted of furnishing labor in connection with the use of the “power swivel.” Since the “power swivel” failed, there was some evidence that the services rendered were fundamentally substandard.

Appellant’s fourth point of error is overruled.

Affirmed.


author: ELLIS, Justice.

text:
    Fred HEBERT, Appellant, v. PAN AMERICAN VAN LINES, INC., Appellee.
    No. B14-84-095-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1984.
    John Cash Smith, Mehaffy, Weber, Keith & Gonsoulin, Houston, for appellant.
    Elaine Brady, Weitinger, Steelhammer & Tucker, Michael Hendryx, Weitinger, Steel-hammer & Tucker, Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Fred Hebert appeals from a judgment entered on a jury verdict in a negligence action in which he was awarded $1,770.30 as compensation for personal injuries sustained on the job when he was struck by a post that fell from a van owned by Pan American Van Lines, Inc., appellee. We affirm.

Appellant brings one point of error on appeal. He claims that the trial court erred in denying his Motion for a New Trial because the jury’s finding that $1,967.00 would fully compensate him for his injuries was so grossly inadequate and against the great weight and preponderance of the evidence as to be clearly wrong. Appellant requests a remand for trial de novo.

Appellant and co-worker, Clifford Greene, were checking the cargo, in appel-lee’s van at the Diamond Shamrock Plant in Deer Park, Texas. Appellant and Greene were material checkers in the Teamsters Union employed by C.F. Braun, Corp. As Greene was attempting to climb into the van, he pulled on the metal center post of the van’s side doors. The post came loose and struck appellant in the lower back. Greene fell backwards to the ground. Appellant testified that he went immediately to the first aid station. He then returned to work. Though he had blood in his urine, pain in his back and kidneys, and cramping and weakness in his legs, he returned to work. Appellant worked for two weeks before he was hospitalized for back problems. After his discharge, he did not return to work. Appellant was hospitalized two years later, again for back problems.

Appellant’s action against Pan American Van Lines for injuries sustained while unloading the van was consolidated with an action brought by Greene for injuries received in the same incident. Appellant’s physician testified that the accident was the cause of appellant’s back trouble. The physician also testified that the injury could have accelerated the development of appellant’s pre-existing arthritis. The jury found negligence on the part of all three parties. Specifically the jury found Greene eighty percent (80%) negligent, appellant ten percent (10%) negligent, and Pan American Van Lines ten percent (10%) negligent. In answer to a special issue, the jury determined that $1967.00 would compensate appellant for his injuries. Since appellant was determined to be ten percent (10%) negligent, judgment was entered for appellant in the amount of $1770.30.

When a factual insufficiency point is presented the appellate court is “required to consider all of the evidence in deciding the question.” Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). When reviewing the adequacy of the jury verdict this court must view the evidence in the light most favorable to the appellee. Schaefer v. Texas Employers’Insurance Assoc., 612 S.W.2d 199 (Tex.1980); Walker v. Missouri Pacific Railroad Co., 425 S.W.2d 462 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.). In order to set aside the verdict we must find that the jury’s answers are so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. United General Insurance Exchange v. Brown, 628 S.W.2d 505 (Tex.App.—Amarillo 1982, no writ); Waterloo Leasing Co. v. McNatt, 620 S.W.2d 194 (Tex.Civ.App.—Waco 1981, no writ); Shop Rite Foods, Inc. v. Upjohn Co., 619 S.W.2d 574 (Tex.Civ.App.—Amarillo 1981, writ ref’d n.r.e.).

We have reviewed all of the evidence in the light most favorable to appel-lee in this case. We find that the jury’s answer is not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Testimony of experts is only evidentiary and not binding upon the trier of fact. Reinke v. Thomas, 369 S.W.2d 692 (Tex.Civ.App.—Waco 1963, writ ref’d n.r.e.). Therefore, the jury could have disregarded the testimony of appellant’s physician. In fact, the jurors may disbelieve a witness, though he is neither impeached nor contradicted. Blackmon v. Piggly Wiggly Corp., 485 S.W.2d 381 (Tex.Civ.App.—Waco 1972, writ ref’d n.r.e.).

In the case at bar, appellant did not go uncontradicted. He was contradicted by his own deposition regarding the details of the accident. The first aid station records do not show appellant’s visit, though they do show co-worker Greene’s visit. Appellant was contradicted when he testified that he was separated, living alone, and unable to care for himself. Testimony revealed that he was living with his wife who did care for appellant. Additionally, appellant denied falling two times subsequent to the accident. The falls were recorded in records of the doctor and the hospital. The jury may have believed that these accidents contributed to appellant’s injuries. The jury may have thought that appellant’s preexisting arthritis and sarcoidosis, a chronic lung disease, also contributed to appellant’s problems. In light of all the contradictory evidence, we do not find the verdict manifestly wrong or unjust.

Accordingly, the judgment of the trial court is affirmed.


text:
    Paul Dwayne HUMPHREY, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-633-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1984.
    Steven Abramowitz, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, SEARS and T. GILBERT SHARPE, retired, JJ.
   OPINION

SEARS, Justice.

This is an appeal from a conviction for aggravated robbery enhanced by a prior felony conviction. Appellant waived his right to trial by jury and pled not guilty. In a trial to the court, Appellant was found guilty and sentenced to twenty-five years. Appellant challenges the finding of true to the enhancement allegation on grounds that evidence of the prior conviction failed to show waiver of Appellant’s right to trial by jury. Appellant also asserts the trial court erred in failing to grant his Motion for Continuance. We find no error and affirm.

The enhancement provision of the indictment alleged a prior felony conviction in Ohio for aggravated robbery. The State introduced into evidence a certified penitentiary packet containing the Ohio judgment which conformed with the authentication requirements of TEX.REV.CIV.STAT. ANN. art. 3731a (Vernon Supp.1984). Appellant objected that “[the judgment] does not set out [Appellant’s] constitutional rights. There is no way to determine exactly what constitutional rights [Appellant] has waived...” The objection was overruled and the packet admitted into evidence.

In his first ground of error Appellant asserts the evidence was insufficient to sustain a finding of true to the enhancement count in that the evidence of the prior conviction was inadmissible because it failed to show Appellant waived his right to trial by jury. Appellant relies on Samudio v. State, 648 S.W.2d 312 (Tex.Crim.App.) (en banc), cert. denied, — U.S.-, 103 S.Ct. 3113, 77 L.Ed.2d 1368 (1983), and Lopez v. State, No. 84-13-003 (Tex.Crim.App., March 28, 1984) (not yet reported), for his position that the State failed to show an affirmative waiver of Appellant’s right to trial by jury, that such waiver can never be presumed from a silent record, and that the Ohio judgment is fundamentally defective and inadmissible. The cases cited are not on point. Samudio involved a silent record challenged on direct appeal in which the court of criminal appeals held the State failed to meet its constitutional burden of establishing waiver of jury trial. Samudio v. State, 648 S.W.2d at 315. Appellant's case involves a collateral attack on the prior Ohio conviction, and as such the burden is on the Appellant to prove that the Ohio judgment did not conform to the laws of Ohio. Acosta v. State, 650 S.W.2d 827 (Tex.Crim.App.1983) (en banc); Hankins v. State, 646 S.W.2d 191 (Tex.Crim.App.1981). Lopez involved a record which was completely devoid of any jury waiver while the record in the instant case contains the Ohio judgment reciting on its face that the Appellant “was fully advised of his Constitutional rights and his rights as required under Rule 11 of the Ohio Criminal Rules of Procedure.” Rule 11 states that a guilty plea will not be accepted by the court without first informing the defendant and determining that he understands that by his plea he is waiving his right to a jury trial. OHIO R.CRIM.PROC. 11. The judgment also recites that the Appellant’s plea of guilty to a charge of aggravated robbery was “voluntarily made and with a full understanding of the consequences.” The first ground of error is overruled.

In his second ground of error Appellant asserts the trial court erred in failing to grant his Motion for Continuance based on a missing witness.

Appellant testified that his encounter with the complainant was not a robbery but was a homosexual sex-for-sale transaction similar to previous transactions between the complainant and Appellant. Appellant testified that when the complainant refused to pay twenty dollars as promised, he took complainant’s car keys and drove away in his car. Appellant subpoenaed Tony Richardson to testify on his behalf, and when Mr. Richardson failed to appear to testify the court recessed and a writ of attachment issued for the missing witness. The following day Deputy Sheriff Richard Matzig testified that he had served the missing witness with the subpoena in the courtroom earlier in the trial but was unable to locate him to serve the writ of attachment. Roberto Gutierrez, assistant district attorney, testified that the missing witness had approached him earlier in the trial and told Mr. Gutierrez that Appellant had asked the witness to lie for him on the witness stand. The judge then overruled Appellant’s Motion for Continuance.

Appellant’s Motion for Continuance was not accompanied by an affidavit alleging material facts expected to be proved by the missing witness as required by TEX.CODE CRIM.PROC.ANN. art. 29.-06 (Vernon 1966). The Motion alleged only that the missing witness would testify that the complainant knew the Appellant prior to the time of the alleged offense, and that the complainant engaged in homosexual activities. The Motion failed to allege the witness had knowledge of material facts concerning the alleged robbery. At best the testimony would serve only to impeach the complainant on a collateral issue and as such was properly denied. Cooper v. State, 509 S.W.2d 565 (Tex.Crim.App.1974). The granting or denial of a motion for continuance lies within the trial court’s discretion. Ewing v. State, 549 S.W.2d 392 (Tex.Crim.App.1977); Sped v. State, 642 S.W.2d 200 (Tex.App.—Houston [14th Dist.] 1982, pet. ref’d.). We find no abuse of discretion and overrule Appellant’s second ground of error.

In addition to the brief filed by counsel for Appellant, this court has received a pro se brief. There is no right to hybrid representation in Texas, Rudd v. State, 616 S.W.2d 623 (Tex.Crim.App.1981); therefore the pro se brief presents nothing for review. We have, however, reviewed the brief and find no error that should be considered in the interest of justice. LaBome v. State, 624 S.W.2d 771 (Tex.App.—Houston [14th Dist.] 1981, no pet.).

The judgment is affirmed.


author: PHILLIPS, Chief Justice.

text:
    ROCKDALE INDEPENDENT SCHOOL DISTRICT, Appellant, v. THORNDALE INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 14173.
    Court of Appeals of Texas, Austin.
    Oct. 24, 1984.
    Rehearing Denied Dec. 12, 1984.

      Russell R. Graham, Caíame, Linebarger & Graham, Austin, for appellant.
    William C. Bednar, Jr., Eskew, Muir & Bednar, Austin, for appellee.
    Before PHILLIPS, C.J., and POWERS and GAMMAGE, JJ.
   PHILLIPS, Chief Justice.

Appellant, Rockdale I.S.D. appeals from the judgment of the trial court which, following a nonjury trial, denied a plea to the jurisdiction and decreed the taxable situs of certain mining equipment to be within the boundaries of the Thorndale I.S.D., appel-lee, for the 1982 and 1983 tax years.

We will reverse that part of the judgment relating to the taxes for 1983 and dismiss that part of the cause; we will otherwise affirm the judgment.

Aluminum Company of America (“Alcoa”) owns and operates an aluminum smelting plant located within the Rockdale I.S.D. A lignite reserve, located within the boundaries of the two school districts, Thorndale I.S.D. and Rockdale I.S.D., is mined by Alcoa through its agent, Industrial Generating Company (“IGC”). This area, termed “Pit F”, is stripped with various mining equipment, including a dragline 80 and a P. and H. 1900 shovel loader.

The dragline in question weighs in the vicinity of 13 million pounds and travels from 150 to 500 feet per day. The shovel which is associated with the dragline has a 16 cubic yard dipper that is used to load lignite once it is uncovered by the dragline. This dragline and shovel travel back and forth along the axis of the pit, mining strips approximately 120 feet wide. Due to the diagonal position of the districts’ boundaries in “Pit F”, the dragline and shovel spent approximately 290 days in Thorndale I.S.D. and 75 days in Rockdale 1.5.D. during the year of 1982. In 1983, the dragline and shovel were anticipated to be used approximately 211 days in Thorn-dale I.S.D. and 154 days in Rockdale I.S.D.

The Milam County Appraisal Review Board determined the situs of the dragline and shovel to be in Rockdale I.S.D. for the tax years of 1982 and 1983. Concerning the 1983 taxable situs, the Thorndale I.S.D. received notice of the Board’s decision on August 8, 1983. Thorndale filed its notice of appeal on September 1, 1983. Thereafter, Thorndale filed suit, challenging the decisions for 1982 and 1983, in two separate causes of action, cause no. 19,304 and cause no. 19,632, respectively, naming Mi-lam County Appraisal District, Milam County Appraisal Review Board, Gus Back-haus, Gene Lumpkin, and Joe Bullock as defendants.

Rockdale I.S.D. filed a petition for intervention in both causes of action. Subsequently, defendant-intervenor, Rockdale I.S.D., filed a motion for consolidation in both cases. The trial court granted the motion on October 3, 1983, at which time trial before the court was held. Rockdale I.S.D.’s plea to jurisdiction for the tax year 1983 cause of action was taken under advisement at the time of trial.

The trial court held that it had jurisdiction to decide the taxable situs of dragline 80 and its associated shovel loader for the tax years of 1982 and 1983, and that such situs was Thorndale I.S.D. No findings of fact and conclusions of law were filed.

Appellant complains by two points of error that the trial court erred in overruling its plea to jurisdiction in the 1983 case in that there was no evidence that the appel-lee filed a timely notice of appeal as required under Tex.Tax.Code Ann. § 42.06 (1982).

The record reflects the tax assessor-business manager of the Thorndale I.S.D., Ed Wrinkle, sent a notice of appeal on August 17,1983 after' receiving notice on August 8, 1983, of the Milam County Appraisal Review Board’s decision affirming the taxable situs of the equipment in the Rockdale I.S.D. The notice dated August 17, 1983, was never received by the Milam County Appraisal District. Wrinkle, upon discovering the notice of appeal had not been received, subsequently drafted another notice of appeal and backdated it to August 17, 1983. This correspondence was received by the Milam County Appraisal District on September 1, 1983. At trial, a copy of the original notice was produced.

Appellant’s contention regarding its plea to jurisdiction rests uon an interpretation of Section 42.06 which provides the following:

(a) To exercise his right of appeal, a party must file written notice of appeal within 15 days after the date he receives the notice required by Section 41.47 or, in the case of a taxing unit, by Section 41.07 of this code that the order appealed has been issued.
(b) The notice must be filed with the body that issued the order appealed.

According to appellant, the appellee was required to have his written notice of appeal filed within fifteen days after receiving notice on August 8, 1983, of the Milam County Appraisal Review Board’s decision. Consequently, appellant contends the notice should have been received on or before August 23, 1983, in order for the notice to be timely. We agree.

The record is devoid of any receipt of appellee’s notice before September 1, 1983, nine days after the required deadline. These requirements must be strictly adhered to and failure to do so results in the non-complying party’s losing the right to challenge the decision.

Appellee asserts Section 42.06 must be construed in conjunction with Tex.Tax.Code Ann. § 1.08 (1982) which provides that a property owner who mails a required document before a specified date has acted timely. According to appellee, Section 1.08 permits the mailing of a notice of appeal within fifteen days after receipt of notice required by Section 41.07 of the code to suffice as timely filing of a notice of appeal under Section 42.06.

However, Section 1.08, in unambiguous language, applies to a property owner — not a taxing unit such as the appel-lee, Thorndale I.S.D. Therefore, Section 1.08 is inapplicable in this case. Appellee’s failure to file its notice of appeal within fifteen days after the date of receipt of notice given by Milam County Appraisal District resulted in a non-compliance with Section 42.06 and a denial of the appellee’s cause of action with respect to the Board’s decision rendered in 1983. Consequently, the trial court did not have jurisdiction over the 1983 case.

Due to the fact that the 1983 case was consolidated with the 1982 case, we must now address the points of error concerning the dragline and shovel loader with respect to the year 1982. Appellant contends the trial court erred as a matter of law in holding the equipment’s taxable si-tus was within the Thorndale I.S.D. for the 1982 tax year. The crux of appellant’s contention rests upon an interpretation of Tex.Tax.Code Ann. § 21.02 (1982). Appellant asserts this section is a codification of the doctrine of mobilia sequientur 'person-am which, in essence, provides that personal property is taxable at the domicile of its owner. However, an exception to this rule lies where personal property is tangible and has acquired a taxable situs of its own in a location other than the owner’s domicile. Such property is then taxable where it has acquired an actual situs. Davis v. City of Austin, 632 S.W.2d 331 (Tex.1982). Section 21.02 provides that

Except as provided by Sections 21.04 and 21.05 of this code, tangible personal property is taxable by a taxing unit if:
(1) it is located in the unit on January 1 for more than a temporary period;
(2) it normally is located in the unit, even though it is outside the unit on January 1, if it is outside the unit only temporarily;
(3) it normally is returned to the unit between uses elsewhere and is not located in any one place for more than a temporary period; or
(4) the owner resides (for property not used for business purposes) or maintains his principal place of business in this state (for property used for business purposes) in the unit and the property is taxable in this state but does not have a taxable situs pursuant to Subdivisions (1) through (3) of this section.

Accordingly, appellant complains the trial court wrongfully concluded that the property in question remained in the Thorndale I.S.D. for such a period as to acquire a permanent situs in that district. We disagree.

The uncontroverted facts show that the dragline and shovel loader were in Thorndale I.S.D. on January 1, 1982; that the dragline and shovel loader spent approximately 290 days in Thorndale I.S.D. and 75 days in Rockdale I.S.D.; and that the equipment was repaired on site. The Courts have consistently held that the word “permanent”, in contrast to the word “temporary”, means a “more or less permanent location for the time being.” Davis, supra; A & M Consolidated Independent School District v. Fickey, 542 S.W.2d 735 (Tex.Civ.App.1976, writ ref’d n.r.e.); Nacogdoches Independent School District v. McKinney, 504 S.W.2d 832 (Tex.1974); and City of Dallas v. Overton, 363 S.W.2d 821 (Tex.Civ.App.1962, writ refd n.r.e.). Additionally, the question of permanent versus temporary in a tax situs context is a fact question and must be determined on a case by case basis. Lawson v. City of Groves, 487 S.W.2d 439 (Tex.Civ.App.1972, no writ).

From the preceding facts, we conclude the trial court had sufficient evidence to hold the property was in Thorndale I.S.D. for more than a temporary period and had acquired a taxable situs of its own in 1982.

Lastly, the appellant complains by his fifth point of error that appellee failed to plead or prove an adequate description and an appraised value of the property. However, the record reveals a description of the property was in fact provided in the stipulations agreed to by the parties. Moreover, the value of the equipment was not in controversy and therefore, evidence of its value was not required. Appellant’s last contention is also without merit.

Accordingly, that part of the judgment relating to the 1983 taxes referable to dragline 80 and its associated shovel loader is reversed, and that part of the cause (designated as cause no. 19,632 below, prior to the consolidation of suits) is dismissed for lack of jurisdiction. In all other respects, the judgment of the trial court is affirmed.

POWERS, J., not participating.


author: DUGGAN, Justice.

text:
    Robert Wayne REED, Appellant, v. ISRAEL NATIONAL OIL COMPANY, LTD., Appellee.
    No. 01-83-00730-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 25, 1984.

      Donald G. Roberts, Kirkham & Roberts, Joe M. Kirkham, Kirkham & Roberts, J. Clifford Gunter, III, Bracewell & Patterson, Susan J. Brandt, Bracewell & Patterson, Houston, for appellant.
    Edmund L. Cogburn, Charity O’Connell, Dow, Cogburn & Friedman, Houston, for appellee.
    Before DUGGAN, DOYLE and LEVY, JJ.
   OPINION

DUGGAN, Justice.

This is an appeal from a plaintiffs judgment awarding treble damages and attorney’s fees under the Texas Deceptive Trade Practices Act.

A jury awarded plaintiff, Israel National Oil Company, Ltd. (“Israel Oil”), actual damages of $72,407.70, and attorney’s fees of $57,500, subject to credit if there were no appeals. The trial court trebled the actual damage award, added prejudgment interest to date of judgment, and deducted a stipulated credit in the amount of $53,-644. The total judgment against the defendant, Reed, including attorney’s fees, was for $252,392.53, subject to attorney’s fees credit.

The appellant asserts fourteen points of error, and the appellee brings two cross-points.

Israel Oil’s pleadings initially alleged a cause of action for fraud, breach of warranty, breach of contract, and failure to pay a promissory note given by Reed in partial payment for losses resulting from used drilling pipe purchased from him. Shortly before trial, Israel Oil amended its pleadings to allege violations of the DTPA by Reed.

Reed’s answer consisted of a general denial and a claim of fraudulent misrepresentation pertaining to a labor contract that he said provided the consideration for his execution of the promissory note.

The transaction upon which plaintiff’s cause of action is based took place in late 1975 in Singapore, where Michael Kisch, an officer of Israel Oil, was handling the renovation of an oil rig for drilling operations in the Gulf of Suez. Kisch did a great deal of business at this time with Jack Enen & Associates, a supply company whose president was Reed.

Reed, knowing that Kisch needed a supply of drill pipe for the rig, located and purchased a string of used pipe from Key Drilling in late December of 1975 for $2 per foot and sold it to Israel Oil for $11 per foot. Reed was acting in the transaction only in behalf of himself and Jack Enen, Jr., not Jack Enen & Associates. This pipe had been taken out of service by Key in October of 1975 and stored in Enen’s Singapore yard. Key gave Reed a receipt showing that the pipe was “Class III.” Reed never showed the receipt to Kisch.

Reed hired Veteo, a commercial inspection company, to inspect the pipe for Israel Oil. Veteo inspected ten joints of the pipe and submitted a report to Reed certifying that these ten joints were “Class II” pipe. On the basis of this inspection report, Reed’s representations as to the class of the pipe, and a visual inspection, Kisch approved the purchase of the pipe.

During the purchase negotiations, Kisch and Reed discussed a contract to provide labor for the rig’s operation. While Reed was in Israel in March of 1976 to pursue this contract, an inspection of 49 joints of the pipe in Israel revealed that it was “Class III” or “Class IV” pipe.

As a result of meetings with Kisch, and later with David Schlosberg, an attorney for Israel Oil, Reed signed two sworn statements admitting his liability for Israel Oil’s losses, and a letter agreement and promissory note providing for restitution.

Reed ultimately defaulted in payment of the note and broke off communication with Israel Oil. Israel Oil then sued Reed and Jack Enen, Jr., and accepted a $53,644 settlement from Enen & Associates, which was never sued.

Appellant’s first two points of error contend that the trial court erred in rendering judgment for plaintiff under the 1975 version of the Texas Deceptive Trade Practices Act because there was no evidence, or insufficient evidence, that plaintiff Israel Oil was a “consumer” under that act, and because the finding of “consumer” was against the great weight and preponderance of the evidence.

The proper predicate for a legal insufficiency, or “no evidence,” point of error is either a motion for instructed verdict, an objection to the submission of a vital fact issue, a motion to disregard a jury finding, a motion for judgment non obstante vere-dicto, or a motion for new trial that distinctly raises the “no evidence” point. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 362 (1960).

Appellant presented no motion for instructed verdict. He did file a motion for judgment on the verdict, a motion for new trial, and a motion to vacate, correct or reform judgment, but in none of these motions does he distinctly raise the “no evidence” point he now urges. Likewise, appellant filed no motion for judgment non obstante veredicto.

Whether or not a plaintiff is a consumer is a question of law to be determined by the trial court from the evidence. If the trial court concludes that a plaintiff is not a consumer, it will not submit jury questions as to the violation of the terms of the Act. Ridco v. Sexton, 623 S.W.2d 792, 795 (Tex.App.—Fort Worth 1981, no writ). Since the trial court did submit jury questions as to the violation of the terms of the DTPA by Special Issues No. 1 and No. 3, it can be presumed that the trial court concluded that plaintiff was a consumer under the Act.

Furthermore, appellant’s only objections to these two issues were (1) that the definition of the term “recklessly” in issue number 1 was erroneous, and (2) that issue number 3 did not state the basis for any legal ground of recovery because it “does not inquire as to whether the Defendant made any misstatement as to any material fact.” These two objections do not reach the “no evidence” point complaining that plaintiff is not a consumer. Hence, no proper predicate was laid in the trial court for our consideration of appellant’s “no evidence” point of error.

In determining factual insufficiency of the evidence, or “great weight and preponderance” points, this court must consider and weigh all of the evidence, including any evidence contrary to the jury's finding on the special issues. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The judgment entered by the trial court herein stated that “[b]ased on the findings of the jury, judgment should be rendered for plaintiff under the [DTPA] as it was prior to the 1977 amendments thereto, but after amendments thereto added in 1975.”

Section 17.45(4) of the DTPA, as amended in 1975, defined a “consumer” as follows:

(4) ‘Consumer’ means an individual, partnership or corporation who seeks or acquires, by purchase or lease, any goods or services.

Section 17.45(1) defined “goods” as follows:

(1) ‘Goods’ means tangible chattels or real property purchased or leased for use.

Finally, sec. 17.45(2) of the Act defined “services” as follows:

(2) ‘Services’ means work, labor, or services purchased or leased for use, for other than commercial or business use, including services furnished in connection with the sale or repair of goods.

The appellant argues that the trial court’s judgment was in error because: (1) the plaintiff did not plead and prove that it was a “consumer” and failed to obtain a jury finding to that effect; (2) the plaintiff purchased the pipe for commercial purposes, i.e., for use in production of other goods, and therefore does not fit within the Act’s definition of consumer; and, (3) the plaintiff was a “governmental entity”, and therefore not a “consumer” under the 1975 version of the Act. Each of these arguments is without merit.

In order to maintain a private cause of action for treble damages under sec. 17.50 of the Act, the complainant must qualify as a “consumer,” as defined in sec. 17.45(4) of the 1975 version of the Act. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 538 (Tex.1981); Riverside Nat’l Bank v. Lewis, 603 S.W.2d 169, 173 (Tex.1980). The plaintiff has the burden of proof on all elements of his cause of action under the Act, including proof that he was a consumer. Farmers and Merchants State Bank v. Ferguson, 617 S.W.2d 918, 920 (Tex.1981). The Act does not require that a complainant use the word “consumer” to describe himself in pleading his cause of action; however, he must allege facts which show him to be a person within the statutory definition of “consumer.” First Title Co. of Corpus Christi v. Cook, 625 S.W.2d 814, 817 (Tex.App.—Fort Worth 1981, writ dism’d); Cameron, supra; Ridco, supra.

Plaintiff’s Fourth Amended Original Petition did not specifically allege that it was a “consumer” as defined in sec. 17.45(4) of the Act. However, it did allege the following: that defendant Reed sold plaintiff a quantity of drill pipe which Reed represented and warranted was merchantable and usable for its intended purposes; that the plaintiff relied on these representations made by the defendant and purchased the pipe; that the pipe was in fact worthless and unusable for the purpose intended; that the plaintiff suffered damages because of the defendant’s false representations; that because of these false and misleading representations the defendant violated the Texas Deceptive Practices — Consumer Protection Act; and, that because of such violation of the Act, plaintiff’s damages should be trebled as provided by the Act.

A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. Tex.R.Civ.P. 45 and 47. The court will look to the pleader’s intendment and will uphold the pleading even if some element of a cause of action has not been specifically alleged. Every fact will be supplied that can reasonably be inferred from what is specifically stated. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982); Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594, 599 (Tex.1963).

Since plaintiff’s petition specifically alleged that the defendant had violated the DTP A, it can reasonably be inferred that the plaintiff is alleging that it meets the Act’s definition of “consumer.” The purpose of Rules 45 and 47, Tex.R.Civ.P., is to give the opposing party sufficient information to enable him to prepare a defense. Roark, supra, at 810; Murray v. O & A Express, Inc., 630 S.W.2d 633 (Tex.1982). An allegation in its petition that the defendant violated the DTPA is equivalent to a plea that the plaintiff is a consumer under the Act. Further, the record shows that plaintiff proved that it was a consumer under the Act. The evidence shows that the plaintiff, through its agent, purchased a quantity of drill pipe from the defendant to be used by the plaintiff on its oil rig.

In this regard, appellant contends that the plaintiff is not a “consumer” because it failed to obtain a jury finding to that effect, citing Farmers and Merchants State Bank v. Ferguson, supra. Ferguson is not controlling in our case and is clearly distinguishable. The supreme court in Ferguson held that the plaintiff failed to carry its burden to show that the “services” rendered by the defendant were for personal use and not for business use and therefore did not show he was a consumer. Our case deals with “goods” and not with “services.” Under the Act, services purchased must be for a personal and not a business use to qualify their buyer as a consumer. “Goods” are not restricted by the Act as are “services.” The undisputed evidence in our case clearly shows that the purchase was for “goods,” as defined by sec. 17.45(1) of the Act.

Without objection, the trial court submitted special issues inquiring about a violation of the terms of the Act. If the trial court were to conclude that a plaintiff is not a consumer, it would not submit jury questions as to the violation of the Act’s terms. Ridco, 623 S.W.2d at 795. By Special Issue 3, the court inquired whether the purchase of the drill pipe (goods) by the plaintiff was induced by the false or misleading representations made by the defendant, and the jury answered in the affirmative. The judgment entered stated that it was rendered for the plaintiff under the DTPA based on the jury’s findings.

Appellant likewise contends that plaintiff is not a “consumer” under the Act because it purchased the drill pipe for commercial purposes, i.e., for use in the production of other goods, citing Ratcliff v. Trenholm 596 S.W.2d 645 (Tex.Civ.App.—Tyler 1980 on appeal after remand, 636 S.W.2d 718 (Tex.App.—Dallas 1982, writ granted), rev’d on other grounds, 646 S.W.2d 927 (Tex.1983). We disagree. While Ratcliff states that “the purchase of goods ... for use in the production of other goods, is not within the contemplation of the DTPA,” Id. at 649, the basis for the holding that the plaintiffs were not consumers under the Act was that the Ratcliff plaintiffs acted as merchants in the purchase and resale of the lots, and “did not acquire the lots to hold, occupy, or enjoy, nor to convert the same to their own service,” and therefore occupied the status of “merchants” rather than “consumers.” Id. Appellant cites no other decision to support his argument that goods used in production are not covered by the Act.

In Rotello v. Ring Around Products, Inc., 614 S.W.2d 455 (Tex.Civ.App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.), it was held that the seed purchased was goods and the plaintiffs were consumers, despite the fact that the seed was to be used in a commercial farming operation. Id. at 460.

Appellant’s final contention in points of error 1 and 2 is that the plaintiff was a “governmental entity,” and therefore was not a “consumer” under the 1975 version of the Act. The DTPA’s 1975 version included corporations within the definition of “consumer.” However, not until 1977 was this definition amended to include a “governmental entity.” Appellant contends the evidence demonstrates that plaintiff was a “governmental entity” when this cause accrued, and because the 1975 and not the 1977 version of the Act is applicable, plaintiff is not entitled to judgment under the Act as a consumer.

Plaintiff’s operative pleading alleged plaintiff to be a corporation organized under and by virtue of the laws of Israel, and neither defendant’s amended answer nor his supplemental answer contained a sworn denial that the plaintiff was a corporation. Rule 52, Tex.R.Civ.P., states:

An allegation that a corporation is incorporated shall be taken as true, unless denied by the affidavit of the adverse party, his agent or attorney, whether such corporation is a public or private corporation and however created.

Appellant’s failure to deny under oath that Israel Oil is a corporation dispensed with the necessity that plaintiff prove that fact. Galleria Bank v. Southwest Properties, Inc., 498 S.W.2d 5, 7 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ). Despite the lack of need for plaintiff to prove that it is a corporation, the evidence at trial shows that the Israel National Oil Company fits the description of a public corporation, as defined in Miller v. Davis, 150 S.W.2d 973, 978 (Tex.1941). As a public corporation, the Israel National Oil Company comes within the definition of “consumer” in the 1975 version of the DTPA. Appellant’s points of error 1 and 2 are overruled.

Points of error 3, 4, 5, 6, 7, 8, and 10 pertain to Special Issues Nos. 3 and 7(3), upon which the trial court based its judgment for plaintiff under the DTPA. These issues read as follows:

SPECIAL ISSUE NO. 3
Do you find, from a preponderance of the evidence, that, knowing Israel National Oil Company to be misled as to material facts concerning the quality of the drill pipe, Reed intentionally kept Israel National Oil Company misled by concealing material facts from Israel National Oil Company, thereby inducing purchase of the pipe, to the financial loss of Israel National Oil Company, proximately caused by the purchase of the pipe? Answer: “We do” or “we do not”.
WE THE JURY ANSWER: We do
SPECIAL ISSUE NO. 7
Do you find, from a preponderance of the evidence, that with respect to the sale of the drill pipe to Israel National Oil Company Reed did one or more of the following?
Answer: “Yes” or “No” to each item:
1. Represented to Israel National Oil Company that the drill pipe was of a particular quality or class which it was not. _ No
2. Represented to Israel National Oil Company that the drill pipe had certain uses that it did not. _ No
3. Caused confusion or misunderstanding as to the quality of the pipe. Yes _

The appellant contends that the court erred in rendering judgment for plaintiff under the Act because:

(1) Special Issue No. 7(3) does not conform to sec. 17.46(b)(2) of the Act;
(2) there was no jury finding sufficient to support a judgment' based on an alleged violation of sec. 17.46(b)(2) or sec. 17.46(a) of the Act;
(3) there was no evidence that the defendant violated sec. 17.46(b)(2) or sec. 17.46(a) of the Act;
(4) there was insufficient evidence to hold the defendant liable under sec. 17.46(b)(2) or sec. 17.46(a) of the Act; and,
(5) Special Issue No. 3 did not inquire about matters that would support a legal theory of recovery.

Section 17.46(a) of the Texas Deceptive Trade Practices Act states that:

(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and are subject to action by the consumer protection division under Sections 17.47, 17.58, 17.60 and 17.61 of this code.

Subsection (b)(2) of section 17.46 states:

(b) Except as provided in Subsection (d) of this section, the term “false, misleading, or deceptive acts or practices” includes, but is not limited to, the following acts:
(2) causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services.

Appellant first argues that because Special Issue 7(3) does not conform to the precise language of the Act’s sec. 17.-46(b)(2), there is no jury finding to support the court’s judgment as to a violation of that subsection.

The deceptive acts or practices listed in sec. 17.46(b) do not form an exclusive list. This subsection specifically states that the classification of the condemned practices “includes, but is not limited to,” this list. Spradling v. Williams, 566 S.W.2d 561, 564 (Tex.1978). Special issue 7(3) is not in the precise language of subsection (b)(2) and is, in fact, a combination of the language contained in subsection (b)(2) and (b)(7) of 17.46.

While issues in deceptive trade practice cases for 17.46(b) violations should be submitted in terms as close as possible to those actually used in the statute, the statutory language may be altered somewhat to conform the issue to the evidence of the case. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 937 (Tex.1980).

The appellant contends that Brown mandated that special issues in DTPA cases conform precisely to “laundry list” items in 17.46(b). To the contrary, Brown held that the issues submitted in broad form were proper because they followed “closely the wording of the statute with alterations or deletions to conform the issues to the pleadings and evidence.” Brown, 601 S.W.2d at 937.

In Pennington v. Singleton, 606 S.W.2d 682, (Tex.1980), the supreme court further spoke to the broad submission of special issues in DTPA cases approved in Brown:

Some overlap may occur as a result of broadly interpreting the listed violations in Section 17.46(b). A broad interpretation is warranted, however, due to human inventiveness in engaging in deceptive or misleading conduct. The legislature did not intend its express purpose of protecting consumers from false trade practices to be circumvented by those who would seek out loopholes in the Act’s provisions. (Emphasis added).

606 S.W.2d at 687.

The appellant specifically complains of the use of the word “quality” in Special Issue 7(3) instead of the words “source, sponsorship, approval, or certification” used in 17.46(b)(2). The appellee responds that in this case the “quality” of the drill pipe was equivalent to “certification,” and that confusion as to “quality” would be essentially the same thing as confusion as to “certification.” The Corpus Christi Court of Civil Appeals found in the case of Jim Walter Homes, Inc. v. Chappa, 614 S.W.2d 838, 841 (Tex.Civ.App.—Corpus Christi 1981, writ ref’d n.r.e.) that a misrepresentation of “good, substantial, workmanlike manner” of construction was a sufficient submission to allege a violation of sec. 17.46(b)(7), which states:

(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another

Further, appellant made no objection to the wording of Special Issue 7(3) as submitted, and thereby failed to preserve error for appeal. Rule 274, Tex.R.Civ.P.

Appellant next contends that because Special Issue No. 3 does not conform to any of the “listed” violations set out in 17.46(b), and because there was no finding that any of the acts constituted a “false, misleading, or deceptive act or practice,” under 17.46(a), the judgment is not supportable under the DTP A.

An act or practice which is not among those listed in section 17.46(b) may still be a deceptive trade practice under see. 17.46(a), but requires a jury issue to determine as a matter of fact whether it was deceptive. Spradling, 566 S.W.2d at 566; Prairie Cattle Co. v. Fletcher, 610 S.W.2d 849, 853 (Tex.Civ.App.—Amarillo 1980, writ dism’d).

No issue was submitted inquiring whether the acts contained in Special Issue Number 3 were false, misleading or deceptive. However, appellant did not object to Special Issue No. 3’s submission of this theory of recovery. One of appellant’s objections was that

Special Issue No. 3 does not state the bases [sic] for any legal ground of recovery. And if Special Issue No. 3 were answered “We do,” such could not be the legal basis for any judgment in that Special Issue No. 3 does not inquire as to whether the Defendant made any material fact, [sic] or that he knew a material fact to be misunderstood by the Plaintiff at the time of the purchase.

While special issues no longer need be submitted “separately and distinctly” (Rules 277 and 279, Tex.R.Civ.P.), objection to a charge must be made “distinctly” and “specifically.” If there is a variance between pleadings and proof, the distinct variance or other defect must be stated in the objection or it is waived. Rule 274, Tex.R.Civ.P.; Brown, 601 S.W.2d at 938. Appellant’s quoted objection fails to point out distinctly and specifically the court’s omission of an issue asking whether the acts inquired about were deceptive trade practices.

The missing issue, asking whether the acts inquired about in Special Issue No. 3 are deceptive trade practices, is a controlling issue that is one of a cluster of issues embodying a theory of recovery. Since no distinct and specific objection was made to its omission and there was evidence to support a finding that the acts were deceptive trade practices, we must deem it found by the trial court “in such manner as to support the judgment” under the language of Rule 279. Prairie Cattle Company, 610 S.W.2d at 854.

Both Special Issues 3 and 7(3) are sufficient to support the plaintiffs DTPA judgment. Special Issue No. 3 resulted in a finding of fact that the defendant intentionally kept the plaintiff misled by concealing material facts as to the drill pipe, a DTPA violation under sec. 17.46(a). Although Special Issue No. 7(3) did not precisely track the language of sec. 17.-46(b)(2), it sufficiently alleged a false, misleading or deceptive act under see. 17.46(a). Appellant likewise made no objection to the court’s failure to submit an issue asking whether the act inquired about in special issue number 7(3) was a deceptive trade practice. Again, Rule 279 provides that this missing element that will support the judgment must be deemed found.

By points of error 4, 5, 7, and 8, appellant contends that there was no evidence, or insufficient evidence, that he violated sec. 17.46(b)(2) or sec. 17.46(a) of the Act, and that the judgment of the trial court was therefore in error.

In considering “no evidence” points, this court must consider only the evidence favorable to the jury’s finding and disregard all evidence or inferences to the contrary. Goodyear Tire & Rubber Co. v. Jefferson Construction Co., 565 S.W.2d 916 (Tex.1978).

The appellant maintains that there was no evidence admitted during the trial, and the jury was not asked to find, that there was any confusion about the “source, sponsorship, approval, or certification of goods” so as to support a judgment based on a violation of sec. 17.46(b)(2) of the Act. He also maintains that there was no evidence or insufficient evidence to support a finding that the plaintiff had been misled, so as to support a judgment based on sec. 17.-46(a) of the Act.

As with special issue number 7(3), discussed above, it did not matter that the issue was not worded in the precise language of sec. 17.46(b)(2) in order for the finding to support a DTPA judgment. The only question is whether there was any evidence or sufficient evidence in the record to show that the act listed in issue 7(3) was a false, misleading, or deceptive act.

There is evidence in the record to show that, as found in Special Issue 7(3), appellant caused confusion or misunderstanding as to the “quality” of the pipe plaintiff purchased. When Reed purchased the pipe from Key, Key gave him a receipt that showed the pipe to be “Class III” pipe. Reed’s testimony showed that he knew of this classification before he sold the pipe to the plaintiff, and that none of Israel Oil’s representatives knew about the information on this receipt prior to his sale to Israel Oil. In addition, Reed knew that Israel Oil was purchasing the pipe based on the Veteo inspection report he supplied showing “Class II.” This evidence is sufficient to show (1) that Reed caused confusion or misunderstanding as to the quality of the pipe, and (2) that the plaintiff was misled and relied on appellant’s representations concerning its quality. The evidence is sufficient to support the judgment. In re King’s Estate, supra. Appellant’s points of error 3, 4, 5, 6, 7, 8, and 10 are overruled.

Appellant contends in his point of error 9 that the trial court erred in submitting Special Issue Number 3 because the issue constituted a comment on the weight of the evidence, in that use of the word “misled” implied to the jury that the court had concluded the plaintiff had in fact been misled. The portion of the issue about which appellant complains reads: “Do you find ... that, knowing [plaintiff] to be misled as to material facts concerning the quality of the drill pipe, Reed intentionally kept [plaintiff] misled by .... ” Appellant asserts that there was no evidence or insufficient evidence to support a finding that plaintiff had been misled, or that Reed knew that plaintiff had been misled.

All of plaintiff’s witnesses testified that plaintiff was misled by Reed’s actions as to the class or grade of all the pipe joints. Further, Reed never told Kisch where he had gotten the pipe, or that it was Class III. Kisch testified that Reed “led him to believe” that the pipe was Class II as indicated by the Veteo report, and that he would not have purchased it if he had known either the price Reed paid for it or that it was Class III.

While a trial court must not comment directly in its charge on the weight of the evidence, a charge will not be objectionable if it incidentally does so. Rule 277, Tex.R.Civ.P. Because the testimony outlined above was undisputed, and shows that the plaintiff was initially misled as to the quality or class of pipe, we find that the use of the term “misled” was not a direct comment by the court on the weight of the evidence, but incidental at most. Appellant’s point of error 9 is overruled.

By his point of error number 11, appellant asserts that the trial court erred in rendering judgment under the DTPA because that statute by its own terms does not apply to the transaction in question. This is so, he asserts, because the evidence shows that the transaction in question did not in any way, directly or indirectly, affect the people of the State of Texas, and the mere fact that appellant was a Texas resident at the time suit was filed does not make the DTPA applicable. He cites no authority in support of this contention.

In the 1975 version of the DTPA, “trade and commerce” was defined in sec. 17.45(6) as:

[T]he advertising, offering for sale, sale, lease or distribution of any good or service ... wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this state. (Emphasis added).

Contrary to appellant’s contention, the evidence shows that, at the time of his sale of the pipe to the plaintiff, Reed resided in Houston, had his base of operations in Houston, and placed the proceeds of the sale in his Houston bank account. Jack Enen, his partner in the transaction, was also a Houston resident.

The quoted definition of trade and commerce in the Act covers the sale of any good or service “wherever situated.” The fact that the pipe was situated in Singapore and sold to Israel National Oil does not make the Act inapplicable. Furthermore, most of the discussions regarding repayment of the losses sustained by Isreal Oil took place while Reed was in Houston. We find that the sale of this pipe was “trade or commerce directly or indirectly affecting the people of this state,” as defined by sec. 17.45(6) of the Act. Appellant’s point of error number 11 is overruled.

Appellant’s point of error number 12 urges that the trial court erred in rendering judgment for treble damages because the plaintiff did not provide the notice required by the Act’s provisions applicable at the time plaintiff amended its petition to assert its DTPA action.

Plaintiff stipulated that it did not provide the defendant notice of its claims under the DTPA. The 1975 version of the Act, applicable at the time of plaintiff’s original filing of this suit, made no requirement that a plaintiff provide the defendant written notice of its claim. The Act was amended in 1977 to provide that a plaintiff could not recover treble damages if the defendant:

(2) proves that he had no written notice of the consumer’s complaint before suit was filed. Tex.Bus. & Com.Code, sec. 17.50A (1977). (Emphasis added).

Plaintiff’s original suit was filed in 1976, and its Fourth Amended Original Petition, which added the DTPA cause of action, was filed in 1983. The appellant contends that because the DTPA cause of action was not added until 1983, the procedural notice provision of the Act’s 1977 amendment applies, although the substantive provisions of the 1975 version apply since the cause of action accrued at that time.

Appellant cites cases illustrating the undisputed rule that DTPA notice provisions effective at the time of filing a DTPA cause of action should govern. He suggests that where an original suit is later amended to state a DTPA cause of action, the notice provisions in effect at the time of amendment should apply. In none of the cases he cites, however, was a plaintiff’s original action amended, as it was here, to add a DTPA theory of recovery based on facts already set out in the original petition. We find that the “relation back” theory applied in Providence Hospital v. Truly, 611 S.W.2d 127 (Tex.Civ.App.—Waco 1981, writ dism’d), governs our fact situation.

In Truly, the plaintiff filed a negligence cause of action in 1977, and amended his pleading in 1979 to add a DTPA claim. In overruling appellant’s contention that the DTPA action was barred by the two year statute of limitations applicable to an action based on implied warranty, the court cited art. 5539b, Tex.R.Civ.Stat.Ann. (Vernon 1958), which provides for a “relation back” of pleadings based on the same “transaction or occurrence.” Section 17.-50A, added by the DTPA’s 1977 amendments, states specifically that the required notice must come “before suit was filed;” it does not speak to causes of action added by amended pleadings. Appellant’s point of error number 12 is overruled.

Appellant contends in its points of error 13 and 14 that the trial court erred in failing to deduct the stipulated credit prior to trebling damages and prior to entering judgment that included prejudgment interest.

By their answers to Special Issue No. 4 and No. 8, the jury found that the plaintiff sustained $72,407.70 in actual damages. In answering these issues, the jury was instructed not to consider the credit referred to in the parties’ stipulation. The plaintiff stipulated that the defendant was,entitled to “a net credit, as of April 20, 1977, of $53,644.00 against the alleged losses of Israel National Oil Company asserted in this suit against Robert W. Reed.”

The Texas Supreme Court held in Smith v. Baldwin, 611 S.W.2d 611 (Tex.1981), that offsets should be applied prior to trebling and stated:

The actual damages suffered under sec. 17.50(b)(1) are determined by the total loss sustained by the plaintiff as a result of the deceptive trade practices. Allowable setoffs will necessarily reduce the actual damages and hence, the sum subject to trebling.

Id. at 617. This holding was reiterated in Durham v. St. John, 645 S.W.2d 261 (Tex.1983), and this court applied the same principle in Dickinson State Bank v. Ogden, 624 S.W.2d 214, 221 (Tex.Civ.App.—Houston [1st Dist.j 1981), rev’d on other grounds, 662 S.W.2d 330 (Tex.1984).

An exception to the Baldwin rule is set out in Providence Hospital v. Truly, supra, where the Waco court held that the offset will be credited after the trebling when it is paid by a settling third party not sued under the Act.

Set-off “is the doctrine of bringing into the presence of each other the obligation of A to B and B to A and by the judicial action of the court making each obligation extinguish the other.” Dickinson State Bank at 221, citing Nalle v. Harrell, 118 Tex. 149, 12 S.W.2d 550 (1929). In this vein, the appellee argues that Baldwin, Durham, and Dickinson State Bank are not controlling because each of those cases dealt with off-sets between the parties, not with settling third-parties not sued under the Act. None of these cases is inconsistent with the holding in Truly. In our case, the source of the stipulated credit is a settling third-party who was not sued under the DTPA cause of action. Following the rationale of Truly, we hold that the trial court correctly trebled the actual damages found by the jury prior to deducting the credit.

Appellant cites no authority for his position under point of error number 14 that the stipulated credit should be deducted from the actual damages before interest is charged. His argument, the same as under point of error number 13, is that if the offset is allowed prior to trebling, it should also be allowed prior to the calculation of interest. Since the trial court did not err in refusing to deduct the credit before trebling, there was no error in entering judgment which included prejudgment interest calculated before deducting the credit. Appellant’s points of error 13 and 14 are overruled.

Appellee’s two cross-points are predicated upon its request for alternative relief in the event we deny the relief he sought and was granted under the DTP A. Since both cross-points are moot, we do not consider them.

The judgment is affirmed.