IN THE
TENTH COURT OF APPEALS
No. 10-95-060-CV
     LYNN OWENS, INDIVIDUALLY, ET AL.
                                                                                              Appellants
     v.
     W.A. POE,
                                                                                              Appellee
From the 13th District Court
Navarro County, Texas
Trial Court # 93-00-03805-CV
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MEMORANDUM OPINION
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      Lynn Owens attempts to appeal from an order denying his motion to recuse the presiding judge of the 13th District Court. See Tex. R. Civ. P. 18a(a). After Owens filed a "Verified Demand for Recusal Notice and Caveat," the court referred the request to the Presiding Judge for the Third Administrative Judicial Region, who designated a judge to hear the motion. See id. 18(d). The designated judge denied the motion on February 17, 1995. Owens filed a cost bond and a notice of appeal specifically stating that he wished to appeal from the order denying the motion to recuse.
      An order denying a motion to recuse is interlocutory. See Means v. State, 825 S.W.2d 260, 260 (Tex. App.âHouston [1st Dist.] 1992, no pet.). The Rules of Civil Procedure specifically provide that, "[i]f the motion is denied, it may be reviewed for abuse of discretion on appeal from the final judgment." Tex. R. Civ. P. 18a(f) (emphasis added). We do not have jurisdiction over interlocutory orders except for certain enumerated exceptions that do not include a motion to recuse. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.012, 51.014 (Vernon 1986 & Supp. 1995).
      We notified the parties of this defect by a letter from our clerk dated April 4, 1995, allowing ten days for either party to respond showing grounds for continuing the appeal. See Tex. R. App. P. 60(a)(2), 83. By an unsigned motion filed April 14, Owens requests ten additional days in which to respond. He has not shown why he needs the additional time or how the additional time will aid him in avoiding the plain language of the statute. See Tex. R. Civ. P. 18a(f). His request for more time is denied.
      Therefore, we dismiss this appeal for want of jurisdiction.
                                                                               PER CURIAM
Before Chief Justice Thomas,
      Justice Cummings, and
      Justice Vance
Dismissed for want of jurisdiction
Opinion delivered and filed April 19, 1995
Do not publish
Nguyen v. Short, How, Frels & Heitz, P.C.,108 S.W.3d 558, 562 (Tex. App.Dallas 2003, pet. denied). Kinnard contends that the parties tried those issues by consent, or that BrazielÂs suit was not properly one on a sworn account. Assuming without deciding that Kinnard may challenge those findings, we hold that the evidence supporting the findings was factually sufficient.
     ÂWhen we review factual sufficiency, we consider and weigh all of the evidence and will set aside the verdict only if it so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. City of Keller v. Wilson, 168 S.W.3d 802, 826 (Tex. 2005) (quoting Carter v. Steverson & Co., 106 S.W.3d 161, 166 (Tex. App.ÂHouston [1st Dist.] 2003, pet. denied)); see In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re KingÂs Estate, 150 Tex. 662, 665, 244 S.W.2d 660, 661 (1951).Â
     Kinnard challenges the sufficiency of the evidence only concerning one piece of equipment, a fryer. Kinnard points to evidence that he told Braziel that Kinnard intended to purchase a fryer from someone other than Braziel; that Kinnard did purchase a fryer from someone else; that Kinnard accepted delivery of the equipment, including the fryer, as an accommodation to Braziel; and that after Kinnard rejected the equipment, Braziel did not pick up the equipment, either because Kinnard said he was buying the equipment, or because the equipment was a fixture. Braziel points to evidence that Kinnard requested a list of equipment, for which Braziel quoted a price of $9,075.24, including a fryer; that Kinnard accepted delivery of the equipment; that Kinnard said, after delivery, that he was going to pay for the equipment; and that when Kinnard did not pay, Braziel attempted to pick up the equipment, but Kinnard would not let Braziel, on the ground that the equipment was a fixture. Considering all of this evidence, we hold that the evidence supporting the trial courtÂs findings of fact Nos. 13 through 17 was not contrary to the great weight and preponderance of the evidence. The evidence supporting those findings was factually sufficient.
     Next, Kinnard contends that the evidence supporting certain of the trial courtÂs findings of fact was legally insufficient. Kinnard complains of the following finding:
Braziel retained the law firm of Robertson, Robertson & Silas, Attorneys, L.L.P. to represent them in this suit and incurred reasonably and necessary attorneyÂs fees and expenses in the amount of $3,500 through date of trial.
([sic] C.R. at 19.)Â Kinnard challenges the sufficiency of the evidence of the amount of reasonable attorneyÂs fees.
     ÂA challenge to the legal sufficiency of the evidence by the party not having the burden of proof at trial is to be addressed by the reviewing court as a Âno evidence issue. Acadian Geophysical Servs., Inc. v. Cameron, 119 S.W.3d 290, 301 (Tex. App.ÂWaco 2003, no pet.) (quoting Gooch v. Am. Sling Co., 902 S.W.2d 181, 183-84 (Tex. App.ÂFort Worth 1995, no writ)); see Hazlewood Patterson Co. v. Hancock, No. 10-03-00274-CV, 2004 Tex. App. LEXIS 11314, at *14 (Tex. App.ÂWaco Dec. 15, 2004, pet. denied) (mem. op.) (attorneyÂs fees); Checker Bag Co. v. Washington, 27 S.W.3d 625, 640 (Tex. App.ÂWaco 2000, pet. denied) (attorneyÂs fees).
ÂNo evidence points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.
City of Keller, 168 S.W.3d at 810 (quoting Robert W. Calvert, ÂNo Evidence and ÂInsufficient Evidence Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)); see Kroger Tex. Ltd. PÂship v. Suberu, 49 Tex. Sup. Ct. J. 592, 594, 2006 Tex. LEXIS 441, at *9 (Tex. May 5, 2006). ÂThe final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. City of Keller at 827. The reviewing Âcourt must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support the verdict. Id. at 822. Â[L]egal-sufficiency review . . . must credit favorable evidence if jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. at 827.  Â
     BrazielÂs attorney testified that before the time of the first trial setting, Braziel had Âexpended $2,320.75 in attorneyÂs fees, that $150.00 per hour was a Âreasonable fee for the work, that he had contracted with Braziel at that rate, and that he had spent eight or nine hours on the case since the first setting, so that $3,500.00 was Âa reasonable total fee in this case. (1 R.R. at 59.) Viewing the evidence in the light most favorable to the trial courtÂs finding, and crediting that evidence that a reasonable factfinder could, we hold that there was more than a scintilla of probative evidence of reasonable attorneyÂs fees in the amount of $3,500.00. The evidence of BrazielÂs attorneyÂs fees was legally sufficient.
     We overrule KinnardÂs second issue.
     In KinnardÂs third issue, he contends that the trial court erred in ordering the amount of attorneyÂs fees and prejudgment interest included in the amount to be paid out of the proceeds of the lien foreclosure. Braziel agrees. We sustain KinnardÂs third issue.
     Having overruled KinnardÂs first and second issues and sustained his third issue, we modify the judgment as prayed for by Kinnard and affirm the judgment as so modified.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
     Justice Vance, and
     Justice Reyna
Modified and affirmed as modified
Opinion delivered and filed February 14, 2007
[CV06]
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