

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                             Memorandum
Opinion
 
David Hoelscher
Appellant
Vs.                   No.
11-02-00276-CV B Appeal from Howard County
Ackerly Oil Company, Inc. d/b/a Trio Fuels
Appellee
 
This is an
appeal of a default judgment.  Ackerly
Oil Company, Inc. d/b/a Trio Fuels sued 
David Hoelscher, seeking the unpaid balance of $16,908.78 owed Ackerly
Oil on Hoelscher=s account. 
The trial court entered a default judgment in favor of Ackerly Oil for
$16,908.78 plus interest and attorney=s fees.  Hoelscher appeals.  We affirm.
In a
single issue, appellant contends that the evidence was insufficient to support
the default judgment.  We will treat
appellant=s complaint as a Ano-evidence@ or Alegally insufficient@ contention because appellant did not include
in his motion for new trial a point complaining of the Afactual insufficiency@ of the evidence.  TEX.R.CIV.P. 324(b)(2).
Citing
Cook v. Goodyear Service Stores, 624 S.W.2d 761 (Tex.App. - Houston [14th
Dist.] 1981, no writ), appellant argues that the sworn account was defective
and that the trial court was required to hear evidence as to damages pursuant
to TEX.R.CIV.P. 243.  Appellee correctly
points out that the trial court did hear evidence and that the judgment reached
by the court was based upon testimony.




Charles
Wesley Dunnam testified that he was president of Ackerly Oil Company, Inc.
d/b/a Trio Fuels and that Ackerly Oil provided appellant with certain petroleum
products.  Dunnam stated that charges
made for the products were the usual and customary charges for similar products
in the Big Spring area.  Dunnam
testified that the balance due for the products was $16,908.78.  Dunnam stated that $16,908.78 was the balance
owed after all payments and credits had been given to appellant.  Dunnam=s testimony of the total amount due is legally sufficient to support
the default judgment.  Texas Commerce
Bank National Association v. New, 3 S.W.3d 515, 517 (Tex.1999).  Appellant=s issue is overruled.
The
judgment of the trial court is affirmed.
 
AUSTIN
McCLOUD
SENIOR
JUSTICE
 
March 6, 2003
Panel consists of:  Wright, J., and
McCall, J., and McCloud, S.J.[1]




[1]Austin McCloud, Retired Chief Justice, Court of
Appeals, 11th District of Texas at Eastland sitting by assignment.


