                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00143-CV


LARRY C. CABELKA                                                     APPELLANT

                                        V.

KELLY EUGENE SCHMALTZ, ERIC                                          APPELLEES
SCHMALTZ, AND KYLE
SCHMALTZ


                                     ----------

          FROM THE 97TH DISTRICT COURT OF ARCHER COUNTY

                                     ----------

                         MEMORANDUM OPINION 1

                                     ----------

      Appellant Larry C. Cabelka appeals from the trial court’s judgment ordering

that Appellee Kelly Eugene Schmaltz 2 recover from Cabelka damages of $2,000


      1
       See Tex. R. App. P. 47.4.
      2
       Schmaltz did not file a brief in this case, and neither did Eric Schmaltz or
Kyle Schmaltz. Eric and Kyle are Kelly’s sons. They did not appear at trial, and
no judgment was rendered against them.
plus post-judgment interest and court costs. Because we hold that the evidence

was sufficient to support the judgment, we affirm.

          In 2006, Cabelka sued Schmaltz for breach of contract and conversion.

He later amended his petition to add a claim for trespass. Schmaltz countersued

for breach of contract, conversion, and fraud.

          The case was tried to the bench in July 2009. In January 2013, the trial

court signed a judgment that awarded Cabelka $18,000 in damages on his

breach of contract claim, awarded Schmaltz $20,000 for the loss of the value of

the tanker trailer, ordered Cabelka to pay Schmaltz the difference of $2,000, and

denied all other relief. Cabelka now appeals.

          Cabelka’s first issue asks whether the trial court abused its discretion by

failing to promptly dispose of the case. He argues that the trial court abused its

discretion by failing to promptly rule after trial was held and therefore rendered an

incorrect judgment.

          The record does not reflect the reason for the delay between the trial and

the date the judgment was signed. The clerk’s record contains a December 31,

2012 letter from the trial court to the attorneys for the parties requesting them to

prepare a proposed judgment in accordance with its decision as reflected in the

letter.    By a letter dated January 8, 2013, the attorney for the Schmaltzes

submitted a proposed judgment. The trial court signed a judgment on January

22, 2013.




                                           2
      Cabelka candidly acknowledges in his brief that the only authority he could

find on the question of how long a trial court may take to render a judgment is a

canon of the code of judicial conduct stating that “[a] judge should dispose of all

judicial matters promptly, efficiently[,] and fairly.” 3 We agree that the long delay

between the trial and the final judgment in this case is not ideal. But Cabelka

does not make any argument about how he was harmed by the delay, other than

the assertion that over time, one is apt to forget things. 4 And although the rules

of civil procedure allow either party to submit a proposed judgment to the trial

court, the record does not reflect that either party submitted a proposed judgment

or moved for judgment at any time before the trial court’s letter. 5 If Cabelka was

concerned about the passage of time, he was free to take some step to spur the

trial court into faster action. We overrule Cabelka’s first issue.

      Cabelka’s second issue asks whether the trial court abused its discretion

by disregarding undisputed evidence. Based on the content of his argument, we

conclude that Cabelka challenges both the legal and factual sufficiency of the

evidence on the ground that the trial court’s finding of $20,000 as the value of a

Polar tank trailer owned by Schmaltz is not supported by any evidence. Cabelka

asserts that “the record shows multiple valuations of the Polar Tank Trailer at

      3
        See Tex. Code Jud. Conduct, canon 3B(9), reprinted in Tex. Gov’t Code
Ann., tit. 2, subtit. G, app. B (West 2013).
      4
       See Tex. R. App. P. 44.1.
      5
       Tex. R. Civ. P. 305.


                                          3
$10,000 but no where [sic] is it valued at $20,000” and that “[t]he only point in

trial where a party attempted to put that value on the Polar Tank Trailer, it was

objected to and the objection was sustained.” And he further asserts that “the

parties had previously agreed that the value of the Polar Tank Trailer was

$10,000.00,” “[b]oth parties had signed the document agreeing that was the

price,” and “[t]he price was never disputed in the record.”

       At trial, the parties agreed that in 2001, they agreed to a trade of various

items of personal property and some real property owned by Schmaltz. The

parties disagreed whether the parties had agreed to trade the tanker trailer for a

combine trailer owned by Cabelka or whether the parties had agreed that

Schmaltz would buy the combine trailer. They also disagreed about the value of

the tanker trailer.

       Cabelka and Schmaltz did not have a formal written contract containing the

terms of their agreement to trade real property for personal property, but they did

list several items on an invoice form and included a dollar amount next to each

item on the list. This form was signed by both Cabelka and Schmaltz. The

tanker trailer was listed on the document with the amount “$10,000” listed next to

it. At trial, both parties gave testimony that the $10,000 did not accurately reflect

the value of the tanker trailer.    Schmaltz testified that it was worth between

$15,000 and $20,000, while Cabelka testified that it was worth $9,000 at most.

       Cabalka is correct that the invoice form lists a value for the tanker trailer at

$10,000. And at one point during the trial, the trial court sustained Cabelka’s


                                           4
objection to Schmaltz’s valuation testimony as nonresponsive. But that was not

the only testimony about the tanker trailer’s value. Schmaltz was later asked

whether he agreed that the fair market value of the tanker trailer was $10,000,

and he answered,

             A    No. The trailer valued between 15- and 20,000.
      [Cabelka] had come up with this amount so that the tax value of the
      house could come down because it appraised for over 135,000 at
      that time.

            Q      Did [Cabelka] ever say that in your presence?

             A    Yeah. He—yeah. And I agreed that it didn’t matter, the
      dollar amount.

            Q      Didn’t matter to you?

            A      No. It didn’t matter to me.

            Q     And so the numbers that are placed beside each of
      those items, were those numbers that you came up with or [Cabelka]
      came up with?

            A      [Cabelka] came up with them.

      This testimony is some evidence that Cabelka had written down the

valuations on the invoice form for purposes of lowering the tax value of the real

property and that the amounts were not necessarily a reflection of the actual fair

market value of the items. It is also some evidence that the trailer has a fair

market value of between $15,000 and $20,000. Cabelka does not argue that

Schmaltz was not qualified to give an opinion as to the trailer’s value, and he did

not object to this testimony at trial. 6 Having reviewed the record, and applying

      6
       See Tex. R. App. P. 33.1.


                                           5
the appropriate standards of review, 7 we cannot say that the evidence was

insufficient to support trial court’s judgment.   We overrule Cabelka’s second

issue.

         Having overruled both of Cabelka’s issues, we affirm the trial court’s

judgment.




                                                   /s/ Lee Ann Dauphinot
                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: May 22, 2014




         7
       City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005); Uniroyal
Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied,
526 U.S. 1040 (1999); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)
(op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).


                                        6
