Shawn Ehmann v. Tanner Chase ( 2022 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-21-00037-CV
SHAWN EHMANN, APPELLANT
V.
TANNER CHASE, APPELLEE
On Appeal from the 31st District Court
Roberts County, Texas
Trial Court No. 2247, Honorable Steven Ray Emmert, Presiding
February 3, 2022
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Tanner Chase sued Shawn Ehmann for conversion of a vehicle and declaratory
judgment. The trial court granted summary judgment for Chase, from which Ehmann
appeals. We affirm.
Background
Chase purchased a 1993 Dodge pickup from Eric Bergquist in December of 2019
for $6,000. In June of 2020, Chase was incarcerated in the Ochiltree County Jail after
being found in contempt of court in an unrelated matter. During Chase’s incarceration,
his attorney parked the pickup in a yard by a shop building he owned in Perryton. He
placed the keys to the vehicle in a desk in his shop building. An acquaintance of Chase’s,
Kaci Courson, was living in an apartment at the building. Courson had been living with
Chase in another home prior to his incarceration.
Around thirty to sixty days after parking the vehicle, the attorney noticed that it was
missing. He asked Courson where the vehicle was and she told him she had moved it to
the farm of a family friend. However, in mid-September of 2020, the attorney learned that
Courson had sold the vehicle. He reported it as stolen.
Chase was released from jail on or about October 13, 2020. After hearing that
Ehmann had possession of the vehicle, he contacted Ehmann. Ehmann took the position
that Courson had sold the pickup to him and had the authority to do so. He declined the
demands made by Chase and Chase’s attorney to return the pickup.
In November of 2020, Chase sued Ehmann for conversion. Ehmann, proceeding
pro se, filed an answer to Chase’s complaint. Chase amended his pleadings to request
a declaration under the Declaratory Judgment Act that he is the owner of the pickup; he
pled conversion as an alternative claim. On December 21, 2020, Chase filed a motion
for summary judgment seeking possession of and title to the pickup. The motion was
supported by affidavits from Bergquist, Chase, and Chase’s attorney. Shortly thereafter,
the trial court set the motion for submission on January 25, 2021, stating that no oral
hearing had been requested and none was necessary. The trial court notified Ehmann
that any response should be filed seven days prior to submission.
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On January 5, 2021, Ehmann filed a response to Chase’s motion for summary
judgment which read in full, “As I represent myself I ask the judge to set a court hearing
because everyone I talk to and myself believe I have done nothing wrong. Thank you. I
will not settle out of court.”1
On January 25, 2021, the trial court signed a judgment granting Chase’s motion.
The judgment recited that the trial court reviewed the pleadings, the motion, the affidavits
and documentary evidence offered in support of the motion, “and the lack of a Response.”
The judgment ordered Ehmann to deliver possession of the pickup to Chase, to execute
any legal documents necessary to place title in Chase’s name, and to pay Chase $5,000
in attorney’s fees and costs. Ehmann brought this appeal.
Standard of Review
We review the trial court’s grant of summary judgment de novo. Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A traditional motion for
summary judgment requires the moving party to show that no genuine issue of material
fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);
Provident Life, 128 S.W.3d at 215-16. If the movant carries this burden, the burden shifts
to the nonmovant to raise a genuine issue of material fact precluding summary judgment.
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). In reviewing the grant
of summary judgment, we credit evidence favoring the nonmovant, indulging every
1 The record on appeal does not show that Ehmann brought his response to the trial court’s
attention.
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reasonable inference and resolving all doubts in his favor. Randall’s Food Markets, Inc.
v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).
Analysis
Ehmann raises six issues on appeal, arguing that Chase lacks standing to pursue
his claims, Chase failed to prove his conversion claim, genuine issues of material fact
preclude summary judgment, the trial court improperly disregarded Ehmann’s response
to Chase’s motion for summary judgment, Ehmann is a bona fide purchaser, and the trial
court erred by awarding attorney’s fees to Chase. We address each issue in turn.
Chase’s Standing to Sue
By his first issue, Ehmann asserts that Chase lacked standing to sue him because
he is not listed as the owner on the vehicle’s certificate of title. A challenge to the plaintiff’s
standing is a question of law we review de novo. Heckman v. Williamson Cty., 369
S.W.3d 137, 149-50 (Tex. 2012). Although Ehmann never raised standing in the trial
court, he may raise the issue for the first time on appeal because standing implicates the
trial court’s subject matter jurisdiction. See Nootsie, Ltd. v. Williamson Cty. Appraisal
Dist., 925 S.W.2d 659, 662 (Tex. 1996). If a plaintiff lacks standing to bring his claims,
the court must dismiss the action for want of jurisdiction. Heckman, 369 S.W.3d at 150-
51.
Standing requires a concrete injury to the plaintiff. Id. at 154. Under Texas law,
the inquiry into standing begins with the plaintiff’s alleged injury. Id. at 155. The plaintiff
must plead facts demonstrating that he, rather than a third party, suffered the injury. Id.
The inquiry “requires careful judicial examination of a complaint’s allegations to ascertain
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whether the particular plaintiff is entitled to an adjudication of the particular claims
asserted.” Id. at 156 (quoting Allen v. Wright, 468 U.S. 737, 752, 104 S. Ct. 3315, 82 L.
Ed. 2d 556 (1984)).
Ehmann relies on Grant v. Espiritu, 470 S.W.3d 198, 201-02 (Tex. App.—El Paso
2015, no pet.), as support for his argument that Chase lacks standing to sue because title
to the pickup is not in Chase’s name. However, a complete reading of Grant reveals that
the case does not support Ehmann’s position. Although Grant explains that evidence
showing a vehicle is titled in a person’s name raises a presumption that he owns the
vehicle, it also clarifies that the name in which a vehicle is titled is not conclusive of
ownership. Id. at 202. The presumption of ownership can be overcome by positive
evidence to the contrary. Id.; see also Perry v. Breland, 16 S.W.3d 182, 186 (Tex. App.—
Eastland 2000, pet. denied) (name on certificate of title is not conclusive of ownership);
Kelly v. Circle K Corp., No. 01-87-00778-CV, 1988 Tex. App. LEXIS 2625, at *3 (Tex.
App.—Houston [1st Dist.] Oct. 27, 1988, writ denied) (“owner” of vehicle may be someone
other than person named on certificate of title); Minter v. Joplin, 535 S.W.2d 737, 738
(Tex. Civ. App.—Amarillo 1976, no writ) (name on vehicle’s title raises rebuttable
presumption of ownership that may be rebutted by evidence to the contrary).
In Grant, the vehicle at issue was not titled in the plaintiff’s name and the plaintiff
failed to produce evidence showing he had some ownership or possessory interest in the
vehicle sufficient to maintain his lawsuit. Grant, 470 S.W.3d at 203. Here, unlike the
plaintiff in Grant, Chase produced uncontroverted evidence from Bergquist, who is listed
as the owner of the vehicle on the certificate of title issued by the State of Oklahoma, that
Bergquist signed the certificate of title indicating his assignment of title to Chase on
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December 4, 2019. Bergquist attested that he received full payment from Chase for the
vehicle and that “[b]oth legal title to and possession of the pickup were delivered” by him
to Chase. Additionally, Chase attested that he purchased the pickup from Bergquist and
that, prior to his confinement in the Ochiltree County Jail, he was in the process of
changing title to the pickup so that it would be registered in Texas rather than Oklahoma.
Chase had possession of the vehicle from the time he purchased it in December of 2019
until his incarceration in June of 2020.
Therefore, we conclude that Chase met his burden to produce some evidence
showing he holds an interest in the vehicle sufficient to give him a justiciable interest in
the claims asserted in his lawsuit. See id. at 203-04. We overrule Ehmann’s first issue.2
Chase’s Claim for Conversion
By his second issue, Ehmann contends that summary judgment should have been
denied because Chase failed to produce evidence satisfying the elements of conversion.
Chase did not, however, seek summary judgment on his cause of action for conversion,
wherein he sought damages equal to the fair market value of the pickup. Instead, Chase’s
motion asserted that Ehmann did not acquire good title to the pickup as a matter of law.
He sought a judgment awarding him title to and possession of the vehicle, along with
attorney’s fees. Because Chase did not seek summary judgment on his conversion claim,
2 Because resolution of Ehmann’s first issue requires us to determine only whether Chase has
standing, we need not address Ehmann’s arguments concerning Chase’s compliance with the Texas
Certificate of Title Act.
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Ehmann’s second issue is irrelevant and we need not address it on appeal. See TEX. R.
APP. P. 47.1.
Genuine Issues of Material Fact
By his third issue, Ehmann asserts that the trial court erred in granting summary
judgment because genuine issues of material fact exist. First, Ehmann generally
complains that Chase and Chase’s attorney are interested witnesses whose affidavits
cannot support summary judgment. A complaint that an affidavit is by an interested
witness is an objection to form that is waived if not raised in the trial court. See Threlkeld
v. Urech, 329 S.W.3d 84, 88 (Tex. App.—Dallas 2010, pet. denied). Ehmann made no
objection to the affidavits in the trial court and, therefore, may not raise this objection on
appeal. Id.Next, Ehmann attempts to raise fact issues in his brief by, for example,
hypothesizing that Chase could have received money from Courson for the pickup, or
that Courson’s grandfather may have purchased the pickup for Courson. Ehmann
speculates that there are a variety of factual scenarios under which Chase might not be
entitled to summary judgment. However, Ehmann did not present these arguments, or
any evidence to support them, to the trial court in his response to Chase’s motion for
summary judgment. Issues not expressly presented to the trial court by written motion,
answer, or other response shall not be considered on appeal as grounds for reversal.
TEX. R. CIV. P. 166a(c); Cook-Pizzi v. Van Waters & Rogers, Inc., 94 S.W.3d 636, 643
(Tex. App.—Amarillo 2002, pet. denied). In sum, Ehmann did not bring forth any material
facts to preclude the trial court from granting summary judgment.
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Moreover, as to Ehmann’s claim that more discovery was necessary to allow him
to prepare his defenses, Ehmann failed to preserve this complaint by not requesting a
continuance. See Alco Realty v. Coastal Horizons Inv., LLC, No. 01-17-00984-CV, 2018
Tex. App. LEXIS 10012, at *7 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, no pet.)
(mem. op.) (party that did not move for continuance or otherwise object to timing of
motion’s submission did not preserve issue for appellate review). Therefore, we overrule
his third issue.
Ehmann’s Response to Chase’s Motion
By his fourth issue, Ehmann argues that the trial court erred by disregarding his
timely filed summary judgment response. First, Ehmann asserts that the judgment should
be reversed because he was denied an opportunity to present evidence at a hearing.
This argument fails. The record contains no indication that Ehmann ever brought his
response or his desire for a hearing to the attention of the trial court. That a document is
filed with a court’s clerk does not necessarily mean that the judge is aware of it. See In
re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001) (orig. proceeding) (where
record did not show trial court was aware of motion, appellate court could not find trial
court abused discretion in allegedly failing to act on motion). Because Ehmann did not
show that the trial court was made aware of his desire for a hearing, we cannot fault the
trial court for failing to give him one. See id.Second, Ehmann argues that his response itself raised a genuine issue of material
fact because it recites that he has “done nothing wrong.” This argument also fails. It is
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well settled that pleadings are not competent evidence, even if sworn or verified.3 Laidlaw
Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Surety Sav.
& Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971). The response filed by Ehmann does
not constitute proper summary judgment proof and thus cannot be considered in
determining whether fact issues were expressly presented in the summary judgment
proceeding. Billington v. Lamberson, 190 S.W.3d 115, 118 (Tex. App.—Amarillo 2005,
no pet.). Because Ehmann’s response failed to raise any fact issue or present any reason
Chase was not entitled to judgment, we overrule his fourth issue.
Bona Fide Purchaser Status
By his fifth issue, Ehmann urges that he is a bona fide purchaser with a superior
ownership interest over Chase. Ehmann recites that, under Texas law, a buyer in the
ordinary course of business who purchases a vehicle in good faith and with no knowledge
that someone else may have an interest in the vehicle takes a priority interest as a bona
fide purchaser over someone not listed on the title. See First Nat’l Bank v. Buss, 143
S.W.3d 915, 920 (Tex. App.—Corpus Christi 2004, pet. denied). Chase responds that
Ehmann waived this argument by failing to plead bona fide purchaser status at trial.4 We
agree with Chase.
3 Ehmann’s response was not sworn or verified, nor was any evidence attached to it. There is also
no indication in the record that it was served on Chase as required by Rule 166a.
4 Chase also argues that this defense is unavailable to Ehmann because he does not meet all the
requirements of a bona fide purchaser. We need not reach the merits of this argument since Ehmann has
failed to preserve the issue for our review.
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Status as a bona fide purchaser is an affirmative defense. Madison v. Gordon, 39
S.W.3d 604, 606 (Tex. 2001) (per curiam). Generally, an affirmative defense must be
pled in a responsive pleading or it is waived. See TEX. R. CIV. P. 94; MAN Engines &
Components, Inc. v. Shows, 434 S.W.3d 132, 136-37 (Tex. 2014) (affirmative defenses
must be raised in pretrial pleadings); Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex.
1992) (affirmative defenses waived if not pled). Given this, it was necessary for Ehmann
to affirmatively plead his status as a bona fide purchaser. However, he did not raise the
defense in any of his pleadings. Because Ehmann failed to plead this affirmative defense,
he has waived this argument.
Attorney’s Fees
By his final issue, Ehmann asserts that Texas law does not permit the recovery of
attorney’s fees for a conversion action. He complains that “Chase’s ultimate cause of
action is conversion” and he has improperly recast that claim into one for declaratory relief
for the purpose of recovering attorney’s fees. But Ehmann does not direct us to any place
in the record where he presented this argument to the trial court. In the context of
summary judgments, “[i]ssues not expressly presented to the trial court by written motion,
answer or other response shall not be considered on appeal as grounds for reversal.”
Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015). In order to preserve
an error for appeal, “[c]omplaints and argument on appeal must correspond with the
complaint made at the trial court level.” Isaacs v. Bishop, 249 S.W.3d 100, 113 n.13 (Tex.
App.—Texarkana 2008, pet. denied); see TEX. R. APP. P. 33.1. Because Ehmann failed
to present this argument to the trial court, it has been waived. Wells Fargo Bank, 458
S.W.3d at 916. Accordingly, we overrule this issue.
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Chase’s Request for Sanctions
In a cross-point, Chase requests that this Court determine that Ehmann’s appeal
is frivolous and issue a show cause order giving Ehmann’s counsel a reasonable
opportunity to show otherwise. Chase seeks $19,687.50 as damages, corresponding to
the attorney’s fees he has incurred responding to Ehmann’s appeal.
Under Rule 45, this Court is authorized to award a prevailing party “just damages”
if we determine an appeal is frivolous. TEX. R. APP. P. 45. “An appeal is frivolous when
the record, viewed from the perspective of the advocate, does not provide reasonable
grounds for the advocate to believe that the case could be reversed.” Owen v. Jim Allee
Imports, Inc., 380 S.W.3d 276, 290 (Tex. App.—Dallas 2012, no pet.) (citing Smith v.
Brown, 51 S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)). Any
award of damages under Rule 45 is discretionary, must be made with prudence, and
requires careful deliberation. Christian v. Taylor, No. 07-03-00086-CV, 2005 Tex. App.
LEXIS 3201, at *7 (Tex. App.—Amarillo Apr. 27, 2005, no pet.) (mem. op.). We must
review the record from the appellant’s point of view at the time he filed his appeal and
decide whether he had any reasonable grounds upon which to believe the case would be
reversed. Id. With these considerations in mind, we deny Chase’s request for sanctions.
Conclusion
We overrule all of Ehmann’s issue on appeal and deny Chase’s request for
sanctions. The judgment of the trial court is affirmed.
Judy C. Parker
Justice
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