Kelly Calahan v. Tony Gullo Motors, Inc. D/B/A Gullo Toyota ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00257-CV

Kelly Calahan,

                                                                      Appellant

 v.

Tony Gullo Motors, Inc.

d/b/a Gullo Toyota,

                                                                      Appellee

From the 359th District Court

Montgomery County, Texas

Trial Court No. 02-06-03921 CV

MEMORANDUM  Opinion

          Kelly Calahan sued Tony Gullo Motors (“Gullo”) for the tort of conversion.  The trial court denied Calahan’s motion for partial summary judgment on the issue of whether Gullo committed a conversion.  After a bench trial, the trial court found in favor of Gullo. Calahan brings eight issues on appeal, arguing the trial court erred in denying his partial summary judgment motion and challenging the court’s findings of fact and conclusions of law.

          We will overrule the issues and affirm the judgment.

BACKGROUND

          In March of 2002, Calahan traded in his Lexus automobile to Gullo in exchange for a new Toyota pickup truck.  The parties anticipated Calahan would obtain financing from his employees’ credit union to finish paying for the pickup.  Calahan could not obtain financing he considered acceptable.  Calahan alleges that the Lexus was sold within a week of his leaving it at the dealership and was not returned to him despite repeated demands.  Gullo claims that it agreed to re-exchange the vehicles in April of 2002 and that Calahan refused to pick up the Lexus.

Partial Summary Judgment

          Calahan argues that the trial court erred in denying his motion for partial summary judgment on the issue of whether or not Gullo converted Calahan’s vehicle.  When an appellant unsuccessfully moves for summary judgment and subsequently loses in a trial on the merits, the order denying summary judgment cannot be reviewed on appeal.  United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).  Here, Callahan’s summary judgment contention that Gullo converted Calahan’s Lexus was rejected by the court after a bench trial.  Thus we cannot review the denial of Calahan’s motion for summary judgment.

Findings of Fact and Conclusions of Law

          In his remaining issues, Calahan challenges the legal and factual sufficiency of several of the trial court’s findings of fact and conclusions of law.  He argues that the trial court issued findings of fact for which there was legally insufficient evidence and which were against the great weight and preponderance of the evidence.  Calahan had the burden to prove each element of his conversion claim at trial.  When an appellant attacks the legal sufficiency of an adverse finding on an issue on which he had the burden of proof at trial, he must demonstrate on appeal that all vital facts in support of the issue were conclusively established by the evidence, or as a “matter of law.”  Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1990).  When an appellant raises a factual sufficiency issue, we review all of the evidence to determine if the weight of the evidence in the record supports the trial court’s findings.  Koch Oil v. Wilber, 895 S.W.2d 854, 861 (Tex. App.—Beaumont 1995, writ denied).  Findings may be overturned only if they are so against the great weight and preponderance of the evidence that they are clearly wrong or manifestly unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  Conclusions of law are reviewed de novo as legal questions.  State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996).  Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence.  Tex. Dep’t of Pub. Safety v. Stockton, 53 S.W.3d 421, 423 (Tex. App.—San Antonio 2001, pet. denied).

A person commits a conversion when he assumes and exercises dominion and control over the personal property of another to the exclusion of, or inconsistent with, the other person’s rights.  Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 446 (Tex. 1971).  To establish conversion of personal property, a plaintiff must prove that: (1) the plaintiff owned or had legal possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; and (3) the plaintiff suffered injury.  Id; United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147-148 (Tex. 1997); Apple Imports, Inc. v. Koole, 945 S.W.2d 895, 899 (Tex. App.—Austin 1997, pet. denied).  If the defendant originally acquired possession of the plaintiff's property legally, to prove a claim for conversion the plaintiff must establish that the defendant refused to return the property after the plaintiff demanded its return.  Presley v. Cooper, 284 S.W.2d 138, 141 (Tex. 1955); Apple Imports, 945 S.W.2d at 899.

          Calahan’s second issue argues that the trial court erred in finding that Gullo did not refuse to return the Lexus to Calahan after Calahan demanded its return.  A former salesman for Gullo testified that he was the person with whom Calahan dealt for the purchase of the truck.  The salesman testified that Calahan, after having been initially denied financing, told him that he wanted to come by and pick up his Lexus.   The salesman testified that he notified the general sales manager for Gullo, Mr. Dubiski, that Calahan wanted his Lexus back, to which Dubiski replied, “Fuck him.  Tell him it’s gone.”  The salesman testified that Dubiski would not let him give the vehicle back to Calahan despite informing Dubiski of Calahan’s repeated requests.  However, Dubiski testified that he did not have any knowledge that Calahan had demanded the return of his Lexus until Calahan met with Dubiski in April of 2002.  Throughout the month of March, the salesman and Gullo continued to try to get financing terms acceptable to Calahan. Considering all of the evidence, the trial court’s finding that Gullo did not refuse to return the Lexus after Calahan demanded its return is not so against the great weight of the evidence as to be clearly wrong or manifestly unjust.  Cain, 709 S.W.2d at 176.  Calahan did not establish conclusively that he demanded the Lexus’ return and that Gullo refused.  Sterner, 767 S.W.2d at 690.  We overrule his second issue.

          Calahan’s sixth issue argues that the trial court erred in concluding that Calahan failed to establish by a preponderance of the evidence that Gullo failed to return the Lexus after Calahan demanded its return because Gullo’s tender was not timely as a matter of law.  As stated above, there was conflicting evidence regarding when Calahan demanded the return of his Lexus and whether Gullo ever refused such a demand. Dubiski testified that, within a few days of meeting with Calahan for the first time on April 20th, the Lexus was back on the lot.  He testified that at the meeting with Calahan they continued to discuss financing terms and that he continued to seek financing under terms acceptable to Calahan.  He testified that Calahan never attempted to pick up the Lexus after the meeting.  The trial court found that Calahan failed to show that Gullo refused to return the Lexus upon demand by Calahan.  Under these facts, we cannot say that Gullo’s tender was untimely as a matter of law.  We overrule this issue.

          Calahan also argues that it is unnecessary for him to establish that he demanded the return of the Lexus because Gullo, by selling the Lexus and allowing it to leave its custody and control, manifested a clear repudiation of Calahan’s rights.  See Bures v. First Nat’l Bank, 806 S.W.2d 935, 938 (Tex. App.—Corpus Christi 1991, no writ.) (Proof of a refused demand to return the property is not required if the defendant’s acts amount to a clear repudiation of the plaintiff’s rights.)  Thus he argues in his third and fourth issues that the trial court erred in finding that Gullo’s possession of the Lexus was not inconsistent with or in denial of Calahan’s rights in the Lexus, and erred in finding that Gullo did not exercise dominion and control over the Lexus to the exclusion of, or inconsistent with, Calahan’s rights.  Calahan signed an agreement to purchase the Toyota pickup truck, executed a power of attorney to transfer title of his Lexus automobile, delivered the Lexus to Gullo as his earnest money deposit, and executed a vehicle loan agreement in order to take immediate possession of the truck.  The trial court’s finding that Gullo’s possession of the Lexus was not inconsistent with Calahan’s rights in the Lexus was not against the great weight of the evidence.  Nor do we find that Calahan established that Gullo’s actions constituted a clear repudiation of his rights in the Lexus such that demand and refusal were not required.  We overrule these issues.

          In his fifth and seventh issues, Calahan challenges the trial court’s finding of fact and its conclusion of law regarding Calahan’s failure to establish damages.  Calahan argues that damages occur to the rightful owner of converted property once a conversion is complete.  However, the trial court found that Calahan failed to establish that Gullo unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff's rights—a required element for conversion.  We uphold that finding.  Because Calahan failed to establish that a conversion occurred, we need not consider whether Calahan established damages.

          Calahan’s eighth issue contends that the trial court made findings of fact on matters that were not controlling issues and erred in its judgment as a result of considering the findings.  Finding no error in the judgment, we overrule this issue.

CONCLUSION

          Having overruled the issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed July 13, 2005

[CV06]