Jess Marley v. Donna Wallace ( 2002 )

Rhonda NO. 12-01-00225-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JESS MARLEY,

§ APPEAL FROM THE FOURTH

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

DONNA WALLACE,

APPELLEE

§ RUSK COUNTY, TEXAS

Billy and Donna Wallace filed suit against Jess Marley for breach of contract and conversion of personal property in regard to the sub-lease of three tracts of land for hunting purposes. Marley countersued, claiming that the Wallaces breached the lease agreement when they failed to pay for the third tract. The jury found that the Wallaces did not breach their contract and that Marley did. But the jury found that the Wallaces suffered no damages from the breach. However, the jury did find that Marley converted the Wallaces' personal property in the amount of $60,000.00. The trial court also awarded the Wallaces $32,424.66 in prejudgment interest. Marley appeals the trial court's failure to transfer venue, award of damages, prejudgment interest award, and finding on breach of contract. We modify and affirm the judgment for the Wallaces on condition of remittitur. We reverse and remand Marley's counterclaim for a new trial.

Background

The Wallaces orally contracted to sub-lease Marley's hunting lease in Terrell County. The Wallaces initially agreed to lease Tract I for their own personal use. When they decided to start a business, WW Outfitters, the Wallaces leased Tract II. They then leased Tract III, but had not paid for it when Marley informed the Wallaces that the deal was off. The Wallaces had set up the leases with deer stands, feeders, blinds, ladders, jeeps, camping trailer, and other equipment. They also built a bunkhouse when the original was blown down by high winds, and purchased furnishings and household goods for the main house and the bunkhouse. Marley demanded payment for Tract III, even though the Wallaces believed that they had been given the option to pay it out over a period of time. Donna testified that Marley then told them that they could not have the lease even if they had the money, and that if they set foot on the land again, he would call the sheriff and have them arrested. The Wallaces did not attempt to regain possession of their property; instead, they filed suit for breach of contract and conversion. Marley counterclaimed against the Wallaces for breach of contract for failure to pay for Tract III. Billy died before the cause came to trial.

Motion for Change of Venue

"Except as otherwise provided . . . , all lawsuits shall be brought in the county in which all or part of the cause of action accrued or in the county of defendant's residence. . .." Tex. Civ. Prac. & Rem. Code Ann. § 15.001 (Vernon 1986). For venue purposes, venue for claims about or regarding contracts is proper in the county where the offer to contract is accepted. Petromark Minerals, Inc. v. Buttes Resources, 633 S.W.2d 657, 660 (Tex. App.-Houston [14th Dist.] 1982, writ dism'd w.o.j.). The parties' pleading and proof limits a trial court's discretion to determine venue. A plaintiff's choice of venue stands unless challenged by proper motion to transfer venue. Once challenged, the plaintiff has the burden to present prima facie proof by affidavit or other appropriate evidence that venue is maintainable in the county of suit. The plaintiff's prima facie proof is not subject to rebuttal, cross-examination, impeachment, or disproof. However, if the plaintiff fails to discharge the burden, the right to choose a proper venue passes to the defendant, who must then prove that venue is proper in the defendant's chosen county. In re Missouri Pac. RR Co., 998 S.W.2d 212, 216 (Tex. 1999). Where a motion to transfer venue has been denied by the trial court, this denial must be upheld on appeal if there is any probative evidence anywhere in the record supporting the trial court's conclusion that venue is proper in the county where the case was tried. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993). If venue was improper, it is reversible error. We determine proper venue by considering the entire record. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b) (Vernon 1986).

Analysis

The Wallaces resided in Rusk County at the time of the agreement. However, it is contested whether the agreement was made in person on the property in Terrell County or over the phone. The Wallaces took the position that venue was proper in their own county, arguing that the transaction occurred while they were on the phone in Rusk County. Marley contends that the suit should have been filed either in Terrell County, where the property is, or in Crockett County, where Marley lives. Marley moved to transfer venue to one of those counties approximately five years after suit was filed and he was served. Marley actually did not answer until four years after he was served, but the Wallaces never knew that Marley had been served until he filed an answer. The trial court denied Marley's motion to transfer venue, and he is now appealing that ruling. The suit was filed in 1995; the motion to transfer was filed in 2000 and was heard four months later. The Wallaces argue that Marley waived his right to transfer venue on the basis of delay. It is irrelevant whether Marley waived this right, however, because of the Wallaces' proof of proper venue. After Marley filed his motion to transfer, Billy Wallace responded with an affidavit in support of venue in Rusk County, which stated the following:

In the latter part of January 1994, I spoke by telephone with Defendant . . . while I was in my home located in Rusk County, Texas. During that telephone conversation, we negotiated and finalized a hunting lease, via my acceptance of Defendant Marley's offer . . ..

Approximately three months later, in May 1994, Defendant . . . called me at my home in Rusk County, Texas, and offered me a second hunting lease on another tract of land near Ozona, Texas. As with the first hunting lease, we negotiated the second hunting lease agreement and finalized that agreement via my acceptance of Defendant Marley's contract offer.

The third hunting lease was negotiated in virtually the same way . . . .

Marley argues that the above statements are conclusory, and are therefore no evidence that the lease contracts were entered into in Rusk County. We conclude, however, that this statement is probative evidence supporting the trial court's conclusion that venue is proper in the county where the case was tried. We are not at liberty, therefore, to reverse on this basis. Further, in his Motion for Change of Venue, Marley did not dispute that the contracts were entered into over the phone. Accordingly, we overrule issue one.

Legal and Factual Sufficiency of Damages Evidence  

In his second issue on appeal, Marley argues that the Wallaces did not present evidence of the current market value of the converted property. Conversion is the wrongful exercise of dominion and control over another's property in denial of or inconsistent with his rights. Bandy v. First State Bank, 835 S.W.2d 609, 622 (Tex. 1992). If the plaintiff in a conversion action elects to recover the value of the property, actual damages are determined by the fair market value at the place and time of conversion. United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147-48 (Tex. 1997). "Fair market value" has been historically defined as "the price which the property would bring when it is offered for sale by one who desires, but is not obliged to sell, and is bought by one who is under no necessity of buying it . . ." City of Austin v. Cannizzo, 267 S.W.2d 808, 815 (Tex. 1954). But for household goods having no recognized market value, the measure of damages is the value to the owner. Gulf States Utilities Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002). Also, it is well-settled that an owner is qualified to testify about the value of his property. Redman Homes, Inc. v. Ivy, 901 S.W.2d 676, 685 (Tex. App.-El Paso 1995), rev'd on other grounds, 920 S.W.2d 664 (Tex. 1996). Even if the owner is not asked if he is familiar with the market value of his property, his opinion testimony of the value is sufficient if it shows that it refers to market value. Porras v. Craig, 675 S.W.2d 503, 504-505 (Tex. 1984). Purchase price is ordinarily not admissible to show market value at a particular later time. Redman Homes, 901 S.W.2d at 685. But the inadmissibility must be brought to the trial court's attention by proper objection. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103; San Antonio Pub. Serv. Co. v. Murray, 59 S.W.2d 851, 854 (Tex. Civ. App.-Beaumont 1933)(opinion adopted by 127 Tex. 77, 90 S.W.2d 830 (Tex. 1936)).

To review the evidence under a no-evidence point, we consider all the evidence in the light most favorable to the prevailing party, including every reasonable inference in that party's favor. Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). We will uphold the finding if more than a scintilla of evidence supports it. Burroughs Wellcome Co. v. Crye, 907 S.W.3d 497, 499 (Tex. 1995). We must be persuaded that reasonable minds could differ about the fact determination to be made by the jury. See id. With regard to a factual sufficiency challenge, we consider all the evidence and uphold the jury's verdict unless we find that the evidence is too weak to support the finding, or the finding is so against the overwhelming weight of the evidence as to be manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The jury assesses the credibility of the witnesses and may accept or reject the testimony of any witness in whole or in part. Leyva v. Pacheco, 358 S.W.2d 547, 549 (Tex. 1962). Although we may not have reached the same findings, we may not substitute our judgment for that of the jury. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988).

Analysis

Donna testified and offered documentary proof of the purchase value of the game feeders, blinds, towers, feeder ladders, feeder timer kits, and other items which she and her husband purchased specifically for the commercial hunting concern. This property was bought within a matter of months of the conversion. At one point Donna was asked if the purchase price was what the items were worth, to which she responded in the affirmative. She also testified that the dollar values she assigned to the property for which she had no invoices, such as jeeps, camp house furniture, kitchen appliances, linens, and other personal property was "what that stuff's worth." In other words, when Donna sought damages for the conversion of the items on her list, she valued each item listed according to either its value to her or its purchase price.

Although the purchase price of personal property may be tenuously related to the market value of that property, when it is admitted without objection, it provides more than a scintilla of evidence of market value. See San Antonio Pub. Serv. Co., 59 S.W.2d at 854. When purchase price is the only evidence admitted regarding value, it is the most probative evidence. See id. Marley did not object at trial to Donna's testimony or the documentary evidence she presented supporting it. He therefore failed to preserve his objection to the admissibility of the evidence of value and cannot raise it on appeal. Thus, the jury properly considered evidence of the purchase price in determining market value at the time of the conversion. Additionally, Donna's evidence of the value of the converted items was unchallenged at trial. Marley did not present rival valuations, nor did he present evidence regarding any decline in value of the property. ⁽¹⁾

After considering the evidence in support of the judgment, we hold that Donna's testimony constitutes some evidence, and there are inferences therefrom, that would allow the jury to assess damages. Further, after considering all of the evidence, we do not find that the evidence standing alone is too weak to support the finding that the Wallaces suffered actual damages. Nor do we find that the jury finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Accordingly, we reject Marley's legal and factual sufficiency challenges and overrule issue two.

Excessive Damages  

In issue three, Marley argues that the jury added onto the value of the personal property the value of a bunkhouse which the Wallaces built on the lease property, and which Marley later removed from the land, moved into town, and rented out. Marley contends that the bunkhouse was a fixture, and therefore not personalty which could be converted.

Conversion is an act of dominion and control wrongfully exerted over another's personal property. Rodriguez v. Dipp, 546 S.W.2d 655, 658 (Tex. Civ. App.-El Paso 1977, writ ref'd n.r.e.). There are three factors relevant to determining whether personal property has become a non-convertible fixture: 1) the mode and sufficiency of annexation, either real or constructive; 2) adaptation of the personalty to the use or purpose of the realty; and 3) the intention of the party who annexed the personalty to the realty. Sonnier v. Chisholm-Ryder Co., 909 S.W.2d 475, 479 (Tex. 1995). Intention is the touchstone of the inquiry, and the first two factors constitute evidence of intent. Id. However, real property can be converted if a fixture is severed and removed, at which time it is reimpressed with its character as personalty. Pierson v. GFH Fin. Svcs. Corp., 829 S.W.2d 311, 314 (Tex. App.-Austin 1992, no writ); Lane v. Davis, 337 S.W.2d 292, 294 (Tex. Civ. App.-San Antonio 1960, no writ).   

Analysis  

In the case before us, it is clear that the bunkhouse was intended to be a fixture. During trial, Marley's attorney asked Donna, "You knew that if and when you left the lease that [the bunkhouse] would stay there?" Donna replied, "Sure, and we were planning on a long-term lease." If the bunkhouse had remained on the lease property, our analysis would be complete - the value of the bunkhouse could not be included in the calculation of damages. However, when Marley severed and removed the bunkhouse from the lease property, it was reimpressed with its character as personalty and could have been appropriately included in the Wallaces' recovery.

Donna testified that all of the property, excluding the bunkhouse, was worth $52,041.91. Marley testified that it cost him a minimum of $16,000.00 to make the bunkhouse "liveable." But there was no testimony by either the owner or an expert as to the value of the bunkhouse at the time it was converted.

Because there was no testimony or evidence of the market value of the bunkhouse, we agree with Marley that the evidence does not justify the amount of $60,000.00 in damages, and is therefore excessive. Consequently, we suggest a remittitur. This court is vested with the power to suggest a remittitur on its own motion when the appellant complains that there is insufficient evidence to support an award and the court of appeals agrees, but finds that there is sufficient evidence to support a lesser award. Tex. R. App. P. 46.3; Snoke v. Republic Underwriters Ins. Co., 770 S.W.2d 777, 777-78 (Tex. 1989). The party prevailing in the trial court should be given the option of accepting the remittitur or having the case remanded. Larson v. Cactus Utility Co., 730 S.W.2d 640, 641 (Tex. 1987). In this court's opinion, the judgment is excessive by $7,958.09, since Donna proved only $52,041.91 in damages. Accordingly, we sustain issue three and suggest a remittitur in the amount of $7,958.09.

Prejudgment Interest  

In issue four, Marley contends that the trial court abused its discretion by awarding prejudgment interest for the five years in which the Wallaces failed to prosecute their case. Prejudgment interest is "compensation allowed by law as additional damages for lost use of the money due as damages during the lapse of time between the accrual of the claim and the date of judgment." Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998). In determining prejudgment interest, the trial court must consider 1) periods of delay caused by a defendant; and 2) periods of delay caused by a claimant. Tex. Fin. Code Ann. § 304.108 (Vernon 1998). The trial court's decision in reducing or refusing to reduce from its interest calculations periods of delay caused by a litigant are reviewed under the abuse of discretion standard. Helena Chem. Co. v. Wilkins, 18 S.W.3d 744, 760 (Tex. App.-San Antonio, 2000), aff'd, 47 S.W.3d 486 (Tex. 2001). A trial court abuses its discretion if its action is arbitrary, unreasonable, and without reference to any guiding rules and principles. See Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). Because the offset is discretionary rather than mandatory, we do not substitute our opinion for that of the trial court. See Wilkins, 18 S.W.3d at 760; City ofAlamo v. Casas, 960 S.W.2d 240, 260 (Tex. App.-Corpus Christi 1997, pet. denied).

Analysis  

It is uncontested that the Wallaces did nothing to prosecute their case until after Marley answered, which was several years after the suit was filed. But we have no other record of the circumstances surrounding the delay, other than that the Wallaces did not know that Marley had been served, and that Marley did not answer for four years. With nothing else to review, we cannot say that the trial court abused its discretion in awarding prejudgment interest from the date the suit was filed until judgment. However, if there is a remittitur, the interest must be recalculated accordingly. We overrule issue four.

Jury's Finding that the Wallaces did not Breach the Contract  

In his fifth issue, Marley contends that the evidence is both legally and factually insufficient to support the jury's finding that the Wallaces did not breach their contract when they failed to pay for Tract III. If an appellant is attacking the legal sufficiency of an adverse answer to a finding on which he had the burden of proof, the Texas Supreme Court has stated the appellant must, as a matter of law, overcome two hurdles. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex. 1991). First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Second, if there is no evidence to support the factfinder's answer, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Id.; Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). Therefore, we must examine the record to determine whether the evidence supports the jury's verdict and, if not, determine whether the evidence establishes as a matter of law that the Wallaces did, in fact, fail to comply with the lease agreement.

In reviewing the record, we cannot find any evidence to support the jury's finding that the Wallaces did not fail to comply with the lease agreement. In fact, just the opposite was established when, at trial, Donna stated that she and her husband never paid the money for Tract III. Consequently, the evidence is legally insufficient to support the jury's answer. But the Wallaces argue that the refusal to pay came only after Marley unequivocally repudiated his agreement to lease Tract III; therefore, any obligation to perform was excused.

Jury Question No. 1 asked the following:

Did either of the parties fail to comply with the terms of the hunting lease agreement?

• Jess Marley __________
• Billy Wallace __________

The jury answered "yes" as to Marley, and "no" as to Wallace. Jury Question No. 2 was conditioned upon the jury's affirmative answer as to Marley. It asked if his failure to comply was excused. Jury Question No. 3 was conditioned upon the jury's affirmative answer as to Wallace. The jury, therefore, did not answer it. Consequently, there was no finding that Wallace's noncompliance was excused.

We agree that there is evidence that the breach was excused, since Donna testified that their agreement with Marley was to pay the $7500.00 over a period of time. According to Donna, there was no specific time period in which payment was required, but that they intended to fulfill their obligation within a short period of time. But instead of allowing them to perform, Marley refused payment and also ordered the Wallaces not to return to the lease. This is factually sufficient evidence to support a finding that the Wallaces' uncontested breach was excused, since Marley breached first. But that is not the question before us, because the jury's negative answer as to the dominant issue of breach precluded answering the subordinate issue of excuse. ⁽²⁾ The question, therefore, is whether or not there is any evidence to support the jury's finding that the Wallaces did not fail to comply with the lease agreement. We hold that there is not and, therefore, must sustain issue five and remand Marley's counterclaim to the trial court for further proceedings.

Conclusion  

Because we have found that the trial court's award of damages is excessive by $7,958.09, we suggest to Appellee Donna Wallace that she file a remittitur of such excess. If such remittitur is filed within thirty days, the judgment will be modified and affirmed as to her claim against Marley; otherwise, the judgment will be reversed and remanded for a new trial.

As to Marley's counterclaim, we reverse and remand for a new trial.

JIM WORTHEN

Justice

Opinion delivered October 31, 2002.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.

(DO NOT PUBLISH)

1. "It is only natural that the probative force of evidence is increased by the failure to rebut it, especially where this could easily be done. Thus, the failure or refusal of a party to produce evidence, which may reasonably be supposed to be within his possession, to rebut evidence of his adversary or a presumption in his adversary's favor warrants an unfavorable inference and strengthens the opponent's evidence or presumption." Gonzales Motor Co. v. Buhidar, 348 S.W.2d 376, 378 (Tex. Civ. App.-Eastland 1961, writ ref'd n.r.e.) (quoting Texas Law of Evidence, McCormick & Ray, p. 137).

2. An argument can be made that since there is compelling evidence of excuse, there should be a deemed finding of excuse, which would preclude a remand on Marley's counterclaim. But Rule 279 of the Texas Rules of Civil Procedure only applies when a finding on a controlling issue is prevented by an improper conditional submission. When there is a proper conditional submission of issues, and the jury's finding on the dominant issue is against the weight and preponderance of the evidence, there is no presumption of a deemed finding on the unanswered subordinate issue. Sanchez v. Texas Employers Ins. Assoc., 618 S.W.2d 837, 844 (Tex. Civ. App.-Amarillo 1981, writ ref'd n.r.e.).