David H. Spears, Individually and Spears Furniture of Lubbock, Inc. v. Gena Gail Huber ( 2012 )

NO. 07-11-0193-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 20, 2012
_____________________________
DAVID H. SPEARS, INDIVIDUALLY, AND SPEARS
FURNITURE OF LUBBOCK, INC., A TEXAS CORPORATION,
Appellants
v.
GENA GAIL HUBER,
Appellee
_____________________________
FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;
NO. 2007-560,032; HONORABLE LARRY B. "RUSTY" LADD, PRESIDING
_____________________________
Memorandum Opinion
_____________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
David H. Spears, individually and Spears Furniture of Lubbock, Inc. (collectively
referred to as Spears), appeals from a judgment in favor of his former employee Gena
Gail Huber (Huber). Huber recovered damages from Spears under the theories of
quantum meruit and conversion. They related to her discharge from Spears and its
disposition of her property. Through five issues, Spears contends that 1) the award on
the quantum meruit claim is not supported by legally or factually sufficient evidence, 2)
the award on the conversion claim is not supported by legally or factually sufficient
evidence, 3) the trial court erred in calculating prejudgment interest, 4) the trial court
erred in failing to require Huber to segregate her attorney’s fees, and 5) the trial court
erred in awarding court costs in excess of the clerk’s bill of costs. We affirm in part and
reverse in part.
Background
Huber sold furniture for Spears on a commission basis. Depending on the
person to whom the furniture was sold, she would receive 6% to 8% of her net sales.
Several sales had been or were in the process of being completed when Spears fired
her. The company agreed that some commissions were due her but a dispute arose as
to the amount. It also disposed of a number of furniture catalogs she owned and had at
her place of employment before she could retrieve them. Seeking recompense for the
outstanding commissions and destroyed property, Huber sued Spears for quantum
meruit and conversion, respectively.
Issue One – Quantum Meruit
As previously mentioned, Spears contends that the damages awarded per the
claim of quantum meruit lacked legally and factually sufficient evidentiary support. We
overrule the issue.
No one questions that some commissions were due Huber. Nor does anyone
dispute that they were recoverable under the theory of quantum meruit.1
1
We mention this because quantum meruit is applicable where no express contract exists
between the parties. Concept Gen. Contr., Inc. v. Asbestos Maint. Servs., 346 S.W.3d 172, 185 (Tex.
App.–Amarillo 2011, pet. denied). However, it would seem as though the parties had an agreement viz
the payment of commissions and the rate at which they were paid. But, since no one questions the
application of the theory, we will not either.
2
In reviewing a legal sufficiency challenge, we consider the evidence in the light
most favorable to the trial court’s finding and credit favorable evidence if a reasonable
factfinder could have done so and disregard contrary evidence unless a reasonable
factfinder could not have done so. City of Keller v. Wilson, 168 S.W.3d 802, 827-28
(Tex. 2005). In reviewing a factual sufficiency challenge, we consider and weigh all of
the evidence and set aside the trial court’s finding only if the evidence is so weak or the
finding so against the great weight and preponderance of the evidence as to be clearly
wrong and unjust. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
Next, via quantum meruit, one can recover for the reasonable value of the
services rended. Concept Gen. Contr., Inc. v. Asbestos Maint. Servs., 346 S.W.3d 172,
185 (Tex. App.–Amarillo 2011, pet. denied). The record before us contains evidence
that Huber received 6 to 8% of the net sales as a commission. Because the parties
used those rates to make their own calculations of what was due Huber, we will
assume, for purposes of this appeal, that they reflect the reasonable value of her
services. The record further contains some evidence that the net sales in question
approximated $166,546. Eight percent of that number approximates $13,323 while six
percent approximates $9,992. The trial court awarded her $11,045.08. As can be
seen, the latter falls within the range of reasonable compensation calculated above.
And, Spears cites us to no cases holding, as a matter of law, that taxes must be
deducted from the award; nor were we cited to evidence indicating that in calculating
the reasonable value of the services, taxes must be deducted.2 Consequently, the trial
court’s decision has the support of both legally and factually sufficient evidence.
2
The result may have differed if Huber sued upon the terms of her oral employment contract. But,
she opted to recover under quantum meruit which allowed her to recover the reasonable value of her
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Issue Two – Conversion
Spears next questions the legal and factual sufficiency of the evidence
underlying the $2,500 awarded Huber as damages for its conversion of her furniture
books. We sustain the issue.
One seeking damages for conversion is entitled to 1) the return of his property
and damages for its loss of use during its detention or 2) the value of the property.
Wiese v. ProAm Services, Inc., 317 S.W.3d 857, 862 (Tex. App.–Houston [14th Dist.]
2010, no pet.). The value of the property is generally its fair market value at the time
and place of conversion. Prewitt v. Branham, 643 S.W.2d 122, 123 (Tex. 1982).
Furthermore, market value is the price it would bring if offered for sale by a willing but
not obligated seller and purchased by a willing but not obligated buyer. Alan Reuber
Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 889 (Tex. App.–Dallas 2009,
no pet.).
When the converted property has no fair market value that is readily
ascertainable, the damages are the actual value of the property to the owner at the time
of its loss. Crisp v. Sec. Nat’l Ins. Co., 369 S.W.2d 326, 329 (Tex. 1963). Moreover, a
property owner may testify as to the value of her property even if she is not an expert.
Reid Road Mun. Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846,
852-53 (Tex. 2011). However, damages are limited to the amount necessary to
compensate the plaintiff for the actual losses or injuries sustained as a natural and
proximate result of the conversion. United Mobile Networks, L.P., v. Deaton, 939
S.W.2d 146, 148 (Tex. 1997).
services. And, whether the concept of “reasonable value” included or excluded income or like taxes
payable to the government would seem to be a fact issue, especially since no one suggested otherwise.
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Huber testified that each catalog taken by Spears was valued at $500. This sum
was not based upon any market value, as that term is described above. Nor was it
founded upon their replacement cost, if any. Instead, she related it to the amount of
income it helped her earn. That is, she so valued the catalogs because 80% of her
$60,000 annual income resulted from her use of them, and the value of the books lay in
“how much you use them and how much money they provide for your income.” Thus, it
appears that she opted to calculate her damages based upon the actual losses or
injuries she sustained as a natural and proximate result of the conversion.
Yet, following Huber’s methodology as a means of calculating her damages
would lead one to conclude that their value was directly related to the loss of business
experienced before and after destruction of the books. Indeed, if they were gone but
she maintained her $60,000 income, she would have suffered no damages under her
theory. Or, if her income dropped to nothing because of their absence, then they would
have a greater value. This, then, also would mean that it was incumbent upon her to
establish the reduction in income suffered due to their absence. But, she did not.
From the time of her discharge until her being hired by another furniture dealer four
years later, Huber did not engage in the business of furniture sales. Thus, there is no
evidence that Spears’ destruction of her catalogs proximately caused any loss to her
income or other injury. To award her damages, therefore, was error.
Issue Three – Prejudgment Interest
Spears next argues that the trial court erred in awarding the amount of
prejudgment interest it did. That amount equalled $2,320.37 and encompassed interest
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accrued on the damages award under both theories of recovery, that is, quantum meruit
and conversion. We sustain the issue.
Given our holding that no evidence supported the trial court’s award of $2,500 as
damages for conversion, prejudgment interest could not be awarded on that sum. So,
the matter will need to be recomputed. And in recalculating the amount due, the trial
court should take into consideration any unconditional tenders of payment made by
Spears. See Republic Underwriters Ins. Co. v. Mex-Tex., Inc., 150 S.W.3d 423, 426
(Tex. 2004) (holding that the delay penalty should be calculated on the amount
ultimately determined to be owed less partial payments).
Issue Four – Attorney’s Fees
Spears contends the trial court erred in not requiring Huber to segregate her
attorney’s fees between the claims for quantum meruit and conversion.3 We overrule
the issue.
A prevailing party must segregate recoverable from unrecoverable attorney’s
fees in all cases, Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007), unless he meets
his burden of establishing that discrete legal services were rendered with respect to
both a recoverable and unrecoverable claim. Tony Gullo Motors I, L.P. v. Chapa, 212
S.W.3d 299 (Tex. 2006). It is the type of legal services rendered that determines
whether segregation is required, not simply the manner of pleading or the type of claim,
Gallagher Headquarters Ranch Dev., Ltd., v. City of San Antonio, 269 S.W.3d 628, 642
(Tex. App.–San Antonio, pet. granted) or that the claims involve the same proof. Allan
v. Nersesova, 307 S.W.3d 564, 573 (Tex. App.–Dallas 2010, no pet.).
3
Attorney’s fees are not generally recoverable on a conversion claim. Broesche v. Jacobson, 218
S.W.3d 267, 277 (Tex. App.–Houston [14th Dist.] 2007, pet. denied).
6
Huber’s counsel testified that “the work expended towards the breach of contract
claim was the same work that was expended relative to the conversion” and that “[n]o
additional charges are made on account of any work relative to the conversion claim.”
While ordinarily one might assume that services expended for quantum meruit claims
do not necessarily advance conversion claims, the trial court could have construed
counsel’s testimony to mean that Huber was not charged by her counsel for pursuing
the conversion claims, i.e., the fees sought omitted time spent developing the tort claim.
See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d at 312-13 (stating that whether
fees can be segregated is a mixed question of law and fact).
Issue 5 – Bill of Costs
Finally, Spears contests the amount of costs awarded in the judgment, especially
the mediator’s fee. We overrule the issue.
The clerk’s certified bill of costs shows costs of $702 of which Spears had paid
$432 and Huber had paid $270. However, the trial court did not award costs to Huber
based on the certified bill of costs. The trial court awarded taxable costs of $1,129
which were based on a letter sent by Huber’s counsel to the court showing a filing fee of
$259, service of citation of $90, subpoena and witness fees of $130, and a mediator fee
of $650. Spears contends that the letter is insufficient to support the award of the costs
shown therein.
We review the trial court’s award of costs for abuse of discretion. See Simon v.
York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987). The general rule is that
expenses incurred in prosecuting or defending a suit are not recoverable unless
expressly provided for by statute, rule, or under principles of equity. Gumpert v. ABF
7
Freight System, Inc., 312 S.W.3d 237, 239 (Tex. App.–Dallas 2010, no pet.). However,
filing fees, subpoena fees, and citation fees are recoverable costs. Allen v. Crabtree,
936 S.W.2d 6, 8 (Tex. App.–Texarkana 1996, no writ); Shenandoah Associates. v. J &
K Properties, Inc., 741 S.W.2d 470, 487 (Tex. App.–Dallas 1987, writ denied).
No formal presentation of evidence of the amount of costs is required during trial
as long as the party seeking costs notifies the court and the opposing party of them
some time before the judgment is signed. Varner v. Howe, 860 S.W.2d 458, 466 (Tex.
App.–El Paso 1993, no writ). That was done here.
As for the mediator’s fee, when a mediator is appointed by the court, it may set a
reasonable fee for the services of the mediator and tax the fee as costs of suit. See
TEX. CIV. PRAC. & REM. CODE ANN. §154.054 (West 2011); Decker v. Lindsay, 824
S.W.2d 247, 249 (Tex. App.–Houston [1st Dist.] 1992, orig. proceeding). Here, the trial
court issued an amended scheduling order wherein it designated a deadline by which
mediation would be conducted, informed the parties that the failure to schedule
mediation by the deadline would result in mediation being held on the default mediation
date, and that “if the parties have not attended mediation before appearing for this
pretrial conference, a trial date will not be given and the parties will then be ordered
back to mediation.” Additionally, Huber’s counsel testified that mediation occurred and
she incurred a mediation fee of $650. Admittedly, there is no evidence of record that
the trial court appointed a particular mediator. Yet, there is some evidence that
mediation was ordered by the trial court via “a private mediator or with the Lubbock
County Dispute Resolution Center” and a mediation fee was incurred as a result of that
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order. And, that evidence is sufficient to satisfy the terms of §154.054 of the Texas Civil
Practice and Remedies Code.
Based on the record, we cannot say the trial court abused its discretion in its
award of court costs. The issue is overruled.
In sum, we reverse those portions of the judgment awarding 1) damages to
Huber for the conversion of her catalogs by Spears and 2) prejudgment interest of
$2,320.37. We affirm the remainder of the judgment, but remand the proceeding to the
trial court for the recalculation of prejudgment interest.
Brian Quinn
Chief Justice
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