Richard Clifford v. Shari McCall-Gruesen, as Trustee of the Gruesen Family Trust ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00105-CV
RICHARD CLIFFORD APPELLANT
V.
SHARI MCCALL-GRUESEN, AS APPELLEE
TRUSTEE OF THE GRUESEN
FAMILY TRUST
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FROM COUNTY COURT AT LAW OF COOKE COUNTY
TRIAL COURT NO. CV11-00487
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MEMORANDUM OPINION ON REHEARING 1
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Appellant Richard Clifford filed a motion for rehearing on our September 4,
2014 memorandum opinion and judgment. We deny the motion for rehearing,
1
See Tex. R. App. P. 47.4, 49.3.
but we withdraw our prior opinion to correct the applicable standard of review. 2
Our memorandum opinion remains otherwise unchanged.
The suit in this case was precipitated by the eviction of Clifford by his
former wife Appellee Shari McCall-Gruesen, as trustee of the Gruesen Family
Trust, from property owned by her family. Clifford sued for conversion of
personal property and for breach of an oral lease agreement. In five issues,
Clifford argues that the evidence was legally and factually insufficient to support
the trial court’s judgment against him on his conversion claim, that the trial court’s
judgment against him on his breach of contract claim was based on an erroneous
legal conclusion, that the judgment cannot be affirmed on the basis of waiver or
laches, and that Clifford was harmed by the trial court’s denial of his motion to
compel discovery. Because we hold that the trial court’s judgment on the breach
of contract claim was not erroneous and that the directed verdict can be affirmed
on the affirmative defense of abandonment, we affirm.
Background
Clifford and Gruesen were married in 1993. Gruesen’s family owned
property in Woodbine, Texas. A home was constructed on the property during
the marriage. The couple divorced in 2002. In the divorce settlement, Clifford
received a home in Fort Worth. He nevertheless continued to live at the
Woodbine property with Gruesen’s permission.
2
See Tex. R. App. P. 49.3.
2
At some point, Gruesen asked Clifford to leave the property because she
wanted to sell it. Clifford moved but left some personal property behind.
Gruesen eventually filed an eviction proceeding against him. On June 3, 2010,
the trial court granted a no-answer default judgment in the eviction case, finding
that Clifford’s refusal to remove his personal property constituted a trespass.
The judgment gave Clifford one week to move his property. The judgment stated
that any property left on the premises after that time would be deemed
abandoned.
Several months later, Gruesen obtained a writ of possession. In her
application, she asserted that Clifford “refuses to remove himself 3 together with
any and all personal property belonging” to him and refused to surrender
possession of the property. The trial court issued the writ on September 9, 2010,
ordering Clifford to vacate by September 20, 2010.
Clifford sued Gruesen for conversion of his personal property that had
been at the Woodbine property. He alleged that after Gruesen obtained the
judgment of eviction, he requested to enter the property to remove his personal
belongings, but Gruesen refused to allow him access. He further alleged that
between September 2010 when the writ was issued and February 2011, he had
sent three written requests to be allowed to remove his personal belongings, but
that she denied the first request due to it being too close to the Christmas
3
Although Gruesen included this assertion in her application, as stated
above, Clifford was not actually living on the property at this time.
3
holidays and did not respond to the second and third requests. He asked the trial
court to order Gruesen either to allow him access to the property to retrieve his
property or to deliver it to him, or alternatively to award damages of $20,000.
Gruesen filed an answer that contained a general denial and that asserted the
affirmative defenses of waiver and laches.
At a pretrial hearing, the trial court instructed Clifford to file a list of the
personal property that he sought to recover. At the same hearing, the trial court
granted Clifford’s attorney’s motion to withdraw. Clifford filed a list of property
and estimated values.
The trial court signed an order granting Clifford’s request to inspect the
Woodbine property. The trial court subsequently granted Clifford’s request to file
an amended pleading adding a claim for breach of an oral contract.
Clifford filed a motion to compel discovery. Clifford had sent Gruesen’s
attorney a letter requesting “an approximate list of [his] personal property in
question from the list provided you plus any additional items not on the list that
have been sold, discarded[,] or otherwise disposed of.” Gruesen did not respond
to the letter, so Clifford moved to compel an answer. The trial court denied his
motion.
The case was tried to the bench. Clifford testified that he and Gruesen
had an oral agreement that he would reside at the Woodbine property until he
either died or was unable to maintain the property. He stated that “after the
judgment against [him], [he] was attempting to get [his] things out of the property”
4
to move out, but although he called Gruesen repeatedly, he was “continually put
off . . . for months and months and months.”
When asked why he did not remove his property when he moved out, he
testified that he was trying to get Gruesen “to agree to some settlement” to
compensate him for money he had put into the property after the divorce. He
testified that at some point after he had moved out, he was no longer able to
access the property without Gruesen’s permission because she had changed the
locks. He stated that there was further delay recovering his property because he
was recovering from an injury.
The trial court admitted into evidence a copy of the default judgment of
eviction and of the writ of possession. Gruesen’s attorney argued that Clifford
had the opportunity from the date of the judgment through September 20, 2010
to remove his property.
The trial court again asked Clifford why he did not take his property with
him when he was moving off the property. He replied that he took some of his
property, but then he injured his back. After that, Gruesen would not allow him
access back on the property.
Clifford declined to offer any further evidence other than his testimony. At
the conclusion of his evidence, Gruesen moved for a directed verdict, which the
trial court granted. The court signed a judgment stating that “[Clifford] did not
meet the elements required to prove his claim for conversion of his personal
5
property” and that Clifford’s claim for an oral contract was barred by the statute of
frauds. The judgment ordered Clifford’s case dismissed. Clifford now appeals.
Review of a Directed Verdict
Although Gruesen moved for a directed verdict, a “motion for directed
verdict” in a bench trial is more properly termed a “motion for judgment.” 4 In a
nonjury case, the trial court can grant a motion for judgment on either legal
sufficiency or factual sufficiency grounds. 5 If the trial court finds the plaintiff’s
evidence factually insufficient at the close of the plaintiff’s case, the trial court can
grant judgment for the defendant without requiring the defendant to present his
case. 6
“The appellate standard of reviewing the propriety of granting a motion for
directed verdict in a jury trial applies equally to the granting of a motion for
judgment in a trial to the court.” 7 This court has held that a directed verdict is
proper “(1) when the evidence conclusively establishes the right of the movant to
judgment or negates the right of the opponent, or (2) when the evidence is
insufficient to raise a fact issue that must be established before the opponent is
4
See Matheus v. Sasser, 164 S.W.3d 453, 457 (Tex. App.—Fort Worth
2005, no pet.) (citing Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d
302, 303 (Tex. 1988)).
5
Qantel, 761 S.W.2d at 304.
6
Id.
7
Id. at 303.
6
entitled to judgment.” 8 A trial court properly directs a verdict for the defendant if
either the “plaintiff fails to present evidence raising a fact issue essential to the
plaintiff’s right of recovery,” or if “the evidence conclusively establishes a defense
to the plaintiff’s cause of action.” 9
In reviewing a trial court’s grant of a motion for judgment, as with a grant of
a directed verdict, we “must view the evidence in the light most favorable to the
party against whom the verdict was rendered and disregard all contrary evidence
and inferences.” 10 If we determine that there is “any evidence of probative value
[that] raises a material fact issue, then the judgment must be reversed and the
case remanded for the jury’s determination of that issue.” 11
We must affirm the trial court’s judgment in this case if the record
establishes that Clifford failed to present evidence raising a fact issue essential to
his right to recover or if the evidence conclusively establishes a defense to
Clifford’s claims. 12
8
Westchester Fire Ins. Co. v. Admiral Ins. Co., 152 S.W.3d 172, 191 (Tex.
App.—Fort Worth 2004, pet. denied).
9
Id.
10
Quantel, 761 S.W.2d at 303–04.
11
Id. at 304.
12
See Westchester Fire Ins., 152 S.W.3d at 191.
7
The Oral Lease Agreement
In Clifford’s third issue, he argues that the trial court’s conclusion of law
that his claim was barred by the statute of frauds is erroneous because the
evidence demonstrates that the oral lease agreement did not fall within the
statute of frauds. An incorrect conclusion of law does not warrant reversal if the
judgment is otherwise correct, and we therefore affirm the judgment if it can be
sustained on any legal theory supported by the evidence. 13
The statute of frauds provides that a real estate lease for a term longer
than one year “is not enforceable unless the promise or agreement, or a
memorandum of it, is (1) in writing; and (2) signed by the person to be charged
with the promise or agreement or by someone lawfully authorized to sign for
him.” 14 Clifford testified that the lease was for more than one year. He also
testified that the lease was to last until he died or until he could no longer
maintain the property.
Clifford argues that the lease is not subject to the statute of frauds because
it was a tenancy at will rather than a tenancy for a definite term. 15 But if the lease
13
A & W Indus., Inc. v. Day, 977 S.W.2d 738, 741 (Tex. App.—Fort Worth
1998, no pet.); see also Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766–67 (Tex.
2011) (stating that in an appeal from a bench trial in which no findings of fact or
conclusions of law have been filed, the judgment must be affirmed if it can be
upheld on any legal theory that finds support in the record).
14
Tex. Bus. & Com. Code Ann. § 26.01 (West 2009).
15
See Effel v. Rosberg, 360 S.W.3d 626, 630 (Tex. App.—Dallas 2012, no
pet.) (“It is the long-standing rule in Texas that a lease must be for a certain
8
created a tenancy at will, then Gruesen could terminate it at will. 16 She therefore
did not breach the contract by terminating the lease. Because the evidence
conclusively established a defense to Clifford’s breach of contract claim, we
overrule Clifford’s third issue.
The Conversion Claim
“Conversion is the unauthorized and wrongful assumption and exercise of
dominion and control over the personal property of another to the exclusion of, or
inconsistent with, the owner’s rights.” 17 To prevail on his conversion claim,
Clifford had to establish that: (1) he owned or had legal possession of the
property or entitlement to possession; (2) Gruesen unlawfully and without
authorization assumed and exercised dominion and control over the property to
the exclusion of, or inconsistent with, Clifford’s rights as an owner; (3) Clifford
demanded return of the property; and (4) Gruesen refused to return the
property. 18 The trial court’s judgment was proper on this claim if Clifford failed to
period of time or it will be considered a tenancy at will.”) (citing Holcombe v.
Lorino, 124 Tex. 446, 79 S.W.2d 307, 310 (1935)).
16
See id. at 630–31; ICM Mortg. Corp. v. Jacob, 902 S.W.2d 527, 530
(Tex. App.—El Paso 1994, writ denied) (“A tenant at will has no certain nor sure
estate; the lessor may put him out at any time.”).
17
Henson v. Reddin, 358 S.W.3d 428, 434–35 (Tex. App.—Fort Worth
2012, no pet.).
18
See id.
9
present evidence raising a fact issue on each element of his conversion claim or
if the evidence conclusively establishes a defense to the claim. 19
We first consider whether Gruesen established a defense to the
conversion claim. In Clifford’s fourth issue, he argues that Gruesen cannot argue
for affirmance based on grounds not stated in her motion for judgment. He
argues alternatively that the trial court’s judgment cannot be supported on any
other theory; specifically, there is legally and factually insufficient evidence to
support an implied finding of waiver or laches. He also argues that Gruesen did
not plead or obtain a finding on an abandonment theory and that the evidence is
legally and factually insufficient to support such a theory.
Clifford is correct that Gruesen did not plead abandonment. However, it
was raised at trial, and evidence was given on the matter. 20 In his opening
statement, Gruesen’s attorney stated:
We believe that when the evidence is shown and when the
arguments are made that Ms. Gruesen did not convert this property,
that based on the prior case, which we’ll get into just a little bit, was
an eviction and there was a judgment where she was—after one
week he lost all right to the property.
19
See Westchester Fire Ins., 152 S.W.3d at 191.
20
See Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 280 (Tex. App.—
Houston [14th Dist.] 1999, pet. denied) (“The rule is well settled that an
affirmative defense may be tried by consent, even if it is not properly pleaded.”);
see also Collins v. Collins, 345 S.W.3d 644, 648 (Tex. App.—Dallas 2011, no
pet.) (stating that “an unpleaded issue may be deemed tried by consent when
evidence on the issue is developed under circumstances indicating that both
parties understood the issue was in the case, and the other party failed to make
an appropriate complaint”).
10
The trial court subsequently asked the attorney, “So is it your position then
that after the passage of time he loses the right of possession or the right of
ownership to the property?” The attorney responded, “I would have to show you
or introduce the default judgment there, but in the default judgment, that case, it
said after the expiration of one week that he would lose any title or right to that
property.”
As for evidence of abandonment, Gruesen introduced the judgment of
eviction and the writ of possession into evidence. The trial court asked Clifford
questions about the judgment and whether he understood that he had a week to
remove his property. Clifford was also asked about and gave testimony about
why he did not take his property with him when he moved in the first place, and
why he did not retrieve his property after the eviction, despite hiring an attorney.
Gruesen’s attorney made argument to the trial court about whether the
property should be deemed abandoned given that Clifford “had ample time along
the way, he had access. He didn’t take steps to make sure he had his property.”
The attorney referenced the fact that Clifford had hired an attorney after the
default eviction judgment and argued that “[t]he whole time from June 3rd, when
it was first rendered, up until September 20th when he had to vacate, he knew,
even though there was other things going on, he had a limited amount of time.”
He argued that “once that order was signed and [the trial court] denied [Clifford’s
attorney]’s motion [to set aside the default judgment], he really knew on August
9th he had a limited amount of time.”
11
The trial court then allowed Clifford to respond, first advising Clifford that
his concern was that “if you had your property there and you vacated the
property, why you didn’t take your property when you moved or after the default
judgment why you didn’t take your property during the one week?” Clifford then
testified about why he left his property behind when he moved out and why he
did not retrieve it after the eviction. The arguments and evidence shows that the
parties understood that Clifford’s abandonment of the property was at issue in
the case, and the abandonment issue was clearly tried by consent. Thus, the
fact that abandonment was not pled would not have prevented the trial court from
considering it. 21
Clifford argues that there is no evidence or, alternatively, there is
insufficient evidence, that he abandoned his personal property. The default
judgment of eviction specifically stated that “any personal property left about the
Property by Defendant and/or Defendant’s agents, representatives, affiliates,
heirs, predecessors, successors, and/or assigns after one (1) week from the date
of this final judgment shall be deemed abandoned.” Clifford’s failure to retrieve
his property within the time period set out in the judgment constituted an
abandonment of his property. To negate abandonment, Clifford therefore
needed to produce enough evidence to raise a fact issue on whether the only
21
See Johnston, 9 S.W.3d at 280; Collins, 345 S.W.3d at 648.
12
reason he did not retrieve his property was that Gruesen prevented him from
doing so. 22
Clifford attempted to negate this deemed abandonment with evidence that
he attempted to remove his property but was unable to because Gruesen
prevented him from doing so. He testified that Gruesen would not allow him on
the property, but he also claimed that he was trying to “do other things and try to
make some money to live on during that time” and that he had three different
back surgeries.
Much of Clifford’s testimony about being barred from the property was not
clear about precisely when he was prevented from having access to remove his
belongings. As far as we can determine, most of Clifford’s testimony on the
matter related to time after he moved off the property but before the default
judgment. None of that testimony was relevant to whether he could have
removed it after the eviction. And he did not provide an explanation for why,
between the time he moved out and the point at which he contended that he was
denied access, he did not remove his belongings, other than that he was trying to
get Gruesen to agree to a settlement.
At the very end of his testimony on the matter, Clifford testified that he was
denied access during the week after the eviction judgment. He did not testify that
he was denied access in the period from August 9, 2010, when his motion to set
22
See Westchester Fire Ins., 152 S.W.3d at 191.
13
aside the default judgment was denied, to September 20, 2010, the date he had
to vacate under the writ of possession. We hold that Clifford’s testimony was not
sufficient to overcome the deemed abandonment, and, accordingly, the trial
court’s judgment may be affirmed on the abandonment defense.
Clifford cites Cargal v. Cargal 23 for the proposition that Gruesen had to
obtain an express finding on the affirmative defense of abandonment, and since
she neither pled abandonment nor obtained an express finding on it, she waived
it. Cargal, however, is not a trial-by-consent case. Because abandonment was
tried by consent in this case, and because we must affirm the judgment on any
ground that supports it, 24 we find Cargal inapplicable. We overrule Clifford’s
fourth issue.
Clifford argues in his fifth issue that if he did not meet his burden of proof
on conversion, it was because the trial court denied Clifford’s motion to compel
certain discovery that went to the heart of his conversion case. He argues
alternatively that the manner in which the trial court conducted the trial deprived
Clifford of a fair trial.
Because we have held that the judgment may be upheld on the defense of
abandonment, we need not consider whether the trial court abused its discretion
by denying Clifford’s motion to compel discovery. As to his alternative argument,
23
750 S.W.2d 382, 384 (Tex. App.—Fort Worth 1988, no writ).
24
See Rosemond, 331 S.W.3d at 766–67.
14
the trial court gave Clifford multiple opportunities to explain why his property was
not abandoned. We thus hold that the manner in which the trial court conducted
the trial did not harm Clifford. 25 We overrule Clifford’s fifth issue.
In Clifford’s first issue, he argues that the evidence is legally and factually
insufficient to support the trial court’s adverse findings on each and every
element of Clifford’s conversion claim. In his second issue, he argues that
because the evidence is legally and factually insufficient to support the trial
court’s adverse findings on his conversion claim, the trial court erred by denying
Clifford’s election for the return of his personal property. He argues in the
alternative that the trial court erred by denying Clifford’s request for conversion
damages. In light of our disposition of Clifford’s fourth and fifth issues, we need
not address his first and second issues. 26
Conclusion
Having overruled Clifford’s third, fourth, and fifth issues, which are
dispositive, we affirm the trial court’s judgment.
25
See Tex. R. App. P. 44.1.
26
See Tex. R. App. P. 47.1.
15
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
WALKER, J., concurs without opinion.
DELIVERED: October 23, 2014
16