Victoria Anwuzia v. Chantal Marshall ( 2023 )

AFFIRMED and Opinion Filed May 22, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00016-CV
VICTORIA ANWUZIA, Appellant
V.
CHANTAL MARSHALL, Appellee
On Appeal from the County Court at Law No. 1
Collin County, Texas
Trial Court Cause No. 001-01178-2021
MEMORANDUM OPINION
Before Justices Pedersen, III, Goldstein, and Smith
Opinion by Justice Smith
Appellant Victoria Anwuzia appeals the trial court’s summary judgment in
favor of appellee Chantal Marshall. Because we conclude that appellant failed to
bring forth a scintilla of evidence to defeat one of the challenged elements in
appellee’s no-evidence motion for summary judgment, we affirm.
Background and Procedural History
According to appellant’s original petition, she placed her dogs in the care of
her mother while she went out of town. Appellant’s sister was staying with her
mother at the time and tried to contact appellant about her dogs but was unable to do
so. Her sister took the dogs to the Plano Animal Shelter to be housed but told
personnel the dogs did not belong to her and that she would return later to pick up
the dogs. Appellant’s sister did not permanently surrender the dogs to the shelter or
give the shelter permission to place the dogs for adoption. However, shortly
thereafter, the shelter released one of the dogs to appellee, who adopted the dog.
Appellant demanded appellee return the dog to her, but appellee refused.
Appellant sued appellee for conversion. Appellee filed a general denial and
asserted several affirmative defenses. Appellee subsequently filed a no-evidence
motion for summary judgment in which she asserted that appellant could not produce
more than a scintilla of evidence on certain elements of conversion. Appellant
responded, relying solely on her own affidavit to defeat the motion.
After a hearing, which was not recorded and is not before us on appeal, the
trial court granted appellee’s no-evidence motion and dismissed with prejudice
appellant’s claim of conversion. Appellant timely appealed. In her sole issue
challenging the trial court’s grant of appellee’s motion for summary judgment,
appellant argues that the no-evidence motion was conclusory and insufficient to
support summary judgment and that she raised more than a scintilla of evidence to
support each element of her conversion claim. Appellee did not file a brief in
response.
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Summary Judgment Standard of Review
We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313,
316 (Tex. 2019). A party, after adequate time for discovery, may move for summary
judgment without presenting evidence on the ground that there is no evidence of one
or more essential elements of a claim or defense on which the adverse party has the
burden of proof. TEX. R. CIV. P. 166a(i). To defeat a no-evidence motion, the
nonmovant must produce evidence raising a genuine issue of material fact on the
essential elements of the claim or defense challenged. Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600 (Tex. 2004). A nonmovant raises a genuine issue of material
fact if it produces more than a scintilla of evidence establishing the existence of the
challenged element. Id. More than a scintilla of evidence exists when the evidence
allows reasonable and fair-minded people to differ in their conclusions. Merrell
Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
We review a no-evidence summary judgment under the same legal sufficiency
standard as directed verdicts. King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
750–51 (Tex. 2003). A no-evidence challenge will be sustained when there is a
complete absence of evidence of a vital fact, the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact, the
evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence
conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., 953
S.W.2d at 711.
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Analysis
Appellant argues that appellee’s no-evidence motion, “which conclusorily
states that Appellant failed to provide any evidence of the elements of conversion,
is generalized and that is reason enough for this Court to reverse the trial court’s
summary judgment order.” Appellant also argues that her affidavit was sufficient to
raise more than a scintilla of evidence on the elements of conversion.
To establish a claim for conversion, a plaintiff must prove: (1) the plaintiff
owned, had legal possession of, or was entitled to possession of the property; (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; (3) the plaintiff made a demand for the property; and (4) the defendant refused
to return the property. Guillory v. Dietrich, 598 S.W.3d 284, 292 (Tex.
App.—Dallas 2020, pet. denied). A plaintiff must also prove damages, which are
generally measured by the fair market value of the property at the time and place of
conversion. United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147–48 (Tex.
1997) (per curiam). In the alternative, a plaintiff may seek the return of the property
and damages for its loss of use since the time of conversion. Wells Fargo Bank Nw.,
N.A. v. RPK Cap. XVI, L.L.C., 360 S.W.3d 691, 706 (Tex. App.—Dallas 2012, no
pet.).
Appellant is correct that general no-evidence challenges are not permitted
under rule 166a(i). See TEX. R. CIV. P. 166a(i) (“motion must state the elements as
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to which there is no evidence”); TEX. R. CIV. P. 166a(i) cmt. 1997 (“The motion
must be specific in challenging the evidentiary support for an element of a claim or
defense; paragraph (i) does not authorize conclusory motions or general no-evidence
challenges to an opponent’s case.”); Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d
280, 283–85 (Tex. App.—Dallas 2013, pet. denied) (en banc) (adhering to the
language of rule 166a(i) and its comment and concluding that motion did not meet
the requirements of the rule because it did not single out the elements as to which
there was no evidence). The motion must state which elements the movant contends
have no supporting evidence; otherwise, the motion is fundamentally defective and
cannot support summary judgment as a matter of law. Jose Fuentes Co., 418 S.W.3d
at 283. However, a party is not limited in the number of elements it may challenge
in a no-evidence motion as long it specifically identifies the challenged elements.
Nelson v. Regions Mortg., Inc., 170 S.W.3d 858, 861 (Tex. App.—Dallas 2005, no
pet.).
Here, appellee did not file a general no-evidence motion that failed to identify
any specific element of which appellee claimed there was no evidence. Instead,
appellee argued that she was entitled to a no-evidence summary judgment because
“an adequate time for discovery had passed and there is no evidence that: (1) Plaintiff
owned, had legal possession of, or had entitlement to the property; (2) Defendant’s
exercise of dominion and control over the Property was unlawful or without
authorization; or (3) the Property had any value” or “Plaintiff suffered any other
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compensable damages as a result of the alleged conversion.” Thus, appellee’s
no-evidence motion complied with 166a(i)’s specificity requirements and was not
fundamentally defective.
Appellant also argues that she presented sufficient evidence in her affidavit to
raise more than a scintilla of evidence on the elements of conversion. We disagree.
Appellant’s affidavit consisted of one paragraph in which she testified to the
following: (1) she owned the dog; (2) she did not take the dog to the shelter, her
sister did; (3) her sister told the shelter she did not own the dog and that appellant
did; (4) her sister informed the shelter that she would be back to pick up the dog;
and (5) her sister did not authorize the shelter to place the animal for adoption and
neither did appellant. “Conclusions in an affidavit are insufficient either to support
summary judgment or to raise a fact issue in response to a summary-judgment
motion.” Holloway v. Dekkers, 380 S.W.3d 315, 323 (Tex. App.—Dallas 2012, no
pet.). “A conclusory statement is one that does not provide the underlying facts to
support the statement.” Id. Here, appellant’s testimony that she owned the dog is
conclusory. She did not include any facts or supporting documents showing when
or how she became the owner of the dog. Thus, her bare statement that she owned
the dog is not sufficient to raise a fact issue in response to appellee’s no-evidence
summary judgment motion challenging whether appellant owned, had legal
possession of, or had entitlement to the dog.
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Because appellant did not raise a genuine issue of material fact on each
challenged element of her conversion claim,1 the trial court did not err in granting
appellee’s no evidence motion for summary judgment.
Conclusion
We affirm the judgment of the trial court.
/Craig Smith//
220016f.p05 CRAIG SMITH
JUSTICE
1
Based on our disposition regarding appellee’s first challenged element, it is not necessary for us to
address whether appellant raised a genuine issue of material fact as to the two remaining elements
challenged by appellee. See TEX. R. APP. P. 47.1.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
VICTORIA ANWUZIA, Appellant On Appeal from the County Court at
Law No. 1, Collin County, Texas
No. 05-22-00016-CV V. Trial Court Cause No. 001-01178-
2021.
CHANTAL MARSHALL, Appellee Opinion delivered by Justice Smith.
Justices Pedersen, III and Goldstein
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee CHANTAL MARSHALL recover her costs of
this appeal from appellant VICTORIA ANWUZIA.
Judgment entered this 22nd day of May 2023.
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