Campos v. Investment Management Properties, Inc.

917 S.W.2d 351, 1996 WL 34096

• Court: Court of Appeals of Texas
• Decided: February 23, 1996
• Docket: 04-95-00238-CV
• Status: Published

Opinions

OPINION

STONE, Justice.

This is an appeal from a suit for conversion and negligence. The appellant, Luis Campos, complains on appeal that the trial court erred in granting appellee’s motion for summary judgment because 1) there is a fact issue as to the conversion cause of action; 2) he has established all the essential elements in his negligence cause of action; and 3) his claims are not precluded by res judicata, claim preclusion and/or merger. We disagree with appellant’s first two points of error and do not reach the third point. Accordingly, we affirm the trial court’s judgment. We further find the appeal was taken solely for delay and with no reasonable expectation of reversal; therefore, we impose sanctions pursuant to TexRApp.P. 84.

On December 29, 1992 a judgment was entered in favor of appellee, Investment Management Properties, Inc., for possession of the premises known as 339 Bangor Street, San Antonio, Bexar County, Texas. On appeal, this court affirmed the lower court’s decision. Appellee obtained a Writ of Possession which was carried out on May 3,1993 by two deputy sheriffs who took possession of and delivered the premises to appellee. Under the sheriffs’ supervision, appellee removed appellant’s property from the premises and placed it on the front lawn. Appel-lee’s summary judgment affidavits claim it was not raining, sleeting, or snowing at the time the property was removed.

Appellant filed suit for conversion and negligence based on appellee’s actions in executing the writ of possession. Appellee filed a motion for summary judgment. Appellant did not file his response until the sixth day prior to the date of hearing rather than the seventh day as required by Tex.R.Civ.P. 166a. Appellant did not obtain leave from the court to file his late response. The trial judge made a handwritten notation at the bottom of the summary judgment which showed the late-filed response was not considered. Thus, the only summary judgment evidence before this Court is the summary judgment proof attached to appellee’s motion for summary judgment. It is clear that pleadings, even if sworn to, are not proof for summary judgment purposes. Hidalgo v. Surety Sav. and Loan Ass’n, 462 S.W.2d 540, 545 (Tex.1971).

STANDARD OF REVIEW

The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the non-movant. Nixon, 690 S.W.2d at 548-49; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Every reasonable inference from the evidence will be indulged in favor of the non-movant, and any doubts will be resolved in its favor. Nixon, 690 S.W.2d at 549; Montgomery, 669 S.W.2d at 311. If the trial court does not enumerate the grounds upon which summary judgment is based, then the judgment will be affirmed if any of the theories advanced in the movant’s motion are meritorious. See Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79 (Tex.1989).

CONVERSION

In his first point of error, appellant says that a fact issue was created because 1) his belongings were removed from the property and left out in the rain to ruin, and 2) his cars were towed from an adjacent property. Appellant claims his personal property was damaged by being left in the rain. Appel-lee’s summary judgment affidavits state that it was not raining when the articles were removed.

Conversion is the wrongful exercise of dominion and control by a person over the property of another. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 446 (Tex.1971); Killian v. Trans Union Leasing Corp., 657 S.W.2d 189, 192 (Tex.App.—San Antonio 1983, writ ref'd n.r.e.). Conversion is complete when a person unlawfully and wrongfully exercises dominion and control over the property of another to the exclusion of the possessory rights of the owner or of another person entitled to possession. See Killian at 192; McVea v. Verkins, 587 S.W.2d 526, 530-31 (Tex.Civ.App.—Corpus Christi 1979, no writ).

Appellee did not “convert” the appellant’s property because to constitute conversion, there must be a wrongful assumption of dominion and control over the property. In this case, appellee was legally authorized to remove the property from the premises. The summary judgment proof shows that the writ of possession was carried out in compliance with Tex.PROP.Code Ann. § 24.0061 (Vernon Supp.1995). Since there was no wrongful assumption, appellant’s property was not converted.

The writ issued in this case authorized “possession of [property located at: 339 Bangor, San Antonio, Bexar County, Texas], which means the rental unit and any outside area of facility that the tenant is entitled to use under the lease or that is held out for the use of tenants generally.” Appellant argues that vehicles were towed from an adjacent lot not owned by appellee, thus implying a “wrongful” taking of the cars. In his original petition, appellant did not allege that the cars were on an adjacent lot, and his late-filed response to appellee’s motion for summary judgment was not considered by the trial court. Nor did appellant allege the vehicles were on property that appellant had no right to use. “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Tex R.Civ.P. 166a(c). This fact issue was improperly raised for the first time on appeal. The only evidence properly before this Court is the summary judgment proof attached to appellee’s motion for summary judgment. Appellant’s point of error number one is overruled.

NEGLIGENCE

Appellant complains in his second point of error that the trial court erred in granting appellee’s Motion for Summary Judgment because appellant established all the elements of negligence. Negligence consists of three essential elements: (1) a legal duty owed by one person to another; (2) breach of that duty; and (3) damages proximately resulting from that breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Appellant claims appellee’s duty was established in two ways.

Appellant says the first duty is established by TexPROp.Code Ann. § 24.0061(c)(3) (Vernon Supp.1995), which reads as follows:

(c) The writ of possession shall order the officer executing the writ to deliver possession of the premises to the landlord and to:

(3) place, or have an authorized person place, the removed personal property outside the rental unit at a nearby location, but not blocking a public sidewalk, passageway, or street and not while it is raining, sleeting, or snowing.

Id. (emphasis supplied). Appellant misstated the Property Code when he recited in his brief that the Code “specifically prohibits a party from leaving items in the rain, etc., or when a party knows it will rain.” (emphasis supplied). Appellant argues that because ap-pellee left his property on the lawn and it was subsequently destroyed by rain, appellee violated Tex.PROP.Code Ann. § 24.0061. This is not a correct interpretation of the statute. The statute says that the property may not be removed while it is raining. The statute does not impose a duty on the landlord or its agent to stand guard over the property until it is retrieved by the owner. Likewise, we reject appellant’s arguments that the “spirit” of the statute required ap-pellee to protect the property after proper execution of a writ in compliance with section 24.0061. Appellant cites no authority to support this interpretation, nor has the Court found any authority.

Once again, the affidavits of the appellee’s agents stating there was no precipitation at the time the items were removed is the only summary judgment evidence before this court. This conduct complies with the Property Code, thus, appellee did not breach any duty owed to appellant under the Code.

Appellant farther asserts that when one removes items from a house there is a duty to ensure the items are not damaged. This duty is not created by the Property Code, however, and the authority cited by appellant to support this contention is not on point. Appellant claims “it is well settled” that the landlord has a duty to safely care for removed property when a Writ of Possession is issued. The authority cited by appellant is distinguishable from the instant case. See Johnson v. Lane, 524 S.W.2d 361, 364 (Tex.App.—Dallas 1975, no writ) (landlord took possession of tenant’s property as a lien for unpaid rent); Panhandle & Santa Fe R.R. Co. v. Hogan, 388 S.W.2d 320 (Tex.App.—Amarillo 1965, writ ref'd n.r.e.) (tenant abandoned premises); Alsbury v. Linville, 214 S.W. 492 (Tex.Civ.App.—El Paso 1919, writ dismissed woj) (action against a railroad for conversion of rock, sand, and gravel stored on a premises adjoining a railroad right of way). These cases are of little relevance to the case at hand.

Further, appellant argues appellee’s act of purchasing a tarpaulin and ropes to cover appellant’s property created a duty to act with reasonable care. He cites cases which rule that a person who voluntarily undertakes an affirmative course of action affecting the interests of another must act with reasonable care. He also cites case law that says a person may not leave a party in worse position then before starting the services. Appellant concludes he was left in a worse position with the articles on the lawn covered by a tarp than he would have been had the articles never been removed from the premises and placed on the lawn. Again, appellant’s reasoning is skewed. Undoubtedly appellant would have been in a better position if the property had remained inside the premises. However, appellant’s property was removed to the lawn under a valid Writ of Possession. The removal of the property — with or without use of ropes and a tarp— was proper. Appellant’s argument lacks merit and in no way establishes a duty for appellee to care for the items once they were removed from the property.

Appellant did not establish any duty which appellee owed to appellant. Without a duty there can be no cause of action for negligence. Appellee has successfully defeated at least one element of appellant’s cause of action for negligence in its motion for summary judgment. Appellant’s second point of error is overruled.

RES JUDICATA

In his third point of error, appellant argues that the trial court erred in granting appellee’s Motion for Summary Judgment because appellant is not relitigating issues and thus is not precluded by res judicata, claim preclusion and/or merger. We need not address this point because appellant’s only other two points of error are overruled on the merits.

SANCTIONS FOR FILING A FRIVOLOUS APPEAL

In a cross point, appellee asks this court to sanction appellant pursuant to TexR.App.P. 84, arguing that appellant has filed a frivolous appeal. Appellee contends this appeal is completely without merit, and that appellant’s arguments are not supported by case law. Further, appellee contends that when appellant does cite case law it does not support his arguments for reversal but merely goes to elements of the causes of action alleged and standards of law not applicable to the appeal. Appellee also contends that appellant affirmatively misstated the requirements of Tex.PROP.Code Ann. § 24.0061 (Vernon Supp.1995). We agree with appel-lee’s contentions.

This Court may assess damages against appellant for bringing a frivolous appeal. Tex.R.App.P. 84. An award of damages under Rule 84 will be imposed only if the record clearly shows the appellant has no reasonable expectation of reversal, and the appellant has not pursued the appeal in good faith. Finch v. Finch, 825 S.W.2d 218, 226 (Tex.App.—Houston [1st Dist.] 1992, no writ). To justify sanctions, we must determine that the appeal was taken for delay only and without sufficient cause. Jones v. Colley, 820 S.W.2d 863, 867 (Tex.App.—Texarkana 1991, writ denied); Eustice v. Grandy’s, 827 S.W.2d 12, 15 (Tex.App.—Dallas 1992, no writ). In making these findings, this Court must review the case from appellant’s point of view at the time the appeal was taken, and decide whether he had any reasonable grounds to believe the case would be reversed. Hicks v. Western Funding, 809 S.W.2d 787, 788 (Tex.App.—Houston [1st Dist.] 1991, writ denied); Carlyle Real Estate Ltd. Partnership-X v. Leibman, 782 S.W.2d 230, 234 (Tex.App.—Houston [1st Dist.] 1989, no writ).

Appellant contends sanctions should not be imposed against him because he reasonably expected the judgment would be reversed “[p]rimarily because Appellant’s cause of action for conversion of the vehicles, which was never mentioned in Appellee’s Brief, is conclusively established.” As discussed above, the issue of the vehicles was raised for the first time on appeal, and is not properly before this Court. We further note that appellant’s petition gave no indication that appellant claimed the vehicles were located anywhere other than the premises at 339 Bangor. Even in his appellate brief, appellant does not clearly describe such a complaint. The only reference to the vehicles in the brief is appellant’s statement that “automobiles owned by [appellant] and not on the premises were towed away.” Under such a record, appellee had no duty to address this issue either in its summary judgment motion or in its appellate brief.

We have reviewed the record and relevant law, and have determined that appellant had no reasonable basis to believe that this case would be reversed on appeal. We find that appellant’s appeal is for delay tactics only and is without merit. See Kimmell v. Leoffler, 791 S.W.2d 648, 654 (Tex.App.—San Antonio 1990, writ denied). Accordingly, we assess the maximum damages authorized, ten (10) times the total taxable costs, against appellant. Such damages are to earn interest at a rate of ten percent (10%) per annum from the date of this Court’s judgment until paid in full.

The judgment of the trial court is affirmed. Damages are assessed in favor of the appel-lee and against appellant at ten (10) times the total taxable costs of the appeal. Such damages are to earn interest at the rate of ten percent (10%) per annum from the date of this Court’s judgment until paid in full.