HIGH PLAINS WIRE LINE SERVICES, INC. v. Hysell Wire Line Service, Inc.

802 S.W.2d 406, 1991 Tex. App. LEXIS 52, 1991 WL 578
CourtCourt of Appeals of Texas
DecidedJanuary 4, 1991
Docket07-89-0202-CV
StatusPublished
Cited by9 cases

This text of 802 S.W.2d 406 (HIGH PLAINS WIRE LINE SERVICES, INC. v. Hysell Wire Line Service, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
HIGH PLAINS WIRE LINE SERVICES, INC. v. Hysell Wire Line Service, Inc., 802 S.W.2d 406, 1991 Tex. App. LEXIS 52, 1991 WL 578 (Tex. Ct. App. 1991).

Opinions

POFF, Justice.

Appellee, Hysell Wire Line Service (Hy-sell), brought suit against High Plains Wire Services (Plains), appellant, for conversion and damages. Appellee founded his action on an alleged breach of a “Sale and Purchase Agreement.” The judgment of the trial court awarded Hysell damages of $7,460.00 and $1,500.00 in attorney’s fees plus interest.

In this limited appeal, Plains contends in point of error number one that the award of attorney’s fees is legally and factually insupportable. In points of error number two through eight, Plains contends that the evidence is both legally and factually insufficient to support the findings of conversion and damage to personalty. Points of error one, two, four, five, six and eight will be sustained. Point of error three will be overruled, and point of error seven will be sustained in part. Therefore, the judgment will be affirmed in part, reformed in part, and reversed and rendered in part.

In the first point of error, Plains argues that attorney’s fees were not recoverable as a matter of law under Hysell’s conversion theory. Plains is correct unless the action is intrinsically founded in the interpretation of a contract. Tex.Civ.Prac. & Rem.Code Ann. section 38.001(8) (Vernon 1986); Exxon Corporation v. Bell, 695 S.W.2d 788, 791 (Tex.App. — Texarkana 1985, no writ). The instant case and the Exxon case are similar in that resolution of both suits depended upon the interpretation of a sales contract. The plaintiff in Exxon, as well as Hysell here, alleged that the defendant took property which belonged to him under the interpretation of a contract. Therefore, if Hysell proffered sufficient evidence that his conversion claims are so intertwined with the contract which underlies this cause of action, he would be entitled to recover attorney’s fees.

Additionally, Plains argues that the evidence is insufficient to support the award of attorney’s fees under a contract theory. Plains bases this argument on the alleged failure of Hysell to make a thirty (30) day statutory demand as dictated by Tex.Civ. Prac. & Rem.Code Ann. section 38.002 (Vernon 1986).

Plains, in the second, third, fourth and fifth points of error raises sufficiency of the evidence points which, if answered in his favor would defeat the right to attorney’s fees under both a contract and conversion theory. Consequently, we will ad[409]*409dress these points before resolving the attorney’s fees question.

In point of error two, appellant argues that there is no evidence to support the trial court’s award of $1,000.00 damages for conversion of five (5) sets of shelving. In reviewing a no evidence point, this Court will consider only the evidence which supports the finding and disregard all contrary evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Raw Hide Oil & Gas, Inc. v. Maxus Exploration Company, 766 S.W.2d 264, 276 (Tex.App. — Amarillo 1988, writ denied).

At trial, appellee pled conversion of the shelving and sought recovery for the value of the shelves which was alleged to be $1,000.00. In order for Hysell to recover on the grounds pled, appellee was required to establish (1) that property it owned (2) was converted by Plains, and (3) the value of the property. First State Bank, Morton v. Chesshir, 634 S.W.2d 742, 745 (Tex.App. — Amarillo 1982, writ ref’d n.r.e.). Looking at the evidence most favorable to the .trial court’s finding, the record shows no evidence indicating the actual value of the shelving.1 Since there was no evidence presented to prove the value of shelving as alleged by appellee, we will sustain point of error number two. Garza, 395 S.W.2d at 823.

In point of error three, appellant argues that there is either no evidence or, alternatively, factually insufficient evidence to support the trial court’s finding that appellant wrongfully removed forty-six (46) sign letters from appellee’s building. In order to support its no evidence claim, Plains must demonstrate that there is no evidence to support the adverse finding. Raw Hide, 766 S.W.2d at 276. Viewing the evidence most favorable to the trial court’s finding, we find that the record contains more than a scintilla of evidence to support the finding. Responsive Terminal Systems, Inc. v. Boy Scouts of America, 774 S.W.2d 666, 668 (Tex.1989). Thus, we overrule the no evidence point.

Addressing appellant’s insufficiency point, we must look at all the evidence to determine if there is some probative evidence to support the finding. If some evidence is found, we must then determine whether the evidence supporting the finding is so weak or the answer so contrary to the overwhelming evidence as to be clearly wrong and manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951), Raw Hide, 766 S.W.2d at 264. We find that appellant has not exhibited that “the evidence supporting the finding is so weak ... as to be clearly wrong and manifestly unjust.” Raw Hide, 766 S.W.2d at 276. Hysell pled and proved that Plains removed and converted forty-six (46) sign letters valued at $10.00 each. Plains’ theory at trial, and on appeal, was that they purchased the assets of the business including the use of the name of the business (Hysell Wire Line Service). Plains contends the sign letters were considered to be part of the assets of the company. This position is allegedly supported by clauses in the “Sale and Purchase Agreement” wherein Plains agreed to buy “wireline service equipment including ... other incidental equipment now used to conduct the wireline service business,” and Hysell’s agreement not to use the name Hysell Wireline Services for a five (5) year period. James Hysell, Sr. testified that he never gave anyone permission to remove the sign and that it was not part of the company which was sold to Plains.

Although the pleadings and the judgment are couched in terms of conversion, the dispositive issues of the allegation requires an interpretation of the above cited contractual clauses. See Exxon, 695 S.W.2d at 790. Hysell had the burden to prove that he owned or had an interest in the converted property, First State Bank, Morton, 634 S.W.2d at 745. As trier of the [410]*410facts, the trial judge determines the weight and credibility to be afforded the testimony of each witness. Quantel Business Systems, Inc., v. Custom Controls Co., 761 S.W.2d 302, 306 (Tex.1988) (Gonzalez, J., concurring). Even though the trial court did not make a finding as to the interpretation of these clauses, “omitted unrequested elements, when supported by the evidence, will be supplied by presumption in support of the judgment.” Tex.R.Civ.P. 299. Thus, we will presume that the trial court found that the terms of the contract, as interpreted by the parties, did not authorize Plains’ removal of the sign letters.

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802 S.W.2d 406, 1991 Tex. App. LEXIS 52, 1991 WL 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/high-plains-wire-line-services-inc-v-hysell-wire-line-service-inc-texapp-1991.