James D. Branch, II v. Elizabeth Marlene Branch

Opinion

ACCEPTED 12-15-00120-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 11/3/2015 9:32:30 AM Pam Estes CLERK

FILED IN 12th COURT OF APPEALS CASE NO. 12-15-00120-CV TYLER, TEXAS 11/3/2015 9:32:30 AM PAM ESTES IN THE TEXAS APPELLATE COURT 12 DISTRICT th Clerk SMITH COUNTY, TEXAS

JAMES D. BRANCH, II v. ELIZABETH MARLENE BRANCH

On Appeal from

ANDERSON COUNTY COURT AT LAW Anderson County, Texas

(Trial Court No. 11821)

Honorable JEFF DORAN

BRIEF OF APPELLANT

MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011

COUNSEL FOR APPELLANT

ORAL ARGUMENT WAIVED

1|Page PARTIES

JAMES D. BRANCH, II, APPELLANT

Mr. Lynn E. Markham 608 East Houston Ave. PO Box 879 Crockett, Texas 75835

Mark W. Cargill Attorney for Appellant 701 N. Elm Palestine, Texas 75801 SBN: 00787201

2|Page TABLE OF CONTENTS Page Table of Contents……………………………………………………………………………………….. 3

Index of Authorities………………………………………………………………………………….. 4

Statement of the Case…………………………………………..…………………………………... 6

Issues Presented: Issue Number One……………………………………………………… 6

Statement of Jurisdiction……………………………………………………………………….. 6

Statement of Facts …………………….…………………………………………………………... 6, 7

Summary of Argument……………………………………….………………………………….. 7

Argument ……………………………………………….………………………………………………… 7

Prayer………………………………………………………………………………………………………… 8

Certificate of Service…………………………………………………………………………………... 8

3|Page INDEX OF AUTHORITIES

Statutes

Tx. Govt. Code Sec. 22.201 (m)

State Cases

Mosley v. Page, 822 SW 2d 779, 786 (Tex. App. – Dallas 1990, no writ)

Waisath v. Locks’ Stores, Inc., 474 SW 2d 444 (Tex. 1971)

Ligon v. E.F. Hutton and Co., 428 SW 2d 434, (Tex. Civ. App. – Dallas, 1978, writ ref’d n.r.e.)

Other Authorities

Restatement (second) of Torts, 22A

4|Page CASE NO. 12-15-00120-CV

IN THE TEXAS APPELLATE COURT 12 DISTRICT SMITH COUNTY, TEXAS

MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011

5|Page STATEMENT OF CASE

This is an appeal from a bench trial held on November 20, 2014, concerning

conversion of property.

Notice of appeal was timely filed. The clerk’s record and reporter’s record

were both filed. This brief has been filed within the requested time frame of this

court.

ISSUES PRESENTED

Issue No. One

The trial court wrongfully denied Plaintiff’s request for damages resulting

from conversion by defendant by not recognizing defendant’s duty as bailee of

plaintiff’s property.

STATEMENT OF JURISDICTION

This Court has jurisdiction under Tx. Govt. Code Section 22.201 (m), in that

the bench trial was held in the County Court at Law of Anderson County, Texas

which is in the Court’s appeals district.

STATEMENT OF FACTS

Plaintiff owned a safe which he had permission to store in a building owned

by Defendant. The building burned, but the safe remained on the slab of the

building. (RR Vol. 1, page 15, 34-36, 38). Plaintiff relied on Defendant’s assurance

the safe would be secure.

6|Page Defendant gave permission for two unknown men to remove the safe from

the property because Defendant was told that Plaintiff had given the safe to them.

(RR Vol. 1, page 21, and pages 36-36). Plaintiff confronted Defendant immediately

upon observing the safe was missing and contacted law enforcement. (RR Vol. 1,

page 15-16). Defendant admitted she should have notified Plaintiff and had duty to

do so. (RR Vol. 1, pages 36-39).

SUMMARY OF ARGUMENT

Defendant became a bailee upon accepting the property of Plaintiff and

agreeing to allow it to stay on her property. Defendant had duty to reasonably keep

property secure.

ARGUMENT

Defendant claims she owed no duty to Plaintiff because she did not know the

contents of the safe entrusted her. (RR Vol. 1, page 39). Defendant’s duty is not

determined by her intent or knowledge. Restatement (second) of Torts, 22A,

Mosley v. Page, 822 SW 2d 779, 786 (Tex. App. – Dallas 1990 no writ).

The fact that she did not know the contents of the safe, or its value, is not

relevant or material. Mosley v. Page ante

Further, Defendant claims that conversion did not exist because she received

no value from giving the safe to unknown persons is immaterial. (RR Vol. 1, page 38-

39). Waisath v. Locks’ Stores, Inc. 474 SW 2d 444 (Tex. 1971), Ligon v. E.F.

Hutton and Co., 428 SW 2d 434 (Tex. Civ. App. - Dallas, 1978, writ ref’d n.r.e.).

7|Page PRAYER FOR RELIEF

For the reasons stated, JAMES D. BRANCH, II, appellant requests this Court to

overturn the Court’s verdict and order a new trial and that this Court grant such

other relief to which appellant may be justly entitled.

Respectfully submitted,

CARGILL & ASSOCIATES

BY: /s/Mark W. Cargill Mark W. Cargill SBN: 00787201 701 N. Elm Palestine, Texas 75801 Telephone: 903/729-8011 Facsimile: 903/729-5112 cargillaw@earthlink.net

Attorney for Appellant

CERTIFICATE OF SERVICE

This is the certify that on November 2, 2015, a true and correct copy of the above and foregoing document was served on the District Attorney’s Office, Anderson County, and all other interested parties, by hand delivery, mail, and/or facsimile and regular mail.

/s/ Mark W. Cargill Mark W. Cargill

Word Count

On this 2nd day of November 2015, I, Mark W. Cargill, hereby certifies that this brief has a word count of 816.

8|Page