Modern Living, Inc. v. Niederhofer

751 S.W.2d 243, 1988 Tex. App. LEXIS 1426, 1988 WL 61852

• Court: Court of Appeals of Texas
• Decided: May 5, 1988
• Docket: No. 09-87-006 CV
• Status: Published

Opinions

OPINION

BURGESS, Justice.

This involves a dispute between a mobile home seller and a mobile home park operator. Modern Living, Inc. (Modem) sold a mobile home to Gerald Wayne Antwine and Linda Antwine (Antwines). The Antwines financed the home through General Electric Credit Corporation (GECC) with Modem retaining a security interest in the mobile home. The Antwines moved the mobile home to a mobile home park owned and operated by August Niederhofer (Nieder-hofer). The Antwines fell upon difficult financial times and became delinquent in their monthly payments to both GECC and the Niederhofer Mobile Home Park. The Antwines then abandoned the mobile home in March 1983. Modem began trying to repossess the mobile home and finally in May 1983 picked up the mobile home. After regaining possession, Modem filed suit against Niederhofer for intentionally and knowingly interfering with Modem’s superior right of possession as a secured party as well as for conversion of certain contents of the mobile home. After a bench trial, a take-nothing judgment was entered against Modem. The trial court filed the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. That Defendant never refused entry to Plaintiff to remove the mobile home in question from Niederhofer Mobile Home Park.

2. That Defendant rented the mobile home in question to Ronald Colson on behalf of, and with the permission of, Gerald Wayne Antwine and wife, Linda Antwine.

3. That subsequent to Ronald Colson moving into the home in question, Plaintiff expressly permitted Colson to remain in possession.

4. That there was no evidence at the time Defendant permitted Ronald Colson to move into the home that Plaintiff had foreclosed upon the mobile home or had divested Gerald Wayne Antwine and wife, Linda Antwine, from right of possession thereto.

5. That Ronald Colson was never a tenant of the Defendant at any time while he was in possession of the home in question.

6. That Defendant never took actual or constructive possession of the mobile home in question or withheld possession from Plaintiff.

7. That Defendant did not refuse to permit Plaintiff’s mover from removing the mobile home on the trips that were made to Niederhofer Mobile Home Park.

8. That on at least one (1) occasion, the home was not removed because Ronald Colson requested that it not be removed since he was trying to buy the home and that Plaintiff authorized the home to remain on the premises on that occasion.

9. That Plaintiff was not forced to pay to Defendant any money in order to remove the home in question.

10. That Defendant did not remove or permit to be removed any items from the home or that any items were removed at a time when Defendant had any responsibility for the security of the home or items therein.

CONCLUSIONS OF LAW

1. That Defendant did not permit a wrongful conversion of the mobile home in question or any items contained therein.

2. That Defendant did not commit a trespass to chattel involving the mobile home or any items contained therein.

Modern alleges four points of error, some with sub-points. We sustain those points of error which attack the findings that Niederhofer did not interfere with or withhold possession of the mobile home from Modern. This finding by the trial court is so against the overwhelming weight and preponderance of the evidence as to be clearly and manifestly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). It was undisputed that Niederhofer had, on a previous occasion, withheld a mobile home from Modem until the payment of $400 was received. In fact, Modem sent Niederhofer a letter in January 1983 which informed Niederhofer that Modem was not responsible for any lot rentals due on homes. Modem had, prior to this letter, paid Nied-erhofer $400 by check and had, thereafter, stopped payment on the check. Sometime after this, Modem had one of its employees hand deliver Niederhofer a legal memorandum which highlighted the case of Mobile Home Brokers, Inc. v. Colvin, 566 S.W.2d 68 (Tex.Civ.App. — Beaumont 1978, no writ). This memorandum explained the case, which held that a mobile home park owner committed conversion when he refused a secured creditor the possession of a mobile home without payments of past due rents and utility charges.

A representative of Modem later paid Niederhofer the $400, which they claimed was required to get the Antwine home released. There was also introduced into evidence, without objection, an invoice from the independent contractor who picked up the Antwine home. On this invoice was the notation, “Paid Niederhofer $500.00 cash for Modern Living, Inc. to pick up mobile home.” Perhaps the most significant piece of evidence was written by Niederhofer himself. It stated:

NIEDERHOFER MOBILE HOME PARK

1308 North Second Street

Conroe, Texas 77301

April 15, 1983

Frederick R. Wilson Modem Living, Inc.

14000 North Freeway — Hy. 75 Houston, Texas 77090 Dear Mr. Wilson:

I sincerely appreciate your taking care of your obligation to me in regards to the lot rent and check you stopped payment on.

I would appreciate it very much if you would move all mobile homes out of my park which you have sold and which the finance companies have recource [sic] on you. Otherwise, I would like to take this means of serving notice on you, that I am holding you responsible for any delin-quite [sic] rent owed on my lots in the event the mobile home is repossessed and is picked up by you or anyone else. It will be needless for you to send anyone to pick up a mobile home out of my park without the rent being paid.

Sincerely,

/s/A. Niederhofer August Niederhofer, Owner

NIEDERHOFER MOBILE HOME PARK

The last sentence of the letter is self-explanatory. Niederhofer contends there is no evidence he “forcibly” withheld possession of the Antwine trailer. A commercial business should not be expected to step to the line of forcible confrontation before they can claim intentional interference with possession of chattels. Therefore, given the entire record, we hold that the trial court’s findings concerning the withholding of the mobile home and interference with possession of the mobile home are against the great weight and preponderance of the evidence.

Modem also had a cause of action for conversion of certain items within the mobile home. We overruled these points of error concerning that particular cause of action. The case is reversed and remanded on the cause of action regarding the interference with possession and withholding of possession of the mobile home.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART