COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
MYRTA CABALLERO ENCINAS, § No. 08-16-00050-CV Appellant, § Appeal from the v. § 83rd District Court BILLY WAYNE JACKSON, § of Pecos County, Texas Appellee. § (TC# 7336) §
OPINION
Appellant Myrta Caballero Encinas appeals from a final judgment entered in favor of Billy
Wayne Jackson, Appellee. We affirm the trial court’s judgment.
BACKGROUND
In 2009, Jackson and Encinas entered into a verbal agreement regarding Encinas’ lease of
a commercial laundry business and property from Jackson, and the parties understood that Encinas
would attempt to purchase the business and property from Jackson. At the time the parties entered
into the verbal lease agreement, Jackson had a mortgage or loan on the property with the Pecos
County State Bank (the bank). For reasons of expediency, under the terms of the verbal lease
agreement, the parties agreed that Encinas would pay the bank directly and would also be responsible for paying property taxes.
In 2011, Encinas executed an agreement to purchase the business for $231,000.00 but was
unable to secure financing for that purpose. Despite her inability to obtain financing, Encinas
agreed that the verbal lease agreement with Jackson remained in effect.
On February 20, 2013, the parties executed a commercial lease agreement which provided,
“This lease is a written confirmation of the previous agreement made between Billy Jackson
(hereinafter ‘Landlord’) and Myrta Encinas (hereinafter ‘Tenant’) in 2009, when Tenant assumed
lease, and still honored by both parties currently.” In the written lease agreement, Encinas agreed
as Tenant to make timely monthly payments of $2,600.00 to the bank, and to “be responsible” for
all taxes during the lease, from “2009 to current.” The written lease agreement states that Encinas
is aware that the business is for sale, and reserved to Jackson the right to sell the business if Encinas
is unable to secure funding for the purchase. Encinas never purchased the business and property.
Jackson learned that Encinas had failed to pay the property taxes for 2009-2014 when
Pecos County filed suit against him in an effort to recover $16,000.00 in delinquent property taxes.1
Jackson resolved the lawsuit by paying Pecos County $16,000.00. Jackson also became aware
that Encinas was in arrears on the payments to the bank in the sum of $8,000.00 when the bank
president called him. Jackson immediately went to the bank and wrote a check in the amount of
$8,000.00 to satisfy the note payments.
On February 25, 2014, Jackson and Encinas entered into an agreement whereby Encinas
agreed to repay Billy and Jeri Sue Jackson the 2009-2014 delinquent property tax plus court fees
in the sum of $16,000.00 as well as the delinquent note payments in the sum of $8,000.00. Under
1 Jackson testified that correspondence from the tax office was sent to the business address. 2 the terms of the agreement, Encinas was to make payment of $24,000.00 in full before the close
of business on March 21, 2014. Encinas never paid Jackson this sum, and no evidence was
provided showing that she paid to Jackson any portion of that sum. Jackson eventually secured a
purchaser for the business and property, and assisted Encinas in removing her personal items from
the premises.
Jackson filed suit against Encinas asserting breach of contract and conversion, and sought
recovery of damages including those for unpaid property taxes, unpaid monthly bank installments,
and loss of value of personal property. Encinas counterpleaded causes of action for conversion,
breach of duties and gross negligence, fraud and fraudulent inducement, breach of contract, and
civil theft and sought damages and other relief.
Both Jackson and Encinas filed motions for partial summary judgment. During the final
hearing, counsel referenced the trial court’s prior partial summary judgment hearing, but no record
of those proceedings, nor any other order regarding partial summary judgment, have been included
in the record on appeal.
However, in its final judgment signed on March 7, 2016, the trial court recites that on
August 4, 2015, it entered its interlocutory partial summary judgment in favor of Jackson after
examining the pleadings and evidence before it, determined that no genuine issues of material fact
existed, found that Encinas breached the commercial lease agreement when she failed to pay
$16,000.00 in property taxes, and failed to timely pay Pecos County State Bank the sum of
$8000.00 during the term of the lease agreement. Based on these findings, the trial court
determined as a matter of law that Jackson is entitled to a judgment of $24,000.00 on those issues.
The final judgment also recites that “[t]hereafter, on this day a trial was held on the
3 remaining issues raised by the Defendant . . . regarding conversion of personal property.” The
trial court ruled that judgment should be rendered for Jackson on the controverted facts, and
awarded judgment for Jackson and against Encinas in the sum of $16,000.00 as reimbursement for
unpaid property tax payments that Jackson paid, and $8,000.00 as reimbursement to Jackson for
the delinquent note payments he had paid, as well as other relief.
DISCUSSION
Encinas presents two issues for our consideration. In Issue One, Encinas asserts the trial
court erred by granting final judgment in favor of Jackson because Encinas’ delinquent payments
on Jackson’s loan were satisfied by the subsequent purchaser of the business and property, and
thereby unjustly enriched Jackson. We disagree.
Standard of Review
Where the party having the burden of proof suffers an unfavorable finding (failure to find),
the proper complaint is that the fact was established as “a matter of law.” Enchilada's Nw., Inc.
v. L & S Rental Properties, 320 S.W.3d 359, 362–63 (Tex.App.--El Paso 2010, no pet.). When
attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which
it had the burden of proof, an appellant must demonstrate that the evidence conclusively
established all vital facts in support of the issue. Dow Chemical Company v. Francis, 46 S.W.3d
237, 241 (Tex. 2001), citing Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex. 1989);
Duran v. Garcia, 224 S.W.3d 309, 312 (Tex.App.--El Paso 2005, no pet.). A party attempting to
overcome an adverse fact finding as a matter of law must surmount two hurdles. Sterner, 767
S.W.2d at 690; Duran, 224 S.W.3d at 312. First, the record must be examined for evidence that
supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690;
4 Duran, 224 S.W.3d at 312. Second, if there is no evidence to support the finding, then the entire
record must be examined to see if the contrary proposition is established as a matter of law.
Sterner, 767 S.W.2d at 690; Duran, 224 S.W.3d at 312. Only if the contrary position is
conclusively established will the legal sufficiency challenge be sustained. Duran, 224 S.W.3d at
312–13.
Analysis
On March 3, 2016, after its August 4, 2015, hearing on the parties’ motions for partial
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
MYRTA CABALLERO ENCINAS, § No. 08-16-00050-CV Appellant, § Appeal from the v. § 83rd District Court BILLY WAYNE JACKSON, § of Pecos County, Texas Appellee. § (TC# 7336) §
OPINION
Appellant Myrta Caballero Encinas appeals from a final judgment entered in favor of Billy
Wayne Jackson, Appellee. We affirm the trial court’s judgment.
BACKGROUND
In 2009, Jackson and Encinas entered into a verbal agreement regarding Encinas’ lease of
a commercial laundry business and property from Jackson, and the parties understood that Encinas
would attempt to purchase the business and property from Jackson. At the time the parties entered
into the verbal lease agreement, Jackson had a mortgage or loan on the property with the Pecos
County State Bank (the bank). For reasons of expediency, under the terms of the verbal lease
agreement, the parties agreed that Encinas would pay the bank directly and would also be responsible for paying property taxes.
In 2011, Encinas executed an agreement to purchase the business for $231,000.00 but was
unable to secure financing for that purpose. Despite her inability to obtain financing, Encinas
agreed that the verbal lease agreement with Jackson remained in effect.
On February 20, 2013, the parties executed a commercial lease agreement which provided,
“This lease is a written confirmation of the previous agreement made between Billy Jackson
(hereinafter ‘Landlord’) and Myrta Encinas (hereinafter ‘Tenant’) in 2009, when Tenant assumed
lease, and still honored by both parties currently.” In the written lease agreement, Encinas agreed
as Tenant to make timely monthly payments of $2,600.00 to the bank, and to “be responsible” for
all taxes during the lease, from “2009 to current.” The written lease agreement states that Encinas
is aware that the business is for sale, and reserved to Jackson the right to sell the business if Encinas
is unable to secure funding for the purchase. Encinas never purchased the business and property.
Jackson learned that Encinas had failed to pay the property taxes for 2009-2014 when
Pecos County filed suit against him in an effort to recover $16,000.00 in delinquent property taxes.1
Jackson resolved the lawsuit by paying Pecos County $16,000.00. Jackson also became aware
that Encinas was in arrears on the payments to the bank in the sum of $8,000.00 when the bank
president called him. Jackson immediately went to the bank and wrote a check in the amount of
$8,000.00 to satisfy the note payments.
On February 25, 2014, Jackson and Encinas entered into an agreement whereby Encinas
agreed to repay Billy and Jeri Sue Jackson the 2009-2014 delinquent property tax plus court fees
in the sum of $16,000.00 as well as the delinquent note payments in the sum of $8,000.00. Under
1 Jackson testified that correspondence from the tax office was sent to the business address. 2 the terms of the agreement, Encinas was to make payment of $24,000.00 in full before the close
of business on March 21, 2014. Encinas never paid Jackson this sum, and no evidence was
provided showing that she paid to Jackson any portion of that sum. Jackson eventually secured a
purchaser for the business and property, and assisted Encinas in removing her personal items from
the premises.
Jackson filed suit against Encinas asserting breach of contract and conversion, and sought
recovery of damages including those for unpaid property taxes, unpaid monthly bank installments,
and loss of value of personal property. Encinas counterpleaded causes of action for conversion,
breach of duties and gross negligence, fraud and fraudulent inducement, breach of contract, and
civil theft and sought damages and other relief.
Both Jackson and Encinas filed motions for partial summary judgment. During the final
hearing, counsel referenced the trial court’s prior partial summary judgment hearing, but no record
of those proceedings, nor any other order regarding partial summary judgment, have been included
in the record on appeal.
However, in its final judgment signed on March 7, 2016, the trial court recites that on
August 4, 2015, it entered its interlocutory partial summary judgment in favor of Jackson after
examining the pleadings and evidence before it, determined that no genuine issues of material fact
existed, found that Encinas breached the commercial lease agreement when she failed to pay
$16,000.00 in property taxes, and failed to timely pay Pecos County State Bank the sum of
$8000.00 during the term of the lease agreement. Based on these findings, the trial court
determined as a matter of law that Jackson is entitled to a judgment of $24,000.00 on those issues.
The final judgment also recites that “[t]hereafter, on this day a trial was held on the
3 remaining issues raised by the Defendant . . . regarding conversion of personal property.” The
trial court ruled that judgment should be rendered for Jackson on the controverted facts, and
awarded judgment for Jackson and against Encinas in the sum of $16,000.00 as reimbursement for
unpaid property tax payments that Jackson paid, and $8,000.00 as reimbursement to Jackson for
the delinquent note payments he had paid, as well as other relief.
DISCUSSION
Encinas presents two issues for our consideration. In Issue One, Encinas asserts the trial
court erred by granting final judgment in favor of Jackson because Encinas’ delinquent payments
on Jackson’s loan were satisfied by the subsequent purchaser of the business and property, and
thereby unjustly enriched Jackson. We disagree.
Standard of Review
Where the party having the burden of proof suffers an unfavorable finding (failure to find),
the proper complaint is that the fact was established as “a matter of law.” Enchilada's Nw., Inc.
v. L & S Rental Properties, 320 S.W.3d 359, 362–63 (Tex.App.--El Paso 2010, no pet.). When
attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which
it had the burden of proof, an appellant must demonstrate that the evidence conclusively
established all vital facts in support of the issue. Dow Chemical Company v. Francis, 46 S.W.3d
237, 241 (Tex. 2001), citing Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex. 1989);
Duran v. Garcia, 224 S.W.3d 309, 312 (Tex.App.--El Paso 2005, no pet.). A party attempting to
overcome an adverse fact finding as a matter of law must surmount two hurdles. Sterner, 767
S.W.2d at 690; Duran, 224 S.W.3d at 312. First, the record must be examined for evidence that
supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690;
4 Duran, 224 S.W.3d at 312. Second, if there is no evidence to support the finding, then the entire
record must be examined to see if the contrary proposition is established as a matter of law.
Sterner, 767 S.W.2d at 690; Duran, 224 S.W.3d at 312. Only if the contrary position is
conclusively established will the legal sufficiency challenge be sustained. Duran, 224 S.W.3d at
312–13.
Analysis
On March 3, 2016, after its August 4, 2015, hearing on the parties’ motions for partial
summary judgment, the trial court held a trial on Encinas’ remaining issues regarding conversion
of personal property. That record alone is before us on appeal. The trial court concluded that
judgment should be rendered for Jackson. No judgment was entered in favor of Encinas on any
pleaded cause of action, and no findings of fact or conclusions of law are present in the record.
It was Encinas’ burden to prove her conversion cause of action. In attacking the legal
sufficiency of the evidence to support an adverse finding on an issue for which she had the burden
of proof, Encinas must demonstrate that the evidence conclusively established all vital facts in
support of the issue. Sterner, 767 S.W.2d at 690; Duran, 224 S.W.3d at 312. While Encinas
presented two theories of conversion, her complaint on appeal relates to her claim of conversion
based on her alleged “‘loan’ equity in business purchase [sic] after sale.”
Conversion consists of the wrongful exercise of dominion or control over another’s
property in denial of, or inconsistent with, the other’s rights. Estate of Townes v. Townes, 867
S.W.2d 414, 419 (Tex.App.--Houston [14th Dist.] 1993, writ denied). Money is subject to
conversion only when it can be identified as a specific chattel and where there is an obligation to
deliver the specific money in question or otherwise particularly treat the specific
5 money. Id. There is no conversion where an indebtedness may be discharged generally by the
payment of money. Paschal v. Great W. Drilling, Ltd., 215 S.W.3d 437, 456 (Tex.App.--Eastland
2006, pet. denied); Newsome v. Charter Bank Colonial, 940 S.W.2d 157, 161 (Tex.App.--
Houston [14th Dist.] 1996, writ denied).
We begin our analysis by examining the record for evidence that supports the trial court’s
adverse finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690; Duran,
224 S.W.3d at 312. This evidence includes Jackson’s and Encinas’ testimony that they first made
a verbal lease agreement in 2009, and although Encinas wanted to purchase the laundry business
and property, Encinas was unable to obtain the financing to do so, and the parties entered into a
written lease agreement memorializing their 2009 agreement. Although the written commercial
lease agreement states that Encinas, as tenant – and not as purchaser or buyer, would “assume the
business loan,” the judgment shows the trial court deemed the agreement to be a lease agreement.
Under the terms of the lease agreement, Encinas was to pay the bank directly for Jackson’s
business loan and was to pay property taxes to Pecos County. She testified that she understood
that she was purchasing the laundry business under owner financing and acknowledged that she
did not buy the business when she failed to obtain financing, but Encinas also admitted that after
her financing failed, she had agreed but failed to make business loan payments as required by the
on-going lease. Encinas also acknowledged that she knew, as stated in the lease agreement, that
the business was for sale. Encinas never testified that she was entitled to recover any funds from
Jackson’s sale of the business to its purchaser, nor presented any other evidence in support of a
conversion cause of action for alleged “loan equity.” We disagree with Encinas’ assertion on
appeal that Jackson “was able to have his cake, and eat it too,” as Jackson was required to pay and
6 did pay the loan and taxes that Encinas failed to pay under the terms of the lease agreement, and
Encinas failed to show that as an owner, Jackson’s subsequent sale of the business, even at a profit,
inured any benefit to her as his tenant.
Ignoring all evidence to the contrary, we conclude the evidence in the record supports the
trial court’s finding, and need not proceed with the no-evidence prong of the analysis. Sterner,
767 S.W.2d at 690; Duran, 224 S.W.3d at 312. Because Encinas has not conclusively established
a contrary position, we cannot sustain her legal sufficiency challenge. Duran, 224 S.W.3d at 312–
13. Issue One is overruled.
In Issue Two, Encinas contends “any and all alternative constructions of the business loan
payments by Jackson in the Trial Court are irrelevant, or in direct contravention to the express
written language of the Agreement. Appellees arguments that these payments were rental
payments directly to Jackson are moot[.]” Encinas has inadequately briefed this issue and has
waived our consideration of it on appeal. Contrary to Rule 38.1(i), which requires appropriate
citation to authorities, Encinas provides no citation to authority, nor applies applicable law to the
facts of the case in support of her second issue. See Ratsavong v. Menevilay, 176 S.W.3d 661,
666 (Tex.App.--El Paso 2005, pet. denied); Sunnyside Feedyard, L.C. v. Metropolitan Life Ins.
Co., 106 S.W.3d 169, 173 (Tex.App.--Amarillo 2003, no pet.). Issue Two is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
YVONNE T. RODRIGUEZ, Justice June 22, 2018
Before McClure, C.J., Rodriguez, and Hughes, JJ. Hughes, J., not participating