Remington Sherman Automotive, LLC v. FMG North Texas, LLC, Successor in Interest of FMO Real Estate, LLC

• Court: Court of Appeals of Texas
• Decided: December 27, 2023
• Docket: 05-22-01366-CV
• Status: Published

Opinion

AFFIRMED IN PART; REVERSED AND RENDERED IN PART; and Opinion Filed December 27, 2023

In the Court of Appeals Fifth District of Texas at Dallas No. 05-22-01366-CV

REMINGTON SHERMAN AUTOMOTIVE, LLC, Appellant V. FMG NORTH TEXAS, LLC, SUCCESSOR IN INTEREST OF FMO REAL ESTATE, LLC, Appellee

On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. CV-19-1015

MEMORANDUM OPINION Before Justices Carlyle, Smith, and Kennedy Opinion by Justice Carlyle Remington Sherman Automotive, LLC appeals from a final judgment entered

in favor of FMG North Texas, LLC. We affirm in part and reverse and render in part

in this memorandum opinion. See TEX. R. APP. P. 47.4.

This dispute arises out of an advertising billboard located on property adjacent

to U.S. Highway 75 in Sherman. Dwight Ramey—proprietor of Ramey Chevrolet—

leased the land on which the billboard is located to “The Lamar Companies” in 2010.

“The Lamar Companies” is an assumed name used by various sub-entities of Lamar Advertising Co., including Lamar Advantage Outdoor Company, LP (LAO), which

held the rights to the lease.

The lease granted the Lamar Companies the right to place an “outdoor

advertising structure” on the premises and provided that

[a]ll structures, equipment and materials placed upon the premises by [The Lamar Companies] shall remain the property of [The Lamar Companies] and may be removed by [them] at any time prior to or within a reasonable time after expiration of the term hereof or any extension. At the termination of this lease, [The Lamar Companies] agree[] to restore the surface of the leased premises to its original condition.

A rider to the lease further provided that

[a]ny provision to the contrary in this lease notwithstanding, [the parties] agree that [Ramey] may terminate this lease upon Sixty (60) days written notice and the return of any unearned rentals. [The Lamar Companies] will have Ninety (90) days from the receipt of such notice to remove their structure from the premises. Rent[] shall be due until the structure is removed and the [site] vacated by [The Lamar Companies].

The Lamar Companies installed the billboard on the premises, and the lease

continued for approximately eight years without incident. During that time, LAO

transferred its rights in the lease and billboard as part of a 2012 Asset Exchange

Agreement between certain Lamar entities and certain “Fairway Outdoor

Advertising” entities. FMG North Texas, LLC then acquired the rights in December

2018 as part of an Asset Contribution Agreement with other Fairway entities.

Remington purchased the Ramey Chevrolet dealership in 2018, along with the

real property on which the billboard is located. On May 9, 2018, Remington notified

–2– Fairway—which managed the billboard—that it was terminating the lease. The letter

explained, however, that Remington was willing to discuss an arrangement whereby

it would acquire ownership of the billboard structure and lease it back to Fairway.

The parties met two days later to discuss the possibility of a new lease, but

each party insisted on owning the billboard structure going forward. Unable to reach

an agreement, Fairway sent a crew to remove the billboard on August 9, 2018. After

Fairway’s crew arrived, Remington’s attorney asked Fairway to leave the billboard

intact so the parties could continue negotiating. Remington’s counsel confirmed in

a letter the following day that Remington agreed “for a period of not less than thirty

days from the date of this letter your failure to remove or engage in efforts to remove

the sign in response to the Notice provided on May 9, 2018, shall not constitute an

abandonment of the sign or a waiver of your right to remove the sign pursuant to

reasonably diligent efforts after the expiration of thirty days.” The letter continued

that the purpose of the agreement was “to facilitate continued negotiations . . . and

to ensure that by failing to take steps now you are not deemed to have waived your

right to the sign or have abandoned the sign.”

The parties dispute the extent to which their negotiations continued in earnest

after that point. Regardless, failing to reach an agreement, FMG’s representatives

went to Remington’s dealership on May 14, 2019 and informed the manager there

that FMG intended to remove the billboard structure. After confirming there was

sufficient clearance to perform the removal, FMG notified Remington’s counsel that

–3– it intended to remove the billboard on May 24, 2019. When FMG’s crew showed up

on that date, Remington refused to allow access and surrounded the billboard with

cars to prevent its removal. Remington later poured additional concrete around the

billboard and began using it to advertise its own business.

After Remington refused to allow FMG access to the billboard, FMG filed

this lawsuit seeking the billboard’s return along with damages, alleging claims for

conversion and breach of contract. The parties filed cross-motions for summary

judgment as to liability on the conversion claim, and the trial court granted FMG’s

motion and denied Remington’s. FMG then abandoned its breach-of-contract claim,

and the trial court conducted a bench trial to determine FMG’s conversion remedies.

In its final judgment, the trial court ordered Remington to cooperate in allowing

FMG to recover the billboard and awarded FMG $159,899.76 in loss-of-use

damages. Remington appeals.

THE BILLBOARD IS A TRADE FIXTURE

Remington first argues the trial court erred by denying its motion for summary

judgment on FMG’s conversion claim because the billboard structure does not

qualify as a “trade fixture” subject to such a claim. We review a trial court’s order

granting a motion for summary judgment de novo, generally taking as true all

evidence favoring the nonmovant and indulging every reasonable inference in the

nonmovant’s favor. Concho Res., Inc. v. Ellison, 627 S.W.3d 226, 233 (Tex. 2021).

“When, as here, the parties file cross-motions for summary judgment and the trial

–4– court grants one and denies the other, we ‘consider both sides’ summary-judgment

evidence, determine all questions presented, and render the judgment the trial court

should have rendered.’” Id. (quoting Gilbert Tex. Constr., L.P. v. Underwriters at

Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010)).

To prove its claim for conversion, FMG had to establish: (1) it “owned, had

legal possession of, or was entitled to possession of” the billboard structure;

(2) Remington “unlawfully and without authorization, assumed and exercised

dominion and control over the property to the exclusion of, or inconsistent with”

FMG’s rights; (3) FMG “made a demand for the property”; and (4) Remington

“refused to return the property.” Guillory v. Dietrich, 598 S.W.3d 284, 292 (Tex.

App.—Dallas 2020, pet. denied). Remington argues that the billboard does not

qualify as a removable “trade fixture” to which FMG could claim ownership rights

for purposes of the first element of its conversion claim. Instead, Remington

contends, the billboard is a permanent fixture and thus an improvement to

Remington’s real property for which FMG has no property rights.

The term “trade fixture” refers to any article “annexed to the realty by [a]

tenant to enable [the tenant] properly or efficiently to carry on the trade, profession,

or enterprise contemplated by the tenancy contract or in which [the tenant] is

engaged while occupying the premises, and which can be removed without material

or permanent injury to the freehold.” Jim Walter Window Components v. Turnpike

Distribution Ctr., 642 S.W.2d 3, 5 (Tex. App.—Dallas 1982, writ ref’d n.r.e.). Trade

–5– fixtures are thus distinguishable from other fixtures and improvements made to real

property in that trade fixtures are intended to be temporary and benefit the tenant’s

trade, while other improvements and fixtures are intended to be permanent and

enhance the real property. See id. As between a landlord and a tenant, “in favor of

trade and to encourage industry, the greatest latitude is allowed, so that all fixtures

set up for better enjoyment of trade are retained by the tenant” as its removable

personal property. Id.

Here, whether the billboard constitutes a removable trade fixture rather than a

permanent improvement turns on the parties’ intent, which we must discern from the

lease. See id. (“The intent of the parties regarding the right to remove additions at

the termination of a lease is to be determined from the provisions of the lease

agreement.”); see also C.W. 100 Louis Henna, Ltd. v. El Chico Rests. of Tex. L.P.,

295 S.W.3d 748, 754–55 (Tex. App.—Austin 2009, no pet.) (“Our resolution of these

issues turns on construction of the ground lease.”); Tempo Tamers, Inc. v. Crow-

Houston Four, Ltd., 715 S.W.2d 658, 664 (Tex. App.—Dallas 1986 writ ref’d n.r.e.)

(“[W]hen a party improves another’s property pursuant to a contractual agreement,

the party’s intent is determined from the contract’s provisions concerning the

additions or improvements.”). We reject Remington’s argument, based on the

supreme court’s opinion in State v. Clear Channel Outdoor, Inc., 463 S.W.3d 488

(Tex. 2015), that such lease terms are irrelevant when determining whether property

constitutes a trade fixture.

–6– The issue in Clear Channel was whether the billboards there qualified as

fixtures for purposes of condemnation compensation. The court noted that a

“tenant’s right to remove improvements when the lease ends cannot be invoked by

the condemnor to limit compensation for a taking.” See id. (citing Almota Farmers

Elevator & Warehouse Co. v. United States, 409 U.S. 470, 477 n.5 (1973)). The

court also concluded that whether certain property constitutes a fixture is based on

the parties’ objective manifestations of intent, not their subjective assertions of

intent. Id. at 494. Accordingly, lease terms allowing a tenant to remove the property

are not relevant to determining whether the property qualifies as a fixture subject to

condemnation compensation. Id.

In saying that, however, the court did not conclude that lease terms are

irrelevant to determining whether, as between a landlord and tenant, an addition

qualifies as a trade fixture to which the tenant would maintain ownership rights.

Indeed, the court specifically noted that property can be both a fixture for purposes

of determining condemnation compensation and a trade fixture for purposes of a

tenant’s removal rights. See id. at 494 (In Brazos River Conservation & Reclamation

District v. Adkisson, “we held that an oil and gas lessee’s well casing and other well-

site equipment in an area condemned for a water reservoir were fixtures for which

compensation was due, even though the lessee had the right to remove these trade

fixtures and could have done so before inundation.”); see also id. at 493–94 (“When

an improvement to land, whether a building or a sign, cannot be removed except in

–7– useless pieces, it is almost certainly a fixture under [the first factor articulated in

Logan v. Mullis, 686 S.W.2d 605, 607–08 (Tex. 1985)], even if the tenant has a legal

right to the pieces.”). We do not read Clear Channel to suggest that lease terms are

irrelevant to making trade-fixture determinations.

Here, the lease leaves no doubt that both the lessor and the lessee objectively

intended that the billboard structure would remain the lessee’s personal property and

that the lessee could remove it when the lease ended:

All structures, equipment and materials placed upon the premises by the LESSEE shall remain the property of LESSEE and may be removed by it at any time prior to or within a reasonable time after expiration of the term hereof or any extension. At the termination of this lease, LESSEE agrees to restore the surface of the leased premises to its original condition.

We also reject Remington’s assertion that, regardless of what the parties

agreed or intended, the billboard structure cannot qualify as a trade fixture because

FMG intends to only partially remove it. To the extent Remington complains that

FMG intends to cut the billboard structure at its base below the surface, leaving its

concrete footing underground while restoring the surface to its original condition,

we note that the lease specifically requires only that the surface be restored upon

removal: “At the termination of this lease, LESSEE agrees to restore the surface of

the leased premises to its original condition.” The lease does not require the lessee

to restore the subsurface to its original condition, and Remington points to no

–8– summary judgment evidence suggesting that the concrete footing below the surface

will materially hinder its use or enjoyment of the premises.

A landlord cannot induce a tenant to lease its property by promising that the

tenant may erect a specific type of fixture on the property for use in its trade,

promising that the fixture will remain the tenant’s personal property, and promising

that the tenant may remove the fixture at the end of the lease so long as the tenant

agrees to restore the property’s surface to its original condition, and then terminate

the lease and claim ownership over the fixture by virtue of the fact that removing it

as agreed will cause damage to the property.1 On this record, and under these lease

terms, we conclude the billboard structure’s removal would not materially damage

Remington’s property and that it is a removable trade fixture subject to FMG’s

conversion claim.

THE NINETY-DAY REMOVAL PROVISION DOES NOT PRECLUDE FMG’S CLAIM

Remington next argues the trial court erred by denying its motion for summary

judgment because FMG forfeited any ownership interest it may have had by failing

to remove the billboard structure within ninety days of Remington’s termination

1 These facts distinguish this case from Connelly v. Art & Gary, Inc., 630 S.W.2d 514, 516 (Tex. Civ. App.—Corpus Christi 1982, writ ref’d n.r.e.), in which our sister court determined that a tenant’s intent to only partially remove a sign demonstrated it was not a removable trade fixture under the parties’ lease. Unlike the lease here, the lease in Connelly was not entered into for the specific purpose of allowing the tenant to “construct[], repair and relocat[e] . . .” an advertising billboard structure, nor did it specifically provide that such a structure would remain the tenant’s property, that the tenant had the right to remove it at the end of the lease, or that the tenant agreed to restore the surface of the property upon the structure’s removal. See id. at 515. In fact, the lease in Connelly specifically prohibited the lessee from “plac[ing] any signs at, on, or about the premises except as and where first approved by the Lessor”—a provision the trial court found the tenant violated. Id. at 515. –9– notice, as required by the lease’s termination rider. But again, the lease specifically

states that “[a]ll structures, equipment and materials placed upon the premises by

LESSEE shall remain the property of LESSEE.” Nothing in the lease or rider states

that the lessee would forfeit ownership of the billboard structure by failing to remove

it within ninety days of the lease’s termination. “Courts will not declare a forfeiture

unless they are compelled to do so by language which can be construed in no other

way.” Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 530 (Tex. 1987).

Here, the termination rider states: “Lessee will have Ninety (90) days from

the receipt of [a termination notice] to remove their structure from the premises.

Rent[] shall be due until the structure is removed and the [site] vacated by Lessee.”

This language does not require a forfeiture of the lessee’s ownership interest; it

merely establishes the lessee’s obligation to remove the billboard within ninety

days—the breach of which might subject the lessee to additional rent and any other

damages flowing from the delay. See Smith v. Nat’l Advertising Co., No. 14-00-

00474-CV, 2002 WL 370200, at *2 & n.10 (Tex. App.—Houston [14th Dist.] March

7, 2002, pet. denied) (mem. op.) (not designated for publication) (rejecting argument

that lessee forfeited ownership of a billboard by failing to timely remove it, noting

there was no lease provision specifying that lessee’s failure to timely remove the

billboard would result in a forfeiture); see also Reader v. Christian, 234 S.W. 155,

157–58 (Tex. Civ. App.—Beaumont 1921) (“Where the title [to a fixture] is reserved

expressly in lessee, and time for its removal stipulated, the failure to remove within

–10– the time stipulated, in the absence of any provisions for forfeiture, does not forfeit

the property or divest the title out of lessee, but subjects him to pay whatever

damages may be suffered by the lessor by reason of delay in removal.”).

Furthermore, Remington waived its right to enforce the ninety-day removal

provision. “Waiver is the ‘intentional relinquishment of a known right or intentional

conduct inconsistent with claiming that right.’” LaLonde v. Gosnell, 593 S.W.3d 212,

218–19 (Tex. 2019) (quoting Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430

S.W.3d 384, 393 (Tex. 2014)). It “‘results as a legal consequence from some act or

conduct of the party against whom it operates’ and is ‘essentially unilateral in

character,’ meaning ‘no act of the party in whose favor it is made is necessary to

complete it.’” Id. (quoting Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 485

(Tex. 2017)).

The summary judgment record establishes that, despite being aware of the

termination rider’s provisions, Remington’s counsel sent FMG’s representatives a

letter on August 10, 2018, soon after the ninety-day removal period expired,

confirming that Remington agreed “for a period of not less than thirty days from the

date of this letter your failure to remove or engage in efforts to remove the sign in

response to the Notice provided on May 9, 2018, shall not constitute an abandonment

of the sign or a waiver of your right to remove the sign pursuant to reasonably

diligent efforts after the expiration of thirty days.” The letter continued by stating

Remington’s intention was to facilitate further negotiations in hopes of reaching a

–11– new lease agreement. This letter establishes as a matter of law that Remington both

intentionally relinquished and acted in a manner inconsistent with any right to

strictly enforce the termination rider’s ninety-day removal provision. The trial court

did not err by rejecting Remington’s argument that FMG forfeited its ownership

interest in the billboard by failing to remove it within ninety days of termination.

FMG SUFFICIENTLY PROVED ITS OWNERSHIP INTEREST

Remington next contends the trial court erred by granting FMG’s motion for

summary judgment because FMG did not sufficiently prove it acquired any

ownership rights to the lease or billboard structure from “The Lamar Companies.”

We disagree. FMG provided an affidavit from Connor Eglin, Lamar Advertising

Co.’s Associate General Counsel, explaining that “The Lamar Companies” is an

assumed name used by various Lamar Advertising Co. sub-entities, including

LAO—which held the rights to the billboard and lease at issue and transferred them

as part of a 2012 Asset Exchange Agreement between various Lamar and Fairway

entities. Mr. Eglin attached to his affidavit a copy of the lease, as well as a copy of

the 2012 Asset Exchange Agreement by which LAO transferred the rights to FMO

Real Estate, LLC and Fairway Outdoor Funding, LLC.

FMG also provided affidavits from Andy McDonald, FMG’s general counsel,

and Ryan Zaloudik, Fairway’s former Real Estate Manager, testifying and providing

supporting documentation establishing that FMG acquired the rights to the billboard

and lease from FMO and Fairway Outdoor Funding as part of a December 2018

–12– Asset Contribution Agreement involving FMG, FMO, Fairway Outdoor Funding,

and other Fairway entities. FMG sufficiently proved its ownership interest in the

billboard and lease.

FMG DID NOT NEED TO PROVE ITS PERFORMANCE UNDER THE LEASE

Remington next argues the trial court erred by granting FMG’s motion for

summary judgment because FMG did not conclusively prove its own performance

under the lease agreement. We need not determine whether FMG provided sufficient

evidence of its predecessors’ performance under the lease, because such performance

was not an element of its conversion claim—it was an element of the breach-of-

contract claim FMG subsequently abandoned.

Despite the fact that performance under the lease is not an element of

conversion, Remington argues that FMG had to prove such performance in order to

establish its ownership interest in the billboard. We disagree. Although the lease and

its provisions are relevant to determining whether FMG owns the billboard for

purposes of establishing its conversion claim, the lease unequivocally states that the

lessee would retain ownership over any structures it placed on the premises. Nothing

in the lease suggests ownership of the structure was made contingent upon the

lessee’s continued contractual performance under the lease or that ownership would

revert to the lessor in the event of a breach. Thus, FMG had no obligation to prove

its continued performance under the lease to establish its ownership interest in the

billboard.

–13– FMG’S EVIDENCE SUFFICIENTLY SUPPORTS SUMMARY JUDGMENT

Remington next contends FMG’s summary judgment evidence was legally

insufficient because certain statements in FMG’s supporting affidavits were

conclusory, and two documents attached as exhibits to FMG’s summary judgment

motion were not properly authenticated. We need not reach the merits of

Remington’s objections because even if we assume those objections are meritorious,

Remington offers no argument as to how the remaining summary judgment evidence

is insufficient to support the trial court’s judgment. See TEX. R. APP. P. 38.1(i).

Regardless, having reviewed the summary judgment record, we conclude that the

evidence sufficiently supports the trial court’s partial summary judgment, even

without considering any conclusory or unauthenticated statements to which

Remington objects on appeal.

FMG’S EVIDENCE DOES NOT SUPPORT THE TRIAL COURT’S DAMAGES AWARD

After the bench trial on damages, the trial court found that “[t]he rental value

for the billboard structure converted by Defendant is $4,441.46 per month which

was the rental value of the sign at the location at the time of Defendant’s conversion

and during Defendant’s use.” Based on that finding, the trial court awarded FMG

“actual damages in the amount of $159,899.76 which damages shall continue to

accrue at the rate of $4,441.46 per month from June 6, 2022 until the billboard

structure is returned to Plaintiff.”

–14– Remington argues that the evidence does not sufficiently support the trial

court’s damages award under a correct measure of damages. On this point, we agree.

Although “[t]he usual measure of damages for conversion is the fair market value of

the property at the time and place of conversion,” a plaintiff may elect instead “to

seek the return of the property along with damages for its loss of use during the time

of its detention.” Wells Fargo Bank N.W., N.A. v. RPK Capital XVI, L.L.C., 360

S.W.3d 691, 706 (Tex. App.—Dallas 2012, no pet.). Here, FMG elected to have the

billboard returned and sought its loss-of-use damages.

“[A] party who loses the opportunity to accrue earnings from the use of its

equipment may . . . recover loss of use damages in the form of lost profits” equal to

the loss of net income to its business. See id. at 710. FMG’s conversion claim is

premised on Remington wrongfully refusing to allow FMG to remove and relocate

its billboard after the lease’s termination. Thus, to recover damages for loss of the

billboard’s use resulting from Remington’s conversion, FMG had to establish the

profits it could have earned if Remington had not prevented it from removing and

relocating the billboard. Instead, over Remington’s objection, FMG presented

evidence only of the amount of revenue FMG could have earned if Remington had

allowed it to keep using the billboard on Remington’s property—a measure

inconsistent with the legal and factual basis of FMG’s conversion claim. Absent any

evidence showing the profits FMG could have earned at another location if allowed

–15– to remove and relocate the billboard, which FMG acknowledges it did not provide,

the evidence is legally insufficient to support any loss-of-use damages.

THE ECONOMIC-LOSS RULE DOES NOT BAR FMG’S CONVERSION CLAIM

Remington next contends FMG’s claims are barred by the economic-loss rule,

which generally precludes recovery in tort for losses resulting from a party’s failure

to perform under a contract when the harm consists only of the economic loss of a

contractual expectancy. See Chapman Custom Homes, Inc. v. Dallas Plumbing Co.,

445 S.W.3d 716, 718 (Tex. 2014). The rule does not, however, bar claims for breach

of duties that exist independent of the parties’ contractual obligations when the harm

suffered is not merely the economic loss of a contractual benefit. Id.

Here, Remington’s duty to refrain from unlawfully exercising dominion over

FMG’s personal property exists independently of the lease. FMG’s loss—the

deprivation of its tangible personal property—is not the mere economic loss of a

contractual benefit under the lease and the economic-loss rule does not apply under

these circumstances. See Hilburn v. Storage Trust Props., LP, 586 S.W.3d 501, 507–

10 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

FMG’S FAILURE TO PROVE DAMAGES DOES NOT AFFECT ITS RIGHT TO RECOVER THE BILLBOARD

Remington next argues the trial court erred by ordering it to return the

billboard structure to FMG because FMG did not sufficiently prove it suffered any

damages as a result of the conversion. Remington bases its argument on United

–16– Mobile Networks, L.P. v. Deaton, in which the supreme court noted that “[a] plaintiff

must prove damages before recovery is allowed for conversion.” 939 S.W.2d 146,

147 (Tex. 1997). Remington takes that statement literally to mean a plaintiff may not

recover anything—including its converted property—unless it sufficiently proves

monetary damages resulting from the conversion. From that premise, Remington

argues that because FMG failed to offer sufficient evidence of its damages, it cannot

recover its converted property.

In Deaton, the supreme court addressed only whether the evidence sufficiently

supported the monetary damages awarded by the jury for conversion; it did not

address whether the plaintiff could have sought return of its converted property

without proving those damages. See id. And it would make little sense to require a

plaintiff seeking the return of its converted property to prove injury beyond the

unlawful deprivation of that property. The supreme court’s statement in Deaton,

viewed in its proper context, means only that a plaintiff cannot recover monetary

damages for conversion without sufficiently proving that those damages resulted

from the conversion.

Indeed, citing Deaton, we stated in Wells Fargo Bank Northwest N.A. v. RPK

Capital XVI, L.L.C., that “[a] plaintiff must prove damages before recovery is

allowed for conversion.” 360 S.W.3d at 706. Yet, despite the plaintiff’s failure in that

case to offer sufficient evidence to support its loss-of-use damages, we affirmed the

–17– trial court’s judgment awarding the plaintiff possession of its converted property.

See id. at 713. We reject Remington’s arguments based on Deaton.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ORDERING REMINGTON TO ALLOW FMG TO RECOVER THE BILLBOARD

Finally, Remington contends the trial court erred by ordering Remington to

cooperate in allowing FMG to recover the billboard from Remington’s property.

Remington argues that “in essence, the trial court impermissibly awarded mandatory

injunctive relief for a breach of contract claim.” It thus argues that FMG should be

denied any recovery because it had an adequate remedy available at law—monetary

damages for the billboard’s fair-market value—and did not demonstrate it would

suffer irreparable injury or extreme hardship if not allowed to recover the billboard.

We reject the premise of Remington’s argument. The trial court did not award

mandatory injunctive relief for a breach-of-contract claim; it merely enforced

FMG’s right to elect the return of its property as a remedy for conversion. See id. at

706–07 (plaintiff may elect to either recover its converted property and seek loss-of-

use damages or recover damages for the property’s fair-market value at the time and

place of conversion); see also Storms v. Reid, 691 S.W.2d 73, 75 (Tex. App.—Dallas

1985, no writ) (“In conversion cases, the trial court must be given the discretion

required to fashion an equitable remedy.”).

Remington’s reliance on Alert Synteks, Inc. v. Jerry Spencer, L.P., 151 S.W.3d

246 (Tex. App.—Tyler 2004, no pet.), is misplaced. There, an intervenor obtained a

–18– pretrial temporary injunction preventing a party from selling certain equipment the

intervenor alleged the other party had wrongfully converted. Our sister court found

that the trial court abused its discretion by granting the injunction because the

intervenor failed to establish it had no adequate remedy at law. See id. at 254. Here,

in contrast, the trial court did not grant a pretrial temporary injunction based on

allegations of conversion; it issued a post-trial judgment awarding a plaintiff the

return of its converted property. Remington cites no Texas authority holding that a

plaintiff electing the remedy of having its converted property returned must also

establish that it has no adequate remedy at law or that it will suffer irreparable injury

or extreme hardship if the property is not returned. We decline to adopt those

requirements here.

* * *

We reverse the trial court’s judgment to the extent it awards FMG loss-of-use

damages and render judgment that FMG take nothing on its claim for such damages.

In all other respects, we affirm the trial court’s judgment.

/Cory L. Carlyle/ 221366f.p05 CORY L. CARLYLE JUSTICE

–19– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

REMINGTON SHERMAN On Appeal from the 59th Judicial AUTOMOTIVE, LLC, Appellant District Court, Grayson County, Texas No. 05-22-01366-CV V. Trial Court Cause No. CV-19-1015. Opinion delivered by Justice Carlyle. FMG NORTH TEXAS, LLC, Justices Smith and Kennedy SUCCESSOR IN INTEREST OF participating. FMO REAL ESTATE, LLC, Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s judgment that awards damages to FMG North Texas, LLC and RENDER judgment that FMG North Texas, LLC take nothing on its claim for damages. In all other respects, the trial court’s judgment is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 27th day of December, 2023.

–20–