Continental Nat. Bank v. Dolenz, 18350
| Decision Date | 26 February 1981 |
| Docket Number | No. 18350,18350 |
| Citation | 613 S.W.2d 73 |
| Parties | CONTINENTAL NATIONAL BANK, Appellant, v. Bernard J. DOLENZ, Appellee. |
| Court | Texas Court of Appeals |
Continental National Bank of Fort Worth, Inc. has appealed a judgment rendered against it in favor of Bernard J. Dolenz for conversion of personal property consisting of motel furnishings and furniture. The judgment resulted from a jury trial.
We reverse and remand.
The facts of the case appear to be that: In 1969, H-K-M Properties, Inc. was founded. Bernard Dolenz became a shareholder not long afterward. In the spring of 1970, H-K-M bought the realty comprising the Sands Motel, in Midland. Later H-K-M bought furnishings for the motel. September 8, 1970 H-K-M and each of its shareholders, as guarantors, executed a loan agreement with Bank, attached to which were: 1. Deed of trust on the realty; 2. Promissory note; 3. Security agreement on the personalty; 4. Two financing statements; 5. A guaranty agreement; and 6. A confirmation of lien form. All were executed by Dolenz.
Later H-K-M bought other personalty for the motel. In 1971, H-K-M deeded Dolenz the motel for his release of its debt to him, and for his assumption of liabilities to Bank. September, 1971 Dolenz leased motel to G & R Properties, Inc. H-K-M's note to Bank became past due. Bank demanded payment. Amount then due was $393,500.
There was a provision in the deed of trust for 10% attorney's fees in case of default. Bank paid ad valorem taxes of $36,501 supposed to have been paid by H-K-M under deed of trust. August 1, 1972 Bank held a foreclosure sale of Sands Motel realty. Bank's testimony was that Dolenz was highest bidder at sale but did not have the cash necessary to consummate the purchase on the strictly-cash terms. Dolenz' testimony was to the effect that Banks agents gave him to understand that the $393,500 would clear the debt, attorney's fees and all. On a second round of bidding, the Bank was the high bidder at $393,500.00.
Later, Dolenz notified the Bank that he owned the motel personalty. The Bank told Dolenz it had a deficiency in the foreclosure and it was going to foreclose its security interest in such personalty. The Bank did tell Dolenz it would, however, turn over the personalty to him if he could prove his ownership and instructed the motel lessee to continue paying rent payments to Dolenz until its investigation was completed. The Bank got no rent for personal property.
At a meeting of the Bank, Dolenz and G & R, the Bank stated it had insufficient proof of Dolenz's claim to personalty and that it was going to sell, without warranty of title, whatever interest it had in such personal property. The Bank sent notice of such sale to Dolenz which he admitted receiving and, on October 10, 1972, the Bank sold G & R whatever interest it had in such property without warranty of title or encumbrances.
October 20, 1972 Dolenz sued G & R in Tarrant County for conversion. The case was moved to Midland County as a result of G & R's plea of privilege. On August 6, 1973 Dolenz added Bank as a defendant in the Midland suit. The Bank's plea of privilege resulted in its part of the case being transferred to Tarrant County. The trial in Midland proceeded, and resulted in a jury verdict that: 1. Dolenz did not purchase any of the personal property involved in the Sands operation for his own personal account; 2. Dolenz did authorize (the) inclusion of personal property owned by him or thereafter acquired by him individually be pledged or mortgaged to the Bank by means of the security agreement executed by H-K-M on connection with the $400,000 loan; 3. to the question as to whether they found the televisions and ice makers were owned by Bee Jay Corporation free and clear of any security interest of the Bank in October of 1972 the jury answered "no"; 4. the fair and reasonable rental value of the television sets and ice maker sets from August 1, 1972 until time of trial was $63,000 and that the reasonable rental value of the other personal property in the Sands was $70,000 for the same...
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Dolenz v. Continental Nat. Bank of Ft. Worth
...have granted CNB's plea in abatement. It therefore reversed the judgment of the trial court and remanded the cause to the trial court. 613 S.W.2d 73. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial This cause has a complex factual and procedural ba......