First Nat. Bank of Missouri City v. Gittelman

• Decision Date: 29 March 1990
• Docket Number: No. C14-88-1059-CV,C14-88-1059-CV
• Citation: 788 S.W.2d 165
• Parties: FIRST NATIONAL BANK OF MISSOURI CITY, Appellant, v. Dianna Land GITTELMAN and Lisa Fike, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 165

788 S.W.2d 165

FIRST NATIONAL BANK OF MISSOURI CITY, Appellant, v. Dianna Land GITTELMAN and Lisa Fike, Appellees.

No. C14-88-1059-CV.

Court of Appeals of Texas Houston (14th Dist.).

March 29, 1990.

Rehearing Denied April 26, 1990.

Macon Strother, Houston, for appellant.

Don T. Schwartz, Rosenberg, Anthony D. Sheppard, Houston, for appellees.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

PAUL PRESSLER, Justice.

This controversy concerns appellant's disposition of some of the collateral for a loan. Following a bench trial, the court awarded actual and exemplary damages and attorney's fees to appellees. The judgment is affirmed as modified but is remanded for entry of postjudgment interest.

In February 1987 Mrs. Gittelman and First National Bank of Missouri City combined several loans into one balloon note with monthly payments. The note was secured in part by a 1982 Mazda. The car was actually in the possession of appellee, Lisa Fike, Mrs. Gittelman's daughter, who was working and attending college in Austin. In July 1987 Fike was returning to Austin when the Mazda's engine apparently caught fire. The car was towed to a dealership in Austin. The fire occurred on a Saturday. On the following Monday, Gittelman notified her loan officer at First National about the car. During the next week, Gittelman negotiated with her insurance company and again called the loan officer, Susan Moffett, to tell her she had not yet made a decision about what to do with the car.

Gittelman next contacted Moffett to propose that the bank release the title to the Mazda for $500 and then reduce the note by that amount when it came due. Moffett responded that she would check with someone at the bank and get back to her. When Gittelman called back a week or so later, Moffett said the bank had been told the car could be sold for between $1000 and $1600 and, therefore, would not agree to releasing the title for $500. Gittelman told Moffett she was not yet ready to make a decision on the car. She continued negotiations with the insurance representatives, who decided they were not going to pay for the damage. She then decided to replace the engine with a used one. When she called the Austin dealership to tell them of her decision, she was told that the bank had picked up the car. She then called Moffett, who told her the car had been sold for $600 and that after deducting several expenses relating to the car, her account would be credited with $181.

The bank claims that Gittelman authorized the sale in a call to Moffett. Gittelman disputes this. She also maintains that her account was not credited with the $181 until about the time she filed suit against the bank. The bank did not provide her with records of the sale as requested. Gittelman still does not know exactly what happened to her car, and, according to the State Department of Highways and Public Transportation, Division of Motor Vehicles, the title remains in her name. Gittelman continued to make the installment payments on her note, but when the note came due, she did not pay the remaining amount.

The bank claims that Gittelman wanted the title released so that she could sell the car to the Austin dealership for $500. She was not going to pay the $500 to the bank but instead use it to buy another car. According to Moffett, when told the bank would not release the title, Gittelman requested that the bank pick up the car from the dealership and sell it at auction. The bank alleges that Gittelman became angry, not because the car was sold, but because it was sold for so little money.

The trial court heard the testimony and ruled in favor of Gittelman and her daughter, who had intervened in the suit. He awarded $9000 in actual consequential damages, $9000 in exemplary damages and her attorney's fees to Gittelman. He also awarded $5000 as actual, consequential and special damages and $2000 as exemplary damages to Lisa Fike. The bank, which had counterclaimed against Gittelman, was awarded the $17,360.88 due on the note. Gittelman was allowed to offset her $18,000 judgment against that amount. The trial court found that the bank, through its officers, owed Gittelman and Fike a strict duty of good faith and fair dealing. He also found that the bank, in bad faith, breached the relevant written contracts, violated the UCC against Gittelman and committed the torts of deceit, concealment and conversion against both Gittelman and Fike. He further found that Fike was a lawful bailee of the Mazda and that she suffered mental anguish as a proximate result of the bank's intentional actions by being deprived of the use and possession of her car. The bank made an untimely request for findings of fact and conclusions of law which the court denied.

First National appeals the judgment in ten points of error. As many of those points challenge the sufficiency of the evidence, the appropriate standards of review are as follows. Where findings of fact and conclusions of law are set forth as recitations in the judgment, they shall be treated as findings of fact and conclusions of law filed in accordance with TEX.R.CIV.P. 296. Cottle v. Knapper, 571 S.W.2d 59, 64 (Tex.Civ.App.--Tyler 1978, no writ). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards which are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a jury question. Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.--Dallas 1981, writ ref'd n.r.e.). In a no evidence point of error, only the evidence and inferences that support the challenged finding will be considered and all contrary evidence and inferences will be disregarded. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). In a factual sufficiency point of error, all of the evidence will be considered and the finding will be set aside only if the evidence is so weak or the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

In point of error one, the bank argues that the trial court erred in finding the bank guilty of conversion because such a finding is against the great weight and preponderance of the evidence. This essentially comes down to Gittelman's word against Moffett's. As corroboration of Moffett's testimony, the bank points to a memorandum prepared by her and dated August 27, 1987. The memo is addressed to the files of Gittelman and another customer and discusses Moffett's request to an auctioneer to pick up two vehicles in Austin, the Mazda and a car belonging to the other customer. In the memo, Moffett states, "Mrs. Land [Mrs. Gittelman's name prior to her marriage] asked that we pick up the vehicle and sell it at the auction in Houston." The bank also directs our attention to Fike's statement in her deposition that during a conversation, Gittelman remarked that what the bank thought it could get for the car was "a much better deal than what Mazda had offered us." Fike further stated that her mother thought selling the car through the bank was "the best thing to do under the circumstances."

The trier of fact alone judges the credibility and weight to be given the testimony of the witnesses and resolves conflicts in the testimony. Precision Homes, Inc. v. Cooper, 671 S.W.2d 924, 929 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.). Neither the memo nor the deposition testimony are dispositive. Gittelman's remarks during her conversation with her daughter are expressions of her thoughts, not proof that she actually followed through and authorized the bank to sell the car. The trial court's finding that the bank was guilty of conversion is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Point of error one is overruled.

In point of error two, First National complains that the trial court erred in awarding Gittelman actual damages in the amount of $9000 because the evidence was factually insufficient to support such an award. The bank argues that the measure of actual damages in a conversion case is the value of the converted property at the time of the conversion. Since the car sold for $600, the bank maintains that Gittelman is entitled to only that amount and that her evidence as to mental anguish and physical ailments is not admissible to determine her actual damages.

There appear to be no exact rules to determine damages in a conversion case. Generally, damages are the value of the property at the time of a conversion together with legal interest thereon. Imperial Sugar Co. v. Torrans, 604 S.W.2d 73, 74 (Tex.1980). Damages may also include other losses or expenses necessary to compensate the plaintiff "for all actual losses or injuries sustained, not merely the reasonable market value of the property, as a natural and proximate result of the defendant's wrong." Virgil T. Walker Constr. Co. v. Flores, 710 S.W.2d 159, 161 (Tex.App.--Corpus Christi 1986, no writ). The award here is not divided among the elements of damage. Appellees claim that $9000 was awarded for the value of the car and for mental anguish.

The bank argues that the value of the car is $600 because it sold for that amount at auction. However, actual damages in a conversion case are not determined by the price at which the property was sold but rather by market value at place and time of conversion. Bishop v. Geno Designs, Inc., 631 S.W.2d 581, 584 (Tex.App.--Tyler 1982, no writ). Gittelman testified that she paid $3500 for the car and that its blue book value prior to the fire was $3100. When her attorney asked her opinion of the car's value after the fire, she first responded that she did not know. Later, Gittelman stated that after the fire, the car was worth approximately $1500. She determined this value by the price she paid for the car less the mileage and the damage to the engine.

The...