Lennon II Family Ltd. P'ship v. Gideo

• Decision Date: 29 August 2019
• Docket Number: No. 02-18-00250-CV,02-18-00250-CV
• Parties: LENNON II FAMILY LIMITED PARTNERSHIP, Appellant v. GREGORY GIDEO; SOUTHERN UNDERGROUND, LLC; AGL CONSTRUCTORS-JOINT VENTURE; ARCHER WESTERN CONTRACTORS, LLC; GRANITE CONSTRUCTION COMPANY; AND THE LANE CONSTRUCTION CORPORATION, Appellees
• Court: Court of Appeals of Texas

LENNON II FAMILY LIMITED PARTNERSHIP, Appellant v. GREGORY GIDEO; SOUTHERN UNDERGROUND, LLC;AGL CONSTRUCTORS-JOINT VENTURE;ARCHER WESTERN CONTRACTORS, LLC;GRANITE CONSTRUCTION COMPANY;AND THE LANE CONSTRUCTION CORPORATION, Appellees

No. 02-18-00250-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

August 29, 2019

On Appeal from the 442nd District Court Denton County, Texas

Trial Court No. 15-09569-442

Before Gabriel, Birdwell, and Bassel, JJ.

Memorandum Opinion by Justice Bassel MEMORANDUM OPINION

I. INTRODUCTION

This case involves a dispute about whether Appellees Gregory Gideo; southern Underground, LLC; AGL Constructors-Joint Venture (AGL); Archer Western Contractors, LLC; Granite Construction Company; and The Lane Construction Corporation improperly and without authorization utilized land owned by Appellant Lennon II Family Limited Partnership (Lennon II) by removing approximately 170,000 cubic yards of select fill soil and then dumping approximately 68,000 cubic yards of steel-reinforced concrete and asphalt millings and rubble without permission from Lennon II's principal, Chelsey Everett Lennon (Mr. Lennon).

The case proceeded to trial. After Lennon II's case-in-chief, the trial court granted a directed verdict on Lennon II's fraud claims. The jury charge included questions on, inter alia, Lennon II's claims for trespass and conversion and on Gideo's counterclaim for breach of contract. The jury found that Gideo and AGL had not trespassed but that they had converted Lennon II's property. However, when asked to assess the fair market value of the converted property, the jury answered "$0.00." On Gideo's counterclaim, the jury found that there was an agreement but that Lennon II had not breached it. In accordance with the jury's verdict, the trial court rendered final judgment that Lennon II and Gideo take nothing on their respective claims and counterclaim.

Lennon II raises five issues on appeal, which we will resolve as follows:

• The trial court did not err by directing a verdict on Lennon II's fraud claims. The record contains no evidence of an affirmative misrepresentation or of facts that would create the duty necessary to support a claim of fraud by nondisclosure. Likewise, there is no evidence of reliance.

• The jury's assessment of "$0.00" damages on the conversion claim reflected the failure of Lennon II to present evidence of the fair market value of the converted property.

• The jury's zero finding on conversion damages renders Lennon II's challenge to AGL's status as a bona fide purchaser moot.

• The evidentiary mix does not support Lennon II's claim that the jury's negative finding on its trespass claim was against the great weight and preponderance of the evidence.

• Lennon II contends that the refusal of the trial court to submit proper jury charge instructions permitted the jury to find that Lennon II stood in breach of a legally unenforceable contract. But the jury found no breach of the contract; thus, the trial court's failure to instruct the jury as Lennon II wanted was harmless. Further, unenforceability of the contract does not mean that actions taken in reliance on it constitute a trespass.

Therefore, we affirm.

II. BACKGROUND

A. Gideo meets Mr. Lennon and they make their first deal.

Lennon II is a Texas limited partnership that was created in 1995. Lennon, LLC is Lennon II's general partner with a 1% ownership interest. At all relevant times, Mr. Lennon was Lennon, LLC's manager, as well as one of Lennon II's limited partners.¹ Since 1995, Lennon II has been the owner of approximately 38 acres (the Property) in Denton County. There is no dispute that Mr. Lennon had legal authority to act on behalf of Lennon II with regard to the Property.²

Gideo has been in the excavation and dirt business since the early 1980s, often doing business as Southern Underground, LLC, a company formed, owned, and operated exclusively by Gideo. At trial, Gideo explained that he often does work for trade or barter, such as in exchange for dirt. Thus, Gideo said that he accumulates dirt and holds it to be sold at a later date.

Gideo testified that he met Mr. Lennon in the fall of 2007. Gideo said that he would see Mr. Lennon walking the Property, so he decided to ask Mr. Lennon if his cows could graze there. Mr. Lennon and Gideo ultimately agreed to let Gideo's cows graze there, and Mr. Lennon let Gideo move his travel trailer onto the Property, andin exchange Gideo would look after the Property and clean up refuse that had been dumped on it (Cattle-Grazing Agreement). Gideo testified that Mr. Lennon and he "made a cattle grazing contract out there on the -- at the [Property] one day, made a couple of copies. We both signed it." The contract was handwritten, and Gideo testified that it was "definitely" Mr. Lennon's idea to have something in writing, but at trial Gideo could not find his copy of the contract.

Gideo testified that from 2008 through 2015, he and Mr. Lennon became such good friends that Gideo could show up at Mr. Lennon's house unannounced. They would often go out to eat at McDonald's or IHOP^®, and Gideo said that Mr. Lennon came over to his house for Thanksgiving one year and that it was "probably the happiest time I ever saw him." Gideo testified that he "[n]ever, never" lied to Mr. Lennon.

Gideo estimated that over the course of their relationship, he and Mr. Lennon had walked the Property "a hundred times." During these walks, Gideo said that Mr. Lennon talked a lot about his desire to develop the Property. Gideo testified that Mr. Lennon loved seeing the adjacent land—which belonged to Mr. Lennon's sister-in-law—being developed into a subdivision and that he would frequently ask questions about aspects of development. According to Gideo, Mr. Lennon wanted to develop the Property in a similar fashion to the residential development on the adjacent land. Gideo averred that Mr. Lennon wanted a 7-Eleven^® included in the development but he also wanted to leave some of the trees for a residentialdevelopment and that he even wanted to have the first street on the Property named "Lennon Lane." During one of these conversations in the summer of 2013, Gideo informed Mr. Lennon that it would cost approximately $1 million to grade and clear the Property for development. Mr. Lennon, as Gideo testified, did not want to spend his money to grade and clear the Property.

B. Gideo and Mr. Lennon make their second deal, which allowed Gideo to execute a contract with J.D. Abrams to use the Property and borrow dirt from it.

Also around the summer of 2013, Gideo had become aware of a road project near the Property to be performed by J.D. Abrams, LP, which would require about 20,000 cubic yards of dirt. Gideo negotiated an agreement with J.D. Abrams to pay $2,000 per month to Lennon II³ to use a corner of the Property as a "lay-down area" and to pay Gideo $25,000 to "put up all the fence," install a "storm sewer across the lot," run a water line "up to their office," and install "all new gates." Finally, J.D. Abrams would borrow 20,000 cubic yards of dirt that it would have to fill back in.

At trial, Gideo introduced a handwritten document dated July 3, 2013. The document contained two hand-drawn ovals with "Borrow?" written inside of each. Gideo testified that these represented the two areas on the Property where J.D. Abrams would be able to borrow dirt. Gideo also testified that the documentwas "all" Mr. Lennon's drawing and that such a drawing was what Mr. Lennon did for all of his agreements with Gideo:

Q. Back off from that a little bit. And this is a -- this is a handwritten agreement. Tell us whose idea it was to have a handwritten agreement.

A. It was [Mr. Lennon's].

Q. And there's a drawing. There's a drawing of the land. Whose idea was it to make this agreement in the form of a drawing?

A. It's all [Mr. Lennon]. I mean, that's the way all three of them were, even -- even the cattle grazing. I mean, this is what this guy does.

I mean, he wants to sit with you, talk it through. He'll mark what he feels like, and he's in control. He doesn't -- if you -- if he -- if you try to say something that he don't like, it's struck. It doesn't happen.

. . . .

Q. Okay. So as you were doing this handwritten agreement in the form of this map, just give us an idea of how it would be. He's got some writing on it; you've got some writing on it. Tell us how that would happen.

A. He -- he would -- he would -- he'd get a piece of paper, and he would get one piece of paper. And he'd get a pen, and he'd say, okay, draw it like the -- what the property -- he called it the property. I called it the farm.

He'd say, draw the, like, perimeter on it. I'd say, well, I'm going to put the creek through here. I'll draw the barbecue stand here and J.D. Abrams over here, and here's where we want to borrow. And I made them two little areas.

And then he would take the pencil, and he would write what he wanted, like Goldfield Road and 2181. He would write whatever he wanted. [Emphasis added.]

Following this July 3, 2013 document, Gideo signed a "property usage and release agreement" with J.D. Abrams (J.D. Abrams Contract), which among other things, allowed J.D. Abrams to set up a concrete batch plant on 7.5 acres of the Property. Although Gideo was listed as the owner of the Property,⁴ Gideo testified that he did not hide anything from Mr. Lennon and that he was authorized by Mr. Lennon to enter into the J.D. Abrams Contract because of the July 3, 2013 handwritten document. Indeed, Gideo testified that Mr. Lennon "didn't want to deal with [J.D.] Abrams. He wanted to deal with me. We made our deal. And I told him, you know, now that I know where we can take the borrow, I'll go to [J.D.] Abrams." At trial, Lennon II did not challenge the terms of, or Gideo's authority to enter into, the J.D. Abrams Contract and made no claim against Gideo or his company based on that agreement.

C. Gideo attempts to broker a deal with AGL.

By 2014, AGL had a...