Malloy v. City of El Paso

• Decision Date: 02 July 1980
• Docket Number: No. 6915,6915
• Citation: 602 S.W.2d 383
• Parties: Wesley J. MALLOY and Allen M. Malloy, a Partnership known as Del Norte Driving Range, Appellants, v. CITY OF EL PASO, Appellee.
• Court: Texas Court of Appeals

Page 383

602 S.W.2d 383

Wesley J. MALLOY and Allen M. Malloy, a Partnership known as Del Norte Driving Range, Appellants, v. CITY OF EL PASO, Appellee.

No. 6915.

Court of Civil Appeals of Texas, El Paso.

July 2, 1980.

Rehearing Denied July 30, 1980.

Richard Yetter & Associates, P. C., Richard Yetter, El Paso, for appellants.

Ralph Wade Adkins, City Atty., Howell, Fields, Thompson & Fields, Mark F. Howell, El Paso, for appellee.

OPINION

STEPHEN F. PRESLAR, Chief Justice.

Appellants brought this suit against the City of El Paso alleging conversion of their personal property when the City cancelled its lease with Del Norte Golf and Country Club, Inc., of which Appellants were concessionaires. The jury found that no conversion occurred, and a take nothing judgment was entered. We affirm.

On June 10, 1975, the City of El Paso cancelled its lease with the Del Norte Golf and Country Club, Inc., and took over the property of the Club. At that time, Appellants operated a driving range as a concessionaire of Del Norte Golf and Country Club, Inc., and, by this suit, they maintain that they had certain property on the premises of the golf club which was taken by the City in its lease cancellation operations. We have concluded that the evidence supports the jury's finding that there was no conversion of the Appellants' property under the Court's definition of conversion.

Issue No. 1 was as follows:

Did the City of El Paso, on or about July 10, 1975, acting through its agents, servants, or employees convert the property listed on Plaintiffs' Exhibit No. 1?

To that, the jury answered: "No." The Court's instructions to the jury were:

'Conversion' means unlawful and wrongful exercise of dominion, ownership, or control by one person over the property of another, to the exclusion of the same rights by the owner. Under the law, the owner has the election to ask for the property back or ask for damages, if there has been a conversion.

By their Points of Error Number One and Number Two, Appellants assign error in that "The Trial Court erred in granting judgment . . ." in that the answer was against the great weight and preponderance of the evidence, and that (2) there is no evidence upon which the jury could have answered the issue in the negative.

This negative answer is merely a failure or refusal of the jury to find from a preponderance of the evidence that the City converted the Appellants' property. The answer means, in law, that Appellants failed to carry their burden of proving this allegation. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966). The trial court cannot refuse to render judgment on the verdict because of the factual insufficiency of the evidence. Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970); McDonald v. New York Central Mutual Fire Insurance Company, 380 S.W.2d 545 (Tex.1964); Green v. Meadows, 517 S.W.2d 799 (Tex.Civ.App. Houston (1st Dist.) 1974), rev'd on other grounds 524 S.W.2d 509 (1975). We can consider only the legal sufficiency of the evidence to support the jury's finding; in determining this question, we must consider the evidence in the light most favorable to the jury's answer and disregard evidence in conflict therewith. Green v. Meadows, supra.

On July 10, 1975, an Assistant City Attorney and the Airport Security Chief, with two of his officers, went to the Del Norte golf course and there met with Appellant Malloy and one Metcalfe, and advised them the City Council had cancelled the lease agreement between the City and the Del Norte Golf and Country Club, Inc. Malloy, Metcalfe and another were the principal stockholders in the corporation, which leased the golf course from the City through the Airport Authority. What occurred then is the subject of this lawsuit. It is apparent that Malloy was, on the occasion, in something of a dual capacity as an officer and director of the lessee corporation, which had property on the premises, and, as an individual concessionaire, he and his partner, Appellants here, had their own property used in the operation of the driving range concession. On that occasion, the representatives of the City brought with them a letter from the Mayor Pro Tem addressed to the members and guests of Del Norte Golf and Country Club concerning the cancellation of the lease. This notice was posted on the entrance doors to the clubhouse. Also posted was a letter from the Chief of the Security Police of the...