Stephens v. Stephens, 070920 TXCA6, 06-19-00088-CV

Docket Nº:06-19-00088-CV
Opinion Judge:Ralph K. Burgess, Justice
Party Name:SHIRLEY STEPHENS AND RAY THOMAS, Appellants v. SHARI STEPHENS, Appellee
Judge Panel:Before Morriss, C.J., Burgess and Stevens, JJ.
Case Date:July 09, 2020
Court:Court of Appeals of Texas
 
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SHIRLEY STEPHENS AND RAY THOMAS, Appellants

v.

SHARI STEPHENS, Appellee

No. 06-19-00088-CV

Court of Appeals of Texas, Sixth District, Texarkana

July 9, 2020

Date Submitted February 26, 2020

On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 15-0371

Before Morriss, C.J., Burgess and Stevens, JJ.

MEMORANDUM OPINION

Ralph K. Burgess, Justice

Appellee Shari Stephens (Shari) sued his mother, Shirley Stephens (Shirley), along with two other family members, Appellant Marilyn Stephens (Marilyn) and Ray Thomas (Thomas), alleging, in part, that Shirley converted eight of his calves and several pieces of his farm equipment. Shirley filed a counter-claim petition and several amended petitions against Shari for slander, theft, conversion, trespass, misappropriation of property, intentional infliction of emotional distress, and unjust enrichment.[1] Several other family members intervened, and they, together with Marilyn and Thomas, raised allegations against Shari that were similar to those raised by Shirley. In addition, Marilyn alleged a claim against Shari for assault.[2] Following a jury trial, the 71st Judicial District Court of Harrison County, Texas, entered a mixed judgment, finding, in part, that (1) Shari did not convert Shirley's property, (2) Shirley did convert Shari's property, and (3) Thomas did not convert Shari's property. The trial court awarded Shari $21, 800.00 in damages and $2, 055.00 in court costs.

Shirley appeals, maintaining that (1) the evidence was legally and factually insufficient to support the jury's finding that she converted Shari's property; (2) the evidence was legally and factually insufficient to support the damages awarded to Shari by the jury; and (3) the jury's finding that Shari did not publish his defamatory statement against Shirley and (4) the jury's failure to find that Shari knew or should have known that the statement that Shirley stole eight of his calves was false and had the potential to be defamatory were so against the overwhelming weight of the evidence as to be manifestly unjust. Thomas appeals, maintaining that (1) the jury finding that Shari did not publish his defamatory statement against Thomas and (2) the jury's failure to find that Shari knew or should have known that the statement that Thomas stole eight of his calves was false and had the potential to be defamatory were so against the overwhelming weight of the evidence as to be manifestly unjust. Finally, Marilyn appeals, maintaining that the jury finding that Shari did not assault her was so against the overwhelming weight of the evidence as to be manifestly unjust.

We find that the evidence was legally and factually sufficient to support the jury's verdict and affirm the trial court's judgment.

I.

Background

In this case, the litigants are all related to each other. Shirley is Shari's mother. Marilyn is Shari's sister. Intervenors are Shari's brothers, sisters, and nieces. Thomas is a cousin to some or all of the parties. In their voluminous pleadings, Shari and Appellants alleged widely divergent versions of the facts. After a number of requests for continuances by both sides, a Harrison County jury was selected, and the trial commenced almost six years after Shari filed his original petition.

A.

Shari's Version of the Facts

According to Shari, his father, Leon Stephens, was a cattle rancher, and Shari helped him take care of his cattle. Shari maintained that Leon relied on him for help, especially when Leon's health began to decline. Shari stated that, around 2008, and just prior to Leon having surgery, Jerry Cargile and Cargile's partner "bought [Leon] out." According to Shari, the transaction included the sale of fifty to seventy-five cows located on one particular pasture. Shari explained that any remaining cattle owned by Leon were kept on a different pasture. Shari said that, by 2009, he had sold the remaining cattle, 3 and according to Shari, he gave the proceeds from the sale to his mother.[4]

However, while Shari worked with Leon's cattle, he began to purchase cattle of his own, pasturing them on the same property with Leon's cattle. Shari said that, from 2002 to 2014, he "built up" a significant herd of cattle, which included several calves. In July 2013, Shari realized that four of his cattle were missing from one of the pastures, two were missing from another pasture, and two more were missing from yet another pasture. After realizing that some of his cattle were missing, Shari contacted the sale barn and asked if "anybody checked in any cows from Waskom because [he was] missing some calves." According to Shari, he learned that six head of cattle had been sold to the barn, presumably by Shirley, but he could not say where the other two had been taken.5 Shari explained, "Well, I called the sale barn and they told me who checked in some cows and [Shirley] don't have no cows and what do you think?"

When Shari was asked how he knew the missing cattle were his and not Shirley's, he stated, "They don't have cows. I have cows. Those are mine[]. They are not my mother's cows. My daddy sold all of his cows.6 They was mine[]." Referring to Shirley, Shari stated, "Well, if you don't have no cows. You take cows to the sale barn, can't you tell where you got your cows from[?] Out of somebody else's pasture."7 Shari continued, "They [were] gone and I called around and ain't nobody else [other than Shirley] sold any." The following day, Shari went to the sheriff's office, reported that some of his cows were missing, and named Shirley and Marilyn as the individuals who had taken his cattle.8

Shari said that, on occasion, his cattle would get out of the fencing. In 2011, he purchased a farm liability policy covering seventy-five head of cattle. According to Shari, the policy continued in effect through 2014. Shari testified that, even after Leon's death, he (1) insured the cattle, (2) fed the cattle, (3) worked the cattle, (4) was the person who was contacted if the cattle got out of the fencing, (5) bought the material to build fences, which he then built, (6) put the cattle out to pasture, (7) vaccinated the cattle, (8) dehorned the cattle, (9) treated them for worms, and (10) cut and bailed the hay the cattle ate. Because he did all of those things, Shari was adamant that the cattle belonged to him.

Shirley said that, in June 2013, she sold two calves and in July 2013, she sold four calves, 9not eight. Shirley explained that four of the calves had been given to her by her mother, Mazzie.10 She also said she bought some cows from her...

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