Transfer Products, Inc. v. Texpar Energy, Inc.

• Decision Date: 26 April 1990
• Docket Number: No. 13-88-655-CV,13-88-655-CV
• Citation: 788 S.W.2d 713
• Parties: TRANSFER PRODUCTS, INC. and L. J. Kaiser Co., Appellants, v. TEXPAR ENERGY, INC., Appellee.
• Court: Texas Court of Appeals

Page 713

788 S.W.2d 713

TRANSFER PRODUCTS, INC. and L. J. Kaiser Co., Appellants, v. TEXPAR ENERGY, INC., Appellee.

No. 13-88-655-CV.

Court of Appeals of Texas Corpus Christi.

April 26, 1990.

Edwin R. Fleuriet, Richard D. Schell, Fleuriet, Schell & Franz, Harlingen, for appellants.

T. Mark Blakemore, Steven E. Goodson, Royston, Rayzor, Vickery & Williams, Brownsville, for appellee.

Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.

OPINION

SEERDEN, Justice.

The trial court found that appellants converted appellee's property with implied malice. The court awarded $959.00 actual damages, and, as exemplary damages, $1,000.00 plus $34,108.00 in attorney's fees (further attorney's fees conditioned on appeal) and $12,385.60 in expenses. It ordered that appellants take nothing by their counterclaim. Appellants' four points of error challenge the awarding of all but the $959.00 actual damages and interest. The thrust of appellants' complaints concern sufficiency of the evidence and the damages the trial court awarded. We affirm the trial court's judgment.

By point four, appellants challenge the sufficiency of the evidence to support the trial court's finding of malice. Findings of fact have the same force and effect as jury answers and are treated with equal dignity on appellate review. De Benavides v. Warren, 674 S.W.2d 353, 356 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.). In determining "no evidence" points, we consider only the evidence and inferences supporting the findings and disregard all contrary evidence and inferences. Preferred Heating and Air Conditioning Co. v. Shelby, 778 S.W.2d 67, 68 (Tex.1989); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985); International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex.1985); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If any evidence of probative force supports a finding, we will uphold the finding and overrule the point. In re King's Estate, 150 Tex. 662, 244 S.W.2d at 661-62. Unchallenged findings are binding on appeal. Parker v. HNG Oil Co., 732 S.W.2d 754, 755 n. 1 (Tex.App.--Corpus Christi 1987, no writ); McKenzie v. Carte, 385 S.W.2d 520, 530 (Tex.Civ.App.--Corpus Christi 1964, writ ref'd n.r.e.); see Midway Nat'l Bank v. West Texas Wholesale Supply Co., 453 S.W.2d 460, 461 (Tex.1970).

In arriving at its findings, the trial court may accept or reject any or all of the testimony of witnesses. Hubler v. Oshman, 700 S.W.2d 694, 697 (Tex.App.--Corpus Christi 1985, no writ); De Benavides, 674 S.W.2d at 356. The trial court is the sole judge of the credibility of witnesses. De Benavides, 674 S.W.2d at 359. We view the evidence and the reasonable inferences from it in the light most favorable to the findings. Preferred Heating, 778 S.W.2d at 68.

Exemplary damages are available only if the unlawful act warranting the actual damages was of a wanton and malicious nature. Southwestern Inv. Co. v. Alvarez, 453 S.W.2d 138, 141 (Tex.1970); Houston Power and Lighting Co. v. Sue, 644 S.W.2d 835, 839 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.); Courtesy Pontiac, Inc. v. Ragsdale, 532 S.W.2d 118, 121 (Tex.Civ.App.--Tyler 1975, writ ref'd n.r.e.); Malice may be actual or implied. Fortner v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 687 S.W.2d 8, 12 (Tex.App.--Dallas 1984, writ ref'd n.r.e.); Courtesy Pontiac, Inc., 532 S.W.2d at 121. Actual malice is characterized by ill will or intent to injure. Clements v. Withers, 437 S.W.2d 818, 822 (Tex.1969); Courtesy Pontiac, Inc., 532 S.W.2d at 121.

Implied or legal malice exists when wrongful conduct is intentional and without just cause or excuse. Courtesy Pontiac, Inc., 532 S.W.2d at 121; Fortner, 687 S.W.2d at 12; Webb v. Cooks', Waiters' & Waitresses' Union No. 748, 205 S.W. 465, 468 (Tex.Civ.App.--Fort Worth 1918, writ ref'd). It is not necessary in order to find malice that hatred, dislike, spite, or resentment exists, but malice may be inferred from the doing of an unlawful act without reasonable grounds. Pace v. McEwen, 574 S.W.2d 792, 801 (Tex.Civ.App.--El Paso 1978, writ ref'd n.r.e.). Ill will may be implied from the knowing conversion of another's property without justification. Courtesy Pontiac, Inc., 532 S.W.2d at 121. Malice may be implied from the knowing conversion of another's property when the defendant knew or should have known it had no legal right to the property. First Nat'l Bank v. Brown, 644 S.W.2d 808, 810 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.); A finding of implied malice is sufficient to support exemplary damages. See First Nat'l Bank, 644 S.W.2d at 811; Courtesy Pontiac, Inc., 532 S.W.2d at 121.

One of the trial court's findings was

5. Based upon (1) the attempt by Defendant Transfer Products, Inc. and Defendant L. J. Kaiser Co. to collect without legal authority the storage charges and costs owed by Jerry Boyles d/b/a South Texas Chemical Company from TexPar Energy, Inc., (2) the unreasonable charges sought to be collected, (3) the taking of TexPar Energy, Inc.'s property after it provided a means for removal of the asphalt within a reasonable time after requested to do so, (4) the inexcusable act of taking the property under the guise of remedies allowed by the Uniform Commercial Code without consulting Texas law whereupon it would have been immediately known that the taking was not proper, and (5) the failure to return the property or the value thereof even after Defendants' Texas counsel, hired to respond to TexPar Energy, Inc.'s suit for injunction, forthwith advised Defendants of their improper actions, as well as the other circumstances of this case, this Court finds ill will implied from the Defendants' knowing conversion of TexPar Energy, Inc.'s property without justification.

Summarizing the pertinent evidence, in the light of the above rules, we find it as follows:

TexPar Energy, Inc. (TexPar) contracted to buy asphalt from Jerry Boyles d/b/a South Texas Chemical Co. Boyles, who was buying from L. J. Kaiser Co., was to deliver the asphalt to TexPar's transportation, F.O.B., via a storage and transfer facility which Transfer Products, Inc. (Transfer) owned and operated. (Neither Boyles nor his company were parties to the suit.) As an accommodation to Boyles, TexPar on Sept. 11, 1987, paid him for some 1,266 tons of asphalt which had arrived and was being stored at Transfer's facility, but had not been delivered to TexPar's transportation.

The trial court found that L. J. Kaiser Co. had included storage and transfer in the purchase price Boyles paid. TexPar had not agreed to pay any storage or transfer fees. At trial, Kristine Kaiser Trop, vice-president and counsel for L. J. Kaiser Co. and its wholly-owned subsidiary Transfer, confirmed that the agreement with Boyles included delivery of the material into his mode of transportation. Boyles testified that the initial price included storage, transfer, and heating.

Nevertheless, on Oct. 2, 1987, Trop sent TexPar a letter declaring a $1 per ton per day storage charge to be assessed from Sept. 11. It also stated that if the asphalt were not removed by Nov. 1, 1987, the company would place the asphalt in rail cars at TexPar's expense, and that the removal would be "in mitigation of any additional damages which we are incurring as a result of our storage tanks not being available for use."

On Oct. 28, 1987, Trop wrote Boyles, reminding him that they had given him a Nov. 1 deadline to remove the asphalt and to pay the charges incurred 30 days in advance. The letter concluded,

Pursuant to sections 2.703 and 2.706 of the Texas Code, you are hereby advised of our intent to re-sell all or any part of 1,266.32 tons of asphalt located in these storage tanks on November 3, 1987. We will deduct from the gross proceeds of this sale all additional costs we have incurred and will hold the balance of the proceeds in escrow for you.

You have given us no choice but to resort to our remedies under Texas law.

TexPar sent eight rail cars by Oct. 29, before the asserted deadline. However, Transfer did not fill those rail cars, but on Nov. 2, began pumping into...