Wakefield v. Bevly

• Decision Date: 30 April 1985
• Docket Number: No. 13-84-171-CV,13-84-171-CV
• Citation: 704 S.W.2d 339
• Parties: Carroll WAKEFIELD, Appellant, v. W.M. BEVLY, Lena Bevly and Roy Smith d/b/a Padre Staples Mall, Appellee.
• Court: Texas Court of Appeals

Page 339

704 S.W.2d 339

Carroll WAKEFIELD, Appellant, v. W.M. BEVLY, Lena Bevly and Roy Smith d/b/a Padre Staples

Mall, Appellee.

No. 13-84-171-CV.

Court of Appeals of Texas,

Corpus Christi.

April 30, 1985.

Rehearing Denied Aug. 30, 1985.

Robert L. Ramey, Corpus Christi, for appellant.

Ted. B. Roberts, Corpus Christi, for appellee.

Before KENNEDY and UTTER, JJ.

OPINION

KENNEDY, Justice.

Appellant was employed by appellees to act as manager of the Padre Staples Mall in Corpus Christi, Texas, during the years of 1972-77. Appellees sued appellant, alleging violations of their oral employment agreement, conversion, fraud and breach of fiduciary duty. The jury returned a verdict in favor of appellees, setting actual damages in the amount of $52,474.00 and exemplary damages in the amount of $100,000.00. Pursuant to appellees' Motion for Judgment, the trial court awarded an additional $42,644.00 in actual damages.

During the time appellant was employed by appellees as manager of the Padre Staples Mall (the Mall), he engaged in a number of activities which appellees claim violated the trust relationship they had with him.

In 1972, appellees Roy Smith and Ennis Joslin, the then owners of the Mall, hired appellant to manage the Mall. The scope of his duties and authority was not written, but it is agreed that appellant was to be in charge of the day-to-day operation of the Mall and that appellant did not have authority to sign leases.

Evidence was presented regarding the following specific transactions:

A. Brock Watson

Watson was a piano concessionaire at the Mall. He gave appellant "$500.00 at a time to take out the merchants and buy them lunch and keep them off of his neck so he could stay in there," for a total of $2,500.00. This was done in an effort to keep down complaints about the noise which accompanied his piano business.

B. Pat Harral--Jeffery Burnham--Jesse Ruiz--Mall "Game Room"

Jeffery Burnham operated "The Mall Game Room." He desired to terminate his business.

Pat Harral is appellant's son-in-law. Appellant arranged for Harral to purchase Burnham's leasehold improvements and trade fixtures for $4,000.00. However, Burnham's lease specifically stated that all leasehold improvements were the property of the Mall owners.

Later, Harral removed some of the trade fixtures and sold the remaining equipment and the leasehold improvements to Ruiz for "around $7,000.00."

C. Eldon Allen Piano--Organ Display Area

Allen owned a retail piano and organ business. He desired a small display area in the Mall. He negotiated with appellant, who set the terms of payment at $200.00 per month to the Mall. In addition, $100.00 per month was to be paid to appellant "as a fee" for his services "in the way of promotion and advertising." Allen testified that appellant did nothing for Allen's business other than in appellant's role as Mall manager. The payments to appellant totaled $2,800.00.

D. Eldon Allen Piano--Organ Tenant Improvements

Prior to the transaction described above, Allen had a lease with the Mall. At the end of the lease, Allen desired to recoup his investment in his leasehold improvements. Appellant arranged a sale of those improvements to the subsequent tenant in that space for $9,000.00. Of that $9,000.00, $5,000.00 was paid to appellant as a "commission."

E. Charles Hills--Mall Show Profits

Hills desired to hold arts and crafts shows in the Mall on Sundays. He contacted appellant, who arranged with appellees to permit the shows. Hills was to pay one dollar per table, arrange to have the tables set up and taken down and arrange for clean-up of the Mall. The Mall provided the tables. Hills "split half of my profit" with appellant "after all expenses were paid." Hills testified that he gave half of the profits to appellant for "providing a place for me to have this show." During 1974-1977 appellant received $13,047.00 from Hills.

F. Payment of $1,000.00 by Charles Hills

Hills also desired permanent space in the Mall. A partnership was set up; appellant put in $750.00 and Hills put in $1,025.00. A kiosk was obtained. Hills desired additional space for the store. When approached, appellant conditioned the rental of the space upon appellant receiving $1,000.00. Hills later desired to end the partnership and bought out appellant for $750.00 plus $400.00.

G. Robert Upton--Game Machines in Mall

Upton desired to place game machines in the Mall. He approached appellant. Appellant arranged that the man who ran the shoe shine stand would receive $20.00 per week for watching the machines. The "Mall rent" was "set at a hundred" a week. Appellant was paid "a hundred a week also, sort of a--protection money, more or less to keep the owners and the rest of the merchants off my neck, ..." Appellant received approximately $13,000.00 over two and one-half years.

H. Sale of Robert Upton's Mall Information Booth to Harold Poozer

Upton also had a location in a kiosk. He used the space to dispense change. He also ran the Mall public address system as a public service. He was allowed to operate rent free for four months, then paid a flat rate rent. He purchased the leasehold improvements from the former tenant and sold them to Harold Poozer when he terminated his business for $4,000.00, making a $2,000.00 profit.

I. Douglas Hoskins' Occupancy of Boutique Space

In 1972, Helen Cooley built a kiosk in Padre Staples Mall, known as No. 32. In January of 1973, she moved her business to a "permanent store" in the Mall. Hoskins purchased the space for $2,550.00. $2,000.00 was paid in cash. A second check for $430.00 was returned for insufficient funds. Appellant gave Cooley $550.00 and took the bad check.

After operating his business out of Kiosk No. 32 for awhile, Hoskins expanded into No. 33. No. 33 was constructed for Hoskins by Victor Dennis. The building was to be paid for by appellant, and Hoskins would pay appellant.

J. Douglas Hoskins' Conveyance of Jaguar to Appellant

Hoskins, as a part of other business dealings, obtained a Jaguar automobile from out-of-state. Appellant was a collector of automobiles. Hoskins transferred the automobile to appellant by power of attorney. In addition, Hoskins paid for repairs to the car after transferring it to appellant. The repairs cost approximately $2,000.00. The car was from "a non-title state." The transfer was to be in payment of the kiosk, including some rent. Subsequently, Hoskins took the car to a bank and obtained a loan, using the car as collateral. Appellant attempted to obtain title and found out the bank had already done so. Shortly thereafter, Hoskins left town. Later, it was determined that the Jaguar had been stolen. Appellant ended up making payments to an insurance company in order to retain possession of the Jaguar.

K. Douglas Hoskins' Display Table for Onyx

After returning to the area, Hoskins, together with others, set up a table in the Mall for "a couple of weeks" to sell "some ashtrays and chess sets and stuff of that nature." Hoskins did not pay any rent, but gave appellant some money "because I appreciated what he had done ... It might have been as little as $10.00 ..." or as much as $600.

L. Al's Formal Wear Kiosk

Al's purchased a kiosk in the Mall from appellant. Appellant issued a Bill of Sale, including a repurchase agreement obligating appellant to repurchase the kiosk for $4,750.00.

Subsequent to appellant's termination at the Mall, Al's attempted to enforce the repurchase agreement on appellees. A lawsuit was filed, resulting in a settlement whereby appellees paid Al's $4,750.00 and received an assignment of Al's cause of action against appellant.

Victor Dennis d/b/a D and M Construction constructed some of the kiosks and did other construction work at the Mall. He testified that he used materials from old kiosks to build new ones; that, among others, he built Al's Formal Wear; that his bill for Al's was $1,560.00; that Doug Hoskins paid $780.00 before he left town. Much later he received $100.00 cash from Hoskins. He received no further money from either Hoskins or appellant.

M--N. Dana Green--Mission Craft and Sara Cook--Carriage House

Subsequent to the transactions described above, appellant "sold" Kiosk No. 32, together with its leasehold improvements, to Dana Green d/b/a Mission Craft. Also, appellant "sold" Kiosk No. 33, together with its leasehold improvements, to Sara Cook d/b/a Carriage House.

O. Mr. Ramirez d/b/a The Wooden Flower Shop

Mr. Ramirez had a flower cart in the Mall. Appellant managed the cart for him. Appellant received approximately $3,450 from Ramirez.

P. Eugene Smith d/b/a Tiara World of Gifts Commission Paid to Appellant

Eugene Smith had a lease with the Mall. His business was not prospering, and he desired to sublet his space. Subletting was prohibited by his lease, but appellant assisted him in obtaining subleases. As a part of this transaction, Eugene Smith paid appellant a commission of $1,200.00 for his help.

Q. Eugene Smith d/b/a Tiara World of Gifts Sublease Profits

In connection with the above transaction, appellees allege "lost profits" from the subleases improperly signed by appellant. Appellant did not have authority to sign leases or permit subleases. From May, 1976 to December, 1977 Eugene Smith received $600.00 per month from subtenant Trice. From June, 1976 to December, 1977, Eugene Smith received $600.00 per month from subtenant S.P. Smith. During this time, Eugene Smith was paying, as rent to the Mall, $500.00 per month plus $40 per month for services. This resulted in Eugene Smith receiving profits in excess of $10,000.

R. Monies Paid by Victor Dennis to Appellant

Dennis d/b/a D and M Construction built some of the kiosks in the Mall. At times, he paid appellant a finder's fee, but Dennis testified that appellant never requested any monies. Appellant "put me on several good jobs outside that Mall." Dennis may have paid two or three hundred dollars in finder's fees for work done at the...