Wiese v. Pro Am Serv. Inc

• Citation: 317 S.W.3d 857
• Decision Date: 20 July 2010
• Docket Number: No. 14-08-00989-CV.,14-08-00989-CV.
• Parties: Aaron WIESE, Appellant,v.PRO AM SERVICES, INC., Appellee.
• Court: Court of Appeals of Texas

317 S.W.3d 857

Aaron WIESE, Appellant,v.PRO AM SERVICES, INC., Appellee.

No. 14-08-00989-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

July 20, 2010.

COPYRIGHT MATERIAL OMITTED

Hugh L. McKenney, Houston, for Appellant.

John H. Trueheart, Jr., Houston, for Appellee.

Panel consists of Justices YATES, SEYMORE, and BROWN.

OPINION

LESLIE B. YATES, Justice.

Appellee Pro Am Services, Inc. (Pro Am) brought suit for conversion against appellant Aaron Wiese. Following a bench trial, the trial court found in favor of Pro Am and ordered Wiese to pay actual and punitive damages. Wiese raises six issues on appeal, arguing that Pro Am's claims were barred by the statute of limitations for conversion and that there is no evidence or insufficient evidence to support several of the trial court's findings of fact and conclusions of law. Pro Am raises a cross issue and argues that the trial court erroneously calculated the amount of actual damages awarded to Pro Am. Because we conclude that the evidence is legally insufficient to support the trial court's award of actual and punitive damages, we reverse the trial court's judgment and render judgment for Wiese.

I. Factual and Procedural Background

Wiese leased commercial space located in Houston to Kyle Mason, who used the property to operate a bar. Pro Am placed a jukebox, pool table, foosball table, and two tabletop videogame machines in Mason's bar. Revenues from the machines were shared equally between Mason and Pro Am. Mason defaulted on his lease obligations sometime prior to October 2005, and Wiese changed the property's locks. All of Pro Am's equipment remained in the bar after the locks were changed. That same month, Pro Am began sending letters to Wiese requesting an opportunity to retrieve its equipment. Wiese did not respond to any of these requests, and Pro Am was unable to recover its property. Pro Am filed suit in August 2007 seeking possession of the equipment, actual damages, and attorney's fees. Pro Am added a claim for punitive damages in a later filing. Wiese returned the equipment after Pro Am filed suit, some 124 weeks after Pro Am's first request for possession. After a bench trial, the trial court found that Wiese converted Pro Am's property and awarded $9,200 in actual damages, $5,000 in exemplary damages, and prejudgment interest. At Wiese's request, the trial court entered findings of fact and conclusions of law. This appeal followed.

Wiese raises six issues on appeal. In his first issue, Wiese argues that Pro Am's conversion claims were barred by the statute of limitations for conversion. In his remaining issues, Wiese contends that there is no evidence or insufficient evidence to find that (1) Pro Am incurred expenses, including attorney's fees, in regaining possession of the equipment, (2) Pro Am suffered actual damages as a result of the conversion, (3) Wiese wrongfully withheld possession of the equipment, (4) Wiese withheld the equipment intentionally, willfully, and maliciously, and (5) Pro Am was entitled to punitive damages.

II. Discussion and Analysis

In his second, third, and sixth issues, Wiese contends that there is no evidence or insufficient evidence to support findings of fact (F), (H), and (I), which state:

F. Pro Am Services, Inc. had expenses including attorney's fees in regaining possession of the equipment.

H. Pro Am Services, Inc. suffered actual damages of $9,200.00 plus prejudgment interest as a result of the wrongful conversion of the equipment.

I. Aaron Wiese acted intentionally, willfully and maliciously in converting the equipment and an award of punitive damages in the amount of $5,000.00 is appropriate.

Pro Am also challenges finding of fact (H) in a cross issue raised on appeal. Because Wiese's challenge to the legal sufficiency of the evidence relating to damages is dispositive, we do not discuss Wiese's first, fourth, or fifth issues.

A. Standard of Review

When findings of fact are challenged on appeal, we utilize the same standards that we apply in reviewing jury findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991); Ahmed v. Ahmed, 261 S.W.3d 190, 193-94 (Tex.App.-Houston [14th Dist.] 2008, no pet.). When both the legal and factual sufficiency of the evidence are challenged, we first review the legal sufficiency of the evidence to determine whether there is any evidence of probative value to support the factfinders' decision. See Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752 (Tex.App.-Houston [14th Dist.] 2005, no pet.); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 438 (Tex.App.-Dallas 2002, pet. denied). In a legal sufficiency or no evidence review, we determine whether the evidence would enable reasonable and fair-minded people to reach the finding under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In conducting this review, we credit favorable evidence if reasonable factfinders could and disregard contrary evidence unless reasonable factfinders could not. Id. We must consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. Id. at 822. We must, and may only, sustain no evidence points when either the record reveals a complete absence of evidence of a vital fact, the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence establishes conclusively the opposite of the vital fact. Id. at 810.

B. The Trial Court's Finding That Pro Am Incurred Expenses, Including Attorney's Fees, in, Regaining Possession of the Converted Equipment

In his second issue, Wiese argues there is no evidence or insufficient evidence supporting the trial court's finding that Pro Am incurred expenses, including attorney's fees, in regaining possession of its equipment. Because Pro Am successfully regained possession of the converted equipment, it is entitled to recover its expenses necessarily incurred in recovering the equipment. See Donnelly v. Young, 471 S.W.2d 888, 891 (Tex.Civ.App.-Fort Worth 1971, writ ref'd n.r.e.) (op. on reh'g). James Brame, Pro Am's president, testified that Pro Am's only expenditures made while attempting to recover the converted equipment were attorney's fees. Wiese contends there is no evidence that Pro Am incurred any recoverable expenses while attempting to regain possession of its equipment because attorney's fees generally are not recoverable for conversion claims.

In Texas, attorney's fees may be recovered from an opposing party only as authorized by statute or by contract between the parties. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 817 (Tex.2006). Attorney's fees are generally not available for conversion claims. Broesche v. Jacobson, 218 S.W.3d 267, 277 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). The trier of fact may consider attorney's fees in conversion actions when determining exemplary damages, but not when calculating actual damages. See First Nat'l Bank of Missouri City v. Gittelman, 788 S.W.2d 165, 171 (Tex.App.-Houston [14th Dist.] 1990, writ denied); Earthman's, Inc. v. Earthman, 526 S.W.2d 192, 208 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ).

During oral argument, Pro Am asserted that Donnelly v. Young justifies the trial court's finding that it was entitled to recover attorney's fees as expenses in regaining possession of the equipment. According to Donnelly, a plaintiff who recovers converted property may recover expenses, payments, attorney's fees, and the value of the time expended while attempting to regain possession of the property. Donnelly, 471 S.W.2d at 891. However, the court's discussion of such a recovery was limited to situations where a plaintiff successfully recovers real property and incurs fees “in the removal of incumbrances and/or clouds on his title” resulting from conversion. ¹ Id. Nowhere in the opinion does the court suggest that attorney's fees may be recovered as expenses incurred while regaining possession of converted personal property. Thus, the holding in Donnelly is limited to the recovery of attorney's fees as an expenditure made in connection with recovering converted real property when an attorney's services are necessary to perform some legal function other than filing suit. Any other reading would contradict the general rule that attorney's fees are not recoverable as actual damages in conversion actions. See Broesche, 218 S.W.3d at 277; Gittelman, 788 S.W.2d at 171. Accordingly, we hold that Pro Am was not entitled to recover attorney's fees as part of its expenses incurred in regaining possession of the equipment.

Pro Am presented no evidence of any expenses incurred while recovering the equipment unrelated to attorney's fees. Because Pro Am is not entitled to obtain attorney's fees as part of any expense recovery, there is a complete absence of evidence related to any recoverable expenses. After reviewing the evidence in the light most favorable to the challenged finding, we conclude that there is legally insufficient evidence to support the trial court's finding that Pro Am incurred any recoverable expenses in regaining possession of the converted equipment. See City of Keller, 168 S.W.3d at 810, 822. Accordingly, we sustain Wiese's second issue.

C. The Trial Court's Finding That Pro Am Suffered Actual Damages As a Result of the Equipment's Conversion

In his third issue, Wiese contends there is no evidence or insufficient evidence to support the trial court's finding that Pro Am suffered actual damages of $9,200 as a result of the wrongful conversion of the equipment. Pro Am argues in its sole cross issue that the trial court's award of $9,200 in actual damages is erroneous because there is sufficient uncontroverted evidence showing that it suffered $43,426 in actual damages, consisting of $34,224 in loss of use damages and $9,200 in attorney's...