      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00700-CV



                                  Melanie Stanford, Appellant

                                                v.

                              Travis Star Corporation, Appellees



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
       NO. 98-13727, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING




               Melanie Stanford appeals from the district court’s grant of a summary judgment in

favor of Travis Star Corporation in its conversion action against her. We will reverse the judgment

and remand for further proceedings.

               Stanford was employed with Travis Star Corporation from December 1995 to

November 1996. Travis Star operated a mobile-home park. Charles Mac Spellman, Jr., Travis Star’s

president, claimed that Stanford forged checks, and either deposited them into her personal bank

account or cashed them. In December 1996 Travis Star sued Stanford for conversion. 1 Stanford

responded to the motion for summary judgment claiming that Spellman instructed her to deposit

checks into her personal account and pay company expenses from that account; allegedly as an




       1
          At its inception, this suit involved Charles Mac Spellman, Jr., Melissa Spellman, Travis
Star Corporation, Melanie Stanford, Frederick Stanford, and Norwest Bank. Travis Star’s summary
judgment against Stanford was severed and is the subject of this appeal.
attempt by Spellman to defraud his creditors. Each side offered documentary evidence as well as

affidavits in support of the motion for summary judgment and response.

               Summary judgment is properly granted only when the movant establishes that there

are no genuine issues of material fact to be decided and that the movant is entitled to judgment as a

matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In reviewing

the grant of a summary judgment, we view the evidence in the light most favorable to the non-movant

and make every reasonable inference and resolve all doubts in favor of the nonmovant. Id. The

purpose of summary judgment is to determine if there are any questions of fact to be tried, not to try

the cause by weighing the evidence or determining its credibility or to try the cause by affidavit or

deposition. Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952); Green v. Morris, 43 S.W.3d

604, 608 (Waco 2001, no pet.).

               When a plaintiff moves for summary judgment on its own cause of action, the plaintiff

must prove it is entitled to summary judgment by establishing each element of its claim as a matter

of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Accordingly, Travis Star as movant

had the burden to establish each element of its cause for conversion. Conversion is the unauthorized

and wrongful assumption and exercise of control over the personal property of another, to the

exclusion of, or inconsistent with, the other person’s rights. Waisath v. Lack’s Stores, Inc., 474

S.W.2d 444, 446 (Tex. 1971); Pierson v. GFH Fin. Servs. Corp., 829 S.W.2d 311, 314 (Tex.

App.—Austin 1992, no writ). Stanford does not dispute that she exercised control over the checks

at issue; the dispute is whether that control was unauthorized and inconsistent with Travis Star’s

rights. As a preliminary matter, we must determine the value of the summary-judgment evidence

other than the affidavits introduced in support of the motion for summary judgment and response.

                                                  2
               Other than Spellman’s affidavit, Travis Star’s summary-judgment evidence consisted

of a list of nineteen checks, with their total amount listed as $48,186.83.2 Individual exhibits showing

copies of the listed nineteen checks, as well as other checks deposited in Stanford’s account, were

offered. Among these checks are Travis Star checks payable to Stanford and signed by Delma Davila,

Travis Star’s bookkeeper. Travis Star never explicitly explains or traces what these individual

exhibits are supposed to show other than, in its brief on appeal, asserting that the copies show where

each check was deposited or cashed. However, Stanford does not dispute that the checks were

deposited in her account or cashed—the disputed element of conversion is whether her actions were

wrongful. No explanation is offered as to how a copy of a check payable to Stanford and signed by

the business’s bookkeeper that was deposited in Stanford’s account shows Stanford converted the

check, other than by Spellman’s affidavit so stating. The evidence did not include any testimony, by

affidavit or deposition, explicitly showing any signatures were forged by Stanford.

                Stanford’s affidavit in support of her response swears that she was depositing the

checks at Spellman’s instruction and paid business expenses from her personal account. Stanford also

submitted an affidavit from Davila, the bookkeeper. Davila had first supported Spellman in his

forgery allegations against Stanford, then later changed her mind and supported Stanford. 3 Stanford’s

summary judgment evidence, such as receipts for certain amounts paid, suffers problems similar to

Travis Star’s. We need not discuss these problems in detail, however. Applying the general

       2
           In one part of his affidavit in support of the motion for summary judgment, Spellman
claimed that Stanford converted at least $48,186.83 (the amount of the checks); in another part he
asked for $45,606.32 in damages. Judgment was for the $45,606.32 amount.
       3
           The appendix to Stanford’s reply brief contains a copy of Spellman’s plea of no contest
to “securing execution of document by deception.” Travis Star filed a motion to strike that
document. Because of our disposition of the cause, we dismiss the motion to strike.

                                                   3
principles governing summary judgment, reviewing the evidence in the light most favorable to the

nonmovant and without making credibility judgments or weighing the evidence, Travis Star has not

demonstrated it is entitled to judgment as a matter of law. See Nixon, 690 S.W.2d at 548-49.

              Concluding that a genuine issue of material fact exists, we reverse the district-court

judgment and remand the cause for further proceedings.




                                             Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Reversed and Remanded

Filed: October 4, 2001

Do Not Publish




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