     Case: 10-50837 Document: 00511477199 Page: 1 Date Filed: 05/13/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 13, 2011

                                     No. 10-50837                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ROBERT J. SYKES,

                                                   Plaintiff - Appellant
v.

PUBLIC STORAGE INC,

                                                   Defendant - Appellee




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:08-CV-796


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant       Robert     Sykes     brought     this    lawsuit    against
Defendant–Appellee Public Storage, Inc., alleging liability for conversion of
property, breach of contract, and violations of the Texas Deceptive Trade
Practices Act. Sykes appeals the magistrate judge’s dismissal of his conversion
and Texas Deceptive Practices Act claims and the jury verdict rejecting his
breach of contract claim. We AFFIRM.


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-50837 Document: 00511477199 Page: 2 Date Filed: 05/13/2011



                                    No. 10-50837

             I. FACTUAL & PROCEDURAL BACKGROUND
      Robert Sykes rented two storage units from Shurgard Storage, which was
subsequently purchased by Public Storage, Inc. He rented the first, Unit 3029,
beginning on January 20, 2005, and the second, Unit 3028, beginning on March
20, 2005. Sykes subsequently fell behind on his rent for both units and agreed
to allow Public Storage to sell the contents of Unit 3029.        Eventually, the
contents of both units were sold.
      On October 27, 2008 Sykes commenced this diversity action against Public
Storage in the District Court for the Western District of Texas alleging three
causes of action in connection with Public Storage’s sale of his property in both
Unit 3029 and Unit 3028: (1) Public Storage breached its contract with Sykes
when it sold the contents of both storage units (the “contract claim”); (2) this
breach of contract also violated the Texas Deceptive Trade Practices Act (the
“DTPA claim”); and (3) the general manager of the storage facility committed the
tort of conversion when he took the proceeds of the sold property (the “conversion
claim”).
      Sykes’s claims proceeded to a jury trial before a magistrate judge with
Sykes representing himself. After Sykes presented his case-in-chief, Public
Storage filed a motion for judgment as a matter of law pursuant to Federal Rule
of Civil Procedure 50(a) on all of Sykes’s claims. The magistrate judge granted
Public Storage’s motion with respect to Sykes’s conversion claim and DTPA
claim, concluding that both claims were barred by the two-year statute of
limitations. At the close of Public Storage’s defense, Sykes filed a Rule 50(a)
motion requesting a directed verdict on Public Storage’s liability for breach of
contract. The magistrate judge denied Sykes’s motion and submitted Sykes’s
contract claim to the jury. The jury returned a verdict in favor of Public Storage,
and the magistrate judge entered final judgment in favor of Public Storage.
Sykes timely appealed.

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                                      No. 10-50837

                                   II. DISCUSSION
       Sykes appeals the magistrate judge’s grant of Public Storage’s Rule 50(a)
motion on his DTPA and conversion claims, as well as the jury verdict in favor
of Public Storage on his contract claim. In this diversity action, we apply Texas
substantive law and federal procedural law. See Cerda v. 2004-EQR1 L.L.C.,
612 F.3d 781, 786 (5th Cir. 2010). We review a court’s ruling on a Rule 50(a)
motion for judgment as a matter of law de novo, considering the evidence in the
light most favorable to the non-movant. See Hagan v. Echostar Satellite, L.L.C.,
529 F.3d 617, 622 (5th Cir. 2008). Such a motion may be granted “[i]f a party
has been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for
the party on that issue.” F ED. R. C IV. P. 50(a).
A.     DTPA Claim and Conversion Claim
       The basis for Sykes’s DPTA and conversion claims were as follows: Sykes
gave Public Storage permission to sell the property in Unit 3029 in lieu of
continuing to pay rent on that unit. Instead of selling the property in Unit 3029,
however, Public Storage sold the more valuable contents of Unit 3028 and
pocketed the proceeds.1 Given these claims, the magistrate judge concluded that
Public Storage was entitled to judgment as a matter of law on the DPTA claim
and the conversion claim because Sykes, “through the exercise of reasonable
diligence, should have discovered the facts giving rise to those claims more than
two years prior to the date [Sykes] filed this case.” Thus, the claims were barred
by the statute of limitations.
       There is no dispute that Sykes’s DPTA and conversion claims each has a
two-year statute of limitations. See T EX. B US. & C OM. C ODE § 17.565 (DPTA


       1
        We note that the magistrate judge explicitly clarified Sykes’s claims with him before
ruling on Public Storage’s Rule 50(a) motion. Trial Tr. vol 1, 195:3–197:20, June 21, 2010,
ECF No. 58.

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                                 No. 10-50837

claim); T EX. C IV. P RAC. & R EM. C ODE § 16.003(a) (conversion of personal
property). At Sykes’s request, the magistrate judge applied the discovery rule
to Sykes’s claims. Under this rule, a claim accrues “when the plaintiff knew, or
by exercising reasonable diligence, should have known of facts giving rise to a
cause of action.” Barker v. Eckman, 213 S.W.3d 306, 312 (Tex. 2006). Texas
courts apply the discovery rule in cases where the injury is “inherently
undiscoverable” and “objectively verifiable.” Id.; see also KPMG Peat Marwick
v. Harrison Cnty. Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999). (stating that
discovery rule applies to DPTA claims). Accordingly, if the evidence at trial
permitted a reasonable jury to find that Sykes neither knew nor should have
known about the challenged conduct prior to October 27, 2006, which is two
years prior to his filing of the instant lawsuit, then the statute of limitations
would not bar his DPTA and conversion claims.
      Reading Sykes’s pro se pleadings broadly, see Johnson v. Quarterman, 479
F.3d 358, 359 (5th Cir. 2007), he claims that the district court erred in its
application of the discovery rule to his DTPA and conversion claims because
none of the property he stored in either unit was sold until October 2006, and he
did not learn about the sale until November 2006. Thus, according to Sykes, his
complaint was timely filed on October 27, 2008, less than two years later.
However, the documentary evidence present at trial unequivocally confirms that
Unit 3029 was sold on December 21, 2005. Sykes was sent a notice of accounting
for the sale of Unit 3029’s contents, post-marked December 21, 2005. Moreover,
the activity ledger for Unit 3028, which Sykes introduced into evidence in his
case-in-chief, stated that Unit 3029 was sold on December 21, 2005, and recorded
that Sykes’s complained about the sale of the contents of Unit 3029 in September
of 2006. This evidence shows that the contents of Unit 3029, rather than the
contents of Unit 3028, were sold in December 2005.



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                                      No. 10-50837

       Furthermore, what emerges from Sykes’s trial testimony is the almost
unavoidable conclusion that he knew about the allegedly erroneous sale well
before October 2006. Sykes testified that he was behind in his rent for both of
his units soon after renting them in 2005. Sykes testified that, because he fell
behind in his rent, he agreed to let the rent on Unit 3029 lapse in October 2005,
he agreed that the contents of that unit would be sold, and he would thereafter
make payments on Unit 3028 only. Sykes also testified that he visited the
storage facility several times in 2006 to make payments and inspect his
property. Although Sykes later stated that he was sure that both his units were
intact in 2006 and the sale of Unit 3029 occurred in 2006, he conceded that he
only stored property in—and was only making payments on— Unit 3028 in 2006.
Thus, no reasonable jury could have concluded that Sykes did not know, or
should not have known, that the wrong goods had been sold before October 2006.
Therefore, Sykes’s DTPA and conversion claims accrued before October 27, 2006,
his claim filed on October 27, 2008 was not timely, and the applicable statute of
limitations barred the jury from returning a verdict in Sykes’s favor.2
B.     Breach of Contract Claim
       Sykes next challenges the jury verdict that Public Storage was not liable
for breach of contract. Sykes properly filed a Rule 50(a) motion before the case
was submitted to the jury, but he failed to preserve his challenge to the
sufficiency of the evidence supporting the jury verdict on his contract claim by
making a post-verdict Rule 50(b) motion for judgment as a matter of law or a




       2
         Sykes also argues that he was entitled to a hearing and a jury instruction regarding
spoliation, alleging that Public Storage tampered with the lease documents for units 3028 and
3029. Sykes made no such requests before the district court, and we therefore do not address
these arguments. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“As a general rule,
this Court does not review issues raised for the first time on appeal.”).

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                                        No. 10-50837

motion for a new trial.3 Shepherd v. Dallas Cnty., 591 F.3d 445, 456 (5th Cir.
2009). Therefore, this court reviews the jury verdict only for plain error.4
“Under this standard, the question is . . . whether there was any evidence to
support the verdict.”        Id. (citation and internal quotation marks omitted)
(emphasis in original).
       Based on the evidence presented at trial, the jury verdict survives plain
error review. The jury instructions, which Sykes does not challenge, required
Sykes to prove all of the following by a preponderance of the evidence: (1)
“Public Storage and Mr. Sykes entered into an agreement”; (2) “Mr. Sykes did
all, or substantially all of the significant things that the agreement required him
to do or that he was excused from doing those things”; (3) “Public Storage failed
to do something that the agreement required”; and (4) “Mr. Sykes was harmed
by that failure.”
       Sykes’s argument on appeal is that Public Storage should have been found
liable for breach of contract for selling the contents of both units because it failed
to send a notice of the sale of either unit to his “last known address,” as the
storage contract required.         Sykes argues that Public Storage knew he had
changed his address because he verbally notified the facility manager of two
address changes, and those changes were entered into the ledger for Unit 3028.
However, the evidence before the jury amply demonstrated that Sykes failed to
prove the second prong of his contract claim by a preponderance of the evidence.


       3
         After the jury verdict, the magistrate judge asked if either party would like to raise
any issues. Sykes stated that he “had nothing to say” about the jury verdict but that he
wanted “to appeal the decision.” Even read broadly, this statement did not renew his previous
Rule 50(a) motion. Although Sykes subsequently filed a motion for a new trial, he challenged
only the magistrate judge’s grant of Public Storage’s Rule 50(a) motion with respect to the
statute of limitations defense, and he did not mention the jury verdict on his contract claim.
       4
        Public Storage stated that the standard of review on this issue is for sufficiency of the
evidence, but we, rather than the parties, determine the appropriate standard of review. See
United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc).

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                                No. 10-50837

First, as Public Storage argued before the jury, Sykes did not comply with the
timely payment provisions of his storage contract for either unit for several
months before they were sold.    Second, and crucially for his allegations of
improper notice, Sykes admitted that he failed to update his address with the
storage facility in writing, as his two-page storage contract conspicuously
required in all capital letters. The jury heard testimony that written, rather
than oral, notification of an address change was essential to ensure that the
internal computer system, which generated sale notices, properly updated the
tenant’s address. Thus, there was ample evidence from which the jury could
conclude that Sykes’s oral address change did not excuse him from updating his
address in writing, and the jury verdict was not plainly erroneous.
                            III. CONCLUSION
      For the foregoing reasons we AFFIRM the final judgment of the district
court. We also DISMISS Public Storage’s motion to strike portions of Sykes’s
briefs as moot.




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