                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-250-CV


ROBERT MORRISON, II                                             APPELLANT

                                       V.

GREG STANDERFER                                                   APPELLEE

                                   ------------

         FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     A jury found that Appellant Robert Morrison, II converted an airplane

belonging to Appellee Greg Standerfer and awarded actual damages of $10,000

and punitive damages of $15,000. The trial court granted Standerfer’s motion

for judgment notwithstanding the verdict (“JNOV”) on the jury’s damages

finding and entered final judgment awarding him $62,000 in actual damages



     1
          See Tex. R. App. P. 47.4.
and $15,000 in punitive damages. Morrison now appeals. In four issues, he

argues that (1) he disproved an essential element of Standerfer’s conversion

claim, and therefore the trial court erred by rendering judgment for Standefer

on that claim; (2) the trial court erred by basing its judgment on the statutory

landlord’s lien, if the trial court in fact did so; (3) the trial court erred by

disregarding the jury’s finding of $10,000 in actual damages; and (4) the trial

court erred by submitting the wrong definition of malice in the jury charge, but

even under the wrong definition, the evidence was legally insufficient to

support the jury’s finding of malice. 2 Because we hold that the trial court did

not err by entering judgment for Standerfer on his conversion claim or by

entering a JNOV on the jury’s finding of damages and that Morrison failed to

preserve his complaint about the jury charge’s question on malice, we affirm.

                   Background Facts and Procedural History

      Morrison owns an airplane hangar in Roanoke, Texas. Ray Sanino, who

owns a flight school, signed a lease with Morrison to rent the hangar. The

lease provides that “[a]s additional security . . . [Sanino] grants [Morrison] a

security interest in all property, personal or otherwise, of or under the control

of [Sanino] which is or becomes situated on or in the said leased premises.”



      2
         Morrison originally raised five issues, but he withdrew his fifth issue
in his reply brief.

                                       2
      Standerfer had a “gentleman’s agreement” with Sanino that Sanino would

pay for legal work performed by Standerfer by storing Standerfer’s two planes,

a Diamond aircraft and a Commander aircraft. Standerfer’s understanding was

that the planes would be stored in the hangar from which Sanino operated his

flight school, which was not the hangar that Sanino had rented from Morrison.

But in 2007, Standerfer’s planes were moved to the leased hangar space.

Although Standerfer testified that he did not know who moved his planes, he

also testified that Sanino had told him that “he probably had someone move it

in there, but he didn’t remember exactly” and that Sanino “took my plane from

the hangar in which I stored it . . . and took it over there” to Morrison’s hangar.

      On September 12, 2007, after Sanino defaulted on the lease, Morrison

locked the hangar door. On September 13, Standerfer entered the premises,

cut the chain locking the hangar door, and removed the Diamond, leaving his

Commander aircraft behind.         When Standerfer returned to remove his

Commander airplane, he found on the door a note signed with Morrison’s initials

that said, “If you open this door OR remove these aircraft before I say it’s o.k.,

I will be courteous enough to visit you in JAIL.” This note was not addressed

to any specific person. The hangar also held aircraft owned by someone other

than Standerfer or Sanino.




                                        3
      Standerfer wrote a letter to Morrison on Sanino’s behalf, terminating the

lease. He included with the letter a copy of a bank check for $2,000 and an

offer to give Morrison the check to pay the August and September rent. On

September 17, Standerfer sent Morrison another letter offering to submit a

bond for $8,000 to secure Sanino’s payment for the rent for the remaining

portion of the lease term in exchange for Morrison’s releasing the Commander.

Morrison declined Standerfer’s offer.

      Morrison sued Sanino, Standerfer, and the owner of the other plane for

a temporary restraining order (which was granted) and a temporary injunction

to prevent them from entering the premises until Sanino’s rent had been paid.

Standerfer and Sanino countersued for conversion, seeking actual and punitive

damages. Morrison supplemented his petition to allege a breach of contract

claim against Sanino and a quasi-contractual claim against Standerfer.      On

Standerfer’s motion, the trial court entered a partial summary judgment finding

that Standerfer’s plane had a fair market value on the date of the lockout of

$62,000 and that no contractual lien existed between Standerfer and Morrison.

      The claims proceeded to trial, and the jury awarded Morrison $8,500 on

his breach of contract claim against Sanino. The jury also found that Morrison

had converted Standerfer’s plane and awarded Standerfer $10,000 in actual

damages plus $15,000 in punitive damages.

                                        4
      The trial court granted Standerfer’s motion for JNOV on the jury’s finding

of $10,000 in actual damages on his conversion claim and entered a final

judgment awarding Standerfer $62,000 in actual damages and $15,000 in

punitive damages.

                                    Analysis

      In his first issue, Morrison argues that the trial court erred by entering

judgment for Standerfer on his conversion claim because Morrison disproved an

essential element of conversion. He argues that the contractual lien contained

in his lease with Sanino gave him the lawful right to possess all property under

Sanino’s control that was situated in the hangar at the time he defaulted on the

lease and that Standerfer’s planes were under Sanino’s control when Sanino

drove them into Morrison’s hangar.

      In reply, Standerfer argues that “Texas law is well settled that

Sanino . . . had no power to grant a contractual lien” on Standerfer’s property.

The cases cited by Standerfer are not authoritative and do not establish well-

settled Texas law on contractual liens like the one involved here. 3




      3
         See Rohweder v. Aberdeen Prod. Credit Ass'n, 765 F.2d 109, 112
(8th Cir. 1985); Standard Foundry v. Ebner, 206 B.R. 475, 478–79 (Bankr.
N.D. Ill. 1997); Ayers v. Greater Houston Pipe, No. 01-98-01022-CV, 2000 WL
1678443, at *2 (Tex. App.—Houston [1st Dist.] Nov. 9, 2000, no pet.) (not
designated for pub.).

                                       5
Nevertheless, Standerfer is correct that Texas law generally does not permit

two parties to agree to place a lien on the property of a third party who does

not consent to the lien. 4 An agreement purporting to do so does not create a

valid, enforceable lien against the third party’s property. 5

      The Houston Fourteenth Court of Appeals has addressed contractual liens

on personal property in a similar situation, although the contractual language in

that case differed from the language in the lease here. 6 In BML Stage Lighting,



      4
        BML Stage Lighting, Inc. v. Mayflower Transit, Inc., 14 S.W.3d 395,
400 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (holding that contract
between freight transport company and shipper of goods could not create a lien
on the goods that the shipper did not own and had only leased when the owner
of the goods was not a party to the contract for carriage); see also Diversified
Mortgage Investors v. Lloyd D. Blaylock Gen. Contractor, Inc., 576 S.W.2d
794, 805 (Tex. 1978) (stating that a mechanic’s and materialman’s lien
attaches to the interest of the person contracting for construction and if a
lessee contracts for construction, the mechanic’s lien attaches only to the
leasehold interest, not to the fee interest of the lessor); Tex. State Bank v.
Foremost Ins. Co., 477 S.W.2d 652, 654 (Tex. Civ. App.—Corpus Christi
1972, writ ref’d n.r.e.) (stating that no one can give a valid security interest in
a mobile home unless he has rights in it); Cullum v. Lub-Tex Motor Co., 267
S.W. 322, 324 (Tex. Civ. App.—Amarillo 1924, no writ) (“The general rule is
that when the mortgagor does not own the property, or such an interest therein
as the law will recognize, an attempted mortgage given by him is void and
creates no lien in favor of the mortgagee”); Williams v. King, 206 S.W. 106,
107 (Tex. Civ. App.—Austin 1917, no writ) (op. on reh’g) (“One cannot
mortgage that which he does not own, so as to create a lien thereon prior to
his becoming such owner.”).
      5
           See Cullum, 267 S.W. at 324.
      6
           BML, 14 S.W.3d at 400.

                                        6
BML leased equipment to SportsLab, Inc. 7            SportsLab contracted with

Mayflower Transit, Inc. to transport the equipment around the country for a

touring exhibition. 8 The contract between SportsLab and Mayflower contained

a provision stating that “if shipper fails or refuses to pay lawfully applicable

charges . . . carrier may sell the property at its option.” 9 After SportsLab failed

to pay its transport bill, Mayflower retained possession of the equipment. 10

BML sought the return of its property, but Mayflower refused to turn over the

equipment until its bill was paid. 11 Mayflower contended that it could assert a

contractual lien on the property of BML, who was not a party to the contract

between SportsLab and Mayflower. 12          The court of appeals disagreed with

Mayflower, stating that a contract generally binds no one except the parties to

the contract and that when an owner of goods is not a party to a contract for




      7
           Id. at 398.
      8
           Id.
      9
           Id. at 400.
      10
            Id. at 398.
      11
            Id.
      12
            Id. at 400.

                                         7
carriage and is not the shipper, the carrier cannot enforce a contractual lien

against the goods. 13

      Similarly, Standerfer was not a party to the lease between Morrison and

Sanino, and there was no evidence that Sanino had an ownership interest in

Standefer’s plane or that Standerfer consented to be bound by the terms of the

lease. Consequently, Morrison and Sanino could not by contract place a valid

lien on Standerfer’s property. We hold that the lease did not create a valid,

enforceable lien against Standerfer’s property.      Morrison makes no other

argument against the jury’s finding of conversion, and, accordingly, we overrule

Morrison’s first issue.

      In his second issue, Morrison argues that if the trial court’s failure to

enforce his contractual lien was based on its application of the property code

provisions regarding landlord liens that Standerfer relied on at trial, the trial

court erred because Texas Property Code section 51.001 specifically exempts

Morrison’s lien from the statutory requirements.      Morrison asserts that no

statutory lien provisions apply because this is a contractual lien case, not a

statutory lien case. Because we have held that the contractual lien in the lease




      13
            Id.

                                       8
between Morrison and Sanino did not apply to Standerfer’s property, we

overrule Morrison’s second issue.

      In his third issue, Morrison contends that if Standerfer was entitled to a

judgment for conversion, the trial court erred by disregarding the jury’s finding

of $10,000 in damages because some evidence supports it.             In response,

Standerfer argues that he was entitled to elect the measure of damages that

afforded him the greatest relief, and he could therefore elect the trial court’s

finding of fair market value over the jury’s finding on damages.

      A trial court may disregard a jury verdict and render judgment

notwithstanding the verdict (“JNOV”) if no evidence supports the jury findings

on an issue necessary to liability or if a directed verdict would have been

proper. 14   A trial court cannot disregard a jury’s answer and enter a JNOV

because the answer is against the great weight and preponderance of the

evidence. 15 In such a situation, the trial court may only grant a new trial. 16 To



      14
        See Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.
2003); Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394
(Tex. 1991).
      15
       Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 594 (Tex. 1986);
Duncan Land & Exploration, Inc., v. Littlepage, 984 S.W.2d 318, 325 (Tex.
App.—Fort Worth 1998, pet. denied).
      16
        Alm, 717 S.W.2d at 594; see also Tex. R. Civ. P. 301 (providing that
court may disregard jury finding that has no evidentiary support).

                                        9
determine whether the trial court erred by rendering a JNOV, we view the

evidence in the light most favorable to the verdict under the standards that

govern legal sufficiency review. 17

      A plaintiff must elect the recovery he wants when the jury verdict

contains more than one acceptable measure of damages. 18 And in a conversion

case, a plaintiff generally may elect one of two measures of damages: loss of

use damages, if the plaintiff seeks return of the property, and fair market value

damages, if the plaintiff does not seek return of the property. 19 In other words,

the plaintiff may be made whole by having his property returned to him, with

compensation for any loss he sustained because he did not have the use of his

property, or he may be made whole by essentially selling the property to the

person who has converted his property, with a price set at the property’s fair

market value. The damages awarded should compensate the plaintiff for actual

losses sustained as a natural and proximate result of the defendant’s conversion


      17
            See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.
2003).
      18
         Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 367 (Tex.
1987) (holding that a prevailing party may elect between alternative measures
of damages, and should the party fail to do so, the court should use the finding
affording the greater recovery and render judgment accordingly); Kish v. Van
Note, 692 S.W.2d 463, 466–67 (Tex. 1985).
      19
         Sibley v. Fitch, 226 S.W.2d 885, 885 (Tex. Civ. App.—Waco 1950,
writ ref’d).

                                       10
and should not unjustly enrich the plaintiff. 20

      Here, Standefer did not make a choice between these two measures of

conversion damages. Standerfer did ask the trial court to determine the fair

market value of the plane, and it did so.          But the jury was not asked to

determine loss of use damages, the other usual measure of conversion

damages.     Instead, the jury was asked a general damages question.

Specifically, the charge asked, “What sum of money, if any, if paid now in

cash, would fairly and adequately compensate [Standerfer] for the damages, if

any proximately caused by” Morrison’s conversion? The charge then stated,

“You are instructed that the fair market value of the plane is $62,000. This

includes the fair market value of the property at the time and place of the

conversion.” Standerfer did not object to this question, either to its submission

or to its wording.

      Because Standerfer did not object to the damages question in the charge,

Morrison argues that Standerfer is bound by it and could not elect an award of

the plane’s fair market value and that the trial court could not set aside the




      20
         Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d
877, 889 (Tex. App.—Dallas 2009, no pet.); see also Minter v. Sparks, 246
S.W.2d 954, 957 (Tex. Civ. App.—Dallas 1951, writ ref’d n.r.e.) (stating that
in determining damages, “[n]o absolutely rigid rule [applies] to every state of
facts in conversion cases”).

                                        11
jury’s verdict because some evidence supported it. We disagree. Even under

the standard of review urged by Morrison, we cannot say that the trial court

erred because no evidence supports any measure of damages in Standerfer’s

favor other than fair market value.

      Morrison is correct that because Standerfer did not object to the charge,

we measure the sufficiency of the evidence against the charge as actually

submitted, rather than the charge that should have been submitted. 21 That is,

we determine whether any evidence supports a finding that Standerfer suffered

damages of $10,000. Under the charge, the jury could have based its finding

on evidence that showed any damages, not just fair market value or loss of use

damages. For example, Standerfer testified that the tires on the plane would

have to be replaced. Assuming that Standerfer would have his plane returned




      21
          See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.) (holding that when
no objection is made to the charge, sufficiency of the evidence is measured
against the charge submitted and not against the charge that should have been
submitted), cert. denied, 530 U.S. 1244 (2000); Burlington N. R.R. Co. v. Gen.
Projection Sys., Inc., No. 05-97-00425-CV, 2000 WL 1100874, at *8 (Tex.
App.—Dallas Aug. 8, 2000, pet. denied) (op. on reh’g) (not designated for
publication) (holding that when the jury was not asked to determine the fair
market value of the plaintiff’s property at the time of conversion and was only
asked what sum of money would fairly and reasonably compensate the plaintiff
for its damages caused by the conversion, and when the plaintiff did not argue
on appeal that the trial court erred by refusing to submit the issue of fair market
value, the court measured the sufficiency of the evidence against the defective
issue actually submitted).

                                        12
to him—and nothing at trial told the jury that this would not be the case—the

jury could have awarded him damages for the cost of replacing the tires had

any evidence of such cost been presented. But no such evidence appears in

the record. Likewise, there is no evidence of loss of use damages, such as

evidence that Standerfer had to buy a plane ticket because he did not have

access to his plane. There was some evidence that Standerfer had lost a sale

of the plane because of Morrison’s continued possession of it, but no evidence

of what damages, if any, Standerfer sustained from the loss of the sale.

      The only evidence of a dollar amount of any kind regarding Standerfer’s

damages was evidence of the value of the plane. Standerfer testified that the

plane was worth $62,000, and the instruction to the jury informed it that the

plane had that value. But the jury was not instructed to find fair market value

as its answer to the damages question, and no indication was given to the jury

that Standerfer would not regain possession of his plane, which is the only

circumstance in which he would be entitled to fair market value as damages.

Standerfer did testify that he had put his Diamond aircraft up for sale because

he “[did not] fly enough to have a plane for my own.” But this testimony did

not tell the jury that he did not want his Commander aircraft returned to him.

In Standerfer’s closing arguments, he stated,




                                      13
         The Court has instructed you what the damage is. You’re
         instructed that the fair market value of the plane is $62,000 . . . .
         The damages that would fairly and adequately compensate me for
         any damages proximately caused by the conversion by [Morrison],
         that should be filled in $62,000. You have been instructed that is
         the fair market value of the item taken.

But although this language tells the jury that Standerfer wanted the jury to

award him the fair market value of the plane as damages, the charge did not

instruct the jury that it was required to do so, and Standerfer did not inform the

jury that he wanted money in lieu of, rather than in addition to, the return of the

plane.     The jury had no indication from the court or the evidence that its

damages finding should be based on the value of the plane. In fact, because

there was no instruction that it should find the market value of the plane, there

was no evidence to support the jury’s finding that Standerfer had been

damaged at all for any specific amount.

         Morrison argues that there was some evidence to support the $10,000

finding, but all the evidence he points out relates to the amount of money that

he claimed that he was owed on the lease and that Standerfer had offered to

pay in exchange for the return of his plane. None of the evidence noted by

Morrison supports the jury’s finding that Standerfer suffered damages of

$10,000. The trial court therefore did not err by disregarding the jury’s answer

and allowing Standerfer to elect as conversion damages the plane’s fair market



                                          14
value, which the trial court had already determined, and which the evidence

supported.22

      Morrison notes that the trial court’s finding was for value as of the day

of the lockout, which was two days before the date of conversion (when

Morrison refused to return the plane upon Standerfer’s demand), but nothing

in the record indicates that the value of aircraft fluctuates rapidly or changes

day by day, 23 and Morrison does not challenge the trial court’s finding of fair

market value on appeal. We overrule Morrison’s third issue. We note that after

payment to Standerfer of $62,000, the plane’s fair market value, Morrison is

entitled to title to the plane, just as if he had purchased the plane from

Standerfer. 24



      22
          See Ryno v. Tyra, 752 S.W.2d 148, 150 (Tex. App.—Fort Worth
1988, writ denied) (stating that in a claim for conversion of an automobile, “in
the absence of any contest of the automobile’s value, it was unnecessary for
the trial court to submit an issue on compensatory damages”).
      23
         See Humes v. Hallmark, 895 S.W.2d 475, 479–80 (Tex.
App.—Austin 1995, no writ) (noting that value of stocks or commodities,
property subject to a rapidly changing market, may need to be established
within days or weeks of the conversion but that the time to measure the value
of an artifact, the value of which is not subject to the same kind of market flux,
does not need to be so compressed).
      24
         See Sibley, 226 S.W.2d at 886 (noting that when the defendant had
satisfied the money judgment against him on the plaintiff’s conversion claim,
the plaintiff would “thereby become conclusively estopped from asserting any
further right, title[,] or interest in or to the property in controversy”).

                                       15
      In his fourth issue, Morrison argues that the trial court erred by submitting

the wrong definition of “malice” to the jury, but that even under the definition

submitted, there was legally insufficient evidence to support the jury’s finding

of malice. Morrison did not, however, preserve this issue for appeal.

      To preserve a complaint for appellate review, a party must have presented

to the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling, if they are not apparent from the context of the

request, objection, or motion. 25 If a party fails to do this, error is not preserved,

and the complaint is waived. 26

      A specific objection is one that enables the trial court to understand the

precise grounds so as to make an informed ruling and that affords the offering

party an opportunity to remedy any defect, if possible. 27 It must “clearly and

distinctly” make the trial court aware of the party’s complaint. 28         Both the




      25
            Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(1).
      26
            Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
      27
         See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Campbell v.
State, 85 S.W.3d 176, 185 (Tex. 2002); McDaniel v. Yarbrough, 898 S.W.2d
251, 252 (Tex. 1995).
      28
        Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868
(Tex. 2007).

                                         16
objection and the ruling must be included in the appellate record. 29          The

complaint on appeal must be the same as that presented in the trial court. 30

      The trial court held an informal charge conference off the record. The

court then gave the charge to the jury and, while the jury was deliberating, held

a formal charge conference for the purpose of allowing the parties to make their

objections on the record. At the formal charge conference, Morrison objected

to the malice question, stating, “We objected to Question No. 7, that malice —

the instruction of malice being included, that instruction.” In response, the trial

court stated, “And I’ll say as it pertains to 7, that objection is preserved.”

Thus, the record shows that Morrison made some objection to the question,

and the trial court appeared to have understood Morrison’s objection. But the

record is not clear exactly what the objection was, and we cannot determine

whether the objection in the trial court is the same objection that Morrison

raises on appeal. Because we cannot determine whether the objection made

to the trial court was the same objection that he now makes on appeal,

Morrison has not preserved his complaint with respect to the definition

submitted to the jury. 31


      29
            Tex. R. App. P. 33.1(a).
      30
            See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997).
      31
            See Tex. R. App. P. 33.1(a).

                                        17
      Morrison further argues that even under the definition submitted, there

was legally insufficient evidence to support the jury’s finding of malice. In a

jury trial, a challenge to the legal sufficiency of the evidence must be preserved

through one of the following procedural steps in the trial court:

      (1)     a motion for instructed verdict;

      (2)     a motion for judgment notwithstanding the verdict;

      (3)     an objection to the submission of the question to the jury;

      (4)     a motion to disregard the jury’s answer to a vital fact question; or

      (5)     a motion for new trial. 32

      Morrison did not file a motion for instructed verdict. He did file a motion

for JNOV, but he did not make any argument in the motion about the jury’s

finding on malice. Morrison objected to the malice instruction, but the record

does not indicate that he asserted in the trial court that no question on malice

should be submitted to the jury, and the record does not indicate what his

specific objection to the malice definition was. Morrison did not file a motion

to disregard the jury’s answer to the malice finding. He filed a motion for new

trial, but this motion also did not include any argument regarding the malice

finding.    Morrison thus did not preserve his complaint regarding the legal


      32
        T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220–21
(Tex. 1992); see also Tex. R. Civ. P. 324(b) (listing appellate complaints that
must be preserved by a motion for new trial).

                                           18
sufficiency of the evidence supporting the jury’s finding of malice, and,

accordingly, we overrule Morrison’s fourth issue.

                           Standerfer’s Cross-Point

      Standerfer brings one cross-point, arguing that Morrison’s appeal is

frivolous and requesting this court to award him an additional 10% of the

judgment amount as sanctions. This court may award damages to a prevailing

party if it determines that an appeal is frivolous. 33 Whether to do so is within

this court’s discretion, but sanctions should be imposed only in egregious

circumstances. 34 We do not believe this case warrants the award of sanctions,

and we therefore overrule Standerfer’s cross-point.

                                  Conclusion

      Having overruled Morrison’s four issues and Standerfer’s sole cross-point,

we affirm the trial court’s judgment.




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DELIVERED: March 25, 2010



      33
       Tex. R. App. P. 45; Clopton v. Pak, 66 S.W.3d 513, 517 (Tex.
App.—Fort Worth 2001, pet. denied).
      34
        Clopton, 66 S.W.3d at 517; Durham v. Zarcades, 270 S.W.3d 708,
720 (Tex. App.—Fort Worth 2008, no pet.).

                                        19
