Affirmed and Memorandum Opinion filed August 11, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00212-CV

        TCHEWAM LILY MUKWANGE, Appellant/Cross-Appellee
                                        V.
             PUBLIC STORAGE, INC., Appellee/Cross-Appellant

                    On Appeal from the 234th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-45830

                 MEMORANDUM                      OPINION


      Appellant/cross-appellee Tchewam Lily Mukwange sued appellee/cross-
appellant Public Storage, Inc. for the unlawful conversion of the contents contained
in her storage unit. The trial court signed a judgment in Mukwange’s favor and
awarded her $5,000 in damages. In several issues, Mukwange contends that the
trial court erred by concluding that there was insufficient evidence to support her
claim for fraud and that she was only entitled to recover $5,000 in damages. In a
cross-appeal, Public Storage asserts that the evidence is legally insufficient to
support Mukwange’s damages, and in the alternative, the trial court properly
limited Mukwange’s damages to $5,000. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

      On February 17, 2011, Mukwange began renting a self-storage unit at a
Public Storage facility, located at 9811 North Freeway, Houston, Harris County,
Texas. Mukwange agreed to pay $30.00 per month rent, due on the first day of
each month. Late charges of $20.00 per month became due if rent was not paid by
the sixth day of the month. As of April 30, 2011, Mukwange’s balance due to
Public Storage was $0.

      Mukwange testified that on April 30, 2011, she dropped a money order in
the mail slot of a different Public Storage facility, located at 6336 Fairdale Lane,
Houston, Texas. Mukwange stated that the money order was in the amount of
$60.00 and was intended to cover rent for May and June. Mukwange testified that
she had paid Public Storage in this manner on previous occasions. On that same
day, Mukwange placed the money order receipt in her storage unit.

      Public Storage claimed that it had no record of ever receiving Mukwange’s
money order and on May 8, it began calling Mukwange to inform her that her rent
was past due. On June 1, Public Storage sent Mukwange the statutorily required
notice of claim. The notice of claim was sent to the address that Mukwange
provided in her lease agreement. On July 27, Public Storage auctioned the contents
of Mukwange’s storage unit.

      On several occasions, Mukwange attempted to notify Public Storage that she
had paid rent for May and June. Mukwange wrote Public Storage a letter,
explaining the situation and also met with several employees in-person. On July


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12, Mukwange received an invoice from Public Storage indicating that her balance
was $205.00. The following day, Mukwange went to the Public Storage facility
and paid $30.00 in cash for July rent. Mukwange did not pay the associated late
fee. An employee explained that this payment would not stop the auction from
proceeding. On July 27, Public Storage auctioned the contents of Mukwange’s
storage unit to the highest bidder at a public sale. The unit sold for a total of
$105.19.

      Appearing pro se, Mukwange filed suit against Public Storage, claiming that
it breached the lease agreement and wrongfully sold her property. Public Storage
filed a motion for partial summary judgment, seeking for the enforcement of a
limitation of liability clause in the lease agreement. On September 3, 2013, the trial
court granted Public Storage’s motion for partial summary judgment and ruled that
Mukwange’s recovery of actual damages, if any, would be limited to $5,000.00.
The parties proceeded to a bench trial, in which the trial court ruled in
Mukwange’s favor. On March 7, 2014, the trial court issued a final judgment and
findings of fact and conclusions of law. The trial court found that Public Storage
breached the lease agreement and caused Mukwange to suffer damages in the
amount of $5,000.00.

                               ISSUES AND ANALYSIS

      Because Mukwange is proceeding as pro se, we will liberally interpret the
issues raised in her brief. However, we recognize that in Texas, pro se plaintiffs are
held to the same standards as those applied to attorneys. See Mansfield State Bank
v. Cohn, 573 S.W.2d 181, 184−85 (Tex. 1978). To do so otherwise could give a
pro se litigant an unfair advantage over litigants represented by counsel. Id. at 185.
Here, our liberal interpretation of the issues raised by Mukwange results in two
basic complaints—specifically, that the trial court erred by finding that she failed

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to prove fraud and erred by limiting her damages to $5,000.

      In a cross-appeal, Public Storage asserts that the evidence is legally
insufficient to support the trial court’s award of damages.

      I.     Fraud

      In several issues, Mukwange contends that (1) she properly pleaded a fraud
claim, not a breach of contract claim; (2) the trial court erred by only ruling on her
breach of contract claim, instead of her fraud claim; and (3) the trial court erred by
finding that she presented insufficient evidence of fraud. Mukwange asserts that
because she sufficiently pleaded and proved fraud by a preponderance of the
evidence, she was entitled to exemplary damages and damages for mental anguish.

      Mukwange asserts that the trial court erred by ruling on a breach of contract
claim because she did not bring suit under a theory of breach of contract.
Mukwange’s original petition states that “Public Storage acted in violation of
Texas Property Code sections 59.042, 59.043, 59.044, and 54.042, and thus
breached its rental agreement with plaintiff.” In its findings of fact, the trial court
stated that “[t]he petition does not clearly define the causes of action under which
relief is sought but Ms. Mukwange testified that she was suing for breach of
contract and conversion.” The trial court concluded that Mukwange brought suit
under theories of conversion and breach of contract only. The lease agreement was
admitted without objection at trial and discussed in detail. When viewing
Mukwange’s original petition and the testimony at trial, the trial court properly
concluded that Mukwange brought a breach of contract claim. See Jim Walter
Homes, Inc. v. Reed, 711 S.W.2d 617, 617−18 (Tex. 1986); see also Kline v.
O’Quinn, 874 S.W.2d 776, 788 (Tex. App.—Houston [14th Dist.] 1994, writ
denied) (“In determining whether an action is in tort or in contract, we must look to
the substance of the cause of action, not the manner in which it was pleaded.”).
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      Mukwange also complains that the trial court erred by finding that she did
not plead a claim for fraud. The trial court’s conclusions of law stated the
following:

      Although the Court does not find that Ms. Mukwange pled a claim for
      fraud, if her petition is construed to include such a claim, Ms.
      Mukwange did not present sufficient evidence to justify a finding of
      fraud by a preponderance of the evidence. Specifically, Ms.
      Mukwange did not present evidence of a material, false representation
      made by Public Storage that Public Storage knew to be false or that
      Public Storage made recklessly without knowledge of the truth.
We review the trial court’s conclusions of law de novo. Smith v. Smith, 22 S.W.3d
140, 143−44 (Tex. App.—Houston [14th Dist.] 2000, no pet.). We will uphold
conclusions of law on appeal if the judgment can be sustained on any legal theory
the evidence supports. Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.—
Houston [14th Dist.] 1996, no writ).

      Assuming without deciding that Mukwange pleaded a claim for fraud, the
record reflects that Mukwange did not present sufficient evidence to justify a
finding of fraud. Mukwange claims that Public Storage committed fraud by
sending her an invoice on July 12, 2011, in which Public Storage informed her that
her balance due was $205.00. Mukwange argues that the invoice is a material
representation because it “makes no mention of a possible auction or ongoing
auction process.” Mukwange asserts that she relied on the invoice and believed that
it was an extension of grace provided in response to the letter she sent Public
Storage in June.

      A cause of action for fraud requires (1) a material misrepresentation; (2)
which was either known to be false when made or was asserted without knowledge
of its truth; (3) was made with the intention that it be acted upon by the other party;
(4) the other party acts in reliance upon it; and (5) the other party suffers harm as a

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result of that reliance. Formosa Plastics Corp. USA v. Presidio Eng’rs &
Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998). Fraud requires a showing of
actual and justifiable reliance. Grant Thornton LLP v. Prospect High Income Fund,
314 S.W.3d 913, 923 (Tex. 2010). In evaluating justification, the court considers
whether, given a fraud plaintiff’s individual characteristics, abilities, and
appreciation of facts and circumstances at or before the time of the alleged fraud, it
is extremely unlikely that there is actual reliance on the plaintiff’s part. Id. One
may not justifiably rely on a representation when there are “red flags” indicating
that such reliance is unwarranted. See id.

      Michelle England, a district manager for Public Storage, testified about
Public Storage’s policies for handling accounts with delinquent rent. England
stated that after sending the July 12 invoice, Public Storage informed Mukwange
several times that her partial payment of rent would not prevent the auction from
proceeding. England testified that on July 15 and July 19, Public Storage explained
to Mukwange that she still had a balance due on her account and that they were
going to auction the contents of her storage unit. Mukwange admitted that when
she went to Public Storage on July 15, an employee told her that her property may
still be auctioned. Thus, Mukwange cannot show that she relied on the invoice as a
representation that the auction had been cancelled because Public Storage notified
her that the auction would continue to proceed. Because Mukwange cannot show
that she relied on any alleged material misrepresentation in the invoice, Mukwange
cannot prove that the evidence was sufficient to support her fraud claim. The trial
court properly concluded that Mukwange did not present sufficient evidence to
justify a finding of fraud by a preponderance of the evidence. See Waggoner, 932
S.W.2d at 631 (“We will uphold conclusions of law on appeal if the judgment can
be sustained on any legal theory the evidence supports.”).


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      We overrule Mukwange’s issue.

      II.    Damages

      In a cross-appeal, Public Storage contends that Mukwange failed to present
any evidence of damages, or in the alternative, that the evidence is legally
insufficient to support the trial court’s award of damages. Mukwange asserts that
the trial court erred by ruling that her damages were limited to $5,000.

      A. The Evidence is Legally Sufficient to Support the Trial Court’s
         Award of Damages
      Public Storage asserts that Mukwange failed to present any evidence of
damages at trial, or alternatively, that Mukwange presented insufficient evidence at
trial to support the trial court’s award of damages.

      In determining whether there is legally sufficient evidence to support the
finding under review, we must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to
support the finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450
(Tex. 1996). More than a scintilla of evidence exists if the evidence furnishes some
reasonable basis for differing conclusions by reasonable minds about the existence
of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 77
S.W.3d 253, 262 (Tex. 2002).

      The trial court has discretion to award damages within the range of evidence
presented at trial. Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002).
Generally, the measure of damages to personal property is “the difference in its
market value immediately before and immediately after the injury, at the place
where the damage occurred.” Thomas v. Oldham, 895 S.W.2d 352, 359 (Tex.
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1995). Market value is defined as the amount that a buyer who desires to buy but is
under no obligation to buy, would pay to a willing seller who desires to sell but is
under no obligation to sell. City of Pearland v. Alexander, 483 S.W.2d 244, 247
(Tex. 1972). However, not all property has a “market value.” Gulf States Utils.
Co., 79 S.W.3d at 566. The Texas Supreme Court has recognized “that used
household goods, clothing and personal effects have no market value in the
ordinary meaning of that term.” Crisp v. Sec. Nat’l Ins. Co., 369 S.W.2d 326, 328
(Tex. 1963). Therefore, the measure of damages that should be applied to
household property is the actual value of the property to its owner for use in the
condition in which it was at the time of the injury. Id. at 329 (“Where property,
such as household goods and wearing apparel, has no recognized market value, the
actual value to the owner must be determined without resort to market value.”).

      In determining actual value to the owner, the trial court may consider the
original cost, replacement cost, opinions of qualified witnesses, the property’s use,
and any other reasonably relevant facts. Gulf States Utils. Co., 79 S.W.3d at 566. A
property owner may testify about the value of her personal property. Id.

      Mukwange testified at trial that the contents in her storage unit contained her
“life-long properties” and that she “stored everything [she] owned” in the unit.
Mukwange stated that she valued her coin collections and stamp collections and
that the unit contained literary work she had written and a family photo album.
Further, an exhibit was admitted into evidence at trial which consisted of a series
of communications between Mukwange and Public Storage. Mukwange’s email to
Public Storage explained that the storage unit contained her literary works, legal
documents, certificates, books, work tools, children’s clothing and toys, and her
clothing. The record reflects that Mukwange presented evidence showing that the
storage unit contained household items and personal effects. See Crisp, 369

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S.W.2d at 329 (noting that “household furniture, family records, wearing apparel,
personal effects, and family portraits” are examples of property held for the
comfort and well-being of the owner); Dearman v. Dutschmann, 739 S.W.2d 454,
455 (Tex. App.—Corpus Christi 1987, writ denied) (“Personal effects are defined
to mean articles of personal property bearing intimate relation or association to
[the] person. Generally considered as personal effects are clothing, jewelry, and
similar chattels.”) (Internal quotations and citations omitted). As owner of the
property, Mukwange was allowed to testify as to the value of her personal
property. See Gulf States Utils. Co., 79 S.W.3d at 566 (stating that when measuring
damages for household goods, “[i]t is well settled that a property owner may opine
about the property’s value”).

      Mukwange testified that she believed her property was worth $100,000.00
and that her literary work was worth $75,000.00. In reaching these values,
Mukwange stated that she browsed stores online to determine what the
replacement costs for the goods would be. See Allstate Ins. Co. v. Chance, 590
S.W.2d 703, 704 (Tex. 1979) (holding that the factfinder may consider
replacement costs to determine the actual value to the owner). She explained that
the values were very conservative and low-end estimates for her property.

      The trial court awarded Mukwange $5,000.00 in damages but stated that he
believed her items were worth more than that amount. Because Mukwange
testified on the value of her property and the trial court awarded an amount within
that range of evidence presented at trial, the evidence is legally sufficient to
support the trial court’s value determination.

      We overrule Public Storage’s cross-point.




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       B. The Trial Court Properly Limited Mukwange’s Damages

       Mukwange contends that the trial court erred by limiting her actual damages
to $5,000.00.

       A general measure of damages is subject to any agreement that the parties
might have made with respect to damages because parties to a contract are free to
limit or modify the remedies available in the event of a breach of the contract. GT
& MC, Inc. v. Tex. City Refining, Inc., 822 S.W.2d 252, 256 (Tex. App.—Houston
[1st Dist.] 1991, writ denied); see also Head v. U.S. Inspect DFW, Inc., 159
S.W.3d 731, 748 (Tex. App.—Fort Worth 2005, no pet.) (“In the absence of a
controlling public policy to the contrary, contracting parties can limit their liability
in damages to a specified amount.”). Here, the lease agreement reflects that the
parties agreed to limit their liability in damages to a specified amount.

       The lease agreement provides that “Occupant agrees that under no
circumstances will the aggregate value of all personal property stored in the
Premises exceed, or be deemed to exceed $5,000 and may be worth substantially
less than $5,000.” The lease agreement also contains a limitation of liability clause,
stating:

       Owner and Owner’s Agents will have no responsibility to Occupant or
       to any other person for any loss, liability, claim, expense, damage to
       property or injury to persons (“Loss”) from any cause, including
       without limitation, Owner’s and Owner’s Agents active or passive
       acts, omissions, negligence or conversion, unless the Loss is caused
       by owner’s fraud, willful injury or willful violation of the law . . .
       Occupant agrees that Owner’s and Owner’s Agent’s total
       responsibility for any Loss from any cause whatsoever will not exceed
       a total of $5,000.

Mukwange initialed this paragraph and testified at trial that they looked like her
initials.

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      Mukwange argues that the trial court erred by limiting her damages because
she proved fraud. However, as we have discussed above, Mukwange did not
present sufficient evidence for a fraud claim. Thus, the trial court properly limited
her damages to $5,000.00, the amount provided in the lease agreement.

                                   CONCLUSION

      We overrule Mukwange’s issues and Public Storage’s cross-point and affirm
the judgment of the trial court.




                                       /s/    Ken Wise
                                              Justice



Panel consists of Justices Christopher, Donovan, and Wise.




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