
 
 

 


In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-01-00680-CV
____________

AUTOMEK, INC. D/B/A AUTO CHECK #5, Appellant

V.

DOMINGO ORANDY AND MIQUEL SALDANA, Appellees



On Appeal from the County Civil Court at Law No. 1 
Harris County, Texas
Trial Court Cause No. 706121
 


O P I N I O N 
	Appellees, Domingo Orandy and Miguel Saldana, brought this action against
appellant, Automek, Inc. D/B/A Auto Check #5, for conversion of a 1987 minivan. 
The jury found that Auto Check converted the minivan and awarded damages to
Saldana in the amount of $3400 and to Orandy in the amount of $1700.  Each
appellee was also awarded attorney's fees.  Auto Check sought a remittitur of the
judgment.  The trial court reduced Orandy's award to $1000 Auto Check presents
seven points of error for our review.  We reverse and render judgment for Auto
Check. 
Background
 On December 5, 1996, Tracy Muckleroy brought a 1987 minivan to Auto
Check No. 5 to be serviced.  Muckleroy paid for the services with an insufficient
check.  Although appellee, Domingo Orandy, was the registered owner of the minivan
at that time, he had authorized Muckleroy's possession of the minivan pursuant to a
sales agreement.  Orandy regained possession of the minivan in January of 1997 after
Muckleroy stopped making payments. On March 10, 1997, Orandy sold the minivan
and transferred title to appellee, Miguel Saldana.  Orandy testified that he sold the
minivan in exchange for $100 and satisfaction of a debt he owed to Saldana. 
However, Saldana left the minivan under Orandy's carport because it had broken
windows.  Later that day, Gary Golden repossessed the minivan from Orandy's
carport.  Orandy testified that the telephone number left by the repossession agent
belonged to Auto Check No. 5.  Orandy then went to Auto Check to inquire into what
had happened to his minivan.  Orandy was told that the minivan was not at Auto
Check and that Auto Check had not authorized its repossession.  However, an Auto
Check representative called Golden and gave the phone to Orandy.  Orandy asked
Golden to return the minivan, but Orandy never received it.
Standard of Review
 In its first point of error, Auto Check challenges the legal and factual
sufficiency of the evidence supporting the jury's finding that it converted the minivan
from Orandy and Saldana.  In reviewing legal insufficiency points, we consider only
the evidence and inferences, when viewed in their most favorable light, that tend to
support the finding and disregard all evidence and inferences to the contrary. 
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).  We must
uphold the jury's findings when more than a scintilla of evidence exists to support it. 
Id.  More than a scintilla exists when the evidence "rises to [a] level that would
enable reasonable and fair-minded people to differ in their conclusions." 
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994).  If we encounter
no evidence in support of the finding, we next examine the entire record to see if the
opposite position is established as a matter of law.  Sterner v. Marathon Oil Co., 767
S.W.2d 686, 690 (Tex. 1989).  In reviewing factually sufficiency points, we consider
and weigh all the evidence and set aside the finding only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.  Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Conversion
 The unauthorized and wrongful assumption and exercise of dominion and
control over the personal property of another, the exclusion of or inconsistent with
the owner's rights, constitutes a conversion.  Waisath v. Lack's Stores, Inc., 474
S.W.2d 444, 447 (Tex. 1971). A claim for conversion requires the plaintiff to show
that (1) he owned, had legal possession, or was entitled to possession of the property, 
(2) the defendant assumed and exercised dominion and control over the property in
an unlawful and unauthorized manner, to the exclusion of and inconsistent with the
plaintiff's rights, and (3) the defendant refused the plaintiff's demand for return of the
property.  Hunt v. Baldwin, 68 S.W.3d 117, 131 (Tex. App.--Houston [14th Dist.]
2001, no pet.); Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 344 (Tex.
App.--San Antonio 2000, pet. denied).
 Auto Check challenges the legal and factual sufficiency of the evidence
supporting the finding that Orandy proved the first and third elements of a conversion
cause of action.  Orandy testified that he and the owner of the minivan, Saldana,
agreed that Orandy would keep the minivan under his carport.  The minivan was
under his carport when it was repossessed.  Thus, the evidence is legally and factually
sufficient to support the jury's finding that Orandy was in legal possession of the
minivan.
	Orandy testified that he went to Auto Check and asked an Auto Check
representative where the minivan was located.  He also testified that he requested
Auto Check to return his minivan.  An Auto Check representative told Orandy that
Auto Check did not have "any business" with the minivan.  Auto Check did not return
the minivan.  The evidence is legally and factually sufficient to support the finding
that Orandy's made a demand for the minivan and that Auto Check refused this
demand.
	We overrule Auto Check's first point of error as it pertains to Orandy.
	In regard to Saldana, Auto Check does not dispute that Saldana held title and
had the right to possess the minivan.  Instead, Auto Check takes issue with the
demand element of Saldana's conversion claim.  Specifically, Auto Check argues that
there was no evidence to support a finding that (1) Saldana made a demand for return
of the minivan and (2) Auto Check's action constituted a clear repudiation of
Saldana's rights to the minivan.
	The Eighth Court of Appeals's analysis in Whitaker v. Bank of El Paso is
helpful in determining whether there is any genuine issue of material fact as to either
a demand for return of the minivan or acts which constituted a clear repudiation
which would excuse a demand.  850 S.W.2d 757, 761 (Tex. App.--El Paso 1993, no
pet.).  In Whitaker, the plaintiff brought a conversion suit against the Bank of El Paso. 
Id. at 759.  For summary judgment purposes, the reviewing court assumed that the
plaintiff owned eight mobile homes.  Id.  It was undisputed that the Bank had lent
Industrial, Inc. money for the purchase of the mobile homes and that the Bank
retained a security interest in Industrial's business inventory.  Id. at 760.  The mobile
homes owned by the plaintiff were included in this inventory list.  Id.  The Bank took
possession of the mobile homes after obtaining a judgment against Industrial and writ
of sequestration.  Id. at 759.  The judgment and writ identified the homes claimed by
the plaintiff.  Id.  Plaintiff testified that, after the Bank took possession, he sent a
letter to the Bank stating that he owned eight mobile homes that had been taken from
the relevant address and stating, "If you know anything about these homes, please
advise me."  Id. at 761.  The Bank claimed it never received the letter.  Id.  Morever,
the attorney for the Bank testified that he had sent two letters requesting that the
plaintiff present evidence of ownership to the Bank or to the sheriff to claim the
mobile homes.  Id.  After considering the above-mentioned facts, the court held as
follows:
	Even reviewing this evidence in the light most favorable to the plaintiff
Whitaker, and making every reasonable inference in his favor, we
simply cannot conclude that there is any genuine issue of material fact
as to either a demand for return of the mobile homes and a refusal to do
so, or acts which constituted a clear repudiation which would excuse a
demand.  Whitaker never asked anyone to give him the mobile homes;
at most he asked for information about them.  Defendants never refused
to give him the mobile homes; at most they made a reasonable request
that he identify those which he claimed and provide some proof of his
ownership interest.  We find that defendants have proven, as a matter of
law, that Whitaker cannot prevail on one of the essential elements of his
claim for conversion.  

Id. at 761-62.

	In this case, it is undisputed that Saldana did not make a demand for return of
the minivan.  Saldana testified that he never spoke to anyone at Auto Check, never
went to Auto Check to claim the minivan, and never made a demand for return of the
minivan.  There is no proof in the record that Saldana demanded return of the
minivan.  Moreover, Auto Check's acts did not constitute a clear repudiation of
Saldana's rights to the minivan. See Id. at 761-62.  Although there is some evidence
that Orandy made a demand, this cannot be imputed to Saldana because Orandy, as
he testified, was not his agent.  Therefore, we hold that the evidence was legally
insufficient to support the finding that Auto Check converted Saldana's minivan.
 We sustain Auto Check's first point of error as it pertains to Saldana.
Damages
	In its second point of error, Auto Check challenges the legal sufficiency of the
evidence supporting the jury's finding that Orandy suffered damages due to the
conversion of the minivan.  Question number 3 of the jury charge instructed the jury
to consider (1) the fair market value of the minivan on March 10, 1997, and (2) loss
of use, when calculating the actual damages, if any, suffered by Orandy and Saldana
as a result of the conversion.  The jury awarded Saldana $3400 in damages and
awarded $1700 in damages to Orandy, but it did not specify which measure of
damages it applied to calculate the damages suffered by each appellee.  Because
Saldana had title to the minivan, it can only be inferred that the jury awarded Saldana
damages based on the fair market value and awarded Orandy damages for loss of use. 
 There is no evidence in the record that would support the jury's finding that
Orandy suffered any damages due to loss of use of the minivan.  Orandy merely
testified that his original petition "pray[s] for loss of use damages at the rate of $20
a day from the day of the wrongful possession and conversion."  Evidence that
Orandy prayed for loss of use damages at a certain rate is no evidence that he suffered
damages in that amount.  Without any evidence, an award for damages for loss of use
must be based upon conjecture and is thus impermissible.  First Nat'l Bank of
Missouri v. Gittelman, 788 S.W.2d 165, 170 (Tex. App.--Houston [14th Dist.] 1990,
pet. denied).  Therefore, the evidence was legally insufficient to find that Orandy
suffered loss of use damages.
 We sustain Auto Check's second point of error as it pertains to Orandy.


 


Conclusion
	We sustain Auto Check's first point of error as it pertains to Saldana and its
second point of error as it pertains to Orandy.  Because our holding disposes of the
appeal, we do not address the remaining issues.  
	We reverse the judgment of the trial court and render judgment that Domingo
Orandy and Miquel Saldana take nothing.

								Adele Hedges
								Justice

Panel consists of Justices Hedges, Jennings, and Evans. (1)
Justice Evans concurring.  
1. The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First
District of Texas at Houston, participating by assignment.
