Opinion issued June 18, 2013




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00829-CV
                          ———————————
                         LEIGH GOMER, Appellant
                                      V.
  DONALD DAVIS, RUBY DAVIS, ALTHA/ANN STEINLAGE, Appellees



                   On Appeal from the 189th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-01203



           DISSENTING AND CONCURRING OPINION

      Leigh Gomer sued Donald and Ruby Davis and Ann Steinlage (collectively,

“appellees”), for conversion of the purebred poodle Gomer contends she received

as a gift from Jane Artall, Donald Davis’s mother. In two issues, Gomer contends
that (1) the trial court erred in granting a directed verdict in favor of appellees

because she presented legally sufficient evidence that she owned the dog and

(2) the trial court erroneously imposed $5,000 in sanctions against Gomer and her

attorney for bringing a frivolous suit. Although the majority vacates the imposition

of sanctions, it affirms the directed verdict against Gomer. I join the majority in

vacating the sanctions award, but would reverse the directed verdict and remand

for a new trial because Gomer’s evidence that Artall intended to gift the dog to her

was legally sufficient.

                                   Background

      Gomer and Artall, both dog breeders, had been friends since the mid-1980’s

and occasionally bred one another’s dogs. Artall obtained Ras Come Blow Your

Horn of Marquise (aka Gabriel), a purebred miniature poodle, shortly after his

birth in April 2007 from Patricia Redmond.

      Gomer testified that Artall gave Gabriel to her on August 1, 2008 “[b]ecause

[Artall] was afraid she was going to die soon and she wanted someone to care for

[him].” According to Gomer, Artall chose Gomer “because [Gomer] took care of

[Gabriel].” The testimony of the dog’s original breeder/owner, Patricia Redmond,

too, confirmed the gift of the dog from Artall to Gomer. In fact, Redmond further

provided the reason why, as Artall herself explained it to Redmond, Gabriel the




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poodle was given to Gomer rather than to Redmond: unlike Redmond, Gomer did

not crate the dog.

      Gomer testified that she had Gabriel in her possession from August 1, 2008,

until mid-September 2008 and that she also “had him on numerous occasions after

that.” She returned Gabriel to Artall’s possession in September 2008 because

Artall “loved the animal and it was our agreement that she have him in her home. I

would retain ownership and she would keep him.”

      For the next two years, until Artall’s death on November 1, 2010, Gomer

would keep Gabriel when Artall was in the hospital, and Artall had him when she

was home convalescing. Gomer estimated that she had Gabriel for “about 10

percent of the time” during this period, and Artall kept him the remaining time.

Gomer testified that she wanted Artall to keep Gabriel with her, unless Artall was

unable to care for him or Gomer was breeding him.

      During Artall’s final visit to the hospital, however, Ann Steinlage took

Gabriel to her apartment, and the day after Artall’s death, Donald Davis picked the

dog up from Steinlage and took him home with him and refused to give him to

Gomer. When it became apparent the Davises were steadfast in their refusal to

relinquish the dog, Gomer ultimately sued the Davises and Steinlage for

conversion. Asked why she sued Steinlage, Gomer responded that Gabriel “was

supposed to be with [Artall] and [Artall] only until she died” and that Steinlage

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illegally took Gabriel from Artall’s apartment without permission when Artall

went into the hospital for the last time.

      During the bench trial, the trial court admitted an American Kennel Club

(“AKC”) form executed by both Artall and Gomer dated August 1, 2008,

purporting to transfer ownership of the dog from Artall to Gomer. Gomer mailed

the original form to the AKC in November 2010. Gomer also acknowledged that,

prior to Artall’s death, she never claimed to any of the appellees that she was

Gabriel’s owner. 1 Gomer further acknowledged that she and Artall had a “falling

out” in April 2010, but that Artall never attempted to rescind her gift.

      In granting appellees’ motion for a directed verdict, the trial court stated,

“Judgment for the defendant. I want an application for attorney’s fees for a

frivolous case against counsel and against Ms. Gomer for bringing this case; and

we’ll deal with that when that is made.”        Appellees subsequently moved for

sanctions pursuant to Texas Rule of Civil Procedure 13 and Civil Practice and

Remedies Code Chapter 10, although which subsections of Civil Practice and

Remedies Code section 10.001 that Gomer was to have violated were never

identified.




1
      The majority misconstrues Gomer’s testimony on this point. Gomer did not testify
      that she never made a claim of ownership to anyone prior to Artall’s death; Gomer
      testified that she never made a claim of ownership to any of the appellees.
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      On July 11, 2011, the trial court signed a final judgment, which recited

“[t]he Court FINDS that the motion for directed verdict is well taken, that the suit

by Plaintiff is entirely frivolous and without merit, and that Defendants’ motion

should be GRANTED.” The judgment also awarded appellees $5,000 in sanctions

against Gomer and her counsel, jointly and severally. The trial court denied

Gomer’s motion for new trial and this appeal ensued.

                                    Directed Verdict

      In her first issue, Gomer contends that the trial court erred in granting a

directed verdict on her conversion claim because she presented legally sufficient

evidence that she received Gabriel as a gift from Artall and thus had an ownership

interest in the miniature poodle.

      A.     Standard of Review

      A trial court may direct a verdict when a plaintiff fails to present evidence

raising a fact issue essential to its right of recovery or when the evidence

conclusively proves a fact that establishes the movant’s right to judgment as a

matter of law. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d

74, 77 (Tex. 2000); Cox v. S. Garrett, L.L.C., 245 S.W.3d 574, 578 (Tex. App.—

Houston [1st Dist.] 2007, no pet.).        A directed verdict is appropriate when

reasonable minds can draw only one conclusion from the evidence. Smith v. Aqua-

Flo, Inc., 23 S.W.3d 473, 476 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

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In reviewing the granting of a directed verdict, we follow the standard of review

for assessing the legal sufficiency of the evidence. Cox, 245 S.W.3d at 578 (citing

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)). We examine the evidence

in the light most favorable to the party against whom the verdict was directed, and

we determine whether there is any evidence of probative value to raise a material

fact issue on the question presented.        Id.   We credit favorable evidence if

reasonable jurors could and disregard contrary evidence unless reasonable jurors

could not. See City of Keller, 168 S.W.3d at 827.

      B.     Evidence of Gift

      A gift is a voluntary transfer of property to another made gratuitously and

without consideration. Lopez v. Lopez, 271 S.W.3d 780, 788 (Tex. App.—Waco

2008, no pet.). To establish the existence of a valid inter vivos gift, the plaintiff

must show (1) that the donor intended to make a gift; (2) delivery of the property;

and (3) acceptance of the property by the donee. Nipp v. Broumley, 285 S.W.3d

552, 558 (Tex. App.—Waco 2009, no pet.); Edwards v. Pena, 38 S.W.3d 191, 197

(Tex. App.—Corpus Christi 2001, no pet.). The plaintiff establishes the requisite

donative intent with, among other things, “evidence that the donor intended an

immediate and unconditional divestiture of his or her ownership interests and an

immediate and unconditional vesting of such interests in the donee.” Nipp, 285

S.W.3d at 559 (emphasis in original); Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex.

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App.—Dallas 2006, no pet.) (“[T]o be a gift in praesenti [at the present time], the

donor must, at the time he makes it, intend an immediate divestiture of the rights of

ownership out of himself and a consequent immediate vesting of such rights in the

donee.”).

      Until the donor has absolutely and irrevocably divested herself of the title,

dominion, and control of the subject of the gift, she has the power to revoke the

gift. Edwards, 38 S.W.3d at 197; see also Troxel, 201 S.W.3d at 296 (“All

dominion and control over the property must be released by the owner.”). The

donee does not have ownership of the subject of the gift until complete ownership

has been transferred from the donor to the donee. Edwards, 38 S.W.3d at 197. An

inter vivos gift must be absolute and not open for future reconsideration. Soto v.

First Gibraltar Bank, FSB San Antonio, 868 S.W.2d 400, 403 (Tex. App.—San

Antonio 1993, writ ref’d); see also Dorman v. Arnold, 932 S.W.2d 225, 228 (Tex.

App.—Texarkana 1996, no writ) (holding that, as matter of law, present donative

intent not shown because donor intended for property to remain his until his death);

Woodworth v. Cortez, 660 S.W.2d 561, 564 (Tex. App.—San Antonio 1983, writ

ref’d n.r.e.) (“A gift may generally not be made to take effect in the future since a

mere promise to give is unenforceable without consideration.”).

      The evidence in this case, which consists of the testimony of Gomer and

Redmond, and the exhibits admitted into evidence at the bench trial, can be

                                         7
interpreted in one of two ways. One could look at the evidence and conclude that

although Artall purportedly gave Gabriel to Gomer on August 1, 2008, as

evidenced by the transfer of ownership form, she never intended to make an

absolute and irrevocable gift at that time because the gift was contingent upon her

keeping possession of Gabriel, so long as she was able to care for him, until her

death.

         Or, considering the evidence in the light most favorable to Gomer, as an

appellate court must do under these circumstances, Cox, 245 S.W.3d at 578, one

could reasonably conclude that Artall gave Gabriel to Gomer on August 1, 2008, as

evidenced by the transfer of ownership form (intent) and that Gomer took

immediate possession of the dog and kept him for a month and a half (delivery and

acceptance). Nipp, 285 S.W.3d at 558 (setting forth requirements for inter vivos

gifts). One could also reasonably conclude that Gomer, who had been friends with

Artall for over twenty-five years, wanted Artall to keep the little dog that she loved

with her for as long as she was able, so the two women agreed that Artall would

keep Gabriel with her, except when she was in the hospital. There is no evidence

that this agreement was a condition that the donor, Artall, placed on the gift. The

fact that Gomer allowed Artall to keep Gabriel for extended periods does not

diminish her rights as the owner.




                                          8
      Accordingly, I would hold that Gomer introduced some evidence of each of

the elements necessary to establish the existence of a valid inter vivos gift. See

Nipp, 285 S.W.3d at 559; Troxel, 201 S.W.3d at 297; Edwards, 38 S.W.3d at 197.

I would therefore hold that the trial court erred in granting a directed verdict in

favor of appellees in light of this evidence. See Smith, 23 S.W.3d at 476 (“If the

Smiths introduced some evidence on each of the elements for design defect, the

trial court erred in granting Aqua-Flo’s motion for directed verdict.”).

      Accordingly, I would sustain Gomer’s first issue.

                                     Sanctions

      Although I agree with the majority’s disposition of the sanctions award in

this case, I write separately to note my concern over the trial court’s apparent bias

against Gomer. Indeed, that the court would, sua sponte, demand a party litigant to

provide him with a motion for sanctions speaks volumes as to the trial judge’s

predisposition regarding this case (“I want an application for attorney’s fees for a

frivolous case against counsel and against Ms. Gomer for bringing this case. . . .”).

The fact that appellees’ attorney either would not, or could not, even articulate in

his motion which subsections of Civil Practice and Remedies Code section 10.001

that he believed Gomer had violated also offers a disturbing “tell.”




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                                    Conclusion

      Because Gomer presented legally sufficient evidence that Artall intended to

make an absolute and irrevocable gift of Gabriel to her in August 2008, I would

reverse the judgment of the trial court as it relates to the granting of appellees’

motion for directed verdict and remand for a new trial.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Justice Sharp, dissenting and concurring, in part.




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