                                  NO. 07-03-0098-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                   MARCH 28, 2005

                         ______________________________


                          THEODORE COOK, APPELLANT

                                           V.

                    U-HAUL OF WEST TEXAS, INC., APPELLEE


                       _________________________________

            FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 96-555,661; HONORABLE MACKEY HANCOCK, JUDGE

                        _______________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION

      Following a jury trial, Theodore Cook appeals the judgment of the trial court that he

recover nothing on his action for breach of contract and wrongful foreclosure against U-

Haul of West Texas, Inc. Presenting ten issues, Cook contends the trial court erred in
denying and overruling his motions for new trial and motions for judgment notwithstanding

the evidence on multiple grounds.1 We affirm.


       On November 29, 1989, Cook signed a Storage Customer Application and a

Storage Rental Contract with U-Haul covering space no. 561 at the U-Haul facility at 1613

34th St. in Lubbock at a rental of $20 per month, to be paid by a monthly charge on Cook’s

credit card, for a term of one month and as long as continued thereafter on a month to

month basis. Cook provided his daughter’s address and phone number for both his

contact information and his emergency contact information. Per application, which was

expressly incorporated into the continuation agreements, Cook agreed to comply with all

regulations of U-Haul including his responsibility to notify U-Haul in writing of any change

of address. Thereafter, the monthly rentals continued until November 1995. In September

1991, Cook’s daughter moved from the address given in the application and contract but

neither Cook nor his daughter notified U-Haul of the change in contact information.


       Beginning in November 1995, Cook’s monthly rental payments ceased. U-Haul

maintained that it made repeated attempts to debit Cook’s account, but that each attempt

was unsuccessful. U-Haul also contended that it made numerous unsuccessful attempts

to contact Cook. Among other things, Cook contended that the responsibility for effecting

payment rested with U-Haul by virtue of his authorization. When all efforts to contact Cook



       1
           Controlling issues restated below.

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or his daughter failed, U-Haul proceeded to enforce its lien and conduct a foreclosure sale

of the contents stored in the rental space, which later prompted Cook’s suit.


        By his live pleading, Cook sought to recover his damages alleging breach of

contract, claims under the Texas Deceptive Trade Practices Act, conversion and violations

of Chapter 59 of the Texas Property Code. In response, among other things, in addition

to a general denial and affirmative defense, U-Haul also alleged Cook had failed to plead

compliance with all conditions precedent per Rule 54 of the Texas Rules of Civil

Procedure, and asserted that Cook had failed to advise U-Haul in writing or otherwise, of

his change of address and change of telephone number, and that he had failed to pay the

rentals or provide a credit card from which charges for November and December 1995 and

January 1996 could be made. By its answer to ten questions, the jury found that (1) U-

Haul did not fail to comply with the contract, (2) U-Haul’s failure to comply, if any, was

excused, (3) U-Haul failed to comply with its duty to perform the terms of the contract with

care, skill, and reasonable expedience, (4) but its failure was not a proximate cause of

damages to Cook, (5) U-Haul did not declare an unenforceable lien on the contents of the

storage unit, (6) U-Haul did not fail to deliver notice to Cook, (7) per instruction, did not

answer question of producing cause of damages, (8) per instructions, did not answer

question eight, (9) U-Haul did not wrongfully assume and exercise dominion and control

over Cook’s property, and (10) $25,000 would fairly and reasonably compensate Cook for




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his damages that “resulted from the occurrence in question.”2           Based on the jury’s

answers, the trial court rendered judgment that Cook take nothing.


        By issue one, Cook contends the trial court erred in overruling his motion for

judgment notwithstanding the verdict because the evidence established the lack of the

required statutory notification as a matter of law. Then, by his second issue, he contends

the trial court erred in overruling his motion for new trial because the jury finding that U-

Haul had complied with the statutory notice on the non-judicial foreclosure sale was

contrary to the evidence as a matter of law and, alternatively, was against the great weight

and preponderance of the evidence. We disagree.


        Cook’s exhibits two and three introduced by him for all purposes provided, among

other things, that U-Haul was given a contractual landlord’s lien upon all property stored

at the facility to secure the payment of all rentals and that the liens and rights were in

addition to any statutory liens. Further, Cook assumed the duty to notify U-Haul in writing

of any change of address per his agreement to comply with the U-Haul storage

regulations. However, Cook’s issues are directed to a statutory lien, not the contractual

lien.




        2
            The jury also found $12,500 attorney’s fees in the trial court but none on appeal.


                                                4
       Moreover, Cook expressly plead that U-Haul did not comply with sections 59.042

through 59.045 of the Texas Property Code and that such failure was a proximate cause

of damages. However, Cook’s failure to request an issue at trial regarding its claim of non-

compliance with section 59.043 waived that issue for purposes of appeal. Tubb v. Bartlett,

862 S.W.2d 740, 750 (Tex.App.--El Paso 1993, writ denied). Further, even if U-Haul did

not comply with section 59.043, a question we need not decide, any failure would not be

reversible error per Rule 44.1 of the Texas Rules of Appellate Procedure because by its

answer to question four, the jury found that the failure, if any, of U-Haul to comply with the

contract was not a proximate cause of any damages to Cook. Issues one and two are

overruled.


       By issues three, four, five, and six, presented as a group, Cook challenges the jury

finding to question one that U-Haul did not fail to comply with the storage rental contract.

By his issues, he contends that the contrary was established as a matter of law or that the

jury’s answer was against the great weight and preponderance of the evidence. We

disagree.


       As support for his contentions, Cook alleges the contract signed by him did not

require him to notify U-Haul of his change of address or telephone number. Then, he

argues that he was not in default and that U-Haul’s reliance on such default was not

justified. However, he overlooks that he himself introduced exhibits (1) application (2)

contract, and (3) continuation contract, without making a request that they be admitted for

                                              5
any limited purpose. Accordingly, they were before the jury for all purposes. Tex. R. Evid.

105(a); Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365 (Tex. 1987).


       As material here, by the application, Cook agreed to abide by the U-Haul regulation

that he would be responsible to notify U-Haul in writing of any change of address. Further,

the contract which he signed expressly incorporated the rental application in the contract

Issues three, four, five, and six are overruled.


       By issues seven and eight, Cook contends that U-Haul converted his property as

a matter of law or that the jury finding was against the great weight and preponderance of

the evidence. We disagree. Cook challenges the jury’s finding to question nine that U-

Haul did not wrongfully assume and exercise dominion and control over his property. He

then argues that U-Haul had the burden to prove its right to the goods by a valid

foreclosure of its statutory lien. However, as submitted to the jury, the burden of proof was

not placed on U-Haul and Cook did not object to the question as submitted at the charge

conference.


       The contracts introduced by Cook and admitted for all purposes contained

provisions granting U-Haul a contractual lien to secure the payment of all rentals, provided

that the property stored “may be sold to satisfy the lien if the occupant is in default for 30

days or more,” and the continuation contracts state that the contract lien is in addition to

all statutory liens.


                                              6
       Moreover, even if the provisions of Chapter 59 of the Texas Property Code are

controlling, a question we do not decide here, Cook’s argument does not detail or identify

in what respect he contends U-Haul failed to comply with the statute. Further, even if the

statute is controlling, Cook does not identify in what respect the acts of U-Haul were

deficient. Finally, we have not overlooked the several cases cited by Cook, but we do note

that all of those cases consider foreclosure of statutory liens, not contractual liens.

Accordingly, issues seven and eight are overruled.


       Our disposition of the foregoing issues pretermits our consideration of Cook’s

remaining issues. Accordingly, the judgment of the trial court is affirmed.


                                                Per Curiam


Johnson, C.J., not participating.




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