                                                                              ACCEPTED
                                                                          12-15-00120-CV
                                                             TWELFTH COURT OF APPEALS
                                                                           TYLER, TEXAS
                                                                     11/3/2015 9:32:30 AM
                                                                                Pam Estes
                                                                                   CLERK




                                                         FILED IN
                                                  12th COURT OF APPEALS
                     CASE NO. 12-15-00120-CV           TYLER, TEXAS
                                                  11/3/2015 9:32:30 AM
                                                         PAM ESTES
           IN THE TEXAS APPELLATE COURT 12 DISTRICT
                                            th             Clerk
                      SMITH COUNTY, TEXAS


         JAMES D. BRANCH, II v. ELIZABETH MARLENE BRANCH


                         On Appeal from


                ANDERSON COUNTY COURT AT LAW
                     Anderson County, Texas

                      (Trial Court No. 11821)

                      Honorable JEFF DORAN

                       BRIEF OF APPELLANT

                        MARK W. CARGILL
                         TBC# 00787201
                            701 N. Elm
                      Palestine, Texas 75801
                          903/729-8011

                    COUNSEL FOR APPELLANT

                    ORAL ARGUMENT WAIVED




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                                 PARTIES

JAMES D. BRANCH, II, APPELLANT

Mr. Lynn E. Markham
608 East Houston Ave.
PO Box 879
Crockett, Texas 75835

Mark W. Cargill
Attorney for Appellant
701 N. Elm
Palestine, Texas 75801
SBN: 00787201




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                        TABLE OF CONTENTS
                                                           Page
Table of Contents………………………………………………………………………………………..       3

Index of Authorities…………………………………………………………………………………..      4

Statement of the Case…………………………………………..…………………………………...    6

Issues Presented: Issue Number One………………………………………………………    6

Statement of Jurisdiction………………………………………………………………………..     6

Statement of Facts …………………….…………………………………………………………...      6, 7

Summary of Argument……………………………………….…………………………………..         7

Argument ……………………………………………….…………………………………………………            7

Prayer…………………………………………………………………………………………………………             8

Certificate of Service…………………………………………………………………………………...   8




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                             INDEX OF AUTHORITIES

Statutes

Tx. Govt. Code Sec. 22.201 (m)

State Cases

       Mosley v. Page, 822 SW 2d 779, 786 (Tex. App. – Dallas 1990, no writ)

       Waisath v. Locks’ Stores, Inc., 474 SW 2d 444 (Tex. 1971)

       Ligon v. E.F. Hutton and Co., 428 SW 2d 434, (Tex. Civ. App. – Dallas, 1978,
       writ ref’d n.r.e.)

Other Authorities

  Restatement (second) of Torts, 22A




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                     CASE NO. 12-15-00120-CV


            IN THE TEXAS APPELLATE COURT 12 DISTRICT
                      SMITH COUNTY, TEXAS


         JAMES D. BRANCH, II V. ELIZABETH MARLENE BRANCH


                         On Appeal from


                ANDERSON COUNTY COURT AT LAW
                    Anderson County, Texas

                      (Trial Court No. 11821)

                      Honorable JEFF DORAN

                       BRIEF OF APPELLANT

                        MARK W. CARGILL
                         TBC# 00787201
                            701 N. Elm
                      Palestine, Texas 75801
                          903/729-8011

                     COUNSEL FOR APPELLANT

                    ORAL ARGUMENT WAIVED




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                                STATEMENT OF CASE

         This is an appeal from a bench trial held on November 20, 2014, concerning

conversion of property.

         Notice of appeal was timely filed. The clerk’s record and reporter’s record

were both filed. This brief has been filed within the requested time frame of this

court.

                                 ISSUES PRESENTED

                                     Issue No. One

         The trial court wrongfully denied Plaintiff’s request for damages resulting

from conversion by defendant by not recognizing defendant’s duty as bailee of

plaintiff’s property.



                            STATEMENT OF JURISDICTION

         This Court has jurisdiction under Tx. Govt. Code Section 22.201 (m), in that

the bench trial was held in the County Court at Law of Anderson County, Texas

which is in the Court’s appeals district.



                               STATEMENT OF FACTS

         Plaintiff owned a safe which he had permission to store in a building owned

by Defendant. The building burned, but the safe remained on the slab of the

building. (RR Vol. 1, page 15, 34-36, 38). Plaintiff relied on Defendant’s assurance

the safe would be secure.




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       Defendant gave permission for two unknown men to remove the safe from

the property because Defendant was told that Plaintiff had given the safe to them.

(RR Vol. 1, page 21, and pages 36-36). Plaintiff confronted Defendant immediately

upon observing the safe was missing and contacted law enforcement. (RR Vol. 1,

page 15-16). Defendant admitted she should have notified Plaintiff and had duty to

do so. (RR Vol. 1, pages 36-39).

                              SUMMARY OF ARGUMENT

       Defendant became a bailee upon accepting the property of Plaintiff and

agreeing to allow it to stay on her property. Defendant had duty to reasonably keep

property secure.

                                      ARGUMENT

       Defendant claims she owed no duty to Plaintiff because she did not know the

contents of the safe entrusted her. (RR Vol. 1, page 39). Defendant’s duty is not

determined by her intent or knowledge.          Restatement (second) of Torts, 22A,

Mosley v. Page, 822 SW 2d 779, 786 (Tex. App. – Dallas 1990 no writ).

       The fact that she did not know the contents of the safe, or its value, is not

relevant or material. Mosley v. Page ante

       Further, Defendant claims that conversion did not exist because she received

no value from giving the safe to unknown persons is immaterial. (RR Vol. 1, page 38-

39). Waisath v. Locks’ Stores, Inc. 474 SW 2d 444 (Tex. 1971), Ligon v. E.F.

Hutton and Co., 428 SW 2d 434 (Tex. Civ. App. - Dallas, 1978, writ ref’d n.r.e.).




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                                PRAYER FOR RELIEF

       For the reasons stated, JAMES D. BRANCH, II, appellant requests this Court to

overturn the Court’s verdict and order a new trial and that this Court grant such

other relief to which appellant may be justly entitled.



                                    Respectfully submitted,

                                    CARGILL & ASSOCIATES


                             BY:    /s/Mark W. Cargill
                                    Mark W. Cargill
                                    SBN: 00787201
                                    701 N. Elm
                                    Palestine, Texas 75801
                                    Telephone: 903/729-8011
                                    Facsimile: 903/729-5112
                                    cargillaw@earthlink.net

                                    Attorney for Appellant

                             CERTIFICATE OF SERVICE

This is the certify that on November 2, 2015, a true and correct copy of the above
and foregoing document was served on the District Attorney’s Office, Anderson
County, and all other interested parties, by hand delivery, mail, and/or facsimile and
regular mail.


                                           /s/ Mark W. Cargill
                                           Mark W. Cargill

                                     Word Count

On this 2nd day of November 2015, I, Mark W. Cargill, hereby certifies that this brief
has a word count of 816.


                                           /s/ Mark W. Cargill
                                           Mark W. Cargill


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