                              NUMBER 13-13-00030-CV

                             COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG

JACOBO CHAPA AND
MANUEL CUEVAS,                                                           Appellants,

                                            v.

STONEHAVEN DEVELOPMENT
INC., AND ANTHONY E. GRAY,                                                Appellees.


                     On appeal from the 332nd District Court
                           of Hidalgo County, Texas.


                           MEMORANDUM OPINION
          Before Chief Justice Valdez and Justices Garza and Perkes
                   Memorandum Opinion by Justice Garza
          By a single issue, appellants Jacobo Chapa and Manuel Cuevas appeal the trial

court’s order granting the motion for no-evidence summary judgment filed by appellees,

Stonehaven Development, Inc. and Anthony E. Gray (collectively “Stonehaven”). We

affirm.
                                             I. BACKGROUND1

        Chapa owned a farm in Hidalgo County, Texas and sold it in 2001. The sale was

financed by two notes: (1) one note payable to City National Bank (the Bank) and

secured by a first lien deed of trust in favor of the Bank; and (2) a second note payable

to Chapa and secured by a second lien deed of trust in favor of Chapa.                          Chapa

contends he foreclosed on his deed of trust in 2002 and recovered his interest in the

farm subject to the Bank’s first lien.

        Appellants assert that on January 1, 2003, they entered into a leasing

agreement, by which Chapa leased the farm to Cuevas “for at least one year.”

Appellants contend that they planted several crops on the farm and agreed to split the

profits.     On May 6, 2003, the Bank foreclosed its lien and sold the property to

Stonehaven.

        On June 18, 2003, appellants sued appellees, alleging that even after the sale of

the property, they “owned or legally possessed” the crops growing on the property and

that appellees interfered with their right to the crops.2 Appellants asserted causes of

action for conversion, tortious interference with contract, and conspiracy.

        On July 27, 2012, appellees filed a no-evidence motion for summary judgment, in

which they asserted that there was no evidence of:                       (1) any of the elements of

appellants’ claim for conversion; (2) any of the elements of appellants’ claim for tortious

interference with contract; or (3) any of the elements of appellants’ claim for

        1
            The background facts are taken primarily from appellants’ live pleading.
        2
            On April 17, 2007, appellants added the Bank and an alleged employee of the Bank, Bacilio
Garcia, as defendants. The docket sheet does not reflect that Garcia was ever served or that he filed an
answer. The trial court granted summary judgment in favor of the Bank, which became final when the
trial court signed a severance order. Appellants do not challenge that judgment, and neither the Bank nor
Garcia are parties to this appeal.


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conspiracy.3      On August 13, 2012, appellants filed a response.                        Attached to the

response was an affidavit by Chapa, which stated:

        My name is Jacobo Chapa. I am one of the plaintiffs in the above-entitled
        and numbered cause. I am capable of making this affidavit. The facts
        stated herein are within my personal knowledge and are true and correct.
        I owned the property that defendants bought from City National Bank on
        May 6, 2003. In January of 2003, I leased the property to plaintiff Manuel
        Cuevas for good and valuable consideration for farming grape tomatoes
        and watermelons. Mr. Cuevas and myself worked together on the crops.
        We agreed to split the profits from selling the grape tomatoes and
        watermelons. Before May 6, 2003, the grape tomatoes and watermelons
        were growing and doing well. Defendants, by and through defendant
        Gray, wrongfully exercised dominion or control over the tomatoes and
        watermelons by repeatedly forcing Mr. Cuevas and myself and our
        workers off the land by and through the Hidalgo County Sheriff, and by
        telling the irrigation district for the property that we had no right to irrigation
        water because I no longer owned the property which caused the district to
        refuse to sell us water. I told defendant Gray about the said lease and
        that we were entitled to finish the crops but he refused to let us onto the
        property to do so; and as a result of his refusal, we lost the profits we
        would have made from selling the crops because we had good results with
        them before defendant forced us off the land and the prices that year for
        grape tomatoes and watermelons were such that we were certain to make
        money after expenses. Defendant Gray knew about the lease and the
        crops referenced above because he saw the crops and I told him about
        the lease to Mr. Cuevas and to let us finish the crops. Plaintiffs’ Third
        Amended Original Petition in this case is incorporated herein by reference.

        Appellees objected to the affidavit on several grounds, including that it contained

inadmissible legal conclusions and inadmissible hearsay. On October 17, 2012, the trial

court granted appellees’ no-evidence motion for summary judgment.

                           II. STANDARD OF REVIEW AND APPLICABLE LAW

        A no-evidence motion for summary judgment under Texas Rule of Civil

Procedure 166a(i) is essentially a motion for pretrial directed verdict. Timpte Indus., Inc.


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          In their live pleading, appellants alleged that appellees “intentionally interfered with [appellants’]
performance of [the lease and marketing agreements] by preventing such performance, or by making it
impossible, or more burdensome, difficult or expensive.” Chapa also alleged that appellants “conspired
together to defraud him and effectuate the final transfer of the land in question to [appellants].”

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v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).             A no-evidence motion for summary

judgment is appropriate when there is no evidence of one or more essential elements of

a claim on which the adverse party will bear the burden of proof at trial. TEX. R. CIV. P.

166a(i); Scripps Tex. Newspapers, L.P. v. Belalcazar, 99 S.W.3d 829, 840 (Tex. App.—

Corpus Christi 2003, pet. denied). The motion must be specific in challenging the

evidentiary support for an element of a claim or defense. Gish, 286 S.W.3d at 310.

“When reviewing a no-evidence summary judgment, we ‘review the evidence presented

by the motion and response in the light most favorable to the party against whom the

summary judgment was rendered, crediting evidence favorable to that party if

reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

could not.’” Id. (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).

When, as here, the trial court’s order granting summary judgment does not state the

grounds for its ruling, we must affirm the judgment if any of the grounds alleged in the

motion are meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

       “Conversion is the ‘unauthorized and wrongful assumption and exercise of

dominion and control over the personal property of another, to the exclusion of or

inconsistent with the owner's rights.’” Wells Fargo Bank Nw., N.A. v. RPK Capital XVI,

L.L.C., 360 S.W.3d 691, 699 (Tex. App.—Dallas 2012, no pet.) (quoting Waisath v.

Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971)). “To establish conversion of

personal property, a plaintiff must prove (1) the plaintiff owned, had legal possession of,

or was entitled to possession of the property; (2) the defendant, unlawfully and without

authorization, assumed and exercised dominion and control over the property to the

exclusion of, or inconsistent with, the plaintiff's rights; (3) the plaintiff made a demand for



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the property; and (4) the defendant refused to return the property.” Id. “The plaintiff

must also establish he was injured by the conversion.” Id. (citations omitted). “A

plaintiff must prove damages before recovery is allowed for conversion. Alan Reuber

Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 889 (Tex. App.—Dallas 2009,

no pet.) (citing United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex.

1997) (per curiam)). “Generally, the measure of damages for conversion is the fair

market value of the property at the time and place of the conversion.” Id. “However,

damages are limited to the amount necessary to compensate the plaintiff for the actual

losses sustained as a natural and proximate result of the defendant's conversion.” Id.

“A conversion should not unjustly enrich either the wrongdoer or the complaining party.”

Id.

                                    III. DISCUSSION

      Appellants argue on appeal that “[t]he trial court erred because Chapa’s affidavit

raised genuine issues of material fact regarding the elements of conversion.” Although

appellees’ motion also asserted that appellants had no evidence of any of the elements

of their tortious interference with contract and conspiracy claims, appellants do not

address those claims on appeal. Accordingly, the trial court did not err in granting

summary judgment in favor of appellees as to those claims.

      As to appellants’ conversion claim, we have reviewed Chapa’s affidavit—the only

evidence offered by appellants—and conclude that it does not raise a genuine issue of

material fact on the element of damages. The only reference to damages is: “we lost

the profits we would have made from selling the crops because we had good results

with them before defendant forced us off the land and the prices that year for grape



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tomatoes and watermelons were such that we were certain to make money after

expenses.”

      Recovery for lost profits is a fact-intensive determination that must be based on

objective facts, figures, or data from which the lost-profits amount may be ascertained.

Wiese v. Pro Am Servs., Inc., 317 S.W.3d 857, 863 (Tex. App.—Houston [14th Dist.]

2010, no pet.) (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 504 (Tex. 2001)).

Chapa presented no evidence of any agreement to sell the crops, no evidence of the

fair market value of the crops, and no evidence supporting the assertion in his affidavit

that appellants “were certain to make money after expenses.”

      Conclusory statements in an affidavit unsupported by facts are insufficient to

support or defeat summary judgment. Rivera v. White, 234 S.W.3d 802, 807–08 (Tex.

App.—Texarkana 2007, no pet.) (citing Wadewitz v. Montgomery, 951 S.W.2d 464, 466

(Tex. 1997)). Conclusory affidavits do not raise fact issues. Ryland Group, Inc. v.

Hood, 924 S.W.2d 120, 122 (Tex. 1996). A conclusory statement is one that does not

provide the underlying facts to support the conclusion. Rivera, 234 S.W.3d at 807–08.

Here, Chapa’s statement that “we lost the profits we would have made” is conclusory

because it provides no underlying facts to support the conclusion.        See id.   It is

insufficient to raise a genuine issue of material fact as to damages. See id.; see also

Fraud-Tech, Inc. v. Choicepoint, Inc., No. 02-05-150-CV, 2006 WL 1030189, at *5 (Tex.

App.—Fort Worth Apr. 20, 2006, no pet.) (mem. op.) (finding affidavit testimony that

appellants were entitled to reimbursement of out-of-pocket expenses of $24,000 on their

breach of contract, fraud, and conversion claims was conclusory and constituted no

evidence to defeat summary judgment). Appellants failed to present any evidence of



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damages from the alleged conversion. See TEX. R. CIV. P. 166a(i); Scripps, 99 S.W.3d

at 840. Accordingly, the trial court did not err in granting appellees’ no-evidence motion

as to appellants’ conversion claim. We overrule appellants’ sole issue.

                                    IV. CONCLUSION

      We affirm the trial court’s judgment.

                                                  ________________________
                                                  DORI CONTRERAS GARZA,
                                                  Justice

Delivered and filed the
15th day of August, 2013.




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