                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00105-CV


RICHARD CLIFFORD                                                  APPELLANT

                                        V.

SHARI MCCALL-GRUESEN, AS                                            APPELLEE
TRUSTEE OF THE GRUESEN
FAMILY TRUST


                                   ------------

          FROM COUNTY COURT AT LAW OF COOKE COUNTY
                  TRIAL COURT NO. CV11-00487

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            MEMORANDUM OPINION ON REHEARING 1

                                   ----------

     Appellant Richard Clifford filed a motion for rehearing on our September 4,

2014 memorandum opinion and judgment. We deny the motion for rehearing,




     1
      See Tex. R. App. P. 47.4, 49.3.
but we withdraw our prior opinion to correct the applicable standard of review. 2

Our memorandum opinion remains otherwise unchanged.

      The suit in this case was precipitated by the eviction of Clifford by his

former wife Appellee Shari McCall-Gruesen, as trustee of the Gruesen Family

Trust, from property owned by her family.          Clifford sued for conversion of

personal property and for breach of an oral lease agreement. In five issues,

Clifford argues that the evidence was legally and factually insufficient to support

the trial court’s judgment against him on his conversion claim, that the trial court’s

judgment against him on his breach of contract claim was based on an erroneous

legal conclusion, that the judgment cannot be affirmed on the basis of waiver or

laches, and that Clifford was harmed by the trial court’s denial of his motion to

compel discovery. Because we hold that the trial court’s judgment on the breach

of contract claim was not erroneous and that the directed verdict can be affirmed

on the affirmative defense of abandonment, we affirm.

                                    Background

      Clifford and Gruesen were married in 1993.           Gruesen’s family owned

property in Woodbine, Texas. A home was constructed on the property during

the marriage. The couple divorced in 2002. In the divorce settlement, Clifford

received a home in Fort Worth.         He nevertheless continued to live at the

Woodbine property with Gruesen’s permission.


      2
       See Tex. R. App. P. 49.3.


                                          2
      At some point, Gruesen asked Clifford to leave the property because she

wanted to sell it.   Clifford moved but left some personal property behind.

Gruesen eventually filed an eviction proceeding against him. On June 3, 2010,

the trial court granted a no-answer default judgment in the eviction case, finding

that Clifford’s refusal to remove his personal property constituted a trespass.

The judgment gave Clifford one week to move his property. The judgment stated

that any property left on the premises after that time would be deemed

abandoned.

      Several months later, Gruesen obtained a writ of possession.         In her

application, she asserted that Clifford “refuses to remove himself 3 together with

any and all personal property belonging” to him and refused to surrender

possession of the property. The trial court issued the writ on September 9, 2010,

ordering Clifford to vacate by September 20, 2010.

      Clifford sued Gruesen for conversion of his personal property that had

been at the Woodbine property. He alleged that after Gruesen obtained the

judgment of eviction, he requested to enter the property to remove his personal

belongings, but Gruesen refused to allow him access. He further alleged that

between September 2010 when the writ was issued and February 2011, he had

sent three written requests to be allowed to remove his personal belongings, but

that she denied the first request due to it being too close to the Christmas

      3
      Although Gruesen included this assertion in her application, as stated
above, Clifford was not actually living on the property at this time.


                                        3
holidays and did not respond to the second and third requests. He asked the trial

court to order Gruesen either to allow him access to the property to retrieve his

property or to deliver it to him, or alternatively to award damages of $20,000.

Gruesen filed an answer that contained a general denial and that asserted the

affirmative defenses of waiver and laches.

      At a pretrial hearing, the trial court instructed Clifford to file a list of the

personal property that he sought to recover. At the same hearing, the trial court

granted Clifford’s attorney’s motion to withdraw. Clifford filed a list of property

and estimated values.

      The trial court signed an order granting Clifford’s request to inspect the

Woodbine property. The trial court subsequently granted Clifford’s request to file

an amended pleading adding a claim for breach of an oral contract.

      Clifford filed a motion to compel discovery. Clifford had sent Gruesen’s

attorney a letter requesting “an approximate list of [his] personal property in

question from the list provided you plus any additional items not on the list that

have been sold, discarded[,] or otherwise disposed of.” Gruesen did not respond

to the letter, so Clifford moved to compel an answer. The trial court denied his

motion.

      The case was tried to the bench. Clifford testified that he and Gruesen

had an oral agreement that he would reside at the Woodbine property until he

either died or was unable to maintain the property. He stated that “after the

judgment against [him], [he] was attempting to get [his] things out of the property”


                                          4
to move out, but although he called Gruesen repeatedly, he was “continually put

off . . . for months and months and months.”

      When asked why he did not remove his property when he moved out, he

testified that he was trying to get Gruesen “to agree to some settlement” to

compensate him for money he had put into the property after the divorce. He

testified that at some point after he had moved out, he was no longer able to

access the property without Gruesen’s permission because she had changed the

locks. He stated that there was further delay recovering his property because he

was recovering from an injury.

      The trial court admitted into evidence a copy of the default judgment of

eviction and of the writ of possession. Gruesen’s attorney argued that Clifford

had the opportunity from the date of the judgment through September 20, 2010

to remove his property.

      The trial court again asked Clifford why he did not take his property with

him when he was moving off the property. He replied that he took some of his

property, but then he injured his back. After that, Gruesen would not allow him

access back on the property.

      Clifford declined to offer any further evidence other than his testimony. At

the conclusion of his evidence, Gruesen moved for a directed verdict, which the

trial court granted. The court signed a judgment stating that “[Clifford] did not

meet the elements required to prove his claim for conversion of his personal




                                        5
property” and that Clifford’s claim for an oral contract was barred by the statute of

frauds. The judgment ordered Clifford’s case dismissed. Clifford now appeals.

Review of a Directed Verdict

      Although Gruesen moved for a directed verdict, a “motion for directed

verdict” in a bench trial is more properly termed a “motion for judgment.” 4 In a

nonjury case, the trial court can grant a motion for judgment on either legal

sufficiency or factual sufficiency grounds. 5 If the trial court finds the plaintiff’s

evidence factually insufficient at the close of the plaintiff’s case, the trial court can

grant judgment for the defendant without requiring the defendant to present his

case. 6

      “The appellate standard of reviewing the propriety of granting a motion for

directed verdict in a jury trial applies equally to the granting of a motion for

judgment in a trial to the court.” 7 This court has held that a directed verdict is

proper “(1) when the evidence conclusively establishes the right of the movant to

judgment or negates the right of the opponent, or (2) when the evidence is

insufficient to raise a fact issue that must be established before the opponent is


      4
       See Matheus v. Sasser, 164 S.W.3d 453, 457 (Tex. App.—Fort Worth
2005, no pet.) (citing Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d
302, 303 (Tex. 1988)).
      5
          Qantel, 761 S.W.2d at 304.
      6
          Id.
      7
          Id. at 303.


                                           6
entitled to judgment.” 8 A trial court properly directs a verdict for the defendant if

either the “plaintiff fails to present evidence raising a fact issue essential to the

plaintiff’s right of recovery,” or if “the evidence conclusively establishes a defense

to the plaintiff’s cause of action.” 9

       In reviewing a trial court’s grant of a motion for judgment, as with a grant of

a directed verdict, we “must view the evidence in the light most favorable to the

party against whom the verdict was rendered and disregard all contrary evidence

and inferences.” 10 If we determine that there is “any evidence of probative value

[that] raises a material fact issue, then the judgment must be reversed and the

case remanded for the jury’s determination of that issue.” 11

       We must affirm the trial court’s judgment in this case if the record

establishes that Clifford failed to present evidence raising a fact issue essential to

his right to recover or if the evidence conclusively establishes a defense to

Clifford’s claims. 12




       8
     Westchester Fire Ins. Co. v. Admiral Ins. Co., 152 S.W.3d 172, 191 (Tex.
App.—Fort Worth 2004, pet. denied).
       9
        Id.
       10
           Quantel, 761 S.W.2d at 303–04.
       11
           Id. at 304.
       12
           See Westchester Fire Ins., 152 S.W.3d at 191.


                                          7
                            The Oral Lease Agreement

      In Clifford’s third issue, he argues that the trial court’s conclusion of law

that his claim was barred by the statute of frauds is erroneous because the

evidence demonstrates that the oral lease agreement did not fall within the

statute of frauds. An incorrect conclusion of law does not warrant reversal if the

judgment is otherwise correct, and we therefore affirm the judgment if it can be

sustained on any legal theory supported by the evidence. 13

      The statute of frauds provides that a real estate lease for a term longer

than one year “is not enforceable unless the promise or agreement, or a

memorandum of it, is (1) in writing; and (2) signed by the person to be charged

with the promise or agreement or by someone lawfully authorized to sign for

him.” 14 Clifford testified that the lease was for more than one year. He also

testified that the lease was to last until he died or until he could no longer

maintain the property.

      Clifford argues that the lease is not subject to the statute of frauds because

it was a tenancy at will rather than a tenancy for a definite term. 15 But if the lease


      13
        A & W Indus., Inc. v. Day, 977 S.W.2d 738, 741 (Tex. App.—Fort Worth
1998, no pet.); see also Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766–67 (Tex.
2011) (stating that in an appeal from a bench trial in which no findings of fact or
conclusions of law have been filed, the judgment must be affirmed if it can be
upheld on any legal theory that finds support in the record).
      14
        Tex. Bus. & Com. Code Ann. § 26.01 (West 2009).
      15
         See Effel v. Rosberg, 360 S.W.3d 626, 630 (Tex. App.—Dallas 2012, no
pet.) (“It is the long-standing rule in Texas that a lease must be for a certain

                                          8
created a tenancy at will, then Gruesen could terminate it at will. 16 She therefore

did not breach the contract by terminating the lease. Because the evidence

conclusively established a defense to Clifford’s breach of contract claim, we

overrule Clifford’s third issue.

                               The Conversion Claim

      “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.” 17    To prevail on his conversion claim,

Clifford had to establish that:    (1) he owned or had legal possession of the

property or entitlement to possession; (2) Gruesen unlawfully and without

authorization assumed and exercised dominion and control over the property to

the exclusion of, or inconsistent with, Clifford’s rights as an owner; (3) Clifford

demanded return of the property; and (4) Gruesen refused to return the

property. 18 The trial court’s judgment was proper on this claim if Clifford failed to




period of time or it will be considered a tenancy at will.”) (citing Holcombe v.
Lorino, 124 Tex. 446, 79 S.W.2d 307, 310 (1935)).
      16
         See id. at 630–31; ICM Mortg. Corp. v. Jacob, 902 S.W.2d 527, 530
(Tex. App.—El Paso 1994, writ denied) (“A tenant at will has no certain nor sure
estate; the lessor may put him out at any time.”).
      17
       Henson v. Reddin, 358 S.W.3d 428, 434–35 (Tex. App.—Fort Worth
2012, no pet.).
      18
        See id.


                                          9
present evidence raising a fact issue on each element of his conversion claim or

if the evidence conclusively establishes a defense to the claim. 19

      We first consider whether Gruesen established a defense to the

conversion claim. In Clifford’s fourth issue, he argues that Gruesen cannot argue

for affirmance based on grounds not stated in her motion for judgment.            He

argues alternatively that the trial court’s judgment cannot be supported on any

other theory; specifically, there is legally and factually insufficient evidence to

support an implied finding of waiver or laches. He also argues that Gruesen did

not plead or obtain a finding on an abandonment theory and that the evidence is

legally and factually insufficient to support such a theory.

      Clifford is correct that Gruesen did not plead abandonment. However, it

was raised at trial, and evidence was given on the matter. 20 In his opening

statement, Gruesen’s attorney stated:

      We believe that when the evidence is shown and when the
      arguments are made that Ms. Gruesen did not convert this property,
      that based on the prior case, which we’ll get into just a little bit, was
      an eviction and there was a judgment where she was—after one
      week he lost all right to the property.

      19
        See Westchester Fire Ins., 152 S.W.3d at 191.
      20
         See Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 280 (Tex. App.—
Houston [14th Dist.] 1999, pet. denied) (“The rule is well settled that an
affirmative defense may be tried by consent, even if it is not properly pleaded.”);
see also Collins v. Collins, 345 S.W.3d 644, 648 (Tex. App.—Dallas 2011, no
pet.) (stating that “an unpleaded issue may be deemed tried by consent when
evidence on the issue is developed under circumstances indicating that both
parties understood the issue was in the case, and the other party failed to make
an appropriate complaint”).


                                         10
      The trial court subsequently asked the attorney, “So is it your position then

that after the passage of time he loses the right of possession or the right of

ownership to the property?” The attorney responded, “I would have to show you

or introduce the default judgment there, but in the default judgment, that case, it

said after the expiration of one week that he would lose any title or right to that

property.”

      As for evidence of abandonment, Gruesen introduced the judgment of

eviction and the writ of possession into evidence. The trial court asked Clifford

questions about the judgment and whether he understood that he had a week to

remove his property. Clifford was also asked about and gave testimony about

why he did not take his property with him when he moved in the first place, and

why he did not retrieve his property after the eviction, despite hiring an attorney.

      Gruesen’s attorney made argument to the trial court about whether the

property should be deemed abandoned given that Clifford “had ample time along

the way, he had access. He didn’t take steps to make sure he had his property.”

The attorney referenced the fact that Clifford had hired an attorney after the

default eviction judgment and argued that “[t]he whole time from June 3rd, when

it was first rendered, up until September 20th when he had to vacate, he knew,

even though there was other things going on, he had a limited amount of time.”

He argued that “once that order was signed and [the trial court] denied [Clifford’s

attorney]’s motion [to set aside the default judgment], he really knew on August

9th he had a limited amount of time.”


                                         11
       The trial court then allowed Clifford to respond, first advising Clifford that

his concern was that “if you had your property there and you vacated the

property, why you didn’t take your property when you moved or after the default

judgment why you didn’t take your property during the one week?” Clifford then

testified about why he left his property behind when he moved out and why he

did not retrieve it after the eviction. The arguments and evidence shows that the

parties understood that Clifford’s abandonment of the property was at issue in

the case, and the abandonment issue was clearly tried by consent. Thus, the

fact that abandonment was not pled would not have prevented the trial court from

considering it. 21

       Clifford argues that there is no evidence or, alternatively, there is

insufficient evidence, that he abandoned his personal property.         The default

judgment of eviction specifically stated that “any personal property left about the

Property by Defendant and/or Defendant’s agents, representatives, affiliates,

heirs, predecessors, successors, and/or assigns after one (1) week from the date

of this final judgment shall be deemed abandoned.” Clifford’s failure to retrieve

his property within the time period set out in the judgment constituted an

abandonment of his property.        To negate abandonment, Clifford therefore

needed to produce enough evidence to raise a fact issue on whether the only




       21
         See Johnston, 9 S.W.3d at 280; Collins, 345 S.W.3d at 648.


                                         12
reason he did not retrieve his property was that Gruesen prevented him from

doing so. 22

      Clifford attempted to negate this deemed abandonment with evidence that

he attempted to remove his property but was unable to because Gruesen

prevented him from doing so. He testified that Gruesen would not allow him on

the property, but he also claimed that he was trying to “do other things and try to

make some money to live on during that time” and that he had three different

back surgeries.

      Much of Clifford’s testimony about being barred from the property was not

clear about precisely when he was prevented from having access to remove his

belongings. As far as we can determine, most of Clifford’s testimony on the

matter related to time after he moved off the property but before the default

judgment.      None of that testimony was relevant to whether he could have

removed it after the eviction. And he did not provide an explanation for why,

between the time he moved out and the point at which he contended that he was

denied access, he did not remove his belongings, other than that he was trying to

get Gruesen to agree to a settlement.

      At the very end of his testimony on the matter, Clifford testified that he was

denied access during the week after the eviction judgment. He did not testify that

he was denied access in the period from August 9, 2010, when his motion to set


      22
        See Westchester Fire Ins., 152 S.W.3d at 191.


                                        13
aside the default judgment was denied, to September 20, 2010, the date he had

to vacate under the writ of possession. We hold that Clifford’s testimony was not

sufficient to overcome the deemed abandonment, and, accordingly, the trial

court’s judgment may be affirmed on the abandonment defense.

       Clifford cites Cargal v. Cargal 23 for the proposition that Gruesen had to

obtain an express finding on the affirmative defense of abandonment, and since

she neither pled abandonment nor obtained an express finding on it, she waived

it. Cargal, however, is not a trial-by-consent case. Because abandonment was

tried by consent in this case, and because we must affirm the judgment on any

ground that supports it, 24 we find Cargal inapplicable. We overrule Clifford’s

fourth issue.

       Clifford argues in his fifth issue that if he did not meet his burden of proof

on conversion, it was because the trial court denied Clifford’s motion to compel

certain discovery that went to the heart of his conversion case.         He argues

alternatively that the manner in which the trial court conducted the trial deprived

Clifford of a fair trial.

       Because we have held that the judgment may be upheld on the defense of

abandonment, we need not consider whether the trial court abused its discretion

by denying Clifford’s motion to compel discovery. As to his alternative argument,


       23
         750 S.W.2d 382, 384 (Tex. App.—Fort Worth 1988, no writ).
       24
         See Rosemond, 331 S.W.3d at 766–67.


                                         14
the trial court gave Clifford multiple opportunities to explain why his property was

not abandoned. We thus hold that the manner in which the trial court conducted

the trial did not harm Clifford. 25 We overrule Clifford’s fifth issue.

      In Clifford’s first issue, he argues that the evidence is legally and factually

insufficient to support the trial court’s adverse findings on each and every

element of Clifford’s conversion claim.         In his second issue, he argues that

because the evidence is legally and factually insufficient to support the trial

court’s adverse findings on his conversion claim, the trial court erred by denying

Clifford’s election for the return of his personal property.         He argues in the

alternative that the trial court erred by denying Clifford’s request for conversion

damages. In light of our disposition of Clifford’s fourth and fifth issues, we need

not address his first and second issues. 26

                                      Conclusion

      Having overruled Clifford’s third, fourth, and fifth issues, which are

dispositive, we affirm the trial court’s judgment.




      25
        See Tex. R. App. P. 44.1.
      26
        See Tex. R. App. P. 47.1.


                                           15
                                            /s/ Lee Ann Dauphinot
                                            LEE ANN DAUPHINOT
                                            JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

WALKER, J., concurs without opinion.

DELIVERED: October 23, 2014




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