       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-01-00562-CV




                                         Rick Dean, Appellant

                                                     v.

                               Richard Carr and Jay Hester, Appellees


        FROM THE DISTRICT COURT OF TARRANT COUNTY, 48TH JUDICIAL DISTRICT
            NO. 48-162136-95, HONORABLE ROBERT MCCOY, JUDGE PRESIDING




                Appellant Rick Dean sued appellees Richard Carr and Jay Hester for conversion of

personal property. A jury found that Carr and Hester converted property, but the jury assessed no

damages. The district court rendered judgment on the jury verdict in favor of Carr and Hester. Dean raises

two issues on appeal. We will affirm the district-court judgment.


                                      FACTUAL BACKGROUND

                In May 1992 Carr and Hester leased a building to Bauer & Bergen, Inc. (AB&B@). The

lease term was for five years with rent due on the first day of each month. At the time the lease was

executed, the building contained nightclub equipment owned by Carr and Hester, including chairs,

televisions, cash registers, dance-floor lights, and sound equipment. These items specifically were listed in

an inventory appended to the lease.
                B&B used the building to operate a nightclub known as the Canyon Club. Shortly after

B&B entered the lease agreement, Rick Fowler purchased a controlling interest in B&B and continued to

operate a nightclub in the space. Dean, an investor, met Fowler in 1994. The two discussed opening a

series of nightclubs as an entrepreneurial arrangement. Because Dean had no previous nightclub experience,

he worked without compensation as an assistant at the Canyon Club to Alearn the nightclub business.@

                While working at the Canyon Club, Dean stored items of personal property inside the

building. These items included commercial-grade lighting, sound equipment, compact discs, and a

camcorder. The club used some items of Dean=s property as part of its business and other items merely

were stored in the building or Ajust happened to be there.@

                When B&B failed to pay rent for the month of April 1995, Carr and Hester changed the

locks on the building, thereby locking B&B out of the leased premises. After the lockout, Dean submitted

to Carr and Hester a list of forty items that he claimed belonged to him and remained inside the locked

building.1 Dean demanded access to the building to retrieve his property. After the lockout Carr and

Hester and their attorney accompanied Dean and his attorney into the building. The record does not reflect

why no party inventoried the items in the building or why Dean did not retrieve his property. Most items

were destroyed when the building burned in November 1995.




        1
          There was conflicting testimony at trial regarding the number of items Dean included on his list.
However, the record before us contains a list of 40 items submitted by Dean to Carr and Hester and their
attorney.
                                      PROCEDURAL BACKGROUND

                    Carr and Hester sued Dean for breach of the lease and past-due rent. Dean counter-

claimed for conversion of his personal property. The cause was tried to a jury, who found: (1) Carr and

Hester had converted Dean=s property, (2) the value of the converted property was Anone,@ (3) Dean was a

partner by estoppel of B&B on the lease, (4) and B&B had not breached the lease by failing to pay rent.

The district court rendered judgment that Dean take nothing, Carr and Hester take nothing, and neither

party recover attorney=s fees.2 Dean appeals by two issues, arguing that the jury finding of no damages was

erroneous and the district court erred in failing to submit a charge to the jury on exemplary damages.


                                                 DISCUSSION

Failure to Find Damages

                    It is unclear whether Dean challenges the legal sufficiency or factual sufficiency of the

evidence. Dean first contends that he established his damages as a matter of law because he submitted

uncontroverted proof of the value of the items converted by Carr and Hester. However, he also asserts that

the finding of no damages is against the great weight and preponderance of the evidence, a standard for

evaluating factual sufficiency. We will, in the interest of justice, review the evidence under both standards.

See Tex. R. App. P. 38.9; Gregory v. Sunbelt Sav., F.S.B., 835 S.W.2d 155, 157 n.2 (Tex.

App.CDallas, 1992, writ denied).


           2
               The district court did award Dean costs and attorney=s fees assessed in connection with a pretrial
hearing.




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                 In reviewing a legal-sufficiency challenge, we consider the evidence in the light most

favorable to the prevailing party, indulging every reasonable inference in that party=s favor. See Associated

Indem. Corp. v. CAT Contracting, 964 S.W.2d 276, 285-86 (Tex. 1988). We will uphold the jury=s

finding if more than a scintilla of evidence supports it. Burroughs Wellcome Co. v. Crye, 907 S.W.2d

497, 499 (Tex. 1995). The evidence supporting a finding amounts to more than a scintilla if reasonable

minds could arrive at the finding given the facts proved in the particular case. See Crye, 907 S.W.2d at

499; Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). In conducting a factual-

sufficiency review, we consider and weigh all of the evidence and set aside the judgment only if it is factually

so weak or so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King=s Estate, 244 S.W.2d 660, 661 (Tex.

1951); see generally William Powers, Jr. & Jack Ratliff, Another Look at ANo Evidence@ and

AInsufficient Evidence,@ 69 Tex. L. Rev. 515 (1991).

                 To prevail on his legal-sufficiency challenge to the jury=s finding, Dean must show that the

evidence established the value of the converted property as a matter of law. See Sterner v. Marathon Oil

Co., 767 S.W.2d 686, 690 (Tex. 1989); Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982). Where

there is no material dispute and where only one reasonable inference may be drawn from the evidence, the

issue is established as a matter of law. See Texas N.O.R. Co. v. Burden, 203 S.W.2d 522, 528 (Tex.

1947).

                 In a conversion case, the plaintiff must prove damages before recovery is allowed. United

Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997) (citing Prewitt v. Branham, 643


                                                       4
S.W.2d 122, 123 (Tex. 1982)). The general measure of damages for conversion is the fair market value of

the property at the time and place of conversion, but damages may be limited to amount necessary to

compensate plaintiff for actual loss and injury suffered as result of conversion. United Mobile Networks,

939 S.W.2d at 148 (indicating neither party should be unjustly enriched by conversion). However, the

actual value of the property to the owner at the time of conversion also may be a proper measure of

damages when the property has no readily ascertainable fair market value. See Redman Homes, Inc. v.

Ivy, 920 S.W.2d 664, 669 (Tex. 1996); Ogden v. Wilson, 649 S.W.2d 780, 783 (Tex. App.CAustin,

1983, writ ref=d n.r.e.) (citing Crisp v. Security Nat=l Ins. Co., 369 S.W.2d 326 (Tex. 1963); American

Transfer & Storage Co. v. Reichley, 560 S.W.2d 196 (Tex. Civ. App. 1977, writ ref=d n.r.e)). Examples

of items that have no market value in the ordinary meaning of the term include household goods, clothing

and personal effects. Crisp, 369 S.W.2d at 328. Here, the district court made no determination whether

the jury was to determine the fair market value of the property, the actual value to Dean, or a combination

of both. The district court submitted, without objection, the following question to the jury: AWhat is the

reasonable value, if any, for any converted property that was destroyed by fire? Answer in >dollars and

cent,= if any, or >none.=@ The jury answered, Anone.@

                Although Dean testified that the converted property was worth $47,050, we find that he did

not establish the value of the property as a matter of law. There was a material dispute at trial as to the

existence and value of the converted property. Carr and Hester testified that not all of the items listed by

Dean were in the building at the time of the fire. Furthermore, Carr and Hester disputed the value of the

property as established by Dean. Carr testified that Dean never placed in the Club the type of property


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listed and denied that more than half of the items were located in the Club at the time of the lockout. Hester

testified that there was not $48,000 worth of equipment inside the Club and that most of the property items

were not in the building at the time of the lockout. Hester also testified that Dean purchased the equipment

for $2,000 at an auction.

                Dean called Michael Utzman to testify as an expert witness regarding the value of Dean=s

property. Utzman testified that Dean=s value estimate was reasonable. However, Utzman testified that the

value of the property would depend on how well the equipment had been maintained, how clean it is, and in

what environment the equipment had been used. Utzman was not in a position to evaluate the condition of

the equipment because he had no personal knowledge of the items and had never seen any of the equipment

Dean listed. Utzman based his opinion solely upon what he had been told by Dean. Because of these

material disputes and the controverting evidence presented, the jury could have drawn more than one

reasonable inference from the evidence; therefore, we find that Dean failed to establish the value of his

property as a matter of law. See Texas N.O.R., 203 S.W.2d at 528.

                To prevail on his factual-sufficiency challenge, Dean must show that the adverse jury finding

is against the great weight and preponderance of the evidence. See Croucher v. Croucher, 660 S.W.2d

55, 58 (Tex. 1983). We must consider and weigh all the evidence and should set aside the judgment only if

it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 709

S.W.2d at 175; see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986).

                Here, evidence introduced by Dean supports a finding that the converted property did have

value. Dean submitted to Carr and Hester a list of forty items he claimed remained in the building at the time


                                                      6
it was locked. Dean sought damages for the conversion of the items on the list. Dean valued each listed

item according to its value to him, its fair market value, and its purchase price. Based on those assigned

values, Dean testified his property was worth a total of $47,050.67. The district court admitted into

evidence, without objection, the list of items with their corresponding values as established by Dean.

Because the property owner can testify as to his opinion regarding the value of his property, Dean=s

testimony regarding the value of the items was competent evidence. Ogden, 649 S.W.2d at 784.

                However, to show that an adverse finding is against the great weight and preponderance of

the evidence, A[a] jury=s failure to find a fact need not be supported by any evidence, but the jury may not

refuse to find a fact in the face of overwhelming evidence of the existence of the fact.@ Schmeltekopf v.

Johnson Well Serv., 810 S.W.2d 865, 869 (Tex. App.CAustin 1991, no writ) (citing Russell v.

Hankerson, 771 S.W.2d 650, 653 (Tex. App.CCorpus Christi 1989, writ denied)); see also Traylor v.

Goulding, 497 S.W.2d 944, 945 (Tex. 1973) (failure to find fact need not be supported by affirmative

evidence). Based on the conflicting testimony presented by Carr and Hester, and the fact that Utzman had

never seen any of the property, we do not believe that Dean=s evidence was Aoverwhelming.@ AAlthough the

record contains some conflicting testimony, the jury is free to believe all or any part of the evidence in

making its findings.@ Love v. State, 972 S.W.2d 114, 120 (Tex. App.CAustin 1998) (citing McGalliard

v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). We will not disturb the jury=s finding unless it is so

contrary to the overwhelming weight of all relevant evidence as to be clearly wrong and manifestly unjust.

Cain, 709 S.W.2d at 176. There was conflicting testimony not only regarding the actual value of the




                                                     7
converted property but the very existence of the items Dean claimed were in the building. We hold that the

jury=s finding was not clearly wrong and manifestly unjust.


Exemplary Damages

                 By his second point of error, Dean contends that the trial court erred in failing to submit to

the jury a question on exemplary damages. Because the jury awarded no actual damages, Dean is not

entitled to exemplary damages. See Nabours v. Longview Sav. & Loan Ass=n., 700 S.W.2d 901, 903

(Tex. 1985).


                                             CONCLUSION

                 We overrule Dean=s issues and affirm the judgment of the district court.




                                                   Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: June 21, 2002

Do Not Publish




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