Affirmed in Part, Reversed in Part, and Remanded. Memorandum Opinion
filed September 20, 2016.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-15-00376-CV

                       MANUEL AL FRIAS, Appellant
                                      V.

           SOVRAN HHF STORAGE HOLDINGS, LLC, Appellee

            On Appeal from the County Civil Court at Law No. 2
                          Harris County, Texas
                     Trial Court Cause No. 1031244

                MEMORANDUM                    OPINION

      Manuel Al Frias sued Sovran HHF Storage Holdings, LLC (d/b/a Uncle
Bob’s Storage, hereinafter “Uncle Bob”) after Uncle Bob seized and sold the
property in Frias’s self-storage unit. The trial court granted Uncle Bob summary
judgment on Frias’s claims for violating the Texas Deceptive Trade Practices–
Consumer Protection Act (DTPA), theft, conversion, and trespass to personal
property. We hold that Frias raised a fact issue on his DTPA and trespass-to-
personal-property claims. We therefore reverse in part and remand.

                                   I.     BACKGROUND

       It is undisputed that Frias had rented one of Uncle Bob’s self-storage units,
and Uncle Bob seized and sold Frias’s property without a court’s judgment of
foreclosure. Frias sued Uncle Bob, alleging that Uncle Bob violated the Self-
Service Storage Facility Act (hereinafter, “Storage Act”). See Tex. Prop. Code
Ann. ch. 59. Uncle Bob filed a hybrid motion for a traditional and no-evidence
summary judgment on all of Frias’s claims. Uncle Bob attached, among other
evidence, a rental agreement purportedly signed by Frias. Uncle Bob argued that
the rental agreement and subsequent sale complied with the Storage Act.
Specifically, Uncle Bob argued as follows about Frias’s claims:

       (1)    A traditional summary judgment was proper on the DTPA
              claim because Uncle Bob acted in accordance with a written
              rental agreement;
       (2)    A traditional summary judgment was proper on the theft and
              conversion claims because Uncle Bob acted in accordance with
              the rental agreement, so Uncle Bob’s exercise of control was
              not unlawful as a matter of law;
       (3)    A no-evidence summary judgment was proper on the theft and
              conversion claims because there was no evidence of each
              element; and
       (4)    A no-evidence summary judgment was proper on the trespass-
              to-personal-property claim because there was no evidence that
              Uncle Bob’s possession or interference was wrongful.1

       Frias responded and argued for denial of the motion because there was some
evidence that there was no written rental agreement between the parties and the

       1
         We do not address the motion as it related to Frias’s claim for breach of contract
because the trial court denied the motion on that claim and Frias later non-suited that claim.

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Storage Act “requires court approval for foreclosure and sale.” He attached an
affidavit wherein he testified in part:

             I never signed the Self Storage Rental Agreement that was
      attached to Defendant’s Motion for Summary Judgment. I never had
      a written agreement with Uncle Bob’s Self Storage or Stor-A-Way
      Phillippine. I received a contract in the mail in about November, 2011
      when Stor-A-Way said that Defendant was transitioning from Stor-A-
      Way to Uncle Bob’s but I did not sign it.

The trial court granted summary judgment to Uncle Bob without specifying the
reasons. Frias appealed.

                            II.    SUMMARY JUDGMENT

      Frias contends the trial court erred by granting summary judgment because
Frias’s affidavit testimony that he did not sign the rental agreement creates a
genuine issue of material fact and amounts to some evidence of his claims.

A.    Standards of Review

      We review summary judgments de novo. Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 156 (Tex. 2004). We take as true all evidence favorable
to the nonmovant, indulging reasonable inferences and resolving doubts in the
nonmovant’s favor. Id. at 157; King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
751 (Tex. 2003).

      For a traditional summary judgment, the movant has the burden of showing
that there is no genuine issue of material fact and that the movant is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Joe, 145 S.W.3d at 157.
Once the movant establishes its right to summary judgment, the burden shifts to
the nonmovant to present evidence raising a genuine issue of material fact.
Ballard v. Arch Ins. Co., 478 S.W.3d 950, 953 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (citing M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d
                                          3
22, 23 (Tex. 2000)). When a party files a no-evidence motion for summary
judgment, the nonmoving party must present evidence raising a genuine issue of
material fact supporting each element contested in the motion. Tex. R. Civ. P.
166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

      When, as here, the trial court does not specify the grounds for its summary
judgment, we must affirm if any of the theories presented to the trial court and
preserved for appellate review are meritorious. Provident Life & Accident Ins. Co.
v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). We will review the propriety of
summary judgment on each claim and affirm the judgment as to that claim if any
of the grounds are meritorious. See Ortega v. City Nat’l Bank, 97 S.W.3d 765, 772
(Tex. App.—Corpus Christi 2003, no pet.); see also Cantu v. Frye & Assocs.,
PLLC, No. 01-12-00868-CV, 2014 WL 2626439, at *7–8 (Tex. App.—Houston
[1st Dist.] June 12, 2004, no pet.) (mem. op.) (reviewing traditional and no-
evidence summary judgment grounds on a “claim-by-claim basis”).

B.    DTPA Claim

      The Storage Act is a tie-in statute for the DTPA. See Tex. Prop. Code
Ann. § 59.005 (“A person injured by a violation of this chapter may sue for
damages under the [DTPA].”). Under the Storage Act, a lessor such as Uncle Bob
has a lien on all property in a storage unit for the charges that are due and unpaid
by a tenant such as Frias. Id. § 59.006. Generally, a lessor may enforce that lien
“only under a judgment by a court of competent jurisdiction that forecloses the lien
and orders the sale of the property to which it is attached.” Id. § 59.041. A lessor
may enforce the lien by “seizing and selling the property” without a court’s
judgment, however, if “(1) the seizure and sale are made under the terms of a
contractual landlord’s lien as underlined or printed in conspicuous bold print in a
written rental agreement between the lessor and tenant; and (2) the seizure and sale

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are made in accordance with this chapter.” Id. § 59.041(b).2 Accordingly, if there
is no written rental agreement, the lessor may not seize and sell the property
without a court’s judgment of foreclosure. See id. § 59.041.

       Frias contends he raised a fact issue about whether there was a written rental
agreement through his affidavit testimony that he “never signed the Self Storage
Rental Agreement that was attached to Defendant’s Motion for Summary
Judgment.” Uncle Bob contends that “Frias’s self-serving and conclusory affidavit
is not competent summary judgment evidence.” We disagree with Uncle Bob.
Frias’s affidavit is not conclusory on the issue of whether there was a written rental
agreement between the parties authorizing the seizure and sale of Frias’s property.
See Wasserberg v. 84 Lumber Co., L.P., No. 14-10-00136-CV, 2011 WL 3447493,
at *3 (Tex. App.—Houston [14th Dist.] Aug. 9, 2011, no pet.) (mem. op.)
(reversing summary judgment because the affiant’s statement that he “did not sign
the credit application” was a statement of fact, not conclusory, and raised a genuine
issue of material fact); Douglas v. Wash. Mut. Bank, No. 14-05-00282-CV, 2006
WL 2862115, at *2 (Tex. App.—Houston [14th Dist.] Oct. 10, 2006, pet. denied)
(mem. op.) (holding that the affiant’s statement that “she did not sign the document
is not conclusory, but a factual statement”).

       It is undisputed that Uncle Bob seized and sold the property without a
court’s judgment of foreclosure. If Uncle Bob did so without a written agreement
authorizing Uncle Bob’s actions, then Uncle Bob violated the Storage Act and
DTPA. Thus, Frias raised a genuine issue of material fact on his DTPA claim.



       2
         The statute provides the procedure for the seizure and sale, which includes delivering
written notice to the tenant. See Tex. Prop. Code Ann. § 59.042. We do not recite those
requirements in detail because they are unnecessary to the disposition of this appeal. See Tex. R.
App. 47.1.

                                                5
C.    Trespass-to-Personal-Property Claim

      Uncle Bob moved for a no-evidence summary judgment on the element of
its “wrongful” possession of or interference with Frias’s property. Because Frias
raised a fact issue about whether he signed the written rental agreement, and it is
undisputed that Uncle Bob seized and sold Frias’s property, we hold that Frias
adduced some evidence that Uncle Bob’s possession of or interference with Frias’s
property was wrongful. See Tex. Prop. Code Ann. § 59.041; cf. Schoonover v.
Morse, No. 09-13-00377-CV, 2014 WL 9861223, at *5–6 (Tex. App.—Beaumont
Dec. 11, 2014, no pet.) (mem. op.) (holding that the trial court reasonably could
have found that possession was unlawful when the trial court could have found that
a lien was not properly enforced); Holly Park Condo. Homeowners’ Ass’n, Inc. v.
Lowery, 310 S.W.3d 144, 148–49 (Tex. App.—Dallas 2010, pet. denied)
(affirming summary judgment for the plaintiff on her wrongful foreclosure claim
when the declarations authorized only judicial foreclosure but the association
conducted a nonjudicial foreclosure).

D.    Theft and Conversion Claims

      Uncle Bob moved for a no-evidence summary judgment on Frias’s claims
for theft and conversion. Uncle Bob stated in its motion:

      To establish a claim for conversion or civil theft, a plaintiff must
      prove that (1) the plaintiff owned or had possession of the property or
      entitlement to possession; (2) the defendant unlawfully and without
      authorization assumed and exercised control over the property to the
      exclusion of, or inconsistent with, the plaintiff’s rights as an owner;
      (3) the plaintiff demanded return of the property; and (4) the
      defendant refused to return the property. [citation]. Plaintiff has failed
      to produce any evidence of elements 1, 2, 3 or 4, therefore its’ [sic]
      claim for conversion and civil theft must fail lack [sic] of evidence.



                                          6
Neither in response to the motion nor on appeal has Frias pointed to evidence in
the record to support the third and fourth elements. And Frias has not argued on
appeal that Uncle Bob’s motion was insufficient as a matter of law or that Frias
was excused from proving the third and fourth elements.

      Accordingly, we affirm summary judgment on Frias’s theft and conversion
claims. See Tex. R. Civ. P. 166a(i) (“The court must grant the motion unless the
respondent produces summary judgment evidence raising a genuine issue of
material fact.”); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 331 (Tex.
App.—Houston [14th Dist.] 2005, no pet.) (holding that a party responding to a no-
evidence motion cannot merely file evidence and state generally that a genuine
issue of fact has been raised; rather, the nonmovant must “point out evidence that
raises a genuine issue of fact as to each challenged element”); see also Am. Gen.
Fire & Cas. Co. v. Weinbeg, 639 S.W.2d 688, 689 (Tex. 1982) (holding that a
court of appeals generally errs by reversing the trial court’s judgment for
unassigned error).

E.    Damages

      Frias also contends that summary judgment was improper if the trial court
granted summary judgment due to the lack of evidence of Frias’s damages. Frias
correctly notes that Uncle Bob’s motion “did not state anything about the
damages” for his non-contract claims, and Uncle Bob first raised the issue of
damages in its reply to Frias’s response to the motion. On appeal, Uncle Bob does
not argue that the summary judgment should be affirmed because of a lack of
evidence of damages, nor does Uncle Bob contend that the issue was tried by
consent.

      Accordingly, the summary judgment cannot be affirmed on the basis of a
lack of evidence of damages. See, e.g., 1001 McKinney Ltd. v. Credit Suisse First
                                        7
Boston Mortg. Capital, 192 S.W.3d 20, 25 (Tex. App.—Houston [14th Dist.] 2005,
pet. denied) (“In the absence of the nonmovant’s consent, a movant may not raise a
new ground for summary judgment in a reply to the nonmovant’s response.”); see
also Hansen v. Jackson, No. 13-14-00039-CV, 2014 WL 5794872, at *16 (Tex.
App.—Corpus Christi Nov. 6, 2014, pet. pending) (mem. op.) (refusing to consider
a ground raised for the first time in a reply when the movant did not argue on
appeal that the nonmovant consented to the new ground being raised in a reply).

                                III.   CONCLUSION

      The trial court erred by granting summary judgment to Uncle Bob on Frias’s
DTPA and trespass-to-personal-property claims. We therefore reverse the part of
the trial court’s judgment on Frias’s DTPA and trespass-to-personal-property
claims, affirm the remainder of the judgment, and remand for proceedings
consistent with this opinion.




                                       /s/       Sharon McCally
                                                 Justice



Panel consists of Chief Justice Frost and Justices McCally and Brown.




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