                             NUMBER 13-08-00633-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


CHARLES CLARK CHEVROLET CO.,                                                 Appellant,

                                            v.

FRANK E. GARCIA,                                                             Appellee.


                  On appeal from County Court at Law No. 2
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION

             Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Rodriguez

       Appellant Charles Clark Chevrolet Co. (Charles Clark) challenges the judgment of

the trial court in favor of appellee Frank E. Garcia. By four issues, Charles Clark argues

that: (1) there was no evidence of damages from the alleged conversion; (2) the trial court

erred in entering judgment for Garcia based on conversion because (a) the parol evidence
rule prohibited consideration of certain evidence presented by Garcia, (b) Charles Clark

had a possessory lien on the vehicle in question because Garcia authorized certain repairs,

and/or (c) ratification, quantum meruit, and quantum valebant barred Garcia's recovery; (3)

the trial court erred in denying Charles Clark's counterclaim for breach of contract for

Garcia's failure to pay a service invoice; and (4) the judgment is erroneous because it

awards damages for conversion without disposing of title to the vehicle. We affirm, in part,

and reverse and remand, in part.

                                             I. BACKGROUND

        The following facts in this case are undisputed. In late July 2007, a friend of Garcia

took Garcia's 2005 Chevrolet Corvette to Charles Clark, a Chevrolet dealership, for repairs

while Garcia was out of town. The friend reported to Charles Clark's service department

that, among other problems, the engine "wo[uld]n't crank" or "wo[uld]n't fire up." It was

discovered by service technicians that the Corvette had been driven through high water.

After obtaining the authorization of Garcia's insurance carrier, Charles Clark replaced the

Corvette's engine.1 Garcia received a check for approximately $12,000 from his insurance

carrier, which he deposited in his bank account. The total cost of the repairs made by

Charles Clark was $13,743.77; Charles Clark demanded payment of this sum from Garcia,

but Garcia never paid that amount. Instead, Garcia sent Charles Clark a check for

$1,500.00. Charles Clark neither cashed nor deposited that check. Garcia never remitted

any of the money he received from his insurance carrier to Charles Clark. As of the date



        1
         At som e point after Garcia returned to town, he signed a contract with Charles Clark authorizing the
dealership to repair the non-functioning engine. The parties dispute the extent of the repairs Garcia
authorized Charles Clark to m ake.

                                                      2
of this opinion, the Corvette is still in Charles Clark's possession.2 Moreover, at the time

of trial, Garcia still owed money on the Corvette and was paying a $997 note on the vehicle

every month.3

         On November 13, 2007, Garcia filed his original petition in this case, alleging

conversion against Charles Clark. Charles Clark answered; pleaded various affirmative

defenses, including offset, failure to mitigate, quantum meruit and quantum valebant, and

that it held a possessory worker's lien on the Corvette, see TEX . PROP. CODE ANN .

70.001(a) (Vernon 2007); and asserted a counterclaim against Garcia for breach of

contract for his failure to pay for the repairs made to the Corvette. The case proceeded

to trial before the court, which heard testimony from Garcia and a Charles Clark service

manager. The trial court entered judgment in favor of Garcia and awarded the following

damages: a "base amount of $42,000.00 . . . less $12,000.00 Insurance money" for a total

of "$30,000 for [Garcia] against [Charles Clark]."4 The judgment further ordered that

Charles Clark take nothing by its counterclaim. The judgment did not address the state of

title to the Corvette. Charles Clark filed a motion for new trial, which was denied by

operation of law.5 This appeal followed.

         2
         Prior to the filing of this suit, Garcia filed an application for writ of sequestration in the justice court
of Hidalgo County. The Corvette was tem porarily returned to Garcia in connection with that proceeding.
However, upon m otion by Charles Clark, the application was dism issed for lack of jurisdiction, and the court
ordered the Corvette returned to the possession of Charles Clark. The outcom e of that proceeding is not
before this Court.

         3
        There is no evidence in the record indicating the total am ount Garcia still owes on the Corvette or
to whom he owes that am ount.

        4
             The judgm ent also awarded pre- and post-judgm ent interest.

         5
           In its m otion for new trial, Charles Clark argued that there was no evidence or insufficient evidence
to establish that the repair authorization signed by Garcia was lim ited in any way and that allegations of such
lim itations were not perm itted under the parol evidence rule. Charles Clark also argued that the judgm ent
allowed double recovery and unjustly enriched Garcia. Finally, Charles Clark contended that the judgm ent
was "confusing" in that it did "not dispose of the vehicle itself, [was] not clear on the disposition of prior

                                                         3
                                     II. SUFFICIENCY OF THE EVIDENCE

          By its first and second issues, Charles Clark appears to challenge the evidence

supporting the trial court's award of damages and judgment in favor of Garcia's conversion

claim.6

                                           A. Standard of Review

          This case is before us on appeal from a bench trial after which the trial court filed

no findings of fact or conclusions of law. The record includes both the clerk’s record and

the full reporter's record of the trial. When a trial court does not issue findings of fact and

conclusions of law, all facts necessary to support the judgment are implied. BMC Software

Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). The trial court’s judgment must



insurance proceeds, and [did] not address outstanding liens" on the vehicle and that unless the judgm ent was
"am ended, clarified, and supplem ented[,] the rights, obligations and duties of the parties will not have been
fully adjudicated."

          6
           In its brief of its second issue, Charles Clark cites partial authority for the parol evidence rule but does
not explain the entire principle of law and advances no substantive legal analysis addressing how the parol
evidence rule was violated here. Sim ilarly, by its third issue, Charles Clark sum m arily states that the trial court
erred in denying its counterclaim but provides no legal authority regarding breach of contract or clear and
concise argum ent applying that law to the facts of this case. As such, "[i]t would be inappropriate for this
[C]ourt to speculate as to what [Charles Clark] m ay have intended to raise as an error by the trial court on
appeal. To do so would force this [C]ourt to stray from our role as a neutral adjudicator and becom e an
advocate for [Charles Clark]." Canton-Carter v. Baylor College of Med., 271 S.W .3d 928, 931 (Tex.
App.–Houston [14th Dist.] 2008, no pet.). Therefore, these issues have been inadequately briefed. See T EX .
R. A PP . P. 38.1(i) (providing that a brief m ust contain "a clear and concise argum ent that includes appropriate
citations to legal authority and to the appellate record"); Valadez v. Avitia, 238 S.W .3d 843, 845 (Tex. App.–El
Paso 2007, no pet.). Charles Clark's second issue is overruled insofar as it relies on the parol evidence rule;
Charles Clark's third issue regarding its counterclaim is overruled in its entirety.

          By its second issue, Charles C lark also appears to argue that the trial court erred in denying its
affirm ative defenses of ratification, quantum m eruit, and quantum valebant because Garcia is unjustly
enriched if he is allowed to keep the $12,000 he received from his insurance carrier for the repair. The
judgm ent does not support C harles Clark's contention that the trial court denied these defenses, however.
Because the trial court reduced Garcia's m oney dam ages by "$12,000.00 Insurance m oney" and Garcia does
not com plain of that reduction, we are not persuaded by Charles Clark's contention. See W orford v. Stamper,
801 S.W .2d 108, 109 (Tex. 1990) (holding that the trial court's judgm ent m ust be affirm ed if it can be upheld
on any legal theory that finds support in the evidence); Doe v. Tarrant County D ist. Attorney's Office, 269
S.W .3d 147, 152 (Tex.App.-Fort W orth 2008, no pet.) (sam e). Garcia's second issue is therefore overruled
to the extent that it advances these defenses.

                                                          4
be affirmed if it can be upheld on any legal theory that finds support in the evidence.

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Doe v. Tarrant County Dist.

Attorney's Office, 269 S.W.3d 147, 152 (Tex.App.–Fort Worth 2008, no pet.).

       When, as in this case, the clerk and reporter's records are filed, the trial court's

implied findings are not conclusive and may be challenged for legal and factual sufficiency.

Marchand, 83 S.W.3d at 795. Although Charles Clark’s arguments do not clarify whether

it has asserted legal or factual sufficiency challenges, its arguments and the relief

requested by those arguments consistently seek rendition in its favor, on grounds that

either there is no evidence of a particular element of Garcia’s cause of action or that

Charles Clark proved its case or disproved Garcia’s as a matter of law. We therefore

construe Charles Clark's arguments as asserting legal-sufficiency or “no evidence”

challenges. See Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex. 1986) (stating

the well-settled rule that “no evidence” points require rendition in favor of appealing party).

       We conduct our review of sufficiency challenges to implied findings under the same

standards of review that govern sufficiency challenges to jury findings or a trial court's

findings of fact.   Roberson v. Roberson, 768 S.W.2d 280, 281 (Tex. 1989). We may

sustain a legal sufficiency challenge only when: (1) the record discloses a complete

absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes

conclusively the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

751 (Tex. 2003). In determining whether there is legally sufficient evidence to support the



                                              5
finding under review, we must consider evidence favorable to the finding if a reasonable

fact finder could and disregard evidence contrary to the finding unless a reasonable fact

finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

       Anything more than a scintilla of evidence is legally sufficient to support the finding.

Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). When the

evidence offered to prove a vital fact is so weak as to do no more than create a mere

surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).

More than a scintilla of evidence exists if the evidence furnishes some reasonable basis

for differing conclusions by reasonable minds about the existence of a vital fact. Rocor

Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002). If an appellant

attacks the legal sufficiency of an adverse finding on an issue on which it had the burden

of proof—such as an affirmative defense—"it must demonstrate on appeal that the

evidence conclusively established all vital facts in support of the issue." Tricon Tool &

Supply, Inc. v. Thumann, 226 S.W.3d 494, (Tex. App.–Houston [1st Dist.] 2006, pet.

denied) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)).

                             B. Fair Market Value Damages

       By its first issue, Charles Clark argues that there was no evidence of damages from

the alleged conversion. Specifically, Charles Clark appears to challenge the trial court's

implied finding that Garcia suffered damages in the amount of the fair market value of the

Corvette and contends that Garcia's testimony regarding the market value of the vehicle

is insufficient evidence to support the award. See Marchand, 83 S.W.3d at 795 (allowing



                                              6
an appellant to challenge the sufficiency of the evidence supporting a trial court's implied

finding). We disagree.

       "Generally, the proper measure of damages for conversion is the fair market value

of the items converted at the time and place of conversion." Khorshid, Inc. v. Christian,

257 S.W.3d 748, 760 (Tex. App.–Dallas 2008, no pet.). "A property owner is qualified to

testify to the market value of his property." Redman Homes, Inc. v. Ivy, 920 S.W.2d 664,

669 (Tex. 1996). Specifically, a car owner can testify as to the value of his own car. Foxx

v. DeRobbio, 224 S.W.3d 263, 268 (Tex. App.–El Paso 2005, no pet.) (citing Calvert Fire

Ins. Co. v. McClintic, 267 S.W.2d 568, 570 (Tex. Civ. App.–Waco 1954, writ ref'd n.r.e.)).

So long as it is based on the owner's estimate of market value and not some intrinsic or

other value, this evidence is considered probative. Redman Homes, 920 S.W.2d at 669.

In other words, a property owner's testimony regarding the market value of his property is

admissible evidence of damages "if his testimony shows he is familiar with the market

value and his opinion is based on that market value." Khorshid, 257 S.W.3d at 760.

       It is undisputed that Garcia was the owner of the Corvette, and at trial, Garcia

testified regarding the market value of the vehicle. He stated that he paid $53,000 for the

Corvette when it was new and that, at the time it was taken to Charles Clark, it had 26,499

miles on it. He testified that he would have asked at least $42,000 for the car if he had

tried to sell it on the open market in July 2007. When asked for the basis of that dollar

figure, Garcia stated that he considered "the equipment that the car has on it and with the

26,000 miles . . . that's the appraised value" that he would have given the car at that time.




                                             7
       Charles Clark argues that there is no evidence that Garcia was familiar with the

actual market value of his Corvette. Citing Hanks v. Gulf, Colorado & Santa Fe Railway

Co., 320 S.W.2d 333, 336 (Tex. 1959), Charles Clark also asserts that evidence of

unaccepted offers to buy or sell property is no evidence of fair market value. We are

unpersuaded by Charles Clark's contentions. A plaintiff need not use the exact words

"market value" to demonstrate his familiarity with the market value of his car. See

Mercedes-Benz of N. Am., Inc. v. Dickenson, 720 S.W.2d 844, 848-49 (Tex. App.–Fort

Worth 1986, no writ) (citing Porras v. Craig, 675 S.W.2d 503, 504-05 (Tex. 1984)); see also

Guar. County Mut. Ins. Co. v. Williams, 732 S.W.2d 57, 60 (Tex. App.–Amarillo 1987, no

writ) (holding that "even if the owner is not asked if he is familiar with the market value of

his property, his opinion testimony of value is sufficient if it shows that it refers to market

value" (emphasis added)). Rather, the plaintiff demonstrates his qualification to testify as

to the value of the disputed property if his testimony includes factors relevant to the market

value rather than factors merely relevant to intrinsic or personal value. See First Nat'l Bank

of Mo. City v. Gittelman, 788 S.W.2d 165, 169 (Tex. App.–Houston [14th Dist.] 1990, no

writ) (holding that there was some evidence of market value where the property owner

testified that she considered relevant market factors in arriving at her opinion); see also

Redman Homes, 920 S.W.2d at 669. Here, Garcia testified that he based his estimate of

market value on the equipment in the Corvette and the mileage on the vehicle. These are

both objective factors relevant to the market value of the Corvette, not merely the intrinsic

value of the vehicle to Garcia. See Gittelman, 788 S.W.2d at 169; Dickenson, 720 S.W.2d

at 849.    Garcia's testimony is, therefore, some evidence—certainly more than a



                                              8
scintilla—of the market value of the Corvette, and we cannot agree with Charles Clark that

no evidence supported the trial court's award of fair market value damages. See Rocor

Int'l, Inc., 77 S.W.3d at 262; Cazarez, 937 S.W.2d at 450. Charles Clark's first issue is

overruled.

                               C. Authorization for Repair

       In its second issue, Charles Clark appears to challenge the trial court's implied

finding that Garcia did not authorize the replacement of the engine in his Corvette and

conclusion that Charles Clark did not prove its affirmative defense that it held a possessory

worker's lien on the vehicle. See Marchand, 83 S.W.3d at 795. We construe this issue as

an argument by Charles Clark that the evidence is insufficient to establish conversion—

i.e., that it wrongfully exercised dominion or control over the Corvette inconsistent with

Garcia's rights. See Smith v. Maximum Racing, Inc., 136 S.W.3d 337, 341-42 (Tex.

App.–Austin 2004, no pet.) (reasoning that where a defendant has a lawful worker's lien

on a vehicle, possession cannot be wrongful or unlawful as required to establish

conversion); Hydra-Rig, Inc. v. ETF Corp., 707 S.W.2d 288, 290 (Tex. App.–Fort Worth

1986, writ ref'd n.r.e) (holding that a worker's lien is not valid if the repairs were not

authorized by the owner of the property).

       At trial, Garcia testified that a friend took the Corvette to Charles Clark while Garcia

was out of town because, among other reasons, the engine would not start. After Garcia

returned to town, he signed a contract authorizing Charles Clark to make repairs relevant

to the complaints made by his friend when he brought the Corvette to the dealership,

including that the "engine won't crank" and that the "engine won't fire up." That contract



                                              9
appears in the record and includes the following language: "I hereby authorize the above

repair work to be done along with the necessary material . . . " (emphasis added). We

conclude that "the above repair work" includes remedying the complaints made about the

engine.

       However, the parties dispute the extent of the repairs that were authorized. A

Charles Clark service manager testified at trial that he informed Garcia that the Corvette's

engine needed to be replaced and that, although Garcia was upset about that diagnosis,

he agreed to the repair. Garcia does not deny he signed the contract but testified that he

never authorized replacement of the engine. He stated that, at some point before the

engine was replaced, he went to the dealership and that the Corvette was running at that

time. Garcia testified that the service manager told him at that meeting that there were still

problems with the engine—a clunking noise that Garcia stated he could not hear—and that

further repairs were needed. In his testimony at trial, Garcia insisted that he was never

informed, prior to the engine being replaced, that engine replacement was the repair

needed. Garcia stated that the only repair he agreed to was a repair to the alternator and

that he tendered payment of $1,500 to Charles Clark to cover that repair.

       Because it is within the fact finder's—here, the trial court's—sole province to resolve

conflicting testimony, we must conclude that there was legally sufficient evidence that

Garcia did not authorize the engine replacement in the Corvette. See Ins. Network of Tex.

v. Kloesel, 266 S.W.3d 456, 469 (Tex. App.–Corpus Christi 2008, pet. denied) (citing City

of Keller, 168 S.W.3d at 819) (holding that the fact finder is the ultimate judge of a

witness's credibility, that it may choose to believe one witness over another, and that we

may not impose our own opinion to the contrary). And having concluded that the evidence

                                             10
supported the trial court's implied finding that the engine replacement was not authorized

by Garcia, we also conclude Charles Clark failed to demonstrate that the evidence

conclusively established its affirmative defense that it held a possessory lien on the

Corvette. See Tricon Tool, 226 S.W.3d at 501; Hydra-Rig, Inc., 707 S.W.2d at 290

(holding that there can be no valid worker's lien if the repairs made to the property were not

authorized by the owner). Therefore, there was more than a scintilla of evidence that

Charles Clark wrongfully exercised dominion or control over the Corvette inconsistent with

Garcia's rights. See Cazarez, 937 S.W.2d at 450; Smith, 136 S.W.3d at 341-42; see also

Worford, 801 S.W.2d at 109 (holding that a trial court's judgment must be affirmed if it can

be upheld on any legal theory that finds support in the evidence). Charles Clark's second

issue is overruled.

                                III. TITLE TO THE CORVETTE

       By its fourth and final issue, Charles Clark argues that the trial court's judgment is

erroneous because it awards damages for conversion without disposing of title to the

Corvette. We agree. A successful suit for conversion amounts to a forced sale, and the

judgment in that case must provide that upon payment of money damages, the ownership

of the property is to vest in the defendant. See Virgil T. Walker Constr. Co., Inc. v. Flores,

710 S.W.2d 159, 161 (Tex. App.–Corpus Christi 1986, no writ) (citing Fox v. Am. Propane,

Inc., 508 S.W.2d 426, 428 (Tex. Civ. App.–Austin 1974, writ ref'd n.r.e.)). Here, the

judgment awards money damages to Garcia but fails to vest ownership of the Corvette in

Charles Clark. The trial court erred in entering this judgment without a provision disposing

of title to the Corvette in Charles Clark's favor. See Fox, 508 S.W.2d at 428. Charles

Clark's fourth issue is therefore sustained.



                                               11
                                             IV. CONCLUSION

        The judgment of the trial court is affirmed insofar as it awards damages to Garcia

for the fair market value of the Corvette reduced by the amount of money he received from

his insurance carrier. However, we reverse the judgment to the extent it fails to dispose

of title to the Corvette, and in light of the outstanding debt still owed by Garcia on the

Corvette,7 we remand for further proceedings to dispose of title to the car and, if necessary,

adjust the money damages accordingly.

                                                                    NELDA V. RODRIGUEZ
                                                                    Justice

Delivered and filed the
8th day of April, 2010.




        7
         See Fox v. Am. Propane, Inc., 508 S.W .2d 426, 428-29 (Tex. Civ. App.–Austin 1974, writ ref'd n.r.e.)
(reasoning that a plaintiff's recovery in conversion could potentially be lim ited by his equity of redem ption
because "while [a] wrongdoer is not allowed to profit from his own wrongdoing, the sam e rule should apply
to the party allegedly aggrieved.").

                                                     12
