                                  IN THE
                          TENTH COURT OF APPEALS

                               No. 10-07-00002-CV

JOSE LUIS LOPEZ,
                                                          Appellant
v.

AMY ELIZABETH LOPEZ,
                                                          Appellee



                          From the 19th District Court
                           McLennan County, Texas
                          Trial Court No. 2005-2429-1


                                   OPINION


      Jose Lopez sued Amy Lopez (now Amy Avila), his former sister-in-law, for

conversion of $15,000. After a bench trial, the court rendered a take-nothing judgment.

Upon review of the legal and factual sufficiency of the evidence, we will reverse and

remand for a new trial.

                                   I. Background

      In September 2002, Wenceslao Lopez, Jose’s brother and Amy’s then-husband,

was detained by the Immigration and Naturalization Service (INS) in San Antonio. A
cash bond for Wenceslao’s release was set at $15,000. Jose got $15,000 in cash from his

trust account to put up the cash bond.1 Amy and Jose then drove together from Waco

to San Antonio to obtain Wenceslao’s release. When they arrived at INS, Jose asked

Amy to go inside to post the cash bond because he was concerned that the INS would

also detain him. Amy went in with the money, but the INS did not accept cash and

asked Amy to return with a cashier’s check. Amy and Jose went to a bank, Amy gave

the cash back to Jose, and he secured a cashier’s check payable to the INS with his name

as the remitter. Jose then gave the check to Amy, who returned to the INS, posted the

bond using the cashier’s check, and obtained a receipt for it in her name. The receipt

allowed only the person who posted the bond to reclaim the money once the INS case

was concluded.

        In 2003, Amy and Wenceslao separated and began the divorce process. The INS

receipt became an issue because Wenceslao’s INS case had been resolved, the cash bond

could be released, and Wenceslao told Amy that Jose wanted his money back.

Approximately six months after the divorce was final in December 2003, Amy sent the

necessary paperwork to the INS and obtained the $15,000, which she then spent.

        In July 2005, Jose filed a “Motion to Show Cause” seeking a court order that Amy

surrender possession of the INS receipt. When Amy refused to return the receipt or the

money, Jose filed an amended petition alleging that Amy had converted the $15,000.

On the day of trial, Amy filed a supplemental answer that asserted the statute of



1The source of the funds in Jose’s trust account was a judgment he had obtained for a serious head injury
he had suffered in an auto accident.

Lopez v. Lopez                                                                                     Page 2
limitations and the statute of frauds as affirmative defenses.

        At trial, Jose testified that the $15,000 cash bond was not a gift or a loan and that

he expected return of the cashier’s check proceeds held by the INS. Amy testified that

she considered the money to be a gift for securing Wenceslao’s release. The trial court

rendered a take-nothing judgment against Jose and did not issue findings of fact and

conclusions of law.2 Jose raises three issues in this appeal: (1) the trial court’s implied

adverse finding of no conversion of the receipt or its $15,000 cash proceeds is against

the great weight and preponderance of the evidence; (2) conversion was established as a

matter of law; and (3) the application of the statute of frauds or the statute of limitations

was improper.

                                                II. Conversion

        Jose generally argues that the trial court erred in not finding that Amy converted

the $15,000 INS receipt or its cash proceeds. Amy first responds that Jose’s pleadings

fail to address conversion of the receipt and therefore complaints about the receipt’s

conversion are not preserved. However, the issue of whether the conversion claim was

based on conversion of the receipt or its subsequent cash proceeds was tried by consent

because Amy made no timely objection to evidence of the receipt’s conversion at trial.

See TEX. R. CIV. P. 67; see, e.g., Sw. Resolution Corp. v. Watson, 964 S.W.2d 262, 264 (Tex.



2 Jose requested findings of fact and conclusions of law, but when the trial court did not file the findings
and conclusions, Jose did not file a “Notice of Past Due Findings of Fact and Conclusions of Law.” See
TEX. R. CIV. P. 297. When the trial court does not issue findings of fact and conclusions of law, all fact
findings necessary to support the trial court’s judgment are implied. Worford v. Stamper, 801 S.W.2d 108,
109 (Tex. 1990). When the appellate record includes a reporter's record, however, these implied findings
are not conclusive and may be challenged for legal and factual sufficiency. Roberson v. Robinson, 768
S.W.2d 280, 281 (Tex. 1989).

Lopez v. Lopez                                                                                       Page 3
1997).

A.       Elements

         To establish conversion of personal property, a plaintiff must prove that: (1) the

plaintiff owned or had legal possession of the property or entitlement to possession; (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 as an owner; and (3) the plaintiff suffered injury. United Mobile Networks, L.P. v.

Deaton, 939 S.W.2d 146, 147-48 (Tex. 1997); Apple Imports, Inc. v. Koole, 945 S.W.2d 895,

899 (Tex. App.—Austin 1997, pet. denied).          If the defendant originally acquired

possession of the plaintiff’s property legally, the plaintiff must establish that the

defendant refused to return the property after the plaintiff demanded its return. Presley

v. Cooper, 155 Tex. 168, 284 S.W.2d 138, 141 (1955); Apple Imports, 945 S.W.2d at 899.

B.       Standard of Review

         Jose’s first two issues involve the legal and factual sufficiency of the evidence.

Jose argues that the evidence established conversion as a matter of law and that the trial

court’s implied finding of no conversion is against the great weight and preponderance

of the evidence.

         When the party that had the burden of proof at trial complains on appeal of the

legal insufficiency of an adverse finding, that party must demonstrate that the evidence

establishes conclusively, i.e., as a matter of law, all vital facts in support of the finding

sought. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Consistent with City of

Keller v. Wilson, we first search the record for evidence favorable to the adverse finding,

Lopez v. Lopez                                                                           Page 4
disregarding all contrary evidence unless a reasonable factfinder could not.3 One Ford

Mustang v. State, 231 S.W.3d 445, 449 (Tex. App.—Waco 2007, no pet.) (citing City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Dallas County Constable v. Garden City

Boxing Club, Inc., 219 S.W.3d 613, 616 (Tex. App.—Dallas 2007, no pet.); Sellers v. Foster,

199 S.W.3d 385, 392 (Tex. App.—Fort Worth 2006, no pet.)). If we find no evidence

supporting the finding, we then determine whether the contrary was established as a

matter of law. Id.

        When the party complaining of the factual insufficiency of the evidence had the

burden of proof at trial, that party must demonstrate that the adverse finding is

contrary to the great weight and preponderance of the evidence. Francis, 46 S.W.3d at

242. We weigh all the evidence, and we can set aside the adverse finding only if it is so

against the great weight and preponderance of the evidence that it is clearly wrong and

unjust. Id.

C.      The Evidence

       We begin by reviewing all the relevant evidence in context. See City of Keller, 168

S.W. 3d at 811. Jose testified to the following pertinent facts:

       Amy called and asked Jose to put up $15,000 for his brother’s bail. Jose never
       told Amy that the $15,000 was a gift to her or to Wenceslao, and Amy never
       expressed gratitude for receiving the money to indicate to Jose that she
       understood the money to be a gift. Jose told Amy that as soon as the INS case
       was resolved, he needed his money back. Jose previously had loaned Wenceslao

3 We must consider whether the evidence at trial would enable a reasonable and fair-minded factfinder to
reach the finding under review, crediting favorable evidence if a reasonable factfinder could and
disregarding contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168
S.W.3d 802, 822, 827 (Tex. 2005). We cannot disregard undisputed evidence that allows of only one
logical inference because, by definition, such evidence can be viewed in only one light, and a reasonable
factfinder can reach only one conclusion from it. Id. at 814, 822.

Lopez v. Lopez                                                                                    Page 5
       money, but the $15,000 was not loaned to Amy or Wenceslao. Its purpose was to
       get Wenceslao out of INS custody.

       Jose never told Wenceslao that the $15,000 was a loan to him and has never
       approached Wenceslao about payment because he never thought that Wenceslao
       possessed the money.

       Jose has asked Amy either to get the money from the INS for him or to sign over
       the INS receipt to him, and she has refused.

       Wenceslao has not paid Jose any of the $15,000.

Amy testified to the following pertinent facts:

        Amy said that Jose gave her the money “to go post bond for his brother.” Her
        understanding was that the $15,000 was a gift from Jose to secure the release of
        his brother, and she has never claimed that the money was a loan. Amy
        repeatedly testified that she considered the money to be a gift and not a loan:

        Q.      Was it an understanding that it [the $15,000] was a gift?
        A.      My understanding.
        Q.      Okay. And so when – have you ever made an allegation that it was
        a gift?
        A.      No.
        ...
        Q.      Okay. But you’re maintaining that it was yours. Correct? It was a
        gift?
        A.      Yes.
        ...
        Q.      And so when he gave you the cashier’s check to take in to INS, you
        at that time did not think that that money was yours. Correct?
        A.      I just took the check. I wasn’t thinking of any – I don’t know what I
        was thinking at that time. I just took the money and took the check and
        went to see if I could get my husband out. That’s all I was thinking about
        at the time, honestly.
        ...
        Q.      Were there any discussions on the way to San Antonio, at the INS
        office, at the bank when you were getting the cashier’s check with Jose
        Lopez that you were to repay him for this $15,000 at any point?
        A.      No, there wasn’t.
        Q.      Did you expect at that time that you were going to have to pay this
        $15,000 back?
        A.      No.

Lopez v. Lopez                                                                          Page 6
        ...
        Q.     Were there any discussions with respect to the cashier’s check, that
        this was his money, he expected it back, it’s a loan, anything of that
        nature?
        A.     No, sir.
        ...
        Q.     Now, ma’am, have you ever agreed with Jose Lopez, the plaintiff in
        this case, that you owed him any money?
        A.     No.
        Q.     Have you ever agreed with Jose Lopez, the plaintiff in this case,
        that you were going to repay him any money?
        A.     No, sir.
        Q.     Have there ever been any discussions between you and Jose Lopez
        that you owed him any money?
        A.     No, sir.
        Q.     Have there ever been any discussions between you and Jose Lopez
        that you were going to repay him any money?
        A.     No, sir.
        ...
        Q.     Have you ever had any discussions with Mr. Lopez that this was a
        gift to you, this money? Did he say, “I’m giving you this money. It’s
        yours as a gift”?
        A.     No. He just said, “Here. Take it. Go get my brother.”

        During her divorce, Amy told her divorce attorney that money was missing from
        her bank account and that she had the INS receipt in her name: “that’s what I
        went to talk to him about was the money that was missing from our account, our
        joint checking account between Wenceslao and I, and this money here [the
        $15,000 held by the INS] that is sitting there, that I felt was owed to me.” “I felt
        the money [the $15,000] was mine when it [$14,500] was missing from my
        account, and when [Wenceslao] told me he had paid [Jose] back. I felt it was
        mine.” Her divorce attorney told her she could get the money from the INS
        because the receipt was in her name and because “it was hers.”

        When Amy was required to list her separate property assets in the divorce
        proceeding, she did not list the INS receipt. She obtained the money from the
        INS in June or July of 2004, after her divorce was final.

        Wenceslao told her that Jose was “on his back” and that he needed to pay Jose
        back, and Wenceslao indicated to her that the money missing from their joint
        checking account went to paying Jose back.



Lopez v. Lopez                                                                        Page 7
Don Raybold testified to the following pertinent facts:

        He was Wenceslao’s divorce attorney, and during the divorce when the INS
        bond was discussed, Amy stated that the INS funds belonged to Jose. A request
        for disclosure was sent to Amy in the divorce case, and the $15,000 was not listed
        as an asset of Amy’s in her response.

        He stated that the $15,000 was purposely omitted from the divorce decree
        because it was neither an asset nor a liability of Amy or Wenceslao; it was
        understood to belong to Jose.

        Later in 2006, a few weeks before the trial of this case, Raybold appeared at a
        child-support-related hearing on behalf of Wenceslao, and outside of the hearing
        Amy told Raybold “that the money was Jose’s, but her lawyer said she could
        keep it.”

D.      Discussion

        Jose, as the plaintiff, had the burden of proof on his conversion claim. The trial

court entered a take-nothing judgment on that claim but did not issue findings of fact

and conclusions of law. Without express findings, in our legal sufficiency review, we

must review the sufficiency of the evidence against all implied adverse findings

necessary to support the judgment. In the context of the parties’ pleadings and the

evidence in this case, we and the parties can point to only two possible implied adverse

findings necessarily to support the trial court’s take-nothing judgment on Jose’s

conversion claim: an implied adverse finding of a loan, or an implied adverse finding of

a gift.4 With those two possible implied adverse findings and Jose’s appellate issue

asserting that he established his conversion claim as a matter of law, we first must

examine the record for some evidence supporting the two implied adverse findings of a


4When he announced his ruling, the trial judge stated that the thought the $15,000 was a loan, but such
an oral announcement is not a reviewable finding of fact or conclusion of law. See Larry F. Smith, Inc. v.
The Weber Co., 110 S.W.3d 611, 615 (Tex. App.—Dallas 2003, pet. denied).

Lopez v. Lopez                                                                                     Page 8
loan or a gift, disregarding all contrary evidence unless a reasonable factfinder could

not.5 See One Ford Mustang, 231 S.W.3d at 449. Also, we cannot disregard undisputed

evidence that allows of only one logical inference. See City of Keller, 168 S.W.3d at 814,

822.

        1. Loan

        There is no legally sufficient evidence that the transaction was a loan. Amy

testified repeatedly that Jose did not loan her the $15,000. Her testimony was that Jose

made a $15,000 gift to her, and nothing in the record indicates that Amy could not

distinguish a loan from a gift. Indeed, the lengths at which Amy was questioned over

whether the $15,000 was a gift or a loan reflect that she could make such a distinction.

        Jose likewise testified that he did not loan the $15,000 to Amy or Wenceslao.

There was evidence that Jose had previously loaned Wenceslao money, but with Amy’s

and Jose’s specific and undisputed testimony that this $15,000 transfer was not a loan,

an inference that this transfer also was a loan is neither logical nor reasonable. A

reasonable factfinder could not disregard the clear and undisputed testimony of both

the plaintiff and the defendant and make an implied adverse finding of a loan. See City

of Keller, 168 S.W.3d at 807. To the extent the trial court impliedly found that Amy

lawfully possessed the INS receipt or its $15,000 cash proceeds because Jose had loaned

her the money, no evidence supports that implied adverse finding because a reasonable

factfinder could not disregard the overwhelming and undisputed contrary evidence



5In examining the record for some evidence supporting the implied adverse findings, we are not shifting
the burden of proof; we are applying the proper standard of review on a “matter of law” appellate issue.

Lopez v. Lopez                                                                                   Page 9
that allows of only one logical inference regarding whether the transfer at issue in this

case was a loan—it was not a loan. See id. at 814, 822.

        2. Gift

        A gift is a voluntary transfer of property to another made gratuitously and

without consideration. Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 569 (1961); Roberts

v. Roberts, 999 S.W.2d 424, 431 (Tex. App.—El Paso 1999, no pet.). Three elements are

required to establish the existence of a gift: (1) the donor’s intent to make a gift; (2)

delivery of the property; and (3) acceptance of the property. Harrington v. Bailey, 351

S.W.2d 946, 948 (Tex. Civ. App.—Waco 1961, no writ). Donative intent must exist at the

time of the transfer, not at the time of a subsequent event. See, e.g., Rusk v. Rusk, 5

S.W.3d 299, 303-05 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

        There is no legally sufficient evidence of Jose’s intent to make a gift of the $15,000

to Amy that would support an implied adverse finding that Amy lawfully possessed

the INS receipt or its $15,000 cash proceeds because it was a gift. Jose testified that he

told Amy that he needed his money back after Wenceslao’s INS case was resolved. On

cross-examination, Amy testified that Jose never told her that the money was a gift and

that she never thanked Jose for giving her the money, which would have at least

indicated to Jose her understanding that the money was a gift and would have allowed

him the opportunity to controvert her understanding. Instead, she was clear that she

did not “feel” that the money was a gift until she had discovered that a similar amount

of money was missing from her joint bank account during her divorce.

        The undisputed purpose for Jose’s delivery of his own money to Amy—for her

Lopez v. Lopez                                                                         Page 10
to deliver the funds to the INS to post a cash bond for Wenceslao’s release from INS

custody—eliminates any possible reasonable inference of Jose’s intent to gift the money

to Amy.       Amy’s belated determination that Jose had “given” her the money—a

determination that she made only to offset Wenceslao’s alleged taking of a similar

amount of money from their joint checking account—is no evidence of Jose’s donative

intent. Cf. Rusk, 5 S.W.3d at 303-05 & nn.3, 5 (holding that trial court’s finding that stock

transfer from parent to child was not a premarital gift was against the great weight

because of undisputed underlying evidence and overwhelming contrary evidence that

premarital gift was made). Viewing the undisputed underlying facts and purpose of

the transfer and Amy’s testimony about why and when she determined that the money

was a gift in the light favorable to the trial court’s implied adverse finding of a gift, we

conclude that a reasonable factfinder could not have credited Amy’s testimony as some

evidence of Jose’s donative intent and could not have disregarded the undisputed

underlying evidence about the money’s transfer. See City of Keller, 168 S.W.3d at 807,

814, 827; Rusk, 5 S.W.3d at 303 n.3 (“we cannot ignore undisputed evidence and

otherwise corroborated proof”).

        The undisputed underlying evidence points to a bailment of Jose’s money

between Jose and Amy.6             See Small v. Small, 216 S.W.3d 872, 877-78 (Tex. App.—



6“[B]ailment” is defined as follows:
        A delivery of personal property by one person (the bailor) to another (the bailee) who
        holds the property for a certain purpose under an express or implied-in-fact contract.
        Unlike a sale of personal property, a bailment involves a change in possession but not
        title.
BLACK’S LAW DICTIONARY 151-52 (8th ed. 2004). The elements of a bailment are: (1) the delivery of
personal property by one person to another in trust for a specific purpose; (2) acceptance of such delivery;

Lopez v. Lopez                                                                                      Page 11
Beaumont 2007, pet. denied) (noting that, in the case of alleged conversion of diamond,

plaintiffs’ version of transfer of diamond reflected a bailment). Amy’s possession of the

funds and cashier’s check was for the sole purpose of delivering it to the INS on Jose’s

behalf to secure Wenceslao’s release. Even though the INS issued the receipt in Amy’s

name, the receipt did not transfer ownership of the money to her. It merely allowed her

to obtain the return of the money from the INS.

        3. Conversion as a Matter of Law

        Having determined that there is no evidence to support the adverse implied

findings of either a loan or a gift, we necessarily conclude that the only reasonable

finding on the evidence in the record is that Amy unlawfully exercised dominion and

control over the $15,000 to the exclusion of Jose’s rights as the owner upon his demand

that she return it.

        The evidence is undisputed that (1) the purpose for the delivery of Jose’s $15,000

to Amy was to put up a cash bond for Wenceslao; (2) Amy posted the bond in Jose’s

stead only because Jose did not want to risk being placed in INS custody; and (3)



(3) an express or implied contract that the trust will be carried out; and (4) an understanding under the
terms of the contract that the property will be returned to the transferor or dealt with as the transferor
directs. Small, 216 S.W.3d at 877-78.
         The dissent misconstrues our reference to bailment. By noting bailment, we do not intimate that
Jose established a breach-of-contract claim for breach of a bailment contract. Rather, Texas law is clear
that a conversion claim lies when a bailee refuses to return bailed property. See Presley v. Cooper, 155 Tex.
168, 284 S.W.2d 138, 140 (1955); Texas Diamond Int’l, Inc. v. Tiffany & Co., 47 S.W.3d 589, 592 (Tex. App.—
San Antonio 2001, pet. denied); International Freight Forwarding, Inc. v. American Flange, 993 S.W.2d 262,
266, 269 (Tex. App.—San Antonio 1999, no pet.); Kirkland v. Mission Pipe & Supply Co., 182 S.W.2d 854,
855 (Tex. Civ. App. 1944, writ ref’d w.o.m.); see also Barker v. Eckman, 213 S.W.3d 306, 310
(Tex. 2006) (noting that bailment claims “generally can be brought as contract or tort claims depending on
the particular facts of the case and the type of action the plaintiff chooses to assert”). In this case, Jose
chose to sue Amy in tort for conversion, so by referring to bailment we are not holding that Jose
conclusively proved an unpled claim or theory.

Lopez v. Lopez                                                                                       Page 12
several years later Amy “felt” that the money was hers to offset Wenceslao’s allegedly

taking an almost identical amount from their joint bank account. In other words, Amy

admittedly took Jose’s money because Wenceslao took a similar amount of money from

Amy and Wenceslao’s joint account. Jose thus conclusively established that the money

belonged to him and that Amy unlawfully exercised control over the money adverse to

his ownership; he conclusively established the first two elements of his conversion

claim. We sustain in part issue two.

        4. Injury

        On the third element of conversion—the plaintiff suffered injury—Amy testified

several times that Wenceslao told her that he had paid Jose back. She also testified that

during her divorce, she had her bank records analyzed and over $14,500 was

unaccounted for and was withdrawn by Wenceslao. However, on cross-examination,

Amy testified as follows:

        [Q]: And so it’s your testimony that my client has been paid back already. Is that
        it?

        [A:] According to his brother, yes. And I don’t know that. I don’t have any
        record. I don’t see that, but that’s what I was told, yes.

She later testified that she did not know where the missing money had gone from her

bank account. Jose unequivocally testified that Wenceslao never paid him back any of

the $15,000.

        Amy’s testimony, while equivocal, is some evidence that Jose was repaid by

Wenceslao, so we cannot say that Jose conclusively established that he suffered a

$15,000 injury from Amy’s conversion. But considering all the evidence on injury—

Lopez v. Lopez                                                                     Page 13
Amy’s testimony that she was told that Jose was repaid around $14,500, and Jose’s

testimony that he was not repaid at all—the trial court’s implied adverse finding that

Jose suffered no injury is against the great weight and preponderance of the evidence.

We therefore sustain in part issue one.

                                   III. Affirmative Defenses

         We now turn to whether Amy’s affirmative defenses are correctly before this

court.    On the day of trial, without requesting leave of court, Amy tendered her

supplemental answer that asserted the statute of frauds and the statute of limitations as

affirmative defenses.7

          Jose’s third issue argues that the application of the statute of frauds and statute

of limitations was improper because those defenses were not timely pled, contending

that Rule 63 of the Texas Rules of Civil Procedure allows responsive pleadings to be

filed within seven days of trial only when leave of court is obtained. TEX. R. CIV. P. 63.

However, Jose failed to object to this pleading at trial, and the defenses were therefore

tried by consent. See TEX. R. CIV. P. 67. We overrule Jose’s third issue in part.

         We finally address the trial court’s implied adverse finding on Amy’s affirmative

defenses of the statute of frauds and the statute of limitations. Within this third issue,

Jose challenges the legal sufficiency of the trial court’s implied adverse findings that the

statute of frauds and the statute of limitations barred Jose’s conversion claim. Because

we have concluded that the transfer of the money was not a loan, the statute of frauds is

inapplicable to this case. We further hold that the statute of limitations does not bar

7 The trial judge orally stated that he thought the $15,000 was a loan and was therefore barred by the
statute of frauds because the agreement was not in writing.

Lopez v. Lopez                                                                                Page 14
Jose’s conversion claim.

        Amy had the burden of proof at trial to prove that Jose did not bring his claim

within two years of his demand and her refusal of the $15,000. Amy argues that the

statute of limitations ran because the cause of action, if any, accrued when she caused

the INS receipt to reflect that she was the owner of the funds. But when a party accused

of illegally converting property originally had lawful possession, the cause of action for

conversion does not arise, and the limitations period does not begin to run, until (1) the

return of the property has been demanded and refused, or (2) the party in possession

has unequivocally exercised acts of dominion over the property inconsistent with the

claims of the owner. Sharpe v. Roman Catholic Diocese, 97 S.W.3d 791, 796 (Tex. App.—

Dallas 2003, pet. denied).

        Jose testified that he asked Amy about the money immediately after the INS

dismissed Wenceslao’s case and she responded that she could not locate the receipt.

Amy testified that Jose did not ask her about the money or the receipt until May 2005,

and she replied that he needed to speak to Wenceslao regarding the matter. There is no

evidence that Jose demanded return and Amy refused return of the money more than

two years before suit was filed. Furthermore, Amy’s testimony conclusively established

that her refusal to return the money upon Jose’s request occurred in May 2005, and Jose

filed suit in July 2005. And even if the date that Amy obtained the funds from the INS

is when she unequivocally exercised dominion over the funds inconsistent with Jose’s

claim as the owner, her testimony conclusively established that date as June or July of

2004, which is within two years of the suit’s filing. Accordingly, there is no legally

Lopez v. Lopez                                                                     Page 15
sufficient evidence to support the trial court’s implied finding that Jose demanded

return and Amy refused return of the money more than two years before suit was filed.

We sustain in part Jose’s third issue.

                                         IV. Conclusion

        Having sustained in part Jose’s three issues, we reverse the trial court's judgment

and remand the case for new trial.



                                                      GLEN HARRISON
                                                      Judge
Before Chief Justice Gray,
       Justice Vance, and
       Judge Harrison8
       (Chief Justice Gray dissents with a note)*
Reversed and remanded
Opinion delivered and filed November 5, 2008
[CV06]



        *(Chief Justice Gray would request a response to the motion for rehearing with a
        view to granting it. He would not rewrite the opinion to address either the
        motion for rehearing (or the dissenting opinion) without requesting a response.
        He does not withdraw his dissenting opinion issued on August 13, 2008, so
        another dissenting opinion will not issue. He notes, however, that the Court is in
        error in assuming the trial court had to impliedly make any findings. Jose had to
        prove conversion. He failed to convince the trial court. In his review of the trial
        court’s judgment he cannot conclude that the trial court erred. It is improper to
        substitute the Court’s judgment on a review of a cold record for the trial court’s
        judgment with the trial court’s ability to evaluate the credibility and demeanor of
        the live witnesses. Because Jose had the burden of proof and, even according to
        the Court, failed to prove the legal relationship under which Amy was in
        possession of the receipt or the proceeds thereof, the trial court did not err when
        it rendered a take nothing judgment against Jose. Additionally there is some

8 Glen Harrison, Judge of the 32nd District Court of Fisher, Mitchell, and Nolan Counties, sitting by
assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the
Government Code. See TEX. GOV’T CODE ANN. § 74.003(h) (Vernon 2005).

Lopez v. Lopez                                                                                Page 16
        question of whether a party that lost on a theory tried by implied consent can
        appeal that loss. The theory of trial-by-implied-consent is a judgment saving
        theory.)




Lopez v. Lopez                                                                  Page 17
