Opinion
NO. 03-16-00712-CV
05-03-2017
Tammy Fabian, Appellant v. Floyd M. Cantwell, Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
NO. 44973 , HONORABLE EVAN C. STUBBS, JUDGE PRESIDING MEMORANDUM OPINION
Tammy Fabian appeals the trial court's summary judgment in favor of Floyd M. Cantwell on Fabian's conversion claim alleging that Cantwell converted various items of personal property from a mobile home that she owned and was located on Cantwell's property. Fabian contends that she presented evidence sufficient to raise a genuine issue of material fact on the elements of conversion challenged by Cantwell in his no-evidence summary-judgment motion. For the following reasons, we will affirm the trial court's judgment.
BACKGROUND
The parties are familiar with the facts, procedural history, and applicable standards of review and we, accordingly, dispense with a lengthy recitation of them except as necessary to explain the basic reasons for our determination. See Tex. R. App. P. 47.4.
Fabian filed this lawsuit against Cantwell, alleging that he removed various items of her personal property—including a large whirlpool bath tub, carpet, cabinets, sinks, toilets, and ceiling fans—from her mobile home and converted the items to his own use. Fabian allegedly inherited the mobile home from her mother and, after her mother's death, began making rental payments for the mobile-home lot located on Cantwell's property. In her pleadings, Fabian admitted that she owed several months of back rent and was not living in the mobile home but in a different city at the time of the alleged conversion and that she did not become aware that the items had been removed from the mobile home until over a year later during which time the mobile home sat vacant. In the interim, Fabian sent Cantwell a "cease and desist letter" seeking to prevent him from pursuing "unlawful debt collection" practices and "interfering" with the sale of her mobile home.
Cantwell filed counterclaims for breach of contract and quantum meruit, contending that Fabian owed him several thousand dollars in past-due rent. Cantwell later filed a no-evidence motion for summary judgment, which the trial court granted after Fabian filed a timely response and the court conducted a hearing on the motion. After the trial court's summary judgment, Cantwell non-suited his counterclaims, and the trial court entered an order of non-suit. Fabian appeals the trial court's grant of Cantwell's summary-judgment motion.
DISCUSSION
In one issue, Fabian contends that the trial court erred in granting Cantwell's no-evidence summary-judgment motion because the evidence that she presented raised a genuine issue of material fact on the challenged elements of her conversion claim. See Tex. R. Civ. P. 166a(i) (requiring court to grant no-evidence summary-judgment motion unless respondent brings forth more than scintilla of probative evidence raising genuine issue of material fact); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). In his no-evidence motion, Cantwell asserted that Fabian could not prevail on her conversion claim because an adequate time for discovery had passed and there was no evidence that (1) Cantwell exercised dominion or control over the property and (2) Fabian suffered injury. See Lawyers Title Co. v. J.G. Cooper Dev., Inc., 424 S.W.3d 713, 718 (Tex. App.—Dallas 2014, pet. denied) (listing elements of conversion); see also Fort Brown Villas III Condo. Ass'n v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009) (to succeed on no-evidence summary-judgment motion, defendant must allege that, after adequate time for discovery, there is no evidence of essential element of plaintiff's cause of action); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003) (noting that appellate courts review no-evidence summary- judgment motions under legal-sufficiency standard, and summary judgment is properly granted if non-movant brings forth less than scintilla of evidence to raise genuine issue of material fact).
In the opening portion of her brief, Fabian briefly lists a second issue—that the trial court improperly granted the no-evidence motion because "the statute of limitations had expired on Appellee's countersuit"—but does not revisit or brief the issue at all in the body of her brief. We, accordingly, do not address the issue and conclude that Fabian has waived it due to this wholly inadequate briefing. See Tex. R. App. P. 38.1; Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994). However, were we to address Fabian's second issue, we would overrule it because Cantwell did not seek summary judgment on his counterclaims, the trial court did not rule on them, and Cantwell later non-suited them, upon which the trial court entered an order of non-suit dismissing Fabian's lawsuit in its entirety.
Fabian, appearing pro se throughout these proceedings, attached several exhibits to her response to Cantwell's no-evidence motion: (1) a cease-and-desist letter that she sent to Cantwell many months prior to discovering that her property was stolen, demanding that he cease his "unlawful debt collection tactics"; (2) a police report noting that "someone" had removed all of the personal property from the mobile home; (3) Cantwell's affidavit, in which he unequivocally denied exercising dominion or control over the property at issue; (4) an electricity bill showing that Fabian was liable on an account for the mobile home at issue for a period of time; (5) a "Notice to Correct Deceptive Trade Practices," in which Fabian notified Cantwell that he was allegedly in violation of the DTPA by "misrepresent[ing] the extent and amount of consumer debt" that she owed him; (6) bank records showing thirty-five checks evidencing rent payments made to Cantwell for the real property occupied by the mobile home; (7) a tax statement showing the amount owing in property taxes on the mobile home; and (8) a probate-court order indicating that Fabian was the sole distributee of the assets of her mother's estate and that, thereby, she is the owner of the mobile home.
Our review of the exhibits submitted by Fabian leads us to conclude that the trial court properly granted Cantwell's motion because none of the evidence creates a genuine issue of material fact on the issue of whether Cantwell took the property at issue and exercised dominion or control over it. While circumstantial evidence may be used to establish a material fact, none of the evidence submitted by Fabian makes any reference to the allegation that Cantwell is the person who converted Fabian's property—such a conclusion would be mere surmise or suspicion. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) ("To raise a genuine issue of material fact . . . the evidence must transcend mere suspicion. Evidence that is so slight as to make any inference a guess is in legal effect no evidence."); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983) ("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."). The circumstantial evidence supporting the allegation that Cantwell exercised dominion and control over Fabian's property—that the mobile home was located on his property, that he and Fabian were involved in a dispute about unpaid rent, and that the property was taken by someone—simply does not exceed a scintilla and could lead to only a guess about who took the property. Accordingly, we overrule Fabian's issue on appeal. See Tex. R. Civ. P. 166a(i).
CONCLUSION
We affirm the trial court's summary judgment in favor of Cantwell.
/s/_________
David Puryear, Justice Before Justices Puryear, Pemberton, and Goodwin Affirmed Filed: May 3, 2017