Summary
In P T Mfg. Co. v. Exchange Sav. Loan Ass'n, 633 S.W.2d 332, 333 (Tex.App. — Dallas 1982, writ ref'd n.r.e.) the plaintiff had filed a mechanic's lien on certain property subsequent to the filing of a deed of trust lien on the property by the defendant.
Summary of this case from City of Wichita Falls v. ITT Commercial Finance Corp.Opinion
No. 21013.
March 30, 1982. Rehearing Denied May 6, 1982.
Appeal from the 95th District Court, Dallas County, Joe Fish, J.
Jonathan H. Allen, Lancaster, for appellant.
Patrick F. McManemin, Winstead, McGuire, Sechrest Trimble, Dallas, for appellee.
Before ROBERTSON, WHITHAM and GUILLOT, JJ.
Appellant (PT) appeals from a summary judgment that it take nothing in this suit seeking monetary damages against appellee (Exchange) for conversion, and in the alternative, for breach of a fiduciary duty. Because we agree with Exchange that PT had no cause of action for conversion or breach of a fiduciary duty, we affirm.
PT contends that it has a materialman's lien upon cabinets and countertops which it manufactured and installed in six residential structures under contract with the owner-builder; that these cabinets and countertops are easily removable items which can be removed without material injury to the land or remaining improvements or to the cabinets and countertops; that Exchange, as the interim finance construction lender, foreclosed its deed of trust liens upon the real estate and became the purchaser of the real estate at foreclosure sale; that PT filed for record affidavits of its claim to liens; that on the date of the Exchange foreclosure PT was then entitled to a lien on the cabinets and countertops; that PT has made demand upon Exchange to permit it to remove the cabinets and countertops and that Exchange has refused. PT admits that the present suit is not one for foreclosure of its asserted liens and that it has never sought to foreclose its liens. Exchange contends that in the absence of judicial foreclosure by PT of its asserted liens that as a matter of law PT has no cause of action for money damages for conversion. Exchange further contends that as a matter of law PT has no cause of action for money damages for breach of a fiduciary duty.
For the purposes of this opinion we assume, without deciding, that the cabinets and countertops can be removed without material injury to the land and to the pre-existing improvements or to the improvements removed. See First National Bank In Dallas v. Whirlpool Corporation, 517 S.W.2d 262 (Tex. 1974). We hold, however, that as a matter of law a materialman asserting a right to remove improvements that can be removed without material injury to the land and to the pre-existing improvements or to the improvements removed must first obtain judicial foreclosure of his lien before he can assert a cause of action for conversion.
Conversion is concerned with possession, not title; it is complete where a person unlawfully and wrongfully exercises dominion and control over the property of another to the exclusion or defiance of the right of possession of the owner or of the person entitled to the possession of the property involved. McVea v. Verkins, 587 S.W.2d 526 (Tex.Civ.App.-Corpus Christi 1979, no writ). In the present case PT is admittedly not the owner of the cabinets and countertops, nor is PT entitled to possession of this property merely on the strength of its claim of the lien it asserts on the cabinets and countertops. PT would only be entitled to claim possession of the cabinets and countertops after obtaining judicial foreclosure on the property. We hold that absent a judicial foreclosure PT does not have any right to the legal possession of the cabinets and countertops. We conclude, therefore, that PT has failed to establish a cause of action for conversion as a matter of law.
PT cites certain cases involving a lien claimant's action for damages based upon the theory of conversion. Those cases are inapposite. In one case there had been a previous foreclosure, Mogul Producing and Refinery Co. v. Southern Engine and Pump Co., 244 S.W. 212 (Tex.Civ.App.-Beaumont 1922, no writ), and in another foreclosure was sought in the same proceeding, Morris v. Biggs Co., 165 S.W.2d 915 (Tex.Civ.App.-Amarillo 1942, no writ).
The remainder of the cases cited by PT in support of PT's argument are either conversion cases that do not involve a lien claimant plaintiff, Oil Country Pipe and Supply Co. v. Carter, 143 S.W.2d 831 (Tex.Civ.App.-San Antonio 1940, writ dism'd judgmt. cor.); Williamson v. Pye, 18 S.W.2d 707 (Tex.Civ.App.-Beaumont 1929, no writ), or a case not involving conversion, Summerville v. King, 98 Tex. 332, 83 S.W. 680 (1904).
PT states in its brief that it also seeks to recover from Exchange for breach of fiduciary duties. Although PT does not appear to press this point in its brief, we gather PT's contention to be that an interim lender advancing funds to an owner-builder for a construction project is in the position of a trustee and has a duty to suppliers of labor and materials to see that their claims are satisfied. We do not agree. This court has previously held to the contrary. Coke Lumber and Manufacturing Co. v. First National Bank in Dallas, 529 S.W.2d 612 (Tex.Civ.App.-Dallas 1975, writ ref'd).
Affirmed.