Lopez v. Lopez, 10-07-00002-CV.

283 S.W.3d 353

Jose Luis LOPEZ, Appellant, v. Amy Elizabeth LOPEZ, Appellee.

No. 10-07-00002-CV.

Court of Appeals of Texas, Waco.

August 13, 2008.^*

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

Russell A. Smith, Waco, TX, for Appellant.

Damon L. Reed, Reyna & Reed LLP, Waco, TX, for Appellee.

DISSENTING OPINION

GRAY, Chief Justice.

This appeal presents an extraordinary opportunity to clarify legal sufficiency reviews (as well as other issues) in civil cases in Texas.

What makes this case unique is that we are presented with a witness's testimony that used both a label and a description of a transaction. The witness described the transaction and the surrounding circumstances. The witness also testified that the transaction was not a "loan" and that it was a "gift." The question upon which this appeal turns is whether, and under what circumstances, the label used by a witness will control over and above the witness's description of the transaction. I believe the Court errs in giving conclusive effect to the witness's use of one label and ignoring the description of the transaction in that analysis, and then rejecting the same witness's use of another label in deference to her testimony about the description of the transaction.

This appeal also presents the opportunity to clarify the appellee's burden on appeal. The issue is what must an appellee do to prevail on appeal if, as the defendant in the trial court, the appellee won a take nothing judgment. The confusion comes from the oft cited phrase describing the standard of review that where findings of fact and conclusions of law are not available, as in this appeal, the appellate court must affirm the judgment on any theory finding "support" in the record. In Interest of W.E.R., 669 S.W.2d 716, 717 (Tex. 1984). I believe this standard of review is being inverted in this appeal to put a burden on the appellee, rather than the appellant. The Court is requiring the appellee to show that there is no theory, whether raised at trial by the plaintiff or not, under which a judgment for the plaintiff is proper. In this regard, the Court errs.

I respectfully dissent.

PROCEDURAL HISTORY

Jose Lopez sued his former sister-in-law, Amy Lopez, for the conversion of a receipt or $15,000. Jose failed to convince the trial court, acting as the factfinder, that Amy had converted either the receipt or cash. The trial court, instead, opined that based on the evidence the transaction was a loan and that because the loan was not in writing, the recovery was barred by the statute of frauds. Thus, the trial court rendered a take nothing judgment. Jose appealed. The evidence was both legally and factually sufficient to "support" the trial court's refusal to find a conversion; therefore, the trial court did not err in rendering a take nothing judgment.

BACKGROUND

Jose's brother, Wenceslao Lopez, who at the time was also Amy's husband, was being held by the INS (the United States Immigration and Naturalization Service). A $15,000 bond¹ was required for his release. Amy and Wenceslao did not have the money. Ultimately, Jose handed Amy $15,000 in cash and, according to Amy, said, "let's go get my brother." They rode together to San Antonio where Wenceslao was being held. Because Jose had concerns about the INS also detaining him, he had Amy attempt to deliver the cash to the INS. The INS would not accept cash. A cashier's check, rather than cash, was needed. Jose went to a bank he used and converted the cash to a cashier's check and gave it to Amy. Amy posted the bond using the cashier's check and obtained a receipt in her name. The receipt allowed the person who posted the bond to be paid the amount of the bond once the INS case against Wenceslao had concluded. In the final analysis, it is the proof, or lack thereof, to show the characterization of the legal nature of the foregoing described events that should control the result of this appeal.

The next year, Amy and Wenceslao were going through a divorce. Wenceslao attempted to get Amy to sign what she assumed was the paperwork to let Jose collect the bond money. Amy refused unless her husband would drop his claim for custody of the children. He would not. The disposition and/or ownership of this money was discussed during a mediation of the property division during the divorce. It was not, however, specifically dealt with in the divorce decree; but the decree awarded to Amy all the money in her possession and control.² Amy later asked her divorce lawyer what she should do with the money. She was advised that the money was hers. About six months after the divorce, Amy sent the necessary paperwork to the INS, which sent her a check for $15,000. Amy spent the money on bills and private school tuition for at least one of her children.³

An issue about the money did not arise again until Jose filed a motion to show cause in San Antonio. The case was transferred to McLennan County where Jose filed a petition for a constructive trust. Although Jose pled only for a constructive trust, the theory of conversion was tried to the court by consent. The trial court rendered a take nothing judgment. No findings of fact or conclusions of law were filed.⁴

SUFFICIENCY OF THE EVIDENCE

This was a non-jury trial, in which no findings of fact or conclusions of law were filed; therefore, it is implied that the trial court made all the necessary findings, if any, to support its judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989); Goodyear Tire and Rubber Co. v. Jefferson Constr. Co., 565 S.W.2d 916, 918 (Tex. 1978). When a reporter's record is brought forward, as in this case, these implied findings may be challenged by factual sufficiency and legal sufficiency points the same as jury findings or a trial court's findings of fact. Roberson, 768 S.W.2d at 281; Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980).⁵ In the absence of findings, it is an appellant's burden to show that the trial court's judgment was not supported by any legal theory raised by the evidence. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.1987). Thus, in this appeal, Jose has the burden to show that the trial court's refusal to render judgment in his favor was not supported by the legal theory, conversion of the receipt or the money, raised by the evidence he presented and the theory on which the judgment was sought.

Further, we must be mindful that, to prevail on appeal, Jose must establish that the trial court's implied refusal to find that Amy converted the receipt or the money, the facts necessary to render judgment in his favor, was against the great weight and preponderance of the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). The factfinder, in this proceeding the trial court, may choose to believe some, all, or none of a witness's testimony if a reasonable juror could. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.2005). In this regard, Jose's credibility was impeached by a felony conviction for criminal conspiracy involving forging documents. Because it was Jose's burden to prove his case by a preponderance of the evidence, the factfinder does not have to have any evidence in support of a refusal to find in Jose's favor. A refusal to find in favor of the party with the burden of proof, Jose, means only that the evidence failed to rise to that level necessary to cause the factfinder to determine more likely than not that Jose's claim should be sustained on the theory being presented. See Herbert v. Herbert, 754 S.W.2d 141, 145 (Tex.1988). If the trial court did not believe Jose's testimony, he could disregard it entirely. The trial court's statement that he thought the transaction was a loan, which was directly contrary to Jose's testimony, establishes that the trial court did not find Jose a credible witness.

Conversion of Receipt

Conversion is the wrongful exercise of dominion and control over another's property in denial of or inconsistent with his rights. Green Int'l v. Solis, 951 S.W.2d 384, 391 (Tex.1997); Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 446 (Tex. 1971). The unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner's rights, is in law a conversion. Waisath, 474 S.W.2d at 447.

Jose suggests that Amy's refusal to surrender the receipt or sign documents to allow him to be paid the money was conversion of the receipt as a matter of law. He argues that these refusals show that Amy exercised dominion and control over Jose's personal property—the receipt—to the exclusion of or inconsistent with his rights. There was no showing, however, that the receipt belonged to Jose. Both Jose and Amy testified that the receipt from the INS was in Amy's name because she was the one who delivered the cashier's check to the INS for her husband's bond. When asked if he ever requested the receipt from Amy, Jose responded that he asked her to either get the money and give it to him, or sign the papers necessary for him to be paid the money. He did not say that he asked her for the receipt. And to the extent a request for the receipt could be inferred, there was no showing that at that time Amy was still in possession of it so that she would have been exercising dominion and control over it to the exclusion of anyone.

Reviewing the record under the appropriate standards of review, the trial court's refusal to find a conversion of the receipt was not against the great weight and preponderance of the evidence, and conversion of the receipt was not established as a matter of law.

Conversion of $15,000

Jose also argues that Amy's refusal to surrender the actual money was a conversion of money. An action for the conversion of money may be brought where money is (1) delivered for safe keeping; (2) intended to be kept segregated; (3)...