Dennis L. Berry v. Mike Covarrubias III & Cerin D. Jordan

Opinion issued January 8, 2004 In The Court of Appeals For The First District of Texas NO. 01-02-01141-CV DENNIS L. BERRY, Appellant V. MIKE COVARRUBIAS III and CAERIN D. JORDAN, Appellees On Appeal from County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 761,912 MEMORANDUM OPINION After a bench trial, the trial court awarded appellees, Caerin D. Jordan and Mike Covarrubias III, $1,500 in damages for conversion of their 1992 Dodge Shadow, in addition to awarding them $4,500 in attorney’s fees plus court costs and interest. Appellant, Dennis L. Berry, appeals the trial court’s judgment. We determine whether (1) the trial court erred in excluding from evidence 10 of appellant’s affidavits, a vehicle inquiry receipt, and a police incident report; (2) the evidence was factually sufficient to support the court’s finding of conversion of the car; (3) the evidence was factually sufficient to support the court’s determination of fair-market value of the car; (4) the trial court erred in denying opening and closing arguments; (5) the trial court erred in denying Berry the opportunity to call appellees’ attorney as a witness; (6) the trial court erred in awarding appellees’ attorney’s fees; (7) the trial court erred in failing to dismiss the cause for “want of recovery”; and (8) the trial court was prejudiced against Berry. We affirm. Background On July 26, 1999, appellees had their 1992 Dodge Shadow towed to Berry’s residence so that Berry could give them an estimate of the cost for repairs to the car. Berry was appellees’ uncle, and he had previously done repairs on cars for appellees. On July 30, 1999, Berry and appellees discussed the estimate. Appellees could not afford to make the necessary repairs, and they left the car at Berry’s home. Appellees did not see the car again until Labor Day weekend at Berry’s home. Appellees attempted to negotiate with Berry to get their car back during the visit, but no agreement was reached. By September 7, 1999, Berry had completed $235 in repairs to the car. The weekend following the Labor Day visit, appellees called the police in an effort to regain possession of the car. Berry retained possession of the car and attempted to perfect a mechanic’s lien on it. Subsequently, Berry foreclosed on his mechanic’s lien and sold the car to himself for $235, the cost of the repairs. Appellees then sued Berry in a Justice of the Peace court on December 17, 1999 to recover title and possession of the car or, in the alternative, to recover market value of the car at the time of the foreclosure sale. The Justice of the Peace court dismissed the case without prejudice for lack of jurisdiction. Appellees then filed their lawsuit and prevailed in Harris County Civil Court at Law Number 3. Exclusion of Evidence In points of error one and two, Berry contends that the trial court erred in excluding from evidence 10 affidavits, a vehicle inquiry receipt, and a police incident report. The admission or exclusion of evidence is a matter within the discretion of the trial court. See Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 649 (Tex. 1985). To obtain reversal upon the improper admission or exclusion of evidence, a party must show that (1) the trial court erred in admitting or excluding evidence and (2) the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). Whether an error was reasonably calculated to cause and probably did cause the rendition of an improper judgment is a determination that we review for abuse of discretion by evaluating the entire record in the case. See Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 821 (Tex. 1980). Ordinarily, erroneous rulings on admissibility of evidence are not reversible error when the evidence in question is cumulative and not controlling on a material issue dispositive of the case. See Gee, 765 S.W.2d at 396. Thus, evidentiary rulings will not be reversed unless the Berry shows that the whole case turns on the improperly excluded evidence. See Superior Derrick Servs., Inc. v. Anderson, 831 S.W.2d 868, 876 (Tex. App.—Houston [14th Dist.] 1992, writ denied). A. Affidavits Berry argues that the trial court erred in excluding 10 affidavits from evidence. However, the record shows that Berry attempted to introduce only three affidavits at trial. Appellees’ counsel objected to the admission of the affidavits on the basis that they constituted hearsay. The trial court sustained the objection and excluded all three affidavits from evidence. Error may not be predicated on the exclusion of evidence unless a party’s substantial rights are affected and “the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.” Tex. R. Evid. 103. Following the trial court’s ruling excluding the evidence, Berry made no offer of proof showing the substance of any of the affidavits. Because we may not consider the affidavits that Berry attached to his brief and because the substance of the affidavits was not apparent from the context of the questions asked at trial, Berry has failed to preserve error as to the affidavits. See Wade v. Comm’n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (holding that, in absence of offer of proof, court has no basis to review contention that trial court committed reversible error by preventing defendant from introducing documents). We overrule point of error one. B. Vehicle Inquiry Receipt and Police Incident Report Berry contends that the trial court erred in excluding a vehicle inquiry receipt for a 1989 Isuzu Trooper and a police incident report. Berry failed to make an offer of proof following the trial court’s ruling excluding the receipt. Even if the trial court was aware of the substance of the receipt, Berry has failed to show how the exclusion of a receipt for a vehicle that is not the subject of the trial would be controlling on a material issue dispositive of the case. See Gee, 765 S.W.2d at 396. Berry has likewise failed to show how the exclusion of the police incident report caused the rendition of an improper judgment. See id. As with the affidavits, we may not consider the receipt or the incident report that Berry has attached to his brief because they are not part of the record. Accordingly, we hold that the trial court did not abuse its discretion in excluding the receipt and the incident report. We overrule point of error two. Factual Insufficiency In points of error seven, eight, nine, 10, and 11, Berry contends that the evidence was factually insufficient to support the judgment in favor of appellees on conversion and fair-market value of the car. When, as here, no findings of fact are filed or requested, the trial court’s judgment implies all necessary findings of fact to support the judgment. See Brandywood Housing, Ltd. v. Tex. Dept. of Transp., 74 S.W.3d 421, 427 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). In reviewing the factual sufficiency of the evidence to support the implied findings on appellees’ causes of action, we must consider all of the evidence, both in support of and against the challenged implied findings. See id. We will uphold the judgment unless the implied findings supporting it are against the great weight and preponderance of the evidence so as to be manifestly unjust. See Herter v. Wolfe, 961 S.W.2d 1, 4 (Tex. App.—Houston [1st Dist.] 1995, writ denied). A. Conversion In points of error seven, 10, and 11, Berry contends that the trial court’s finding of conversion of the car was against the great weight of the evidence because appellees’ testimony lacked credibility and Berry’s testimony established that there was no conversion. Berry also argues that he established a valid mechanic’s lien on the car. We disagree. Conversion is “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.” Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex.1971). In order to establish conversion, the plaintiff must show that (1) he owned, had legal possession of, or was entitled to possession of the property; (2) the defendant assumed and exercised dominion and control over the property in an unlawful and unauthorized manner, to the exclusion of, and inconsistent with, the plaintiff’s rights; and (3) the defendant refused the plaintiff’s demand for return of the property. See Automek, Inc. v. Orandy, 105 S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Initially, we note that the trial court, as the trier of fact, was the sole judge of the credibility of the witnesses and the weight to be given the testimony. See Villery v. Solomon, 16 S.W.3d 106, 110 (Tex. App.—Houston [1st Dist.] 2000, no pet.). The record contains a certified copy of the title showing that appellees were the rightful owners of the car. Jordan testified that she and Covarrubias left the car with Berry so that he could give them an estimate of the repairs needed to fix it. She also testified that there was never an agreement that Berry would fix the car. Berry argues that the trial court should not have found conversion in this case because he testified that appellees gave him the car and because he presented three witnesses who testified that he did not use the car or convert it. However, a person converts a car if he sells it without having a right to do so. See Kollision King, Inc. v. Calderon, 968 S.W.2d 20, 23 (Tex. App.—Corpus Christi, 1998, no pet.). Berry admitted that he had sold the car to himself. Additionally, the trial court found that Berry did not establish a valid mechanic’s lien on the car. A worker in Texas who repairs a vehicle may keep the vehicle until either “(1) the amount due under the contract for the repairs is paid; or (2) if no amount is specified by contract, the reasonable and usual compensation is paid.” Tex. Prop. Code Ann. § 70.001(a) (Vernon Supp. 2004). Berry relies on his own testimony that he fulfilled all the necessary requirements to perfect a valid mechanic’s lien on the car. A mechanic’s lien foreclosure form was also admitted into evidence, along with letters from Berry notifying appellees that he was in the process of obtaining a mechanic’s lien. However, Jordan testified that the car was delivered to Berry so that he could estimate the cost to repair the car. She further testified that he did provide an estimate and that there was never an agreement to repair the car or an agreement for Berry to keep the car. Berry also testified that he had not given appellees a bill or charged them for repairs. Additionally, Berry testified that appellees gave him the car and that he did the repairs for his own benefit. There was thus ample testimony to show that there was never an agreement to repair or to keep the car and that Berry sold the car without the rightful owners’ consent. Berry’s evidence to the contrary does not greatly outweigh appellees’ evidence so as to make the judgment manifestly unjust. Accordingly, we hold that the evidence to support the trial court’s finding of conversion was factually sufficient. We overrule points of error seven, 10, and 11. B. Fair-Market Value In points of error eight and nine, Berry asserts that Jordan was not qualified to testify as to the fair-market value of her car and that the trial court erred because the court apparently rejected Berry’s witness’ testimony as to the car’s fair-market value. Initially, we note that Berry failed to object to Jordan’s testimony at trial. As a result, he did not properly preserve error as to Jordan’s qualifications to testify. See Tex. R. App. P. 33.1(a). We now determine whether the evidence was factually sufficient to support the trial court’s finding regarding the car’s fair-market value. A property owner may testify about the value of her property as long as the testimony refers to market, rather than intrinsic, value of the property. See Pontiac v. Elliott, 775 S.W.2d 395, 399 (Tex. App.—Houston [1st Dist.] 1989, writ denied). Jordan testified that she believed that the fair-market value of her car was “about $2,500 to $3,000, depending on the condition of the car at the auction.” She further testified that her knowledge was based on the fact that she had owned the car and had driven it every day since it was purchased. In contrast, Berry’s son, who had worked as a mechanic for several years, testified that the car was worth “about a hundred bucks” at the time that he inspected it. Berry also testified that the car was worth nothing because it was not in running condition. Additionally, Berry argues that Jordan’s testimony was not credible because she testified that she did not know what was wrong with the car when it was delivered to Berry so that he could inspect it. As the sole trier of fact and judge of the credibility of witnesses’ testimony, the trial court determined that the fair-market value of the car was $1,500, an amount less than that to which Jordan testified, but more than that to which Berry and his son testified. Nothing shows that this determination was manifestly unjust. We hold that the evidence supporting the trial court’s ruling was factually sufficient. See Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 401 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (holding that, when jury’s finding of fair-market value was within range of values supported by evidence, finding should not be overturned). We overrule points of error eight and nine. Denial of Opening and Closing Arguments In points of error three and four, Berry contends that the trial court erred in denying opening and closing arguments. Berry asserts that he is entitled to opening and closing arguments under Texas Rule of Civil Procedure 269(a). See Tex. R. Civ. P. 269(a). However, Berry did not object to the trial court’s denial of argument; therefore, he has not preserved error. See Tex. R. App. P. 33.1(a). We overrule points of error three and four. Denial of Witness’s Testimony In point of error five, Berry asserts that the trial court erred (1) in denying his request to call appellees’ counsel as a witness and (2) in allowing appellees’ counsel to cross-examine Berry after appellees’ counsel had stated that he did not wish to cross-examine Berry. After the trial court denied Berry’s request to call appellees’ counsel as a witness, Berry made no offer of proof as to the substance of the testimony that appellees’ counsel would have provided. The substance of that testimony is not apparent from the record. “When tendered evidence is excluded . . . it is necessary for the complainant to make an offer of proof on a bill of exception to show what the witness’ testimony would have been.” Anderson v. Higdon, 695 S.W.2d 320, 325 (Tex. App.—Waco 1985, writ ref’d n.r.e.). Without the offer of proof, there is nothing before the appellate court to show reversible error in the trial court's ruling. See id. Accordingly, we hold that Berry waived his complaint as to the excluded testimony of appellees’ attorney. As to Berry’s complaint that he should not have been cross-examined when the trial resumed, he did not object on that basis at trial. In fact, he took the stand and participated in cross-examination. Consequently, any error was waived. See Tex. R. App. P. 33.1(a). We overrule point of error five. Attorney’s Fees In point of error six, Berry argues that the trial court erred in awarding appellees’ attorney’s fees because there was no evidence to support the fees. The trial court may award reasonable attorney’s fees to the prevailing party in a suit involving possession of a vehicle. See Tex. Prop. Code Ann. § 70.008 (Vernon 2003). The grant or denial of attorney’s fees is within the trial court’s sound discretion, and we will not reverse the court’s ruling regarding attorney’s fees absent a clear abuse of that discretion. See Ryan v. Abdel-Salam, 39 S.W.3d 332, 337 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Appellees’ counsel testified that he had spent 45 hours working on the case and that a reasonable attorney’s fee for that work would be $100 per hour. Berry argues that appellees’ attorney was working on the case pro bono. Other than a question posed by Berry during cross-examination, asking appellees’ attorney if he had agreed to work pro bono, there is nothing in the record to rebut appellees’ counsel’s testimony that he worked 45 hours for a fee. Based on this evidence, the trial court did not abuse its discretion in awarding $4,500 in attorney’s fees. We overrule point of error six. Want of Recovery In points of error 12 and 13, Berry asserts that the trial court should have dismissed the cause “for want of recovery.” The basis of his argument is that he is a disabled veteran whose entire income is derived from disability benefits that are protected by federal laws. However, Berry did not object in the trial court on this basis or request that the cause be dismissed; therefore, he has waived any error. See Tex. R. App. P. 33.1(a). Even if Berry had preserved error, he has provided no authority to support his points of error. Consequently, we overrule points of error 12 and 13. Prejudice Berry argues in point of error 14 that the trial court was prejudiced against him. Berry failed to object on this basis in the trial court. Consequently, this point of error is waived. See Tex. R. App. P. 33.1(a). We overrule point of error 14.Conclusion We affirm the judgment of the trial court. Tim Taft Justice Panel consists of Justices Taft, Nuchia, and Keyes.