Larry L. Penny, Independent of the Estate of Ruth Penny v. John P. Darnell and Wife, Marilyn Darnell

11th Court of Appeals Eastland, Texas Memorandum Opinion Larry L. Penny, Independent Executor for the Estate of Ruth Penny, Deceased Appellant Vs. No. 11-04-00119-CV B Appeal from Midland County John P. Darnell and wife, Marilyn Darnell Appellees Larry L. Penny (Penny), as attorney-in-fact for his mother Ruth Penny, brought this action against John P. Darnell and wife, Marilyn Darnell. Ruth Penny died after the suit was filed, and Penny was appointed as the independent executor of her estate. Penny, as Independent Executor for the Estate of Ruth Penny, Deceased, was substituted as the named plaintiff in this cause. Ruth Penny was John Darnell=s mother-in-law and Marilyn Darnell=s mother. Penny alleged that he was entitled to a declaratory judgment relating to ownership of certain real property. He also alleged that the Darnells had converted various items of Ruth Penny=s personal property. Penny also sought to recover attorney=s fees from the Darnells. The trial court granted summary judgment to the Darnells on all of Penny=s claims. In two appellate issues, Penny argues that the trial court erred in granting summary judgment on the conversion claim and the attorney=s fees claim. Because there was no summary judgment evidence of any damages from the alleged conversion, we affirm the judgment of the trial court. Standard of Review The Darnells= motion for summary judgment intermixed a motion for traditional summary judgment under TEX.R.CIV.P. 166a(c) and a motion for a no-evidence summary judgment under TEX.R.CIV.P. 166a(i).[1] The trial court=s order granting summary judgment does not specify the ground or grounds upon which it was based. When a trial court=s order does not specify the ground or grounds relied upon for its ruling, the summary judgment will be affirmed on appeal if any of the summary judgment grounds advanced by the movant are meritorious. Dow Chemical Company v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). The Darnells sought a no-evidence summary judgment on the conversion claim on the ground that there was no evidence of damages from the alleged conversion. The trial court must grant a no-evidence motion for summary judgment unless the non-movant produces evidence that raises a genuine issue of material fact on the challenged element of his claim or defense. Rule 166a(i). The appellate court reviews evidence presented in response to a motion for a no-evidence summary judgment in the same way it reviews evidence presented in support of, or in response to, a motion for traditional summary judgment: it accepts as true evidence favorable to the non-movant and indulges every reasonable inference and resolves all doubts in favor of the non-movant. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex.App. B Eastland 2000, pet=n den=d). The appellate court reviews, however, only evidence presented by the non-movant. Rule 166a(i); Hight v. Dublin Veterinary Clinic, supra at 618-19. If the non-movant presents more than a scintilla of evidence on the disputed element, a no-evidence summary judgment is improper. Hight v. Dublin Veterinary Clinic, supra; Denton v. Big Spring Hospital Corporation, 998 S.W.2d 294, 298 (Tex. App. - Eastland 1999, no pet=n); cf. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.1997), cert. den=d, 523 U.S. 1119 (1998). Conversion Claim A plaintiff must prove damages before recovery is allowed for conversion. United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147-48 (Tex.1997); Prewitt v. Branham, 643 S.W.2d 122, 123 (Tex.1982). Penny did not produce any evidence of damages from the alleged conversion in response to the Darnells= no-evidence motion for summary judgment. Accordingly, summary judgment in favor of the Darnells on the conversion claim was proper. Penny=s first issue is overruled. Attorney=s Fees Claim Penny argues that the trial court erred in granting summary judgment on the issue of attorney=s fees relating to his declaratory judgment action. He also argues that the trial court erred in granting summary judgment on the issue of attorney=s fees relating to his conversion claim. In declaratory judgment actions, the trial court may award Areasonable and necessary attorney=s fees as are equitable and just.@ TEX. CIV. PRAC. & REM. CODE ANN. ' 37.009 (Vernon 1997). We review a trial court=s ruling on attorney=s fees in a declaratory judgment action under an abuse-of-discretion standard. Oake v. Collin County, 692 S.W.2d 454 (Tex.1985). The trial court granted summary judgment against Penny on his declaratory judgment claims, and Penny does not challenge the trial court=s ruling on his declaratory judgment claims on appeal. The trial court acted within its discretion in denying attorney=s fees to Penny B the losing party B on his declaratory judgment claims. Penny asserts that fact issues exist as to whether the Darnells= conversion of Ruth Penny=s personal property was malicious or fraudulent and that, therefore, the trial court erred in granting summary judgment on the issue of attorney=s fees relating to his conversion claim. We have found that the trial court=s granting of summary judgment to the Darnells on Penny=s conversion claim was proper. Therefore, the trial court did not err in granting summary judgment against Penny on the issue of attorney=s fees relating to his conversion claim. Penny=s second issue is overruled. This Court=s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE March 3, 2005 Not designated for publication. See TEX.R.APP.P. 47.2(a). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]As we noted in Kelly v. LIN Television of Texas, L.P., 27 S.W.3d 564, 568 (Tex.App. B Eastland 2000, pet=n den=d), the better practice is to file separate motions relating to the conceptually distinct Rule 166a(c) and Rule 166a(i) summary judgments. Under a motion for a no-evidence summary judgment, we review only the evidence presented by the non-movant. Rule 166a(i). Analysis is made more difficult when it appears that the movant may be relying on his or her summary judgment evidence yet is asserting that there is no evidence on a particular element of the non-movant=s case.