Steve Ramon v. David R. Dow and the University of Houston, Texas Innocence Network

Affirmed and Memorandum Opinion filed March 3, 2009 Affirmed and Memorandum Opinion filed March 3, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-07-01024-CV ____________ STEVE RAMON, Appellant V. DAVID R. DOW AND UNIVERSITY OF HOUSTON, TEXAS INNOCENCE NETWORK, Appellees On Appeal from the 412th District Court Brazoria County, Texas Trial Court Cause No. 44,549 M E M O R A N D U M   O P I N I O N Steve Ramon, an inmate in the care of the Texas Department of Corrections, appeals from the dismissal of his lawsuit against appellees, David R. Dow and University of Houston, Texas Innocence Network.[1] Ramon sued for conversion, alleging that materials he had sent to appellees were not returned. In two issues on appeal, Ramon contends that the trial court erred in dismissing his lawsuit for failure to state a cause of action as a matter of law. We affirm. Discussion In his petition, Ramon alleged that on August 15, 2002, he sent various case materials to appellees along with a request for help in proving his innocence. Ramon further alleged that after appellees declined his request for help on March 16, 2003, he requested that they return the materials and even included postage with this request. After Ramon made additional requests, appellees advised him that the materials had been mailed back to him. Ramon maintains that he never received the materials. The only cause of action raised in Ramon=s petition is conversion. He seeks $250,000 for loss of the materials and an additional $250,000 in punitive damages. Inmate in forma pauperis lawsuits are governed by Chapter 14 of the Texas Civil Practice & Remedies Code. Tex. Civ. Prac. & Rem. Code ' 14.001‑.014. The chapter provides several grounds on which a court may dismiss such actions. See id. ' 14.003. Here, prior to service of process and without conducting an evidentiary hearing, the trial court dismissed Ramon=s claims because it found he Afailed to state a cause of action as a matter of law.@ We interpret the trial court=s action as a dismissal based on a finding that Ramon=s claims are frivolous because they have no arguable basis in the law. See id. ' 14.003(a), (b); Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex. App.CHouston [14th Dist.] 2005, no pet.). For a claim to have no arguable basis in law, it must be based on Aan indisputably meritless legal theory@ or on wholly incredible or irrational factual allegations. Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex. App.CTexarkana 2001, pet denied) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989), and citing Denton v. Hernandez, 504 U.S. 25, 33 (1992)). Stated conversely, we review an inmate=s petition to determine whether it states a cause of action for which relief can be granted. Scott v. Gallagher, 209 S.W.3d 262, 267-68 (Tex. App.CHouston [1st Dist.] 2006, no pet.). An inmate=s cause of action may not be dismissed merely because the court considers the allegations unlikely. Minix, 162 S.W.3d at 637. We utilize a de novo standard of review in determining whether Ramon=s claims have an arguable basis in law. See id. In examining the pleaded cause of action, we take factual allegations in the petition as truth. Scott, 209 S.W.3d at 267. As stated, the only cause of action raised by appellant is conversion. In order to establish conversion of personal property, a claimant must prove that: (1) he owned or had legal possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the claimant=s rights; (3) the claimant demanded return of the property; and (4) the defendant refused to return the property. Hunt v. Baldwin, 68 S.W.3d 117, 131 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (citing Waisath v. Lack=s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971)). The factual allegations made in Ramon=s petition, even if taken as truth, do not fulfill all of the requirements for conversion. Specifically, Ramon makes no allegation that appellees assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, Ramon=s rights, or that they affirmatively refused to return the materials. Ramon contends only that appellees failed to ensure the return of the materials. Conversion is an intentional tort. City of Houston v. Petroleum Traders Corp., 261 S.W.3d 350, 361 (Tex. App.CHouston [14th Dist.] July 24, 2008, no pet. h.). It requires an intent to assert a right in the property, either an assumption of ownership or a repudiation of the claimant=s right in the property. See Robinson v. Nat=l Autotech, Inc., 117 S.W.3d 37, 39-41 (Tex. App.CDallas 2003, pet. denied). It requires an act of malfeasance and not mere nonfeasance. Branham v. Prewitt, 636 S.W.2d 507, 510-11 (Tex. App.CSan Antonio), writ ref=d n.r.e., 643 S.W.2d 122 (Tex. 1982). Mere loss of possession of the property is generally not enough to constitute conversion even if resulting from negligent conduct. Restatement (Second) of Torts ' 234 cmt. b (1965). Furthermore, if the initial possession of the property by the defendant was lawful, as Ramon claims here, there must be an actual demand for the property and an actual refusal to deliver. See Hofland v. Elgin‑Butler Brick Co., 834 S.W.2d 409, 413 (Tex. App.CCorpus Christi 1992, no writ). Mere failure to deliver when there has been a demand is generally not sufficient to prove an affirmative refusal. 90 C.J.S. Trover and Conversion ' 45 (2002). In his petition, Ramon has not alleged any facts demonstrating that appellees asserted any rights in the property or affirmatively refused to deliver the property. Accordingly, we overrule Ramon=s two issues. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Panel consists of Chief Justice Hedges and Justices Anderson and Seymore. [1] In their brief, appellees assert that the Texas Innocence Network is a separate non-profit organization and not a part of the University of Houston. The distinction, however, plays no role in this opinion.