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James D. Branch, II v. Elizabeth Marlene Branch
ACCEPTED 12-15-00120-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 11/3/2015 9:32:30 AM Pam Estes CLERK
FILED IN 12th COURT OF APPEALS CASE NO. 12-15-00120-CV TYLER, TEXAS 11/3/2015 9:32:30 AM PAM ESTES IN THE TEXAS APPELLATE COURT 12 DISTRICT th Clerk SMITH COUNTY, TEXAS
JAMES D. BRANCH, II v. ELIZABETH MARLENE BRANCH
On Appeal from
ANDERSON COUNTY COURT AT LAW Anderson County, Texas
(Trial Court No. 11821)
Honorable JEFF DORAN
BRIEF OF APPELLANT
MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011
COUNSEL FOR APPELLANT
ORAL ARGUMENT WAIVED
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PARTIES
JAMES D. BRANCH, II, APPELLANT
Mr. Lynn E. Markham 608 East Houston Ave. PO Box 879 Crockett, Texas 75835
Mark W. Cargill Attorney for Appellant 701 N. Elm Palestine, Texas 75801 SBN: 00787201
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TABLE OF CONTENTS Page Table of Contents……………………………………………………………………………………….. 3
Index of Authorities………………………………………………………………………………….. 4 Statement of the Case…………………………………………..…………………………………... 6 Issues Presented: Issue Number One……………………………………………………… 6 Statement of Jurisdiction……………………………………………………………………….. 6 Statement of Facts …………………….…………………………………………………………... 6, 7 Summary of Argument……………………………………….………………………………….. 7 Argument ……………………………………………….………………………………………………… 7 Prayer………………………………………………………………………………………………………… 8 Certificate of Service…………………………………………………………………………………... 8 3|Page
INDEX OF AUTHORITIES
Statutes Tx. Govt. Code Sec. 22.201 (m) State Cases
Mosley v. Page, 822 SW 2d 779, 786 (Tex. App. – Dallas 1990, no writ)
Waisath v. Locks’ Stores, Inc., 474 SW 2d 444 (Tex. 1971)
Ligon v. E.F. Hutton and Co., 428 SW 2d 434, (Tex. Civ. App. – Dallas, 1978, writ ref’d n.r.e.)
Other Authorities Restatement (second) of Torts, 22A 4|Page
CASE NO. 12-15-00120-CV
IN THE TEXAS APPELLATE COURT 12 DISTRICT SMITH COUNTY, TEXAS
JAMES D. BRANCH, II V. ELIZABETH MARLENE BRANCH
On Appeal from
ANDERSON COUNTY COURT AT LAW Anderson County, Texas
(Trial Court No. 11821)
Honorable JEFF DORAN
BRIEF OF APPELLANT
MARK W. CARGILL TBC# 00787201 701 N. Elm Palestine, Texas 75801 903/729-8011
COUNSEL FOR APPELLANT
ORAL ARGUMENT WAIVED
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STATEMENT OF CASE
This is an appeal from a bench trial held on November 20, 2014, concerning conversion of property.
Notice of appeal was timely filed. The clerk’s record and reporter’s record were both filed. This brief has been filed within the requested time frame of this court.
ISSUES PRESENTED
Issue No. One
The trial court wrongfully denied Plaintiff’s request for damages resulting from conversion by defendant by not recognizing defendant’s duty as bailee of plaintiff’s property.
STATEMENT OF JURISDICTION
This Court has jurisdiction under Tx. Govt. Code Section 22.201 (m), in that the bench trial was held in the County Court at Law of Anderson County, Texas which is in the Court’s appeals district.
STATEMENT OF FACTS
Plaintiff owned a safe which he had permission to store in a building owned by Defendant. The building burned, but the safe remained on the slab of the building. (RR Vol. 1, page 15, 34-36, 38). Plaintiff relied on Defendant’s assurance the safe would be secure. 6|Page
Defendant gave permission for two unknown men to remove the safe from the property because Defendant was told that Plaintiff had given the safe to them. (RR Vol. 1, page 21, and pages 36-36). Plaintiff confronted Defendant immediately upon observing the safe was missing and contacted law enforcement. (RR Vol. 1, page 15-16). Defendant admitted she should have notified Plaintiff and had duty to do so. (RR Vol. 1, pages 36-39).
SUMMARY OF ARGUMENT
Defendant became a bailee upon accepting the property of Plaintiff and agreeing to allow it to stay on her property. Defendant had duty to reasonably keep property secure.
ARGUMENT
Defendant claims she owed no duty to Plaintiff because she did not know the contents of the safe entrusted her. (RR Vol. 1, page 39). Defendant’s duty is not determined by her intent or knowledge. Restatement (second) of Torts, 22A, Mosley v. Page, 822 SW 2d 779, 786 (Tex. App. – Dallas 1990 no writ).
The fact that she did not know the contents of the safe, or its value, is not relevant or material. Mosley v. Page ante
Further, Defendant claims that conversion did not exist because she received no value from giving the safe to unknown persons is immaterial. (RR Vol. 1, page 38-39). Waisath v. Locks’ Stores, Inc. 474 SW 2d 444 (Tex. 1971), Ligon v. E.F. Hutton and Co., 428 SW 2d 434 (Tex. Civ. App. - Dallas, 1978, writ ref’d n.r.e.). 7|Page
PRAYER FOR RELIEF
For the reasons stated, JAMES D. BRANCH, II, appellant requests this Court to overturn the Court’s verdict and order a new trial and that this Court grant such other relief to which appellant may be justly entitled.
Respectfully submitted,
CARGILL & ASSOCIATES
BY: /s/Mark W. Cargill Mark W. Cargill SBN: 00787201 701 N. Elm Palestine, Texas 75801 Telephone: 903/729-8011 Facsimile: 903/729-5112 cargillaw@earthlink.net
Attorney for Appellant
CERTIFICATE OF SERVICE
This is the certify that on November 2, 2015, a true and correct copy of the above and foregoing document was served on the District Attorney’s Office, Anderson County, and all other interested parties, by hand delivery, mail, and/or facsimile and regular mail.
/s/ Mark W. Cargill Mark W. Cargill
Word Count
On this 2nd day of November 2015, I, Mark W. Cargill, hereby certifies that this brief has a word count of 816.
/s/ Mark W. Cargill Mark W. Cargill
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