Opinion Issued April 24, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00524-CV
SUSAN DIANA GAUSHELL JONES, Appellant
V.
JAMES DANIEL BESZBORN, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 2000-05990
MEMORANDUM OPINION
Appellant, Susan Diana Gaushell Jones, appeals an adverse jury verdict in favor of appellee, James Daniel Beszborn. The jury found that Jones converted personal property belonging to Beszborn and assessed damages in the amount of $25,550. On appeal, Jones contends that there was no evidence to support the jury’s finding of conversion. We affirm.
BACKGROUND
Jones and Beszborn began living together near the end of 1997 or the beginning of 1998. They requested an attorney, Neal Cannon, to set up a corporation named N.L.A., Inc. (NLA), under which they intended to conduct a salvage business. Articles of incorporation were filed with the Texas Secretary of State in Austin, but no shares were issued. The articles of incorporation named Jones as the sole director of the corporation. NLA employed Beszborn and another employee to conduct the business of buying and selling salvage. In early 1999, Jones and Beszborn moved to a residence they bought with NLA funds. The residence was put in Jones’s name only. In January 2000, Jones had a suitcase containing some of Beszborn’s clothing delivered to Beszborn’s office. Soon after, Jones had the locks changed on the doors. In February 2000, Beszborn filed a petition for divorce, contending that he and Jones had a common-law marriage and requesting temporary orders. Beszborn requested confirmation of his separate property and a division of the community property. No list of separate or community property appears in the record. The trial court denied the temporary orders on the basis that a common-law marriage had not been proved. Beszborn then filed supplemental petitions alleging a cause of action for conversion and requesting an accounting.
At trial, Jones testified during Beszborn’s case-in-chief that she had returned the majority of Beszborn’s clothes to him on January 19, 2000 and that she had returned the rest of his personal things, some furnishings, and linens to his residence in February. She testified that, in June, he had personally picked up the remainder of the televisions, stereo, furniture, and “that sort of thing” and that the interior of her house had been videotaped a few months later, pursuant to a court order. She further testified that she never saw many of the items on plaintiff’s exhibit 19 (PX-19), Beszborn’s list of items that, according to Beszborn, Jones had kept.
Beszborn testified that Jones had a suitcase containing some of his clothes delivered to his office in the middle of January 2000 and that he was locked out of the house on January 31. He testified that all his “stuff,” except for the clothes in the suitcase, was in the house. He further testified that, when he videotaped the interior of Jones’s house, the only items of his in the house at that time were an armoire and a campaign desk. He testified that PX-19 was a list of items that he had kept at the residence and that he had never gotten back. He stated that the total value of the items on PX-19, not including the heirlooms for which he could not give a value, was $56,387.50.
Beszborn’s daughter, Cecelia Maddox, testified that she had lived with Beszborn after her parents’ divorce and had visited Beszborn frequently since moving to another city. She testified that she had seen the items in PX-19 in the house he and Jones had shared and had not seen those items since he was locked out of the house.
After Beszborn rested, Jones moved for a directed verdict on the ground that Beszborn had neither produced evidence of a demand for the property nor had she clearly repudiated Beszborn’s rights in the property because she was not claiming that the property was hers. The trial court denied Jones’s motion, and Jones rested. The case was then submitted to the jury. The jury charge defined conversion as follows:
“Conversion” is the unauthorized and unlawful assumption and exercise of dominion and control over the personal property of another which is to the exclusion of, or inconsistent with, the owner’s rights.
A claim for conversion requires the plaintiff to show: (1) title, (2) right to possession, and (3) a demand for return of the property unless the possessor’s acts manifest a clear repudiation of the plaintiff’s rights.
Jury question number three asked, “Do you find from a preponderance of the evidence that Defendant Susan Jones’ actions pertaining to the personal property listed on Plaintiff’s Exhibit “19” constituted conversion of property belonging to Plaintiff James Daniel Beszborn?” The jury answered, “Yes.” Jury question number four, which was predicated on a “yes” response to question number three, asked, “What amount of money, if any, would reasonably compensate Plaintiff James Daniel Beszborn for the market value of Plaintiff’s property listed on Plaintiff’s Exhibit No. ‘19’ converted by Defendant Susan Jones?” The jury was instructed not to include $16,800, which, according to Beszborn, had been in a safety deposit box. The jury answered, “$25,500.” The trial court rendered judgment on the jury verdict, and Jones appealed.
DISCUSSION
In her sole point of error, Jones contends that, because demand is an element of conversion and there was no evidence that Beszborn made any demand, the trial court erred in denying her motion for directed verdict.
Standard of Review
A directed verdict is proper if the evidence conclusively proves a fact that establishes the movant’s right to judgment as a matter of law or negates the right of the nonmovant to judgment or if the evidence offered is insufficient to raise a fact issue on the cause of action at issue. Metzger v. Sebek, 892 S.W.2d 20, 40 (Tex. App.—Houston [1st Dist.] 1994, writ denied). The trial court should not weigh the credibility of the witnesses in determining whether a directed verdict is warranted. Id. If there is any conflicting evidence of probative value on any theory of recovery, the issue must go to the jury. Harris County v. Demny, 886 S.W.2d 330, 333 (Tex. App.—Houston [1st Dist.] 1994, writ denied).
In reviewing the denial of a directed verdict, we consider all the evidence in the light most favorable to the nonmovant and disregard all evidence to the contrary. Id. Every reasonable inference is resolved in favor of the nonmovant. Id.
Conversion
To prevail on a claim for conversion, a plaintiff must show (1) title, (2) right to possession, and (3) a demand for return. Schwartz v. Pinnacle Communications, 944 S.W.2d 427, 432 (Tex. App.—Houston [14th Dist.] 1997, no writ). However, a demand is not required if the possessor’s acts amount to a clear repudiation of the owner’s rights. Autry v. Dearman, 933 S.W.2d 182, 191 (Tex. App.—Houston [14th Dist.] 1996, no writ).
Jones asserts that Beszborn did not produce any evidence of a demand that Jones return the personal property in question. Beszborn does not controvert this assertion. Therefore, to avoid a directed verdict, Beszborn was required to produce sufficient evidence to raise a fact issue regarding whether Jones’s actions manifested a clear repudiation of Beszborn’s rights to the property. See Metzger, 892 S.W.2d at 40.
The testimony at trial was conflicting. Jones testified that she returned all property in her possession that belonged to Beszborn and that some of the items on PX-19 were never in her house. Beszborn testified that all items on PX-19 were in the house he and Jones shared and that she did not return any of them. This conflicting evidence is probative on the issue of whether Jones’s actions were a clear repudiation of Beszborn’s rights because it is uncontested that, as of January 31, 2000, Beszborn was locked out of the house.
Jones argues that Beszborn’s “divorce pleadings” refute any implications that Jones acted in repudiation of Beszborn’s rights because, in his petition, Beszborn pleaded that Jones “was merely in possession of the marital estate.” As we have stated, the original petition alleged both separate and community property, but does not specify items in either category. Therefore, the original petition is not inconsistent with the allegation that Jones converted personal property belonging to Beszborn.
Viewing the evidence in the light most favorable to Beszborn and ignoring the evidence to the contrary, the conflicting evidence regarding whether Jones returned Beszborn’s property and the uncontested evidence that Beszborn was locked out of the residence are some evidence that Jones’s actions were a clear repudiation of Beszborn’s rights. We hold that this evidence was sufficient to deny Jones’s motion for directed verdict and to support a jury question on Beszborn’s claim of conversion of his personal property. Accordingly, we overrule Jones’s sole issue.
We affirm the judgment.
Sam Nuchia
Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.