This dissent is respectfully filed.
Basically, Modern Living, Inc., in its major thrust in Plaintiff's Original Petition, pleaded a conversion of one 14X16 Marshfield mobile home, serial number 601412031 AM. The Purchase Agreement described mobile home serial number 6014-12031 AM as model Aquarius Manor, 56'X14'. Appellee stated that the first time he talked with the people at Modern Living was on or about March 25th, and that the Appellant had not come out to his place of business and made a realistic effort to remove the mobile home until April 15th, 1983. The mobile home had been sold originally to a Mr. Antwine. However, after Antwine left the home at the trailer park, a Mr. Colson, who was a third party to the transaction between the Appellant and Antwine, indicated that he, Colson, was attempting to buy the trailer home. On April the 15th, when the trailer home was moved, the Appellee unequivocally swore that he did not tell the Appellants or anyone else that the home could not be removed, either on that date or before.
There is also testimony to the effect that the Appellee had not been informed that Mr. and Mrs. Antwine were not keeping up the purchase money payments regularly on the trailer.
Again, the Appellant testified unequivocally upon cross-examination that he had never denied Modern Living the right to come and repossess the mobile home. The evidence is in conflict, but I would hold that the record is sufficient to support the trial judge's findings of fact that the Defendant-Appellee Niederhofer never refused entry to the Plaintiff, Modern Living, to remove the mobile home in question. And further, the trial court's findings that Niederhofer never took actual or constructive possession of the mobile home in question, nor did he withhold possession of the same from Modern Living are supported by the evidence.
In a bench trial, the findings of fact are controlling on appeal where the relevant evidence is in conflict and where there is evidence to support the finding of fact. HarrisCty. Flood Control Dist. v. Shell, 591 S.W.2d 798 (Tex. 1979). These findings of fact under this record are not properly to be disturbed on appeal. Harris County v.Hall, 141 Tex. 388, 172 S.W.2d 691 (1943).
In Waisath v. Lack's Stores, Inc., 474 S.W.2d 444 (Tex. 1971), the Supreme Court wrote that conversion is the wrongful dominion and control over another person's property in denial of the other person's right or inconsistent with the other party's rights. A necessary element of conversion isan intent on the part of the person alleged to have converted the property to assert right and control over the property. Fox v. American Propane, Inc., 508 S.W.2d 426 (Tex.Civ.App. — Austin 1974, writ ref'd n.r.e.). This record, in my opinion, supports the conclusion of law that Niederhofer did not commit or permit a wrongful conversion of the mobile home, nor did he commit a trespass to the mobile home, or the articles contained therein.
I would construe the record as holding that there was sufficient evidence to sustain the conclusions of law in the bench trial below that Niederhofer did not commit a wrongful conversion of the mobile home or any items contained therein nor did he commit a trespass to chattels in the mobile home, or items contained therein.
Further, in my opinion, the record and Statement of Facts support the bench's findings that Niederhofer rented the mobile home in question and the lot whereon it was situated to Ronald Colson, but only on *Page 247 behalf of and with the permission and consent of Gerald Wayne Antwine and wife, Linda Antwine. Niederhofer was acting in the nature of an agent for the Antwines.
Additionally, there is a lack of an element of conversion where one person acted with the permission of the owner or with the express or implied consent of the owner who deals with the property in the sense that he is to find another person to pay the rent. See Terry v. Witherspoon, 255 S.W. 471 (Tex.Civ.App. (1923) aff'd, Tex.Comm'n App.267 S.W. 973 (1925)); Castro Cooperative Gin Company v.Harrison, 272 S.W.2d 538 (Tex.Civ.App. — Eastland 1954, no writ).
The awarding of exemplary damages is basically within the sound discretion of the trial judge. There was no error in the trial judge's declining to award Modern Living punitive damages in this case.
The suggestion should be made, however, that there is another important practical issue in this appeal. On May 7, 1987, an opinion by this court in this proceeding was filed. The prior matter was an original proceeding styled Modern Living,Inc., Relator, v. The Honorable Lee G. Allworth,Respondent. 730 S.W.2d 444 (Tex.App. 1987). There, basically, the Ninth Court of Appeals conditionally issued a Writ of Mandamus to compel the official court reporter to type up the complete Statement of Facts. The basis for this action was that Modern Living, Inc., had filed an Affidavit of Inability to give security for the cost in the trial court. The court reporter timely filed a contest but even though the trial court orally and solemnly pronounced that the contest was sustained, and even though there was a docket entry made to the same effect; nevertheless, there was no actual, written order that was drawn up and signed timely.
During the course of the original proceeding it was revealed that Modern Living, Inc., was in bankruptcy in Cause No. 84-04955-HL-5 which was styled: In Re: Modern Living,Inc., in the Southern District of Texas, Houston, Division, of the United States District Court. It was further demonstrated that one Fred Wilson, being the sole shareholder of Modern Living, Inc., was also in bankruptcy in Cause No. 84-04953-H3-5 styled: In Re: Frederick Wilson andErnestine Wilson, in the Southern District of Texas, Houston Division, both being in the Bankruptcy Court.
Although the bankruptcy proceedings were in rem and although appropriate motions were made which applied for release of funds to pay the costs of the civil litigation and especially the cost and expenses of this litigation, the Bankruptcy Court according to counsel denied these Motions. It seems clear that the Bankruptcy Court which has exclusive jurisdiction of bankruptcy proceedings under the United States Constitution felt that it was the proper tribunal since there was a finding of fact in the original proceedings to decide these matters that Fred Wilson had been advised by his bankruptcy counsel, who was also his attorney of record in the State case, and also by the bankruptcy judge, that the expenditures of funds to pursue the civil litigation would likely result in contempt proceedings against Fred Wilson. Additional findings of fact were set out showing inter alia that Modern Living, Inc., had no income or cash flow and that Fred Wilson was a full time student and not then currently employed.
There was a further finding that Fred Wilson was supportinghimself and his family solely from the proceeds of studentloans. Modern Living, Inc. has taken the position at one point in the past that it was under the Federal Bankruptcy law in a reorganization proceeding under Chapter 11.
It has been announced to us that the bankruptcy judge of the Southern District of Texas, Houston Division, would not permit any funds of the bankruptcy estate, if any there were, to be used or expended in perfecting and bringing forward the record. However, it has not been shown whether in this alleged Chapter 11 proceeding a plan of reorganization has ever been proposed or approved or whether at this time there is a Trustee appointed for the debtor, or whether there have been any other affirmative orders of the bankruptcy *Page 248 judge concerning this debtor in possession. Query: are the reports of the debtor in possession being made properly, timely and correctly to the Bankruptcy Court?
Further, I think the court's opinion ought to include instructions that under this record the only real element of damage, if any, raised was the detention of the housetrailer for a limited period of several weeks rather than ordering a total remand of the entire cause of action for a complete retrial.
Section 362 of the United States Bankruptcy Law,11 U.S.C. § 362, entitled Automatic Stay generally provides for an automatic stay of any judicial, administrative or other action or proceeding against the debtor. However, that statute does not solve all the questions involving the duties, requirements and responsibilities of a debtor in bankruptcy, even a debtor in possession in reorganization under Chapter 11, either with or without a Trustee.
Since there is a basic concept that a bankruptcy proceeding is exclusively a Federal remedy and is a proceeding in rem, then consistent with that basic philosophy of the bankruptcy law, in my opinion it would be correct under the doctrine of comity between courts that the United States Bankruptcy Judge for the Southern District of Texas, Houston Division, be properly and currently advised of these proceedings in State court, both trial, appellate and mandamus.
Query: we do not know if a plan of reorganization has been proposed or approved, or disapproved; we do not know if a Trustee was appointed who may be a necessary party. I would opine that the State District Judge should be fully and currently advised on the bankruptcy proceeding. Since the court does not require such actions, I respectfully dissent.