Alysse Barlow v. Kendall Richardson ( 2023 )

AFFIRM, IN PART, REVERSE AND RENDER IN PART; and Opinion Filed
January 17, 2023.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00844-CV
ALYSSE BARLOW, Appellant
V.
KENDALL RICHARDSON, Appellee
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-16151
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Rosenberg1
Opinion by Justice Rosenberg
Alysse Barlow appeals the trial court’s judgment awarding Kendall
Richardson ownership of a miniature Schnauzer named Theon (the “Canine”). In
three issues, Barlow asserts the trial court erred (1) in awarding the Canine to
Richardson because Barlow is the sole owner of same, (2) in awarding Richardson
attorney’s fees, and (3) in awarding her less than the fair market value of the Canine.
We reverse the award of attorney’s fees and render a take-nothing judgment on the
1
The Hon. Barbara Rosenberg, Justice, Assigned.
request for attorney’s fees. We affirm the remainder of the judgment. Because all
issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
For a short period of time, Barlow and Richardson were in a dating
relationship. After their relationship ended, a dispute arose between them over the
ownership of the Canine, who was acquired from Barlow’s employer, Petland,
during the dating relationship. Richardson initiated this suit claiming a 50%
ownership interest in the Canine and seeking to partition her interest in same under
Chapter 23 of the Texas Property Code. Barlow answered, denying Richardson’s
claim of ownership, and asserted claims against Richardson for conversion, trespass
to chattels, and fraud.
The case proceeded to a bench trial. Richardson and Barlow testified, as did
Richardson’s mother and various Petland employees. The trial court rendered
judgment awarding to Richardson sole ownership of the Canine and attorney’s fees
in the amount of $12,000 and ordering Richardson to pay Barlow $600 as
consideration for her 50% ownership interest in the Canine. Barlow did not timely
file a request for findings of fact and conclusions of law and the trial court did not
issue same. This appeal followed.
DISCUSSION
When no findings of fact or conclusions of law are filed or timely requested
after a nonjury trial, we presume the trial court made all the necessary fact findings
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to support the judgment, and we affirm the judgment if it can be upheld on any legal
theory finding support in the evidence. Shields Ltd. P’ship v. Bradberry, 526 S.W.3d
471, 480 (Tex. 2017). A party, however, may rebut the presumption by
demonstrating that the record evidence does not support the presumed finding. Ad
Villarai, LLC v. Chan II Pak, 519 S.W.3d 132, 135 (Tex. 2017) (per curiam). A trial
court’s presumed findings may be challenged for legal and factual sufficiency under
the same standards that apply to a jury’s verdict. Shields, 526 S.W.3d at 480.
In her first and third issues, Barlow challenges the legal sufficiency of the
evidence to support the trial court’s finding Richardson has an ownership interest in
the Canine and the amount the court awarded to Barlow as compensation for her
ownership interest in same.
In a legal sufficiency challenge, the court credits evidence that supports the
verdict if reasonable jurors could have done so and disregards contrary evidence
unless reasonable jurors could not have done so. City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005). A legal sufficiency challenge will be sustained when
(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to prove
a vital fact, (c) the evidence offered to prove a vital fact is no more than a scintilla,
or (d) the evidence conclusively establishes the opposite of the vital fact. Akin,
Gump, Strauss, Hauer & Feld, LLP v. Nat’l Dev. & Research Corp., 299 S.W.3d
106, 115 (Tex. 2009).
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Under Chapter 23 of the Texas Property Code, “[a] joint owner or claimant of
real property or an interest in real property or a joint owner of personal property
may compel a partition of the interest or the property among the joint owners or
claimants.” TEX. PROP. CODE ANN. § 23.001 (emphasis added). Notwithstanding
the powerful bond between dogs and their owners, for over a century, Texas law has
classified dogs as personal property. See Strickland v. Medlen, 397 S.W.3d 184, 198
(Tex. 2013). The Texas Supreme Court recently affirmed this principle in Lira v.
Houston German Shepherd Dog Rescue, 488 S.W.3d 300, 304 (Tex. 2016). And
here, the trial court clearly advised that, despite each party being very devoted to the
Canine, he is considered property in the eyes of the law.
The threshold question in a partition suit is whether the property is susceptible
of partition or incapable of partition because a fair and equitable division cannot be
made. TEX. R. CIV. P. 761, 770; Carter v. Harvey, 525 S.W.3d 420, 429 (Tex.
App.—Fort Worth 2017, no pet.). The determination of whether an in-kind partition
is fair and equitable includes whether the property can be divided in-kind without
materially impairing its value. Id. Here, it is clear, the Canine was not capable of
being divided in-kind. Thus, the trial court could consider other modes of dividing
the property interests in same. See, e.g., Sayers v. Pyland, 161 S.W.2d 769, 772
(Tex. 1942) (in case a complete partition in-kind cannot be had, so as to award each
party his or her equitable portion, the court can, if necessary, award certain property
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to one or more of the interested parties, impressing it with a money charge in favor
of another).
Before deciding whether, and how, to partition any interest in the Canine, the
trial court had to determine whether Barlow and Richardson jointly owned the
Canine. By its judgment, the trial court determined they were joint owners. Barlow
challenges the legal sufficiency of that determination.2 Because Barlow asserts a
legal sufficiency challenge, we credit evidence that supports the trial court’s
judgment if reasonable jurors could have done so and disregard contrary evidence
unless reasonable jurors could not have done so. City of Keller, 168 S.W.3d at 827.
In a bench trial, the trial judge, as fact finder, is the sole judge of the credibility of
the witnesses. Weisfield v. Tx. Land Finance Co., 162 S.W.3d 379, 380 (Tex.
App.—Dallas 2005, no pet.). The judge may take into consideration all the facts and
surrounding circumstances in connection with the testimony of each witness and
accept or reject all or any part of that testimony. Id. at 380–81.
Barlow asserts that because the AKC Canine Partners Certificate of
Enrollment, the Certificate of Registry, the microchip registration, the pet profile at
Petland and the Bill of Sale for the Canine show her as the “owner,” as a matter of
law, she is the sole owner of the Canine. Barlow does not cite any authority directly
on point here, and we have found none. We conclude that this documentary evidence
2
Because this matter was determined in a bench trial, Barlow was not required to preserve error to
challenge legal or factual sufficiency. TEX. R. APP. P. 33.1; see also Bass v. Walker, 99S.W.3d 877, 883
(Tex. App.—Houston [14th Dist.] 2003, pet. denied).
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is some evidence of ownership, but it is not conclusive and does not automatically
preclude ownership by another. And we cannot disregard evidence to the contrary.
Other evidence established the Canine was purchased on June 10, 2019, at
Petland. Barlow was working at Petland at that time. With Barlow’s employee
discount, the purchase price for the Canine was $1,100. Richardson contributed
$500 towards the purchase price. While Barlow claimed Richardson gave her the
$500 as a gift, which she later offered to repay, Richardson claimed she made the
payment in accordance with the parties’ joint decision to purchase the Canine. The
evidence showed that while the parties were in a dating relationship, they each had
possession of the Canine at various times and Richardson was primarily involved in
taking the Canine to the veterinarian and provided considerable financial support of
same. While Barlow characterized this arrangement and Richardson’s possession as
dog sitting, Richardson claimed her possession was that of a joint owner and
evidence of her ownership interest. While there was conflicting evidence on the
ownership of the Canine, the trial court was the final arbiter of the credibility of the
witnesses, and its determination regarding ownership of the Canine is supported by
the evidence. Accordingly, we overrule Barlow’s first issue.
With respect to the third issue, the trial court’s award of $600 to Barlow as
compensation for her interest in the Canine, Barlow challenges the legal sufficiency
of the award claiming, because of her employee discount, the award does not reflect
the market value of the Canine.
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Market value is defined as the price property would bring when it is offered
for sale by someone not obligated to sell and bought by someone who is under no
necessity of buying it. See Exxon Corp. v. Middleton, 613 S.W.2d 240, 246 (Tex.
1981). In determining both fair market value and actual value, courts consider the
purchase price paid by an owner, particularly when evidence of the purchase price
is neither objected to nor controverted. See Wutke v. Yolton, 71 S.W.2d 549, 552
(Tex. App.—Beaumont 1934, writ ref’d).
Again, in reviewing a legal sufficiency challenge to the evidence, we credit
evidence that supports the verdict if reasonable jurors could have done so and
disregard contrary evidence unless reasonable jurors could not have done so. City
of Keller, 168 S.W.3d at 827. Barlow contends that the undisputed evidence
establishes the fair market value of the Canine is $4,000. We disagree. While a Call
Center Manager at Petland testified that the retail price for the Canine was “about
$4,000,” the trial judge, as fact finder, was free to find this unsupported testimony
to not be credible. See Weisfield, 162 S.W.3d at 380. The trial court may have found
what would be an employee discount of approximately 75% to be incredible. The
only other evidence before the trial court on value was the actual purchase price,
which a jury could have easily credited. Accordingly, we conclude there is legally
sufficient evidence to support the trial court’s award of $600 to Barlow.
Consequently, we overrule Barlow’s third issue.
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In her second issue, Barlow challenges the award of attorney’s fees. In Texas,
each party generally must pay its own way in attorney’s fees. Rohrmoos Venture v.
UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 483 (Tex. 2019). Whether a party
is entitled to attorney’s fees is a question of law that is reviewed de novo. Holland
v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). Generally a court is without
authority to award attorney’s fees unless authorized by statute or contract. Ashford
Partners, Ltd. v. ECO Res., Inc., 401 S.W.3d 35, 41 (Tex. 2012); Tony Gullo Motors
I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). This rule is so venerable and
ubiquitous in American courts it is known as “the American Rule.” Tony Gullo, 212
S.W.3d at 310–11. Absent a contract or statute, trial courts do not have inherent
authority to require a losing party to pay the prevailing party’s fees. Travelers
Indem. Co. of Connecticut v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996).
Richardson did not assert or obtain a judgment on a breach of contract claim.
Instead, she asserted and obtained a judgment in her partition suit. Generally, a party
in a partition suit is not entitled to recover attorney fees because there is no statutory
authorization for the award of fees. Cecola v. Ruley, 12 S.W.3d 848, 856 (Tex.
App.—Texarkana 2000, no pet.); see also TEX. PROP. CODE ANN. § 23.001–.005
(partition statute).
Citing Estate of Nunu, 542 S.W.3d 67, 80 (Tex. App.—Houston [14th Dist.]
2017, pet. denied), Richardson urges that the trial court did not err in awarding her
attorney’s fees because the issue of fees was tried by consent. While the court in
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that case stated a trial court may award attorney’s fees if (a) the party pleaded for
such relief, (b) a mandatory statute requires an award of attorney’s fees, or (c) the
issue was tried by consent, it also stated, “Here, each of these alternatives was
satisfied.” Id. Thus, there was a statutory basis upon which to make the award and
the award was not upheld solely on the basis of consent. While the issue of
attorney’s fees may be tried by consent, there must also be a statute or contract
authorizing the award of same.3 See Tony Gullo, 212 S.W.3d at 310. Consent,
standing alone, does not provide a legal basis for an award. See id. Accordingly,
the trial court erred in awarding Richardson her attorney’s fees. Consequently, we
sustain Barlow’s second issue.
CONCLUSION
We reverse the award of attorney’s fees to Richardson and render a take-
nothing judgment on her request for fees. We otherwise affirm the trial court’s
judgment.
/Barbara Rosenberg/
BARBARA ROSENBERG
JUSTICE, ASSIGNED
210844F.P05
3
The doctrine of trial by consent is “only intended to cover the exceptional case in which it clearly
appears from the record as a whole that the parties tried the unplead[ed] issue.” In re A.B.H., 266 S.W.3d
596, 600 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh'g).
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ALYSSE BARLOW, Appellant On Appeal from the 298th Judicial
District Court, Dallas County, Texas
No. 05-21-00844-CV V. Trial Court Cause No. DC-19-16151.
Opinion delivered by Justice
KENDALL RICHARDSON, Rosenberg. Justices Partida-Kipness
Appellee and Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED in part. We REVERSE that portion
of the trial court's judgment awarding appellee attorney's fees and render a take
nothing judgment on appellee’s request for fees. In all other respects, the trial court's
judgment is AFFIRMED.
It is ORDERED that each party bear her own costs of this appeal.
Judgment entered this 17th day of January 2023.
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