Vernon Marshall D/B/A Marshall Motor Sports v. Jerry Ripkowski ( 2009 )

Reversed and Remanded and Memorandum Opinion filed August 25, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00090-CV

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VERNON MARSHALL D/B/A MARSHALL MOTOR SPORTS, Appellant

V.

JERRY RIPKOWSKI, Appellee

On Appeal from the County Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 885211

M E M O R A N D U M  O P I N I O N

Vernon Marshall d/b/a Marshall Motor Sports appeals the trial court=s summary judgment in favor of appellee Jerry Ripkowski. We reverse and remand.  I

Jerry Ripkowski voluntarily delivered a 2002 Suzuki motorcycle to Vernon Marshall for repair and painting.  Ripkowski paid a portion of what was owed for services rendered.  According to Ripkowski=s affidavit, when he went to the shop to retrieve the motorcycle, he noted poor workmanship and told Marshall to rectify the situation if he wanted to receive full payment. When he did not hear from Marshall, Ripkowski sent his son to retrieve the motorcycle and discovered that Marshall had sold it for $4,500.

Marshall=s version of events is different.  In his affidavit, Marshall states that Ripkowski did not have the money to pay the balance due.  Marshall notified Ripkowski that the motorcycle was ready in April and then again in May.  According to Marshall, on May 23, 2006, Ripkowski said he did not have the money.  Marshall claims he agreed to let Ripkowski make partial payments, but then never heard from him again.  On June 6, 2006, Marshall received a call from Ripkowski=s insurance agent, and he told her about the dispute.  After that, Ripkowski would not return Marshall=s phone calls. Marshall then filed a mechanic=s lien and, after receiving no response from either Ripkowski or the title holder, he initiated foreclosure proceedings.  Marshall states that he parked the motorcycle in front of his shop in an attempt to sell it, but did not find a buyer.  He then purchased it himself and made some alterations.  A few months later, Marshall sold the motorcycle. 

Ripkowski sued Marshall for conversion, fraud, infliction of emotional distress, and violations of the DTPA, the Texas Property Code, and the Business & Commerce Code.  Ripkowski filed a hybrid no-evidence and traditional motion for summary judgment on his conversion claim, alleging Marshall could not present evidence that he complied with section 70.006 of the Texas Property Code and also requesting damages and attorney=s fees.  Marshall responded that he complied with the Property Code=s requirements and attached several exhibits and his affidavit in response.  The trial court granted the motion for summary judgment and awarded actual damages, pre- and post-judgment interest, and attorney=s fees.  Marshall filed a motion for new trial, which was overruled by operation of law.

II

In a no-evidence summary-judgment motion, the movant contends that there is no evidence of one or more essential elements of the claims for which the non-movant would bear the burden of proof at trial.  See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008); Mendoza v. Fiesta Mart, 276 S.W.3d 653, 655 (Tex. App.CHouston [14th Dist.] 2008, pet. denied).  The trial court must grant the motion unless the respondent produces summary-judgment evidence raising a genuine issue of material fact as to the challenged elements.  Tex. R. Civ. P. 166a(i).  By comparison, a traditional summary-judgment movant bears the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.  See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  In reviewing either a no-evidence or traditional summary-judgment motion, we must take as true all evidence favorable to the non-movant and draw every reasonable inference and resolve all doubts in favor of the non-movant.  Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004); Mendoza, 276 S.W.3d at 655.  When, as here, a party files a combination traditional and no-evidence motion for summary judgment, we first review the trial court=s judgment under the more stringent Ano-evidence@ standard of Rule 166a(i).  See Ford Motor Co., 135 S.W.3d at 600. 

III

In his issue on appeal, Marshall contends Ripkowski did not meet his summary-judgment burden because Ripkowski failed to conclusively establish each element of his conversion claim.  Specifically, Marshall asserts that Ripkowski did not state the elements of his conversion claim in his motion, but relied exclusively on his contention that Marshall presented no evidence that it complied with requisite property-code provisions.  Marshall contends Ripkowski=s no-evidence motion impermissibly shifts the summary-judgment burden.  We agree.  

In Ripkowski=s motion for summary judgment, he asserts that Marshall is liable to him for conversion because Marshall failed to comply with statutory prerequisites to obtain title to Ripkowski=s motorcycle.  Ripkowski did not address the elements of his conversion claim or provide any evidence to support his conversion claim.  Instead, Ripkowski identified certain provisions of Texas Property Code section 70.006 on which he contends Marshall could not produce proof of compliance. 

This portion of Ripkowski=s motion is plainly a no-evidence motion for summary judgment.  But Texas Rule of Civil Procedure 166a(i) permits a party to move for summary judgment only Aon the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.@  Tex. R. Civ. P. 166a(i) (emphasis added).  Ripkowski, as the plaintiff, had the burden of proof on his conversion claim.  Consequently, he was not entitled to a no-evidence summary judgment on that claim.  See Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (explaining that Aa party may never properly move for no-evidence summary judgment to prevail on its own claim or affirmative defense for which it has the burden of proof@).  As this court explained in Nowak, if a party were able to file a no-evidence motion on its own cause of action, it would be tantamount to allowing the party to prevail without ever proving the elements of the claim.  Nowak, 110 S.W.3d at 680.  Such a result is not permitted.  Id. at 680B81.^[1]

Because Ripkowski did not meet the summary-judgment burden on his conversion claim, we sustain Marshall=s issue.  See id. at 680B81; see also Reyes v. Saenz, 269 S.W.3d 675, 676B77 (Tex. App.CSan Antonio 2008, no pet.) (plaintiff not entitled to no-evidence summary judgment on its own claims); Kelly v. Brown, 260 S.W.3d 212, 217B18 (Tex. App.CDallas 2008, pet. denied) (appellees not entitled to no-evidence summary judgment on their own affirmative defense).

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We reverse the trial court=s judgment and remand this case for further proceedings consistent with this opinion.

/s/      Jeffrey V. Brown

Justice

Panel consists of Justices Seymore, Brown and Sullivan.

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^[1]  In his appellee=s brief, Ripkowski contends that several of Marshall=s appellate arguments were not raised in the trial court and so should not be considered on appeal.  But this rule does not apply to Marshall=s argument on appeal that Ripkowski=s no-evidence motion is improper.  As Nowak instructs, although it is preferable for the non-movant to provide a response explaining why the trial court should deny the motion, no response is required because Athe motion should not have been filed at all.@  See Nowak, 110 S.W.3d at 680 & n.2.  It is sufficient that Marshall raised the issue on appeal.  See id. at 679.