Irene Koch D/B/A K & K Truck and Auto v. Griffith-Stroud Construction and Leasing CO.

Affirmed and Memorandum Opinion filed March 23, 2004

Affirmed and Memorandum Opinion filed March 23, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00526-CV

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IRENE KOCH D/B/A K & K TRUCK AND AUTO, Appellant

V.

GRIFFITH-STROUD CONSTRUCTION AND LEASING CO., Appellee

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 99-12562

M E M O R A N D U M   O P I N I O N

Irene Koch, d/b/a K & K Truck and Auto, appeals from a noBevidence summary judgment entered against her claims for conversion and violations of the Texas Deceptive Trade Practices Act^[1] against GriffithBStroud Construction and Leasing Co.  On appeal, Koch contends that the trial court erred in granting the noBevidence summary judgment and in sustaining GriffithBStroud=s objections to her affidavit.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  Tex. R. App. P. 47.4.  We affirm.

Background

Koch leased business premises from GriffithBStroud.  After GriffithBStroud locked Koch out of the premises for alleged nonpayment of rent, Koch sued Griffith-Stroud for conversion and DTPA violations based on its retention of Koch=s personal property under a landlord=s lien and writ of possession.  Koch alleges that GriffithBStroud failed to give her notice of any sale of the property, failed to credit the proceeds of any sale against the amount of rent due, and failed to refund any proceeds received over the amount of rent due.

This is the second appeal that we have heard in this lawsuit.  In our original opinion, we reversed a summary judgment favoring GriffithBStroud based on limitations because GriffithBStroud failed to prove the date on which the cause of action accrued.  Koch v. GriffithBStroud Constr. & Leasing Co., No. 14B00B00083BCV, 2002 WL 287722 (Tex. App.CHouston [14th Dist.] Feb. 28, 2002, no pet.) (not designated for publication) (AKoch I@).  On remand, the trial court granted a noBevidence summary judgment favoring GriffithBStroud.  Because the trial court=s order does not specify the grounds on which it is based, we must affirm if any of the theories advanced are meritorious.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

Summary Judgment Evidence

We utilize the normal standards in reviewing the grant of a noBevidence summary judgment.  See Tex. R. Civ. P. 166a(i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750B51 (Tex. 2003).  In its motion, GriffithBStroud argued that there was no evidence to support certain elements of Koch=s conversion and DTPA causes of action.  Attached to her response, Koch included five exhibits: (1) her own affidavit, (2)  a list of personal property and dollar values, (3) a copy of our opinion in Koch I, (4) a copy of GriffithBStroud=s motion, and (5) a copy of GriffithBStroud=s Supplemental Response to the Request for Disclosure.

The trial court sustained certain of GriffithBStroud=s objections to Koch=s affidavit and to the list of personal property.  On appeal, Koch does not contend that the court erred in sustaining the objections to the list; therefore, we will not consider this exhibit in our review of the evidence.  See, e.g., Goss v. Bobby D. Assocs., 94 S.W.3d 65, 71 (Tex. App.CTyler 2002, no pet.).  In regard to the affidavit, Koch contends only that GriffithBStroud=s objections were not sufficiently specific to meet the requirements of Texas Rule of Evidence 103(a)(1) and Texas Rule of Appellate Procedure 33.1(a)(1)(A).^[2]  GriffithBStroud=s objections to the affidavit specifically identified each sentence that was being objected to, stated the nature of the objection, and included citations to rules of civil procedure and evidence and to case law. The objections were, therefore, clearly sufficient to meet the requirements of Rules 103(a) and 33.1(a). See In re M.R., 975 S.W.2d 51 (Tex. App.CSan Antonio 1948, pet denied)..  Accordingly, in our review of the summary judgment proof, we will consider only the portions of Koch=s affidavit that were not objected to or on which the objection was overruled.  See, e.g., Goss, 94 S.W.3d at 71.

 In her response to the motion and in her appellate brief, Koch asserts that we made certain factual holdings in Koch I.^[3]  2002 WL 287722.  However, the language in the opinion quoted by Koch is actually from the court=s quotation of her own petition in the case.  See id. at *1.  We included the quotation for the very specific and limited purpose of identifying what her claims were.  Id. We did so to illustrate that she was not complaining about the lockout (for which a date was established), but rather about an alleged subsequent failure to credit the value of the seized personal property against the rent due and to refund the difference to her (for which no date was established); thus, the trial court=s summary judgment on limitations could not be upheld.  Id.  Because the opinion contained no factual findings, the quoted statements in the opinion do not constitute Alaw of the case@ and cannot be used to defeat the noBevidence motion.  We therefore do not consider them in our review.

Lastly, Koch attached two documents filed in the case by GriffithBStroud: a copy of GriffithBStroud=s motion for summary judgment, and a copy of GriffithBStroud=s Supplemental Response to the Request for Disclosure. To the extent statements in these documents can constitute judicial admissions, they are discussed below.

Conversion

Conversion is defined as A[t]he unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner=s rights.@  Waisath v. Lack=s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971).  To prove a conversion, a plaintiff must show that (1) she owned, had legal possession of, or was entitled to possession of the property and (2) the defendant assumed and exercised dominion and control over the property in an unlawful and unauthorized manner to the exclusion of and inconsistent with her rights.  See Hunt v. Baldwin, 68 S.W.3d 117, 131 (Tex. App.CHouston [14th Dist.] 2001, no pet.).  Inherent within these elements is the requirement that the plaintiff must prove damages in order to recover.  See United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997).

In its motion, GriffithBStroud asserts that there was no evidence to establish any of the elements required to prove conversion.  We agree.  The only mention of property in the surviving portions of her affidavit is as follows: AThat is, GriffithBStroud refused to permit my son to re-enter the premises even to get his blood-pressure medicine.@  Obviously, this statement does not show that Koch herself had a superior right to any property that was not returned.  The only other mentions of personal property in the attachments to Koch=s response appear in GriffithBStroud=s response to the request for disclosure, wherein it stated:

The only significant items of personal property remaining in the leased premises after GriffithBStroud took possession thereof were a frame straightening machine, a paint booth, a flatbed trailer, and an old car.  Koch did not own any of these items of personal property.  [&]  None of the other items of personal property remaining in the leased premises . . . had any significant value.  The other personal property items were placed outside the leased premises in accordance with the terms of the writ of possession obtained in favor of GriffithBStroud.  (emphasis added).^[4]

These statements do not indicate that Koch owned, had legal possession of, or was entitled to possession of any property.  Therefore, Koch has failed to produce evidence regarding the first element of conversion.  See Hunt, 68 S.W.3d 131.  Further, even if it could be assumed that the Aother items of personal property@ mentioned in the discovery response belonged to Koch, GriffithBStroud specifically stated that it left the property outside pursuant to the writ of possession.  Hence, there is no indication in this statement, or in any other of the summary judgment documents, that GriffithBStroud exercised dominion and control over Koch=s property in an unlawful and unauthorized manner. Therefore, Koch has failed to produce evidence regarding the second element of conversion.  See id.  Ultimately, Koch has failed to show that she suffered any damages.  See United Mobile Networks, 939 S.W.2d at 147. Accordingly, the trial court did not err in granting the noBevidence summary judgment against Koch=s conversion claims.

DTPA Violations

To maintain a DTPA cause of action against GriffithBStroud, Koch must show that (1) she is a consumer under the DTPA, (2) GriffithBStroud committed a false, misleading, or deceptive act under section 17.46(b) of the DTPA, and (3) these acts were the producing cause of her actual damages.  See Brown v. Bank of Galveston, N.A., 963 S.W.2d 511, 513 (Tex. 1998).^[5]  GriffithBStroud=s motion maintained that there is no evidence in this case to show that Koch was a consumer under the DTPA, that GriffithBStroud committed a wrongful act under the DTPA, or that any such act was a producing cause of Koch=s damages.  To affirm the summary judgment, we need look no further than the first element: consumer status.

There are two requirements to establish DTPA consumer status: (1) the plaintiff must have sought or acquired goods or services by purchase or lease, and (2) the goods or services purchased or leased must form the basis of the complaint. See Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 351B2 (Tex. 1987); Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 169 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  In her response and her brief, Koch asserts that GriffithBStroud judicially admitted her status as a consumer when it stated, in its motion and in its response to the request for disclosure, that Koch was a tenant in a building it owned.  Assuming, without deciding, that such a statement constituted a judicial admission of the landlord/tenant relationship, it could indeed fulfill the first requirement of proving consumer status, i.e., that she acquired goods or services by purchase or lease.   See Tex. Bus. & Com. Code Ann. ' 17.45(1) (Vernon 2002) (defining Agoods@ to include Areal property purchased or leased for use@).  However, Koch offers no evidence to establish the second requirement of consumer status, i.e., that the leased premises formed the basis of her complaint. For goods to form the basis of a complaint, the complaint must allege some fault with the goods or some deceptive act or conduct directly related to sale or lease of the goods.  See Americom Distrib. Corp. v. ACS Communications, Inc., 990 F.2d 223, 227 (5th Cir. 1993) (holding claimant was not a consumer under the act because complaint about distribution agreement did not allege any fault related to the product being distributed); Malone v. E.I. du Pont de Nemours & Co., 8 S.W.3d 710, 715 (Tex. App.CFort Worth 1999, pet. denied) (holding plaintiffs were not consumers because they did not allege any fault with the goods but complained only of defendant=s failure to sell them all they wanted to buy); see also Tex. Bus. & Com. Code Ann. ' 17.46(b) (providing laundry list of violations).

In the present case, Koch alleged GriffithBStroud committed false, misleading, or deceptive acts as follows: (1) it failed to give her notice of sale, if any, of her personal property; (2) it refused to return her personal property; (3) it failed to credit the funds realized from the sale against the back rent and to refund the surplus; and (4) it converted her personal property.  These alleged acts are not based on her lease of the premises, nor are they even based, as we explained in Koch I, on the lockout from the premises; instead, they are all based on GriffithBStroud=s alleged conduct in prosecuting its landlord=s lien and writ of possession.^[6]  2002 WL 287722, at *1.  Accordingly, there is no evidence to show that Koch was a consumer under the DTPA. The trial court did not err in granting the noBevidence summary judgment against Koch=s DTPA claims.  We overrule Koch=s sole issue on appeal.

The trial court=s judgment is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed March 23, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

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^[1]   Tex. Bus. & Com. Code Ann. ' 17.01-.854 (Vernon 2002 & Supp. 2004).

^[2]  Rule 103(a) states, in part, AError may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and [i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.@  Tex. R. Evid. 103(a).  Rule 33.1(a) requires that to preserve a complaint for appellate review, the complaining party must present it to the trial court in a timely and sufficiently specific request, objection, or motion.  Tex. R. App. P. 33.1(a).

^[3]  For example, Koch says we held that GriffithBStroud was not entitled to convert her property, that Koch demanded return of the property, and that the fair market value of the property was $97,310.

^[4]  GriffithBStroud further stated that it returned the frame machine and the old car to their rightful owners, that it obtained title to the flatbed trailer and then sold it to a third party, and that the paint booth was sold by its owner to a third party.

^[5]  Koch does not allege that GriffithBStroud breached a warranty or committed unconscionable conduct.

^[6]  We acknowledge the obvious point that if Koch and GriffithBStroud were not in a landlordBtenant relationship, then it never would have had a landlord=s lien and she never would have lost her property.  Although this means her claims and the leased property are in some general way related, this is not sufficient to show that the leased property formed the basis of her complaint.  See Americom Distrib. Corp., 990 F.2d at 227; Malone, 8 S.W.3d at 715.