John W. Sloane v. Karl Brisco

NO. 12-20-00080-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOHN W. SLOANE, § APPEAL FROM THE 145TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
KARL BRISCO,
APPELLEE § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
John W. Sloane filed a motion for rehearing, which is overruled. We withdraw our
November 18, 2020 opinion and judgment and substitute the following opinion and judgment in
their place.
Sloane appeals the trial court’s judgment and award rendered in favor of Appellee Karl
Brisco. Sloane raises three issues on appeal. We modify and affirm as modified.
BACKGROUND
Sloane owns a remote, rural tract of land in Nacogdoches County, Texas. Several of his
family members own adjacent tracts. In January 2013, Sloane entered into a written agreement
with Brisco wherein Brisco agreed to perform logging operations on Sloane’s land. In February
2013, all of Brisco’s equipment suffered mechanical failure as a result of defective oil used in the
equipment. Consequently, he ceased the logging operation prior to its completion.
Brisco’s numerous pieces of substantially sized logging equipment remained on Sloane’s
property for a period of years after the operation ceased. During that time, several members of
Sloane’s family contacted Brisco to inquire about whether he intended to move the equipment off
the property. Brisco consistently responded that he intended to move the equipment soon. During
this time, Brisco occasionally requested and was granted access to the property and his equipment
through a locked gate.
As time passed and the equipment remained on the property, Sloane began to consider
whether, due to the length of time the equipment had remained on the property, he had a right to
sell it. On or about February 21, 2015, Sloane negotiated the sale of the equipment to David
Alexander. Pursuant to the written agreement and bill of sale, Sloane was required to notify Brisco
of the sale within thirty days. However, Sloane made no attempt to notify Brisco of the sale.
Thereafter, Alexander sold the equipment to Paul Gates. In March 2017, Brisco contacted Michael
Kimbrough, Sloan’s cousin, to get the gate code so he could access the equipment because he was
considering selling it. Kimbrough informed him that the equipment no longer was on the property
and to contact Sloane about the matter.
On June 15, 2017, Brisco filed the instant suit against Sloane and Alexander, in which he
alleged that they were liable to him for, among other things, conversion, unjust enrichment, and
fraud. Sloane answered and pleaded that Brisco’s claims for conversion and unjust enrichment
were barred by the applicable statute of limitations. Subsequently, Brisco pleaded that the
discovery rule served to defer the accrual of these causes of action. Gates later filed a plea in
intervention. The matter proceeded to trial, at the conclusion of which the jury found that Sloane
and Alexander were liable to Brisco for conversion and that Sloane also was liable to him for
unjust enrichment and fraud. 1 With regard to Brisco’s conversion cause of action, the jury made
separate awards in differing amounts for the fair market value of the equipment converted by
Sloane and, later, by Alexander. It further awarded damages to Brisco from Sloane for unjust
enrichment. However, despite its having found Sloane liable for fraud by nondisclosure, the jury
awarded Brisco no damages for this cause of action.
After the jury’s verdict, but before the trial court rendered its judgment, Brisco entered into
a written settlement agreement with Alexander and Gates, by which he resolved his claims against
them for $13,000.00. Thereafter, Sloane filed a motion to modify the judgment, in which he
requested that the trial court apply a settlement credit against the damages for which he was
1
The court’s charge also contained questions on the application of the discovery rule to Brisco’s conversion
and unjust enrichment causes of action. In response to these questions, the jury answered that the date by which
Brisco, in the exercise of reasonable diligence, should have discovered the sale of his property was August 21, 2015.
2
responsible. The trial court denied this request and entered judgment against Sloane in accordance
with the jury’s verdict. This appeal followed.
APPLICABILITY OF THE DISCOVERY RULE
In his first issue, Sloane argues that the discovery rule is inapplicable to Brisco’s
conversion and unjust enrichment claims as a matter of law because it does not apply to the type
of injury suffered by Brisco. Thus, he contends that the trial court abused its discretion in
submitting charge questions on the application of the discovery rule to these causes of action and
otherwise erred in overruling his motion for judgment notwithstanding the verdict on the same
underlying basis.
Standards of Review
We review alleged jury charge error for abuse of discretion. See Shupe v. Lingafelter, 192
S.W.3d 577, 579 (Tex. 2006); Allstate Ins. Co. v. Hunter, 242 S.W.3d 137, 139 (Tex. App.–Fort
Worth 2007, no pet.). The trial court has broad discretion in submitting jury questions so long as
the questions submitted fairly place the disputed issues before the jury. Hunter, 242 S.W.3d at
139; Toles v. Toles, 45 S.W.3d 252, 263 (Tex. App.–Dallas 2001, pet. denied). This broad
discretion is subject only to the limitation that controlling issues of fact must be submitted to the
jury. TEX. R. CIV. P. 278; Hunter, 242 S.W.3d at 140. A trial court abuses its discretion by acting
arbitrarily, unreasonably, or without consideration of guiding principles. See Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
A motion notwithstanding the verdict is proper when a directed verdict would have been
proper. See TEX. R. CIV. P. 301; CDB Software, Inc. v. Kroll, 992 S.W.2d 31, 35 (Tex. App.–
Houston [1st Dist.] 1998, pet. denied). The motion should be granted when (1) the evidence is
conclusive, and one party is entitled to recover as a matter of law or (2) a legal principle precludes
recovery. See McCullough v. Scarbrough, Medlin & Assocs., 435 S.W.3d 871, 885 (Tex. App.–
Dallas 2014, pet. Denied); Kroll, 992 S.W.2d at 35. We review a determination that a legal
principle precludes recovery under a de novo standard. Hardin v. Obstetrical & Gynecological
Assocs. P.A., 527 S.W.3d 424, 435 (Tex. App.–Houston [1st Dist.] 2017, pet. denied).
Despite these differing standards of review, Sloane’s first issue consists of a singular
argument––the discovery rule does not apply to the type of injury suffered by Brisco. Thus, if the
trial court abused its discretion in submitting charge questions on this issue, it likewise erred in
3
overruling his motion for judgment notwithstanding the verdict on this basis. See St. Joseph Hosp.
v. Wolff, 94 S.W.3d 513, 525 (Tex. 2003) (in preparing charge, trial courts have no discretion to
misstate law); Hardin, 527 S.W.3d at 435.
Governing Law
The primary purpose of statutes of limitations is to compel the exercise of a right of action
within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses
are available and the evidence is fresh in their minds. LaGloria Oil and Gas Co. v. Carboline Co.,
84 S.W.3d 228, 234 (Tex. App.–Tyler 2001, pet. denied). It is in society’s best interest to grant
repose by requiring that disputes be settled or barred within a reasonable time. Id.
Ordinarily, a cause of action accrues when a wrongful act causes a legal injury, even if the
fact of injury is not discovered until later, and even if all resulting damages have not yet occurred.
See S.V. v. R.V., 933 S.W.2d 1, 3 (Tex. 1996); see also Li v. Univ. of Tex. Health Sci. Ctr. at
Houston, 984 S.W.2d 647, 651 (Tex. App.–Houston [14th Dist.] 1998, pet. denied). The discovery
rule is the legal principle which, when applicable, provides that limitations run from the date the
plaintiff discovers or should have discovered, in the exercise of reasonable care and diligence, the
nature of the injury. See Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998); Willis v. Maverick,
760 S.W.2d 642, 644 (Tex. 1988). Discovering the “nature of the injury” requires knowledge of
the wrongful act and the resulting injury. See Childs, 974 S.W.2d at 40. The discovery rule applies
only when the nature of the plaintiff’s injury both is inherently undiscoverable and objectively
verifiable. Clark v. Dillard’s, Inc., 460 S.W.3d 714, 721 (Tex. App.–Dallas 2015, no pet.) (citing
Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001)).
“Inherently undiscoverable” does not mean that the plaintiff failed to discover the injury
within the limitations period. Horwood, 58 S.W.3d at 735. Instead, we determine whether an
injury is inherently undiscoverable on a categorical basis because such an approach brings
predictability and consistency to the jurisprudence. Id. The focus is on whether a type of injury,
rather than a particular injury, was discoverable. Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314
(Tex. 2006). An injury is inherently undiscoverable if, by its nature, it is unlikely to be discovered
within the limitations period despite due diligence. Id. at 313. Thus, the question is whether
Brisco’s injury is the type of injury that generally is discoverable by the exercise of reasonable
diligence. See Wagner & Brown, 58 S.W.3d at 735. A wrong or injury is not inherently
undiscoverable if it “generally is capable of detection within the time allotted for bringing such
4
suits.” Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 457 (Tex. 1996). Whether an
injury is inherently undiscoverable is a legal question “decided on a categorical basis rather than
case-specific basis.” Via Net, 211 S.W.3d at 314.
Conversion is the 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. Burns
v. Rochon, 190 S.W.3d 263, 267–68 (Tex. App.–Houston [1st Dist.] 2006, no pet.). A cause of
action for conversion must be commenced no later than two years after its accrual. See TEX. CIV.
PRAC. & REM. CODE ANN. § 16.003 (West 2017). Unjust enrichment occurs when the defendant
wrongfully has secured or passively has received a benefit from another that would be
unconscionable to retain, and the defendant obtained the benefit from the plaintiff by fraud, duress,
or the taking of an undue advantage. Clark, 460 S.W.3d at 720. A cause of action for unjust
enrichment also must be commenced no later than two years after its accrual. See Elledge v.
Friberg-Cooper Water Supply Corp., 240 S.W.3d 869, 870 (Tex. 2007). Here, the type of injury
suffered by Brisco––the lost value of equipment sold by Sloane and, later, by Alexander without
his knowledge––is the same for both his conversion and unjust enrichment causes of action. Thus,
we consider together his argument regarding the trial court’s submission of discovery rule
questions in its charge in conjunction with each of these claims. See Via Net, 211 S.W.3d at 314.
In cases of conversion, the statute of limitations generally begins to run at the time of the
unlawful taking. Burns, 190 S.W.3d at 271; Republic Supply Co. v. French Oil Co., 392 S.W.2d
462, 464–65 (Tex. Civ. App.–El Paso 1965, no writ). However, the discovery rule has been
applied in certain conversion cases in which possession initially is lawful. See Burns, 190 S.W.3d
at 271 (discovery rule applied when landlord’s possession of property leased to tenant by third
party because landlord lawfully locked tenant out of real property on which personal property
located due to dispute over rent) (citing Hofland v. Elgin–Butler Brick Co., 834 S.W.2d 409, 414
(Tex. App.–Corpus Christi 1992, no writ) (discovery rule applied where property placed in
possession of bailor and secretly sold because true owner has no reason to know of conversion)).
When the discovery rule applies, the cause of action accrues “upon demand and refusal, or
discovery of facts supporting the cause of action, whichever occurs first.” Burns, 190 S.W.3d at
271.
5
Discussion
In the instant case, Sloane argues that the discovery rule is inapplicable to Brisco’s
conversion and unjust enrichment causes of action because the nature of the type of injury in the
instant case is not inherently undiscoverable. 2 We disagree.
As set forth previously, the discovery rule has been applied to defer the accrual of
limitations on causes of action arising from conversion when the evidence supported that the
defendant’s initial possession of the subject property was lawful. See Burns, 190 S.W.3d at 271.
In Hofland, for example, the initial, lawful possession resulted from a bailor-bailee relationship.
See Hofland, 834 S.W.2d at 414. A bailment requires (1) the delivery of property by one person
to another for a specific purpose, (2) acceptance of the delivery of the property by the transferee,
(3) an agreement, express or implied, that the purpose will be fulfilled, and (4) an understanding
that the property will be returned to the transferor. See DeLaney v. Assured Self Storage, 272
S.W.3d 837, 839 (Tex. App.–Dallas 2008, no pet.). Furthermore, a constructive bailment arises
where a person lawfully has acquired possession of personal property of another and holds it under
circumstances, whereby he should, on principles of justice, keep it safely and restore it or deliver
it to the owner). See, e.g., In re Ramirez, No. 12-34472, 2014 WL 2522148, at *7 (Bankr. S.D.
Tex. Jun. 4, 2014).
Here, Sloane and Brisco had a written agreement, pursuant to which Brisco would conduct
logging operations on Sloane’s land. Throughout the logging operations, Brisco left the logging
equipment on Sloane’s property when it was not in use. Sloane testified that during logging
operations, he considered the equipment to be in his possession when it was left on his property
unattended. After the logging operations ceased, Brisco left the equipment on Sloane’s land for a
period of years. And though Brisco testified that he intended to complete the operation pursuant
to his agreement with Sloane when the equipment again was operational, there is no evidence that
he took any steps toward repairing his equipment or reviving his logging business. While the
inoperable equipment was parked on Sloane’s property following cessation of the logging
activities, the record indicates that there were few instances where Brisco came to the property to
inspect it or otherwise exhibit any sort of control over it. Furthermore, when he did access the
2
We agree with Sloane’s concession in his brief that the nature of the injury in this case is objectively
verifiable.
6
property, he had to contact Kimbrough to get the gate access code. 3 Thus, the equipment remained
on Sloane’s property and in his possession a vast majority of the time between the cessation of
logging operations and its sale to Alexander, and Brisco’s vague statements to Sloane’s family
members about his intent to remove the equipment at some future date did not alter this fact. As
a result, we conclude that Sloane’s possession of the logging equipment was akin to a constructive
bailment and, thus, initially was lawful. See Hofland, 834 S.W.2d at 414; see also DeLaney, 272
S.W.3d at 839; Ramirez, 2014 WL 2522148, at *7. 4
Furthermore, the evidence of record supports the trial court’s determination that the injury
Brisco suffered is the type and of the category that generally would not be discoverable by the
exercise of reasonable diligence. First, the evidence conclusively establishes that the several
pieces of logging equipment in question were large, heavy, and nonfunctioning. As a result, they
were difficult and expensive to move. 5 Further still, there is no dispute that Sloane’s land was in
a remote location and protected by a locked access gate.
Sloane points out that there was testimony about the pitfalls of letting logging equipment
sit idle for extended periods and that a reasonable owner of such equipment would, at a minimum,
check on it at least once per month and operate it to lubricate the engine seals. However, this
testimony does not address the reasonableness of an owner’s attentiveness in Brisco’s situation
since his equipment had been inoperable and immobile for two years when Sloane sold it. Thus,
3
Sloane’s daughter, Scarlette Long, testified that the coded gate lock often was cut by persons who sought
to access the property to work on the pipeline running underneath it. As a result, the lock would be changed and with
it, the gate code often changed as well. Long further testified that the gate access code freely was given to Brisco.
4
In Vanderpool v. Vanderpool, 442 S.W.3d 756 (Tex. App.–Tyler 2014, no pet.), this court declined to apply
the discovery rule to a conversion claim. However, our holding in Vanderpool is distinguishable from the instant
case. There, in an appeal from summary judgment, the determination of whether the discovery rule applied rested on
the existence of a fiduciary relationship and whether the appellants conducted a diligent inquiry to protect their
remainder interest in life estate property. See id. at 765–66. We held that the facts and circumstances in that case did
not support the existence of a fiduciary relationship, despite the fact that the parties’ relationship involved some degree
of trust. Id. at 767. We further determined that Appellants, as a matter of law, failed to exercise reasonable diligence
to discover the existence of any remainder interest in the life estate property where the summary judgment evidence
established that they had not seen the property for years prior to their father’s death and, thereafter, failed to inquire
of its existence for over three years. Id. at 763, 766–67. Here, the application of the discovery rule is based on
evidence demonstrating a relationship akin to a bailor-bailee relationship between Sloane and Brisco, wherein
Sloane’s possession of the inoperable equipment initially was lawful. Furthermore, the issue of whether Brisco
exercised reasonable diligence was a fact question, which the jury resolved and which has not been challenged on
appeal. See Conoco, Inc. v. Amarillo Nat. Bank, 14 S.W.3d 325, 328 (Tex. App.–Amarillo 2000, no pet.).
5
Gates testified that it cost him approximately $2,400 to move the equipment off Sloan’s property and doing
so took nearly two weeks to accomplish.
7
the trial court reasonably could have determined that Brisco’s need to check on his equipment to
ensure its continued operability was less dire since any damage resulting from lack of use likely
already had occurred.
Moreover, Sloane never demanded that Brisco remove his equipment from the property.
The record does indicate that several of Sloane’s family members, who were adjacent property
owners, contacted Brisco to ask when he planned to move the equipment, only to be assured by
Brisco that he would move it soon. But there is no indication that any of these people went so far
as to demand that the equipment be moved or that they indicated to Brisco that they were speaking
on Sloane’s behalf. And while it is arguable that a diligent owner of such equipment would
interpret these communications as a strong indication that he should make a concerted effort to
move the equipment, Brisco testified that during this time, he had not yet decided to dissolve his
logging business. To be sure, his contract with Sloane never was repudiated, and, thus, Brisco
reasonably was entitled to believe that his equipment would not be removed from Sloane’s
property since he had a contractual obligation to complete the logging operation. Indeed, Brisco
testified that it never was his intent not to complete the logging operations on Sloane’s property.
Lastly, it is undisputed that Brisco and Scarlette Long, Sloane’s daughter, were involved
in a dating relationship in the months leading up to the logging operation. Brisco testified that,
during that time, he attended family events with Long and became acquainted with Sloane. He
further testified that he and Long remained friends when their dating relationship ended and
communicated with some frequency. Doubtlessly, Brisco’s interpersonal relationship with Long
did not create any legal duty between him and Sloane. But the trial court reasonably could have
considered that Brisco’s relationship with Long contributed to his belief that his equipment safely
would remain on Sloane’s property as yet another reason why Brisco’s exercise of reasonable
diligence should not require that he regularly monitor the location of his logging equipment.
Based on our review of the record, we hold that the nature of the type of injury Brisco
suffered in the instant case is inherently undiscoverable and, as a result, the discovery rule applies
to Brisco’s conversion and unjust enrichment causes of action. Therefore, the trial court’s decision
to submit discovery rule questions to the jury on Brisco’s conversion and unjust enrichment claims
did not result in an abuse of its discretion, nor did it err in overruling Slone’s motion for judgment
8
notwithstanding the verdict. 6 See Downer, 701 S.W.2d at 241–42; see also Wolff, 94 S.W.3d at
525; Hardin, 527 S.W.3d at 435.
SETTLEMENT CREDIT
In his third issue, Sloane argues that he is entitled to a settlement credit under the
“one-satisfaction” rule.
Standard of Review and Governing Law
We review the trial court’s application of the one-satisfaction rule de novo. See Sky View
at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 108 (Tex. 2018).
“Under the one satisfaction rule, a plaintiff is entitled only to one recovery for any damages
suffered.” Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000); see also Stewart Title
Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991) (“The one satisfaction rule applies to prevent
a plaintiff from obtaining more than one recovery for the same injury”). The rule is one of general
acceptation that an injured party is entitled to but one satisfaction for the injuries sustained by him.
See Mendez, 555 S.W.3d at 107. That rule is in no sense modified by the circumstance that more
than one wrongdoer contributed to bring about his injuries. Id. There being but one injury, there
can, in justice, be but one satisfaction for that injury. Id.
The fundamental consideration in applying the one-satisfaction rule is whether the plaintiff
has suffered a single, indivisible injury—not the causes of action the plaintiff asserts. See Stewart
Title, 822 S.W.2d at 8. That is, “[t]here can be but one recovery for one injury, and the fact that
more than one defendant may have caused the injury or that there may be more than one theory of
liability, does not modify this rule.” Id. Thus, the rule applies both “when the defendants commit
the same act as well as when defendants commit technically differing acts which result in a single
injury.” Id. at 7.
The supreme court has explained the rule’s rationale, as it applies to settlement credits for
nonsettling defendants, as follows:
[T]he plaintiff should not receive a windfall by recovering an amount in court that covers the
plaintiff’s entire damages, but to which a settling defendant has already partially contributed. The
plaintiff would otherwise be recovering an amount greater than the trier of fact has determined
would fully compensate for the injury.
6
Because we have overruled Sloane’s first issue, we do not consider his second issue regarding whether he,
as a result of fraud, is estopped from relying on limitations as an affirmative defense. See TEX. R. APP. P. 47.1.
9
First Title of Co. of Waco v. Garrett, 860 S.W.2d 74, 78 (Tex. 1993).
A nonsettling defendant seeking a settlement credit under the one-satisfaction rule has the
burden to prove its right to such a credit. Utts v. Short, 81 S.W.3d 822, 828 (Tex. 2002); Mobil
Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex. 1998). A nonsettling defendant meets this
burden by introducing into the record either the settlement agreement or some other evidence of
the settlement amount. Ellender, 968 S.W.2d at 927; see also Utts, 81 S.W.3d at 828. “Once the
nonsettling defendant demonstrates a right to a settlement credit, the burden shifts to the plaintiff
to show that certain amounts should not be credited because of the settlement agreement’s
allocation.” Utts, 81 S.W.3d at 828. The plaintiff can rebut the presumption that the nonsettling
defendant is entitled to settlement credits by presenting evidence showing that the settlement
proceeds are allocated among defendants, injuries, or damages such that entering judgment on the
jury’s award would not provide for the plaintiff’s double recovery. See id. at 828–29 (requiring
nonsettling plaintiff to show that it did not benefit from settlement); Casteel, 22 S.W.3d at 391–92
(requiring showing of allocation between joint and separate damages); Ellender, 968 S.W.2d at
928 (requiring showing of allocation between actual and punitive damages); First Title, 860
S.W.2d at 79 (applying one-satisfaction rule when the plaintiff did not show it settled for separate
injury). A written settlement agreement that specifically allocates damages to each cause of action
will satisfy this burden. Mendez, 555 S.W.3d at 108; Ellender, 968 S.W.2d at 928; see also First
Title, 860 S.W.2d at 79 (examining contents of settlement agreement).
“[A] nonsettling party should not be penalized for events over which it has no control.”
Utts, 81 S.W.3d at 829 (citing Ellender, 968 S.W.2d at 927). Thus, this burden-shifting
framework, based on the presumption that the nonsettling defendant is entitled to a settlement
credit after it introduces evidence of the plaintiff’s settlement, is appropriate because the plaintiff
is “in the best position” to demonstrate why rendering judgment based on the jury’s damages award
would not amount to the plaintiff’s double recovery. See Utts, 81 S.W.3d at 829. If the plaintiff
fails to satisfy this burden, then the defendant is entitled to a credit equal to the entire settlement
amount. See id.; Ellender, 968 S.W.2d at 928.
Discussion
In the instant case, Brisco entered into a written settlement agreement with Alexander and
Gates after the jury returned its verdict, but before the trial court entered its final judgment. See,
10
e.g., Casteel, 22 S.W.3d at 390, 391. The trial court rendered its final judgment awarding Brisco
a recovery from Sloane for unjust enrichment in the amount of $25,000.00 plus five percent
prejudgment interest ($3,101.94) 7 and costs of court ($1,355.39), resulting in a total recovery of
$29,457.33. Brisco did not request a judgment against Alexander. Thereafter, Sloane filed a
motion to modify the judgment and, subsequently, filed with the court a copy of the settlement
agreement between Brisco, Alexander, and Gates.
The settlement agreement sets forth that the parties “have reached an agreement to
compromise and settle all claims and controversies between them in the above-styled and
numbered action[.]” Brisco stipulated that he received the agreed settlement proceeds of
$13,000.00. We observe that the jury found liability and awarded damages against Sloane and
Alexander respectively for conversion. The jury also found Sloane liable for unjust enrichment
and awarded $25,000.00 in damages on that cause of action, under which Brisco elected to recover.
Brisco argues that the damages awarded for unjust enrichment arise from a distinct injury versus
those which arose as a result of the conversion. We disagree. See Stewart Title, 822 S.W.2d at 8.
The court’s charge did not instruct the jury how to calculate damages for unjust enrichment or
otherwise tell the jury that the damages for unjust enrichment were distinct from those it awarded
for conversion, and no party objected to this question on that basis. Cf. Khorshid, Inc. v. Christian,
257 S.W.3d 748, 765 n.6 (Tex. App.–Dallas 2008, no pet.) (appellate court reviews evidence in
light of charge submitted to jury when neither party objects to charge at trial). And based on our
review of the pleadings and the record, these causes of action undoubtedly arose from the same
transaction or occurrence––the sale and resale of Brisco’s logging equipment––and the resulting
injury to Brisco caused by Sloane and Alexander’s conversion of the property as well as the benefit
obtained by Sloane in the case of unjust enrichment––the monetary value of the equipment––is the
same. Thus, Sloane successfully raised a presumption that he was entitled to a settlement credit
of $13,000.00. See Mendez, 555 S.W.3d at 110.
Brisco also contends that since the jury awarded different amounts for conversion as to
Sloane and Alexander, despite its being instructed to base its award on market value, it is
reasonable for this court to resolve this conflict by concluding that the jury intended that its
determination of the full market value of the equipment be reflected by the sum of these two
7
The judgment sets forth that prejudgment interest is awarded at an annual rate of 5.00% beginning June 15,
2017, and ending on December 9, 2019, a period of nine hundred seven days or 2.485 years.
11
awards. However, the court’s charge does not specifically instruct the jury to calculate its award
in this fashion and we decline to draw speculative conclusions regarding the jury’s thought
processes or its intentions in reaching its answers to these two questions. Cf. Springs Window
Fashions Div., Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 867 (Tex. App.–Austin 2006, no pet.).
Thus, we cannot conclude, based on the jury’s answers to the damages questions alone, that Brisco
rebutted the presumption of Sloane’s entitlement to a settlement credit by demonstrating that the
settlement proceeds from Alexander were allocated to an injury or damages different from the one
he recovered from Sloane so that his receiving the full jury award would not amount to a double
recovery or windfall. See Mendez, 555 S.W.3d at 111.
Based on our review of the record, we hold that Sloane is entitled to a settlement credit in
the amount of $13,000.00. Accordingly, we will modify the trial court’s judgment to reflect the
appropriate application of the settlement credit, calculation of prejudgment interest, and total
amount owed by Sloane to Brisco. Sloane’s third issue is sustained.
CONCLUSION
We have overruled Sloane’s first issue and sustained his third issue. Having done so, we
modify the trial court’s judgment by applying a settlement credit to the jury’s award in the amount
of $13,000.00, thereby reducing the recovery of damages by Brisco from Sloane from $25,000.00
to $12,000.00. Consequently, we further modify the trial court’s judgment by reducing the amount
awarded in prejudgment interest from $3,101.94 to $1,491.00. 8 Lastly, we modify the trial court’s
judgment by reducing the total amount owed by Sloane to Brisco from $29,457.33 to $14,846.39.
We affirm the trial court’s judgment as modified.
BRIAN HOYLE
Justice
Opinion delivered December 16, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
8
The amount of simple interest was calculated by multiplying the principal ($12,000) by the rate of interest
(0.05) by the number of years (2.485).
12
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
_DECEMBER 16, 2020
NO. 12-20-00080-CV
JOHN W. SLOANE,
Appellant
V.
KARL BRISCO,
Appellee
Appeal from the 145th District Court
of Nacogdoches County, Texas (Tr.Ct.No. C1732883)
THIS CAUSE came to be heard on the oral arguments, appellate record and
the briefs filed herein, and the same being considered, because it is the opinion of this court that
the judgment of the court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified by applying a settlement credit to the jury’s award in the amount
of $13,000.00, thereby reducing the recovery of damages by Brisco from Sloane from $25,000.00
to $12,000.00. We also modify the trial court’s judgment by reducing the amount awarded in
prejudgment interest from $3,101.94 to $1,491.00. We further modify the trial court’s judgment
by reducing the total amount owed by Sloane to Brisco from $29,457.33 to $14,846.39; in all other
respects the judgment of the trial court is affirmed and that all costs of this appeal are hereby
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adjudged against the Appellee, KARL BRISCO, in accordance with the opinion of this court; and
that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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