IN THE TENTH COURT OF APPEALS OF TEXAS NO. 10-07-00002-CV
JOSE LUIS LOPEZ Appellant VS. AMY ELIZABETH LOPEZ Appellee
ON APPEAL FROM THE 19TH JUDICIAL DISTRICT COURT McLENNAN COUNTY, TEXAS TRIAL COURT NO. 2005-2429-1 _________________________________________
BRIEF OF APPELLANT ________________________________________ Russell A. Smith Law Office of Ed L. Laughlin, P.C. 427 N. 38th Street Waco, Texas 76710 Telephone: (254) 714-2500 Facsimile: (254) 714-2564 State Bar No.: 18861800 Attorney for Appellant March 16, 2007 ORAL ARGUMENT REQUESTED
IN THE TENTH COURT OF APPEALS OF TEXAS NO. 10-07-00002-CV JOSE LUIS LOPEZ VS. AMY ELIZABETH LOPEZ § § § § §
NAMES OF ALL THE PARTIES (Rule 38.1(a), T.R.A.P.) Appellant Appellant’s Attorney at Trial : : Jose Luis Lopez Russell A. Smith 427 N. 38th Street Waco, Texas 76710 Amy Elizabeth Lopez Damon L. Reed 600 Austin Avenue Waco, Texas 76701
Appellee Appellee’s Attorney at Trial
: :
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TABLE OF CONTENTS NAMES OF ALL THE PARTIES……………………………………………………2 TABLE OF CONTENTS……………………………………………………………..3 INDEX OF AUTHORITIES………………………………………………………….4 STATEMENT OF THE NATURE OF THE CASE………………………………….5 ISSUES PRESENTED…..……………………………………………………………6 Issue No. 1 The Court’s finding of no conversion of the receipt or of the $15,000.00 by Amy Elizabeth Lopez was against the great weight and preponderance of the evidence. Issue No. 2 Conversion of the receipt and of the $15,000 by Amy Elizabeth Lopez was established as a matter of law. Issue No. 3 The application of the Statue of Frauds or Limitations was improper by the court in that these defenses were not affirmatively pled. STATEMENT OF FACTS……………………………………………………………..7 SUMMARY OF THE ARGUMENT…………………………………………………..9 ARGUMENT………………………………………………………………………….10 PRAYER……………………………………………………………………………....14 APPENDIX……………………………………………………………………………15
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INDEX OF AUTHORITIES Cases Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) Gooch v. Am.Sling Co., 902 S.W.2d 181 (Tex.App.-Fort Worth 1995, no writ). Houston National Bank v. Biber, 613 S.W.2d 771 (Tex.Civ.App --- Houston [14th Dist] 1981, writ ref'd n.r.e.) Southwest Indus. Inv v. Berkeley House Investors, 695 S.W.2d 615, 617 (Tex.App.--Dallas 1985, writ ref'd n.r.e.) Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444 (Tex.1971)
Statutes and Rules Rule 63, Texas Rules of Civil Procedure Rule 94, Texas Rules of Civil Procedure
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STATEMENT OF THE NATURE OF THE CASE Appellant’s causes of actions are for conversion of property and conversion of money. This is an appeal of a judgment rendered in a trial before the court.
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ISSUES PRESENTED Issue Number One The Court’s finding of no conversion of the receipt or of the $15,000.00 by Amy Elizabeth Lopez was against the great weight and preponderance of the evidence. Issue Number Two Conversion of the receipt and of the $15,000 by Amy Elizabeth Lopez was established as a matter of law. Issue Number Three The application of the Statue of Frauds or Limitations was improper by the court in that these defenses were not affirmatively pled.
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STATEMENT OF FACTS In September 2002 Amy Elizabeth Lopez was the sister-in-law of Jose Luis Lopez. Amy Elizabeth Lopez’s husband, Wenceslao Lopez, was in the custody of United States Immigration and Naturalization Service in San Antonio, Texas. A cash bond of $15,000.00 was required for the release of Wenceslao Lopez. Amy Elizabeth Lopez requested that Jose Luis Lopez, the brother of Wenceslao Lopez, post a cash bond in order to have Wenceslao Lopez released. On September 20, 2002 Jose and Amy traveled to San Antonio together. Jose had $15,000.00 in cash. When they arrived at the Immigration and Naturalization building Jose gave Amy possession of the cash and she went in to the building to pay the cash bond. Amy was told that cash would not be accepted but a cashier’s check or money order was required. Amy returned to the car and informed Jose of this requirement. Jose then drove to the nearest Bank of America where he went in to the bank and purchased a cashier’s check made payable to the I.N.S. (Plaintiff’s Exhibit 1) The Cashier’s check states that the check was purchased by Jose Luis Lopez. They drove back to the INS building and Amy carried the cashier’s check in and posted the bond. She was given a receipt for the bond. (Statement of Facts pages 15-21) At no time did Jose give or loan the money to Amy. At all times the money belonged to Jose. He purchased the cashier’s check. Amy merely carried the check into the building and delivered the bond to the clerk. The receipt for the bond, however, was made out to Amy Elizabeth Lopez.
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The parties traveled back to Waco. Amy had in her possession the receipt she received from I.N.S.. The receipt did not become an issue until Amy Elizabeth Lopez and Wenceslao Lopez were in the process of divorcing. (Statement of Facts p. 47, Lines 14-25). Demand was made for the bond receipt so that Jose Luis Lopez could recover his money from the INS. Amy refused to return the bond stating that she could not find it, however, testified that she consulted with her attorney, Whitney Fanning, concerning her ability to keep the money. He informed her that she should recover the cash bond and keep it as her own. (SOF page 28, Lines 8-14) She did then recover the money from the INS and has refused to return the money to Jose Luis Lopez. Demand for the receipt and for the return of the money was made by Jose Luis Lopez and Amy Elizabeth Lopez refused to return the money.
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SUMMARY OF THE ARGUMENT The trial court issued a take nothing judgment against Appellant. Appellant would show this court that the trial court’s judgment is in error and the trial court should have found for Appellant and awarded damages. The evidence submitted does not support the court’s judgment and the judgment is manifestly unjust and is against the great weight and preponderance of the evidence.
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ARGUMENT
Issue Number One The Court’s finding of no conversion of the receipt or of the $15,000.00 by Amy Elizabeth Lopez was against the great weight and preponderance of the evidence.
Issue Number Two Conversion of the receipt and of the $15,000 by Amy Elizabeth Lopez was established as a matter of law. A court should set aside an adverse finding if, in light of all the evidence, the evidence which supports the finding is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) An appellant challenging the factual sufficiency of an adverse finding where he had the burden of proof must show on appeal that the finding was against the great weight and preponderance of the evidence. Gooch v. Am.Sling Co., 902 S.W.2d 181 (Tex.App.-Fort Worth 1995, no writ). Conversion of Property
Conversion is the wrongful exercise of dominion and control over another’s personal property, to the exclusion of or inconsistent with the rights of the owner. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444 (Tex.1971)
Conversion of Money
Where a party breaches an obligation to deliver a specific, identifiable sum of money, an action for conversion of money will lie. Southwest Indus. Inv. Co. v. Berkeley
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House Investors, 695 S.W.2d 615, 617 (Tex.App.---Dallas 1985, writ ref'd n.r.e.) An action for the conversion of money may be brought where money is (1) delivered for safe keeping; (2) intended to be kept segregated; (3) substantially in the form in which it is received or an intact fund; and (4) not the subject of a title claim by the keeper. Houston Nat'l Bank v. Biber, 613 S.W.2d 771 (Tex.Civ.App --- Houston [14th Dist] 1981, writ ref'd n.r.e.)
Both of Appellant’s issues are addressed together. The facts are not controverted by Appelle that she did not know if the $15,000.00 had been made a gift to her. (Statement of Facts p. 56, Line 21-25) The issue of ownership of the money was not addressed by Appellee until she discussed what she should do about the money held by the I.N.S.. (SOF p. 62, Lines 10-25) Demand had been made for the return of the receipt or for her to execute documents to allow Appellant to retrieve the cash bond. This demand was made before and while the divorce was pending. (SOF Page 16 Line 20-25, Page 47 Lines 14-25)
The uncontroverted evidence shows that the Appellee merely acted as an agent for appellant when she delivered the cashier’s check to the I.N.S.. Plaintiff Exhibit 1 clearly shows the check was made payable to I.N.S. and that Jose Lopez was the purchaser and the remitter. Her delivering the check did not transfer ownership of the money to her. At no time was there the intent of any party that this money represented a gift to her. At no time did the parties discuss that this money was loaned to Appellee. If, however, the court is of the opinion that physically handing a person cash makes that cash a gift, then
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Appellee gifted the money back to Appellant when she handed him the cash for him to go purchase a cashier’s check.(Page 53, Line 1-4)
Appellee’s refusal to surrender the receipt or to sign documents to allow Appellant to retrieve the money was conversion of property (the receipt) as a matter of law. She exercised dominion and control over appellant’s personal property (the receipt), to the exclusion of or inconsistent with the rights of the appellant.
Appellee’s refusal to surrender the actual money was a conversion of money. Money was delivered for safe keeping—delivery to the I.N.S.. This money was kept segregated and not mixed with Appellee’s money. The money was in substantially in the form in which it is received and was not the subject of a title claim by the keeper.
Appelle was acting as Appellant’s agent in delivering the cashier’s check. The receipt did not transfer ownership of the money to Appellee. It merely allowed appelle the right to retrieve the money on behalf of appellant.
Issue Number Three The application of the Statue of Frauds or Limitations was improper by the court in that these defenses were not affirmatively pled.
The court refers to a Supplemental Answer that raises the Statute of Fraud as well as the defense of limitations, however, a Supplemental Answer was not filed prior to the trial of this case raising these affirmative defenses as required by Rule 94 T.R.C.P.. Rule 63 of the T.R.C.P. require responsive pleadings filed within 7 days of trial be filed only after leave of the judge is obtained. Appellant is not aware of any request for filing a
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supplemental answer. The court’s application of these two affirmative defenses is not proper. However, if this court examines the issue of the Statue of Limitations the facts confirm that suit was filed within two years of the demand for the return of the money. This suit was filed in July 2005. The demand for the return of the money was made in 2004 per the Appellee’s own testimony.
CONCLUSION
The court’s judgment should be reversed and a judgment should be rendered for the Plaintiff for the reasons and argument set out.. The court found that this transaction did not represent a gift of money. (Statement of Facts page 120, Ln 12-13) The parties testified that this was not a loan. If not a gift or loan, then the ownership of the money remained in the Appellant. The receipt was proof that the I.N.S. received a cashier’s check for the bond. The receipt itself did not transfer ownership of the money to Appellee. Appellee converted both the receipt and the money when she refused to either hand the receipt over to Appellant or when she refused to sign documents that would allow Appellant to recover his money. She converted the money once she took possession of it. The money was segregated, identifiable and she did not have an ownership claim to this money. The court’s reliance on the Statute of Frauds and Limitations as a basis for the court’s decision when these defenses were not pled or raised in evidence.
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PRAYER
Appellant prays that the trial courts judgment be reversed and that this court render judgment for Appellant in the amount of $15,000.00.
Respectfully Submitted, Law Offices of Ed L. Laughlin, P.C. 427 N. 38th Waco, Texas 76710 (254) 714-2500 (254) 714-2564 Fax
_______________________________ Russell A. Smith SBN 18861800 Attorney for Appellant
CERTIFICATE OF SERVICE I hereby certify that a copy of Appellant’s brief was mailed First Class, Return Receipt Requested to Mr. Damon Reed at Damon L. Reed at 600 Austin Avenue, Waco, Texas 76701 on this 23rd day of April, 2007. _________________________________ Russell A. Smith
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APPENDIX TRIAL COURT’S JUDGMENT RULE 63. AMENDMENTS AND RESPONSIVE PLEADINGS Parties may amend their pleadings, respond to pleadings on file of other parties, file suggestions of death and make representative parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.
RULE 94. AFFIRMATIVE DEFENSES In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. Where the suit is on an insurance contract which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists.
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