Khorshid, Inc. v. Christian (257 S.W.3d 748, 2008)

OPINION

Opinion by

Justice LANG.

This case involves the alleged conversion of an automobile belonging to appellee Uche Christian. Uche brought this action against five defendants (the “defendants”): Khorshid, Inc., d/b/a Taxi Dallas (“Taxi Dallas”); Darya Inc., d/b/a Executive Taxi (“Executive Taxi”); Zyba, Inc., d/b/a Golden Cab (“Golden Cab”); and individuals Barry Sangani and Nasser Mansourian, co-owners of Taxi Dallas, Executive Taxi, and Golden Cab. Based on the jury’s answers to the questions in the jury charge, the trial court entered judgment awarding Uche $2912 in compensatory damages, $200,000 in exemplary damages, and $10,000 in attorney’s fees.

Taxi Dallas and Mansourian (“appellants”) present fourteen issues on appeal, which we summarize below. Appellants argue the evidence is legally insufficient to support the jury’s findings that: (1) $3000 would reasonably compensate Uche for the conversion of his automobile; (2) Taxi Dallas is entitled to an offset in the amount of $88 for delinquent stand fees, rather than the amount of $484 asserted by appellants; (3) appellants engaged in a false, misleading, or deceptive act or practice that Uche relied upon to his detriment and that was a producing cause of damages to Uche; (4) the harm to Uche resulted from malice by appellants; and (5) the conduct of Taxi Dallas warranted $200,000 in exemplary damages. Further, appellants assert factual insufficiency as to each of the above-described jury findings, and as to the jury’s findings that appellants did not make a qualified refusal to return Uche’s vehicle and appellants were not entitled to an offset for repair work on Uche’s vehicle. Finally, appellants assert the trial court erred in awarding attorney’s fees to Uche and in awarding damages against Executive Taxi.

Based on the analysis and conclusions below, we reverse and render with respect to the offset to Taxi Dallas for delinquent stand fees, suggest a remittitur as to the award of exemplary damages, and modify the trial court’s judgment with respect to the parties named therein to reflect the judgment as rendered. The trial court’s judgment is otherwise affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the time of trial, Uche asserted claims for conversion, illegal exercise of a mechanic’s lien, trespass to chattels, conspiracy, unjust enrichment, intentional infliction of emotional distress, violation of the Deceptive Trade Practices Act, and claims for exemplary damages and attorney’s fees. Defendants pleaded a general denial and asserted setoff, stating in relevant part, “Defendant Darya, Inc. allegés that it is entitled to a setoff for the amount owed to it by plaintiff for taxicab stand fees and for repair preformed [sic] on plaintiffs vehicle minus any amounts received by defendant for the sale of plaintiffs vehicle.”

Uche testified at trial that during 2001, he worked as a taxicab driver for Taxi Dallas and used his own automobile for his work. According to Uche, defendants performed repair work on his automobile in May 2001. In July 2001, he initialed an invoice stating he owed defendants $300 for that repair work. This invoice stated in part, “An express mechanic’s hen is hereby acknowledged on above car, truck, or vehicle to secure the amount of the repairs thereto.” Later in July 2001, according to Uche, he paid defendants $300 in cash for the repair work referenced in the invoice.

Uche stated that in early December 2001, he asked defendants for a statement of any amounts he owed to them. Defendants told him he owed $582 in “stand fees.” Uche made a payment of $494 to defendants and was given a receipt, dated December 3, 2001, showing a balance of $88 owed by him to defendants.

On December 31, 2001, Uche ceased working for defendants. Uche testified that on January 27, 2002, defendants took possession of his automobile, without his consent, from the parking lot of his apartment complex. Uche contacted police, and the automobile was returned to him without any payment by him to defendants. According to Uche, on March 7, 2002, defendants again took possession of his automobile without his consent. He says he went to defendants’ place of business “sometime in April 2002” and demanded the return of his automobile. However, Uche stated Mansourian told him the automobile had been sold. Then, according to Uche, Mansourian, in Uche’s presence, altered the invoice initialed by Uche in July 2001 to state that Uche owed $1335 to defendants.

Uche testified that at the time his automobile was “repossessed,” it was worth $6250. Further, he testified that personal items in the automobile at the time it was taken were worth $2500. Mansourian testified that in his opinion, based on his ten years of experience in the taxicab business, Uche’s automobile was worth less than $1000.

Following the presentation of Uche’s evidence, defendants moved for a directed verdict in favor of Sangani, Executive Taxi, and Golden Cab on the ground that there was “no testimony showing any kind of liability” with respect to those defendants. The trial court granted defendants’ motion for directed verdict in favor of San-gani, Executive Taxi, and Golden Cab. Defendants also moved for and were granted a directed verdict that “no competent evidence” had been presented as to the value of personal items inside Uche’s automobile at the time it was taken.

The jury found: (1) Executive Taxi performed compensable work on Uche’s vehicle, but was not paid in full for that work; (2) Taxi Dallas and Mansourian converted Uche’s vehicle on January 27, 2002 and on March 7, 2002; (3) neither Taxi Dallas nor Mansourian made a qualified refusal to return Uche’s vehicle with respect to the January 27, 2002 conversion or the March 7, 2002 conversion; (4) no compensation was warranted to Uche for the first conversion of his vehicle on January 27, 2002; (5) $3000 would fairly and reasonably compensate Uche for the second conversion of his vehicle on March 7, 2002; (6) Taxi Dallas was entitled to an offset of $88 for delinquent stand fees; (9) neither Taxi Dallas nor Mansourian was entitled to an offset for repair work on Uche’s vehicle; (10) Taxi Dallas and Mansourian engaged in false, misleading, or deceptive acts or practices that Uche relied upon to his detriment and that were a producing cause of damages to Uche; (11) clear and convincing evidence showed the harm to Uche resulted from malice by Taxi Dallas and Mansourian; (12) $200,000 in exemplary damages were assessed against Taxi Dallas; and (12) $10,000 was a reasonable fee for the necessary services of Uche’s attorney in this case.

After reading the verdict aloud on the record, in the presence of the jury, the trial judge stated:

Well, the case will be placed on the 30-day disposition docket. I’ll need a judgment consistent with the verdict. I need it provided to opposing counsel so he can sign off “agreed as to form only.” And then I need that presented. If the case is not — if the final paperwork is not presented and signed within 30 days, the case will be subject to dismissal for want of prosecution.

Approximately two weeks after the trial, a “Motion to Disregard Jury Findings” was filed by Executive Taxi and Mansouri-an. The record is silent as to the disposition of that motion. The trial court’s judgment was signed by a visiting judge on November 10, 2006. The judgment stated in relevant part that the jury had found Mansourian and Executive Taxi liable for conversion of Uche’s vehicle, and ordered that “Plaintiff UCHE CHRISTIAN recover from defendants NASSER MANSOU-RIAN and DARYA INC., d/b/a EXECUTIVE TAXI, the sum of $12,912.00, and an additional sum of $200,000.00 from DAR-YA INC., d/b/a EXECUTIVE TAXI.” (emphasis original).

Thirty days after the date of the judgment, Executive Taxi and Mansourian filed a motion for remittitur with respect to the award of exemplary damages and a motion for new trial. The record does not reflect rulings on those motions. A notice of appeal was timely filed by Mansourian and Taxi Dallas.

II. MODIFICATION OF TRIAL COURT’S JUDGMENT WITH RESPECT TO PARTIES NAMED

In order to assure we accurately identify the judgment defendants, we begin with appellants’ fourteenth issue, in which they assert, “The judgment is in error recovering anything against defendant Darya, Inc [sic] d/b/a Executive Taxi.” Appellants argue Executive Taxi was granted a directed verdict in its favor. Further, appellants assert, “None of the questions in the Court’s charge referenced [Executive Taxi] and no damages were awarded appelle [sic] with respect to [Executive Taxi].” Initially, Uche asserts the judgment against Executive Taxi should be allowed to stand or, in the alternative, be reformed and modified by this Court. However, in his brief before this Court, Uche also presents a paragraph titled “Motion to Reform and Substitution of Correct Name,” in which he requests this Court “to reform the judgment” by substituting Khorshid, Inc., d/b/a Taxi Dallas for Darya, Inc., d/b/a Executive Taxi “in accordance with Jury verdict [sic] and judgment of the lower court.”

Judicial errors committed in the rendition of judgment must be corrected by appeal, writ of error, or bill of review. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970). “On the other hand, when the record reflects a clerical variance between a judgment announced in open court and the judgment eventually signed by the trial judge, the appellate court can modify the judgment to correct the mistake.” McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex.App.-Dallas 1992, writ denied). Whether an error is clerical or judicial is a question of law. Id. In this case, the trial court clearly rendered judgment based on the jury’s verdict in open court when he read the verdict aloud and stated, “I’ll need a judgment consistent with the verdict.” See id. (trial court clearly adopted rule 11 stipulations read into record as court’s rendition of judgment); Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 290-91 (Tex.App.-Waco 1988, no writ) (judge’s oral announcement, “I’ll grant all the relief you’ve asked for,” constituted rendering of judgment as to amounts pleaded and proved by appellee). Consequently, we conclude as a matter of law that the discrepancies in the judgment with respect to the parties named are clerical errors and, therefore, subject to modification by this Court. See McLendon, 847 S.W.2d at 610. The record shows the trial court granted a directed verdict in favor of Executive Taxi as to liability. In addition, the record shows the jury found Mansouri-an and Taxi Dallas liable to Uche. Accordingly, we modify the judgment as follows: all references in the judgment to “Executive Taxi” or “Darya Inc., d/b/a Executive Taxi” are hereby changed to “Khorshid, Inc., d/b/a Taxi Dallas.” Appellants’ fourteenth issue is decided in their favor.

III. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

In their first through twelfth issues, appellants challenge the legal and factual sufficiency of the evidence to support the jury’s findings.

A. Standard of Review

When reviewing the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor. See Solar Soccer Club v. Prince of Peace Lutheran Church of Carrollton, Tex., 234 S.W.3d 814, 820 (Tex.App.-Dallas 2007, no pet. h.). We must credit the favorable evidence if reasonable jurors could and disregard the contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). A “no evidence” point will be sustained if there is no more than a scintilla of evidence to support the finding. Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex.1999). If the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact’s existence, more than a scintilla of evidence exists. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

When considering a factual sufficiency challenge to a jury’s verdict, courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict. ■ Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). A court of appeals can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. at 407; see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Solar Soccer, 234 S.W.3d at 820. In conducting our review of both the legal and factual sufficiency of the evidence, we are mindful that the jury, as fact-finder, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Keller, 168 S.W.3d at 819. Accordingly, the court of appeals may not pass upon the witnesses’ credibility or substitute its judgment for that of the jury, even if the evidence would clearly support a different result. Maritime Overseas, 971 S.W.2d at 407.

B. Qualiñed Refusal to Return

In their first issue, appellants contend the evidence was factually insufficient to support the jury’s answer of “no” to question number seven of the jury charge, which asked whether the named defendants made a qualified refusal to return Uche’s motor vehicle on or after March 7, 2002. Appellants assert that, as a matter of law, they acted in good faith and upon reasonable grounds in taking possession of Uche’s vehicle. Uche contends that because appellants did not have authority to take possession of his vehicle pursuant to section 70.001 of the Texas Property Code, “it is immaterial to address whether appellants [sic] refusal to return the vehicle to appelle’s [sic] upon demand was justified and qualified.”

Conversion is the 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 establish a claim for conversion of personal property, a plaintiff must prove that: (1) the plaintiff owned or had legal possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiffs rights as an owner; (3) the plaintiff demanded return of the property; and (4)' the defendant refused to return the property. Smith v. Maximum Racing, Inc., 136 S.W.3d 337, 341 (Tex.App.-Austin 2004, no pet.).

It is well-established under Texas law that acting with good faith or innocence does not constitute a defense to conversion. Id. at 343. However, a “qualified refusal” is the one exception to this rule. Id.