Court of Appeals of Texas, Fourth District, San Antonio
the 150th Judicial District Court, Bexar County, Texas Trial
Court No. 2010-CI-07859 Honorable Renée Yanta, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Marialyn
Barnard, Justice, Patricia O. Alvarez, Justice.
Bryan Marion, Chief Justice.
Perdue and Team 1 Consulting, LLC each appeal a judgment
entered after a bench trial. Perdue contends the trial court
erred in awarding CCNBI, Inc. damages and attorney's fees
for its breach of contract claim and in failing to award him
damages for his DTPA claim. Team 1 contends the trial court
erred in only awarding it $3, 000 in damages for its
conversion claim and in calculating prejudgment interest from
August 19, 2013. Team 1 also contends the trial court erred
in only allowing it to recover from CCNBI and not from the
individual defendants. We reverse the portion of the trial
court's judgment calculating prejudgment interest on Team
1's conversion claim from August 19, 2013, and render
judgment that the prejudgment interest began to accrue on
June 29, 2010. We affirm the remainder of the trial
February of 2007, Perdue entered into an agreement with CCNBI
for the hosting of computer equipment in space provided by
CCNBI. The equipment was owned by Perdue and his clients,
which included Team 1. Perdue also periodically obtained
computer consulting services from CCNBI.
2010, Perdue was late in paying CCNBI's invoices for its
hosting and consulting services. On March 26, 2010, CCNBI
sent Perdue a letter stating he owed a delinquent balance of
$6, 978.27, which included $4, 759.52 for hosting services
and $2, 218.75 for consulting services. The letter stated
Perdue's physical access to CCNBI's facilities was
disabled immediately and would not be restored until the
balance due for the hosting services was paid in
full. The letter further stated if the
balance due for the hosting services was not paid in full by
April 2, 2010, all remaining services would be disconnected.
The letter allowed Perdue to pay the balance due for the
consulting services in three payments, with the first payment
to be made on or before April 15, 2010.
April 2, 2010, CCNBI sent Perdue a letter acknowledging his
payment in full of the past due balance for the hosting
services in the amount of $4, 759.52. The letter stated all
of Perdue's access would be immediately reinstated.
April 30, 2010, CCNBI sent Perdue a letter providing thirty
days' notice of its intent to terminate services
effective June 1, 2010. The letter stated services would be
disconnected on June 1, 2010, and Perdue needed to have all
of his items removed from CCNBI's facility by that date.
5, 2010, CCNBI sent Perdue a letter stating he owed a
delinquent balance of $3, 603.43 and demanding payment in
full by May 10, 2010. The letter stated Perdue's physical
access to CCNBI's facilities was disabled immediately and
would not be restored until the balance due was paid in full.
The letter further stated if the balance due was not paid in
full by May 10, 2010, all remaining services would be
disconnected. The invoices attached to the letter showed
Perdue owed $2, 218.75 for consulting services and $1, 384.68
for hosting services.
7, 2010, Perdue filed the underlying lawsuit asserting a
deceptive trade practices claim against CCNBI and two of its
officers, Jay D. Pfeifer and Mark Seamans, and also seeking a
temporary restraining order and injunctive relief. On June 1,
2010, CCNBI's attorney sent Perdue a demand letter
asserting Perdue owed CCNBI $10, 684.68 for services and $10,
375.00 in attorney's fees. The letter stated if Perdue
failed to pay the amount in full, CCNBI would enforce its
lien on all of the equipment Perdue had stored at CCNBI's
29, 2010, Team 1 intervened in the lawsuit alleging its
attorney sent CCNBI's attorney a letter demanding the
return of its equipment which the letter identified in great
detail. The letter also stated any refusal to return the
equipment would be considered a conversion. Team 1's
petition in intervention further alleged CCNBI's attorney
sent Team 1's attorney a written response refusing to
return the equipment.
24, 2013, Perdue and Team 1 each filed a no evidence motion
for summary judgment asserting CCNBI did not have a lien on
their equipment under Chapter 59 of the Texas Property Code
which applies to self-storage facilities. CCNBI filed a
response to the motions, alleging CCNBI had a lien on the
equipment as previously determined by the justice court.
CCNBI argued that when Perdue filed a complaint for re-entry
in the justice court, the justice court found CCNBI had a
lien on the equipment. Although CCNBI attached a copy of
Perdue's complaint for re-entry to its response, CCNBI
did not attach any order from the justice court. On August
19, 2013, the trial court signed an order granting
Perdue's and Team 1's motions, thereby concluding no
January 14, 2016, a bench trial was held as to all the
remaining claims. At the conclusion of the trial, the trial
court announced its ruling that Perdue take nothing on his
DTPA claim or on any claims against Pfeifer and Seamans. The
trial court awarded CCNBI $3, 603.43 in damages on its breach
of contract claim against Perdue plus $10, 000 in
attorney's fees. Finally, the trial court found CCNBI had
converted Team 1's equipment. The trial court allowed
Team 1 to elect to recover either (1) $3, 000 in damages with
prejudgment interest accruing from August 19, 2013; or (2)
the return of its equipment. The trial court subsequently
signed a written judgment memorializing its verbal ruling.
both Perdue's and Team 1's briefs raise challenges to
the sufficiency of the evidence to support various factual
findings made by the trial court, the issues are not
expressly phrased as sufficiency challenges. Based on the
arguments made and the relief requested, however, we construe
the issues as challenging the legal sufficiency of the
evidence. See Sterner v. Marathon Oil. Co., 767
S.W.2d 686, 690 (Tex. 1989); Elias v. Mr. Yamaha,
Inc., 33 S.W.3d 54, 59 & n.6 (Tex. App.-El Paso
2000, no pet.).
appeal from a bench trial, we apply the same sufficiency
standards in reviewing the trial court's factual findings
as we apply in determining whether sufficient evidence exists
to support a jury's finding. Anderson v. City of
Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); In re
Guardianship of Tischler, 505 S.W.3d 73, 76 (Tex.
App.-San Antonio 2016, no pet.). As the factfinder, the trial
court is the sole judge of the credibility of the witnesses
and the weight to be given their testimony. See City of
Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005);
In re Guardianship of Tischler, 505 S.W.3d at 76.
"The trial court may believe or disbelieve the testimony
of a witness, in whole or in part, and it may resolve any
inconsistencies in a witness's testimony." In re
Guardianship of Tischler, 505 S.W.3d at 76. We "may
not pass upon the witnesses' credibility or substitute
[our] judgment for that of the [trial court, ] even if the
evidence would clearly support a different result."
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,
407 (Tex. 1998).
regard to issues on which the opposing party had the burden
of proof, the test for legal sufficiency is "whether the
evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review." City of
Keller, 168 S.W.3d at 827. In making this determination,
we credit evidence favoring the finding if a reasonable
factfinder could, and disregard contrary evidence unless a
reasonable factfinder could not. Id. If there is
more than a scintilla of evidence to support the finding, the
legal sufficiency challenge fails. BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
party attempting to overcome an adverse fact finding as a
matter of law [on an issue upon which that party had the
burden of proof] must surmount two hurdles."
Sterner, 767 S.W.2d 690. First, we examine the
record for evidence that supports the finding, while ignoring
all evidence to the contrary. Id. Second, if no
evidence supports the finding, we examine the entire record
to determine if the contrary proposition is established as a
matter of law. Id.
1's Issues on ...