Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perdue v. Pfeifer

Court of Appeals of Texas, Fourth District, San Antonio

April 12, 2017

Matthew PERDUE and Team 1 Consulting, LLC, Appellants
v.
Jay D. PFEIFER and CCNBI, Inc., Appellees

         From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2010-CI-07859 Honorable Renée Yanta, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Marialyn Barnard, Justice, Patricia O. Alvarez, Justice.

          MEMORANDUM OPINION

          Sandee Bryan Marion, Chief Justice.

         Matthew 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 court's judgment.

         Background

         In 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.

         In 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.[1] 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.

         On 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.

         On 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.

         On May 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.

         On May 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 facilities.

         On June 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.

         On May 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 lien existed.

         On 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.

         Standard of Review

         Although 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.).

         In an 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).

         With 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).

         "A 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.

         Team 1's Issues on ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.