Appeal from the 441st District Court Midland County, Texas
Trial Court Cause No. CV51894
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
RHI Tech Services, LLC (RHI), appeals from a summary judgment
granted by the trial court in favor of Dan Owens d/b/a Owens
Service Electric and DRO, LLC, Appellees. In two issues on
appeal, RHI argues that the trial court erred in granting
Appellees' motion regarding RHI's claims for (1)
conversion and (2) money had and received. Because we hold
that RHI failed to bring forth sufficient evidence to raise a
fact issue on essential elements of both claims, we affirm.
alleged that it entered into a Master Service Agreement (the
Agreement) with an independent contractor, Paul Hunter
(Hunter), whereby Hunter was to provide general service and
repair work, "including electrical, mechanical, and
related oilfield service activity," to RHI's
customers. Under the terms of the Agreement, Hunter was
authorized to order and pick up parts and equipment from
Warren Power & Machinery, Inc. (Warren) on RHI's
credit account with Warren. RHI alleged that, "on
numerous occasions and without RHI's knowledge and
authorization, Hunter ordered and received from Warren parts
and equipment on behalf of himself or other unknown parties.
Hunter charged those parts and equipment to RHI's account
with Warren." RHI further alleged that Hunter then
wrongfully took and sold those parts to Appellees. After
Warren sued RHI for payment on RHI's account with Warren,
RHI impleaded Hunter and Appellees as third-party defendants,
alleging claims for (1) conversion and (2) money had and
received. RHI alleged that Appellees had sold, disposed, or
remained in possession of the parts and equipment charged to
RHI's account by Hunter.
response, Appellees filed a motion for no-evidence summary
judgment. Although Appellees admitted that they had purchased
parts from Hunter, Appellees argued that, despite conducting
"months of discovery," RHI had been unable to show
"any piece of evidence indicating that those parts
originated from Warren" or that "Hunter did not
have clear title to those specific parts." Thus,
Appellees argued that RHI's allegations were "based
entirely upon speculation rather than upon even an iota of
evidence." Appellees stressed that, at most, RHI had
demonstrated that Appellees purchased parts from Hunter that
were "extremely common" in the industry and
"could have originated from any number of sources."
Appellees argued that RHI had not produced any documents
indicating the origins of the parts sold by Hunter to
Appellees or establishing that Appellees purchased specific
parts rightfully belonging to RHI. Instead, Appellees argued
that RHI was offering mere guesses. Appellees also pointed to
the deposition testimony of Mark Rittenhouse, a principal of
RHI, in which he admitted that he did not have enough
information to identify the specific parts that RHI alleged
were received by Appellees.
filed a response to Appellees' no-evidence motion. RHI
attached affidavits from Jan Rittenhouse (RHI's manager)
and Kerwin Stephens (RHI's attorney) to the response.
Included with Jan Rittenhouse's affidavit were invoices
demonstrating sales from Warren to RHI for numerous parts.
Attached to Stephens's affidavit were (1) excerpts from
Jan Rittenhouse's deposition, (2) excerpts from Dan
Owens's deposition, (3) discovery responses from Hunter
to RHI, and (4) RHI's discovery responses to Appellees.
Jan Rittenhouse's deposition testimony and affidavit
explained that she believed Appellees were in possession of
the disputed parts because (1) Warren told RHI that Hunter
was working for Appellees, (2) "Hunter had to have a
market for those parts," and (3) invoices purporting to
show sales from Hunter to Appellees were for identical parts.
However, Jan Rittenhouse's deposition testimony also
showed that, when questioned about the disputed parts, Jan
Rittenhouse admitted that, although RHI knew Hunter received
parts from Warren, "[w]hat he did with [the parts] after
that we have no idea." Similarly, in deposition
testimony, Owens stated that, although Appellees purchased
parts from Hunter, Hunter told Appellees that the parts
belonged to him and were from a previous business. Owens
stated that Appellees "took [Hunter] at his word."
a hearing on Appellees' motion for no-evidence summary
judgment, the trial court granted Appellees' motion
thereby dismissing RHI's claims against Appellees. This
appeal followed. We note that RHI obtained judgment against
Hunter in the amount of $103, 000 plus attorney's fees,
that Hunter did not file a notice of appeal, and that
Warren's claims against RHI were severed into a separate
cause. Thus, those claims are not before this court at this
issues, RHI argues that (1) the trial court erred in granting
Appellees' no-evidence summary judgment motion with
respect to RHI's claim for conversion and (2) the trial
court erred in granting Appellees' no-evidence summary
judgment motion in regard to RHI's claim for money had
and received. Conversely, Appellees argue that RHI failed to
produce more than a scintilla of evidence that Appellees
"actually received parts that were charged to RHI's
account with Warren"-an essential element of both of
RHI's claims. Thus, Appellees urge us to affirm the trial
court's grant of their no-evidence motion for summary
judgment. We agree with Appellees and overrule RHI's two
party that files a no-evidence motion for summary judgment
alleges that there is no evidence of one or more essential
elements of a claim or defense on which the adverse party
would have the burden of proof at trial. See Tex. R.
Civ. P. 166a(i). The adverse party then must respond with
evidence to raise a genuine issue of material fact on each of
the challenged elements in the claim or defense. See
id. A no-evidence summary judgment is essentially a
pretrial directed verdict, and we apply the same legal
sufficiency standard in reviewing a no-evidence summary
judgment as we apply in reviewing a directed verdict.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51
no-evidence motion, we review the evidence in the light most
favorable to the nonmovant, disregarding all contrary
evidence and inferences. Id. at 751 (citing
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997)). A no-evidence summary judgment is
improperly granted if the respondent brings forth more than a
scintilla of probative evidence to raise a genuine issue of
material fact. Id. (citing Tex.R.Civ.P. 166a(i);
Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502,
506 (Tex. 2002)). "Less than a scintilla of evidence
exists when the evidence is 'so weak as to do no more
than create a mere surmise or suspicion' of a fact."
Id. (quoting Kindred v. Con/Chem, Inc., 650
S.W.2d 61, 63 (Tex. 1983)). "More than a scintilla of
evidence exists when the evidence 'rises to a level that
would enable reasonable and fair-minded people to differ in
their conclusions.'" Id. (quoting
Merrell Dow Pharm., 953 S.W.2d at 711); see
Evans v. Globe Life & Accident Ins. Co., No.
11-13-00092-CV, 2014 WL 5565007, at *2-3 (Tex. App.- Eastland
Oct. 31, 2014, no pet.) (mem. op.).
RHI alleged claims for conversion and money had and received.
A conversion occurs when one person makes an unauthorized,
wrongful assumption and exercises 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); Paschal v. Great W. Drilling, Ltd., 215
S.W.3d 437, 456 (Tex. App.-Eastland 2006, pet. denied). Thus,
to "establish a claim for conversion, a plaintiff must
prove that: (1) the plaintiff owned or had possession of the
property or entitlement to possession; (2) the defendant
unlawfully and without authorization assumed and exercised
control over the property to the exclusion of, or
inconsistent with, the plaintiff's rights as an owner;
(3) the plaintiff demanded return of the property; and (4)
the defendant refused to return the property." Tex.
Integrated Conveyor Sys, Inc. v. Innovative Conveyor
Concepts, Inc., 300 S.W.3d 348, 365-66 (Tex. App.-Dallas
2009, pet. denied). ...