Civil suit alleging wrongdoing by prosecutor not viable after conviction, Houston Court of Appeals rules - Rule 91a Dismissal Affirmed

Cooper v. Trent, No 14-17-00017-CV(Tex.App. - Houston [14th Dist.] May 1, 2018) 

Cooper v. Trent,
No 14-17-00017-CV(Tex.App. - Houston [14th Dist. May 1, 2018]) 

Affirmed and Opinion filed May 1, 2018.

In The

Fourteenth Court of Appeals

NO. 14-17-00017-CV

LORI ELISE COOPER, Appellant

V.

MICHAEL E. TRENT, Appellee

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2016-48150

Criminal Courts Building 

LORI ELISE COOPER, Appellant,

v.
MICHAEL E. TRENT, Appellee.

No. 14-17-00017-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Opinion filed May 1, 2018.  

Todd C. Collins, Gary T. Cornwell, for Lori Elise Cooper, Appellant.

Scott A. Durfee, for Michael E. Trent, Appellee.

On Appeal from the 234th District Court, Harris County, Texas, Trial Court Cause No. 2016-48150.

Affirmed. 

Panel consists of Justices Busby, Donovan, and Jewell.

OPINION

KEVIN JEWELL, Justice.

Appellant Lori Elise Cooper was convicted of murdering her father. While serving a sixty-year sentence for the murder, Cooper filed a civil lawsuit against appellee Michael E. Trent, the assistant district attorney who prosecuted her. In short, Cooper alleged that Trent induced a witness to testify falsely during the criminal trial that Cooper had solicited the witness to kill her father. Cooper asserted various tort claims and sought money damages from Trent. The trial court dismissed Cooper's lawsuit under Texas Rule of Civil Procedure 91a, which permits summary dismissal if the claims pleaded have no basis in law or fact. Tex. R. Civ. P. 91a.

At issue in this appeal is whether a person convicted of a crime may recover civil damages from the prosecutor—based on the prosecutor's allegedly tortious conduct occurring during the criminal proceedings—when the conviction has not been reversed or invalidated. We conclude that Cooper's factual allegations, if true, and her claims, if successful, would necessarily imply the invalidity of her conviction. For that reason, and because Cooper's conviction has not been overturned or otherwise invalidated by a court, her allegations and claims are not cognizable and do not entitle her to the relief sought. As Cooper's claims lack basis in law, the trial court did not err in granting Trent's Rule 91a motion to dismiss, and we affirm.

Background

A. Criminal Proceedings against Cooper

A Harris County jury convicted Cooper of murdering her father. Cooper appealed the judgment. See Cooper v. State, No. 01-05-00764-CR, 2006 WL 2974366 (Tex. App.-Houston [1st Dist.] Oct. 19, 2006, pet. ref'd) (mem. op.) (not designated for publication). During the criminal trial, Cooper's friend, Kelton Yates, testified that Cooper offered $5,000 to Yates and his acquaintance, Kiondrix Smith, to kill Cooper's father. Id. at *1. Yates subsequently stabbed Cooper's father with a knife, causing his death.^[1] Id. at *2. In addition to Yates's accomplice testimony, the State presented testimony from a number of non-accomplice witnesses, each of whom testified that Cooper had asked them to kill Cooper's father. Id. at *1. All declined. Id. After a jury found Cooper guilty of murder, she was sentenced to sixty years' confinement. Id.

On direct appeal of her conviction, Cooper, among other arguments, contested her connection to her father's murder by challenging the legal sufficiency of the non-accomplice witness evidence.^[2] Id. at *3-5. The First Court of Appeals affirmed Cooper's conviction in 2006, id. at *1, and the Court of Criminal Appeals refused Cooper's petition for discretionary review. To our knowledge, and as Cooper's counsel confirmed at oral submission, Cooper has not filed any habeas corpus proceedings challenging her conviction.

B. Cooper's Civil Lawsuit

In August 2016, approximately ten years after the court of appeals affirmed her conviction, Cooper initiated the civil lawsuit presently before us. As the factual basis for her suit, Cooper alleged that Trent, in preparing for Cooper's trial, made false statements to a district court to obtain a writ permitting Yates's transfer from state prison to the Harris County jail.^[3] There, in "woodshedding" sessions, Trent promised Yates a sentence reduction if Yates would provide false testimony to the effect that he killed Cooper's father because Cooper promised to pay him $5,000.

As alleged in Cooper's amended petition, Yates agreed with Trent's proposal. In an affidavit attached to Cooper's amended petition, Yates stated under oath that Trent offered to have Yates's sentence reduced from sixty to twenty years if Yates would testify in Cooper's trial that Yates killed Cooper's father because Cooper "manipulated him and offered him $5,000." Further, Yates testified in his affidavit that he agreed to help Trent even though it was a "lie" that Cooper ever asked Yates to kill her father. According to Cooper, she denies "that she was guilty of participating in, or procuring the murder of her father," and Yates attested that Cooper "was actually innocent, and had no involvement in her father's death."

Based on these allegations, Cooper pleaded claims against Trent for abuse of process, intentional infliction of emotional distress, civil conspiracy (between Trent and Yates) to develop false testimony, and, as Cooper construes her pleading, fraudulent concealment. She also alleged that the statute of limitations was tolled because Trent fraudulently concealed "the facts necessary for . . . Cooper to know that she had causes of action" against Trent. One alleged fact common to all of Cooper's pleaded claims is that Yates's testimony that Cooper participated in her father's murder was false. Cooper sought damages for injury to reputation, physical pain and suffering, severe mental and emotional anguish, anxiety and distress, and lost income—all of which Cooper alleged occurred as a proximate result of Trent's tortious conduct. She also requested attorney's fees and exemplary damages. Cooper expressly denied seeking "a determination of her innocence, or an Order of this Court overturning her conviction based upon her actual innocence."

Trent filed a motion to dismiss all of Cooper's claims under Rule 91a.^[4] In sum, Trent argued that the civil recovery Cooper seeks is foreclosed for two broad reasons: public policy and collateral estoppel. Under the public policy argument, Trent argued, among other things, that Cooper's claims have no basis in law or fact because they are based on an allegedly wrongful conviction and Cooper cannot recover civil damages unless and until she successfully challenges her conviction. According to Trent, all of Cooper's factual allegations, if true, would undermine the validity of her conviction. Trent's amended motion to dismiss cited authority such as Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995), and our decision in Gentry v. Houston Police Dep't, No. 14-08-01094-CV, 2009 WL 10453387 (Tex. App.-Houston [14th Dist.] July 16, 2009, no pet.) (mem. op.).

Under the collateral estoppel ground, Trent argued that Cooper's claims have no basis in law or fact because she cannot use a civil proceeding to collaterally attack her conviction. The trial court granted Trent's amended motion and dismissed the lawsuit. Cooper appeals.

Standard of Review

Under Texas Rule of Civil Procedure 91a, "a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact." Tex. R. Civ. P. 91a.1. As specified in the rule, a cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. Id. A cause of action has no basis in fact if "no reasonable person could believe the facts pleaded." Id. A motion to dismiss must identify each cause of action to which it is addressed and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both. Tex. R. Civ. P. 91a.2.

We review de novo whether a cause of action has any basis in law or in fact. City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam) (quoting Tex. R. Civ. P. 91a.6); see also Tony's Barbeque & Steakhouse, Inc. v. Three Points Invs., Ltd., 527 S.W.3d 686, 695 (Tex. App.-Houston [14th Dist.] 2017, no pet.). We look solely to the pleading and any attachments to determine whether the dismissal standard is satisfied. Estate of Savana, 529 S.W.3d 587, 592 (Tex. App.-Houston [14th Dist.], no pet.); Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). To determine if the cause of action has a basis in law or fact, we construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings. Wooley, 447 S.W.3d at 76. In doing so, we apply the fair-notice standard of pleading. Id.

The dismissal order does not specify the grounds on which the court based its ruling. However, the trial court signed amended conclusions of law, which state, in full:

1. Lori Cooper's causes of action have no basis in law or in fact because her claims, taken as true, together with inferences reasonably drawn from them, do not entitle her to the relief she seeks.

2. Lori Cooper is estopped from filing suit against Michael Trent because her claims are based on factual allegations that are inconsistent with her judgment of conviction for murder in the 179th District Court and with the factual findings of the First Court of Appeals in Cooper v. State, Cause No. 01-05-00764-CR, 2006 WL 2974366 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd).

3. Public policy forecloses . . . Cooper, as a convicted individual, from seeking civil recovery for being wrongfully convicted unless and until she is exonerated. Because Cooper has not been exonerated, she cannot bring suit against Trent based on facts alleging that she was wrongfully convicted.

We review a trial court's conclusions of law drawn from the facts de novo to determine their correctness. BH Contractors, LLC v. Helix Energy Sols. Grp., Inc.,No. 14-15-01035-CV, 2017 WL 3611887, at *2 (Tex. App.-Houston [14th Dist.] Aug. 22, 2017, pet. filed) (mem. op.).

Analysis

A. Rule 91a Specificity Requirements

Cooper argues first that Trent's motion to dismiss lacked the specificity required by Rule 91a. Under Rule 91a, "[a] motion to dismiss . . . must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both." Tex. R. Civ. P. 91a.2.

Cooper concedes that Trent's Rule 91a motion expressly referenced Cooper's causes of action for abuse of process, intentional infliction of emotional distress, and civil conspiracy to develop false testimony. Cooper argues, however, that Trent's motion did not state specifically the reasons her causes of action have no basis in law under those claims.^[5] Cooper insists that Trent's failure to state specifically "how and why his two alleged defenses bar Cooper's causes of action" is fatal to the motion. Trent responds that he complied with the specificity requirement of Rule 91a in stating that he sought dismissal of all of Cooper's claims on the grounds stated in the motion. We conclude that Trent's motion does not fail for lack of specificity.

As we stated in Wooley, "[a]lthough a motion to dismiss under Rule 91a must state specifically the reasons the cause of action has no basis in law, fact, or both, we do not construe the rule to require magic words to invoke these grounds if the arguments are clear from the motion." Wooley, 447 S.W.3d at 77 n.12. In that case, Wooley was an inmate who brought claims in a civil lawsuit against his attorney whom he hired to seek habeas relief. Id. at 72-73. Wooley's lawyer did not specify whether his Rule 91a motion was based on the grounds that Wooley's causes of action had no basis in law, fact, or both. Id. at 77 n.12. However, the lawyer argued that Wooley could not assert his claims unless he first showed exoneration, which we construed to mean that Wooley's causes of action had no basis in law or fact. Id. We concluded the causes of action "ha[d] no basis in law because they [were] barred unless Wooley had been exonerated [and t]hey ha[d] no basis in fact because no reasonable person could believe, based on the allegations in the petition, that Wooley had been exonerated." Id.

Here, Trent argued that none of Cooper's causes of action had any basis in law or fact because all of the claims, if true, would undermine the validity of Cooper's criminal conviction. According to Trent, any recovery by Cooper was foreclosed unless she first successfully challenged her conviction. Trent cited and discussed pertinent authority supporting his position, including Gentry. This sufficiently identified the reasons behind Trent's contention that the causes of action had no basis in law or fact. See id. Cooper filed a response, the substance of which reveals she comprehended the asserted grounds for dismissal.

A fair reading of the motion also establishes that Trent challenged all of Cooper's causes of action: "Pursuant to Texas Rule of Civil Procedure 91a, Michael Trent moves to dismiss all of Cooper's claims against him[.]" As discussed in Wooley,there is no requirement for "magic words." Id. At issue is whether the grounds for dismissal are clear from the motion. Id. Here, Trent's arguments applied to each cause of action Cooper asserted in her amended pleading. Cooper has not explained how an effort by Trent to copy the entirety of his arguments and duplicate them into discrete sections of his motion under separate subheadings pertaining to each enumerated cause of action would better inform Cooper of the bases upon which Trent sought dismissal. It would merely triple the length of his motion without adding substance.

Trent's amended motion was sufficiently specific as to Cooper's fraudulent concealment allegations as well. Trent points out that fraudulent concealment is not an independent cause of action.  See Mayes v. Stewart, 11 S.W.3d 440, 452 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) ("Fraudulent concealment is an affirmative defense to the statute of limitations. It is not an independent cause of action."). But Cooper contends that she has alleged fraudulent concealment, also referred to as fraud by nondisclosure or fraud by omission, as an independent cause of action as well as an affirmative defense. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997) (recognizing fraud by nondisclosure as a subcategory of fraud). Trent moved to dismiss on the basis that all of Cooper's claims are barred as a matter of law because Cooper has not been exonerated.

We conclude that Trent sufficiently identified the reasons he contended Cooper's causes of action had no basis in law or fact; Trent was not required to list separately each cause of action in the Rule 91a motion because he challenged their collective viability on the basis that, if true, they would undermine the validity of Cooper's criminal conviction. Thus, the motion does not fail for lack of specificity. We overrule Cooper's first issue.

B. Whether Cooper's Claims Have a Basis in Law or Fact

In her second and fifth issues, Cooper contends that public policy does not bar her claims against Trent. In her third and fourth issues, she contends that her claims are not barred by collateral estoppel. Trent argues Cooper's claims lack any basis in law or fact because the claims, if true, would undermine the validity of Cooper's criminal conviction.

We construe the court's order as dismissing the lawsuit because it held Cooper's claims have no basis in law, as opposed to no basis in fact.^[6] Therefore, we consider whether the allegations, taken as true, together with inferences reasonably drawn from them, legally entitle Cooper to the relief sought. See Tex. R. Civ. P. 91a.1.

The crux of Cooper's suit is that Trent pressured Yates to testify falsely that Cooper participated in her father's murder. The parties do not cite, and we have not found, a published Texas case involving claims like Cooper's asserted against a prosecutor. The Supreme Court of the United States, however, has considered the availability of civil damages for an inmate plaintiff who brought a section 1983 action alleging prosecutors violated his constitutional rights when he was criminally convicted. Heck v. Humphrey, 512 U.S. 477, 479 (1994). Heck alleged that the prosecutors and a police investigator "engaged in an `unlawful, unreasonable, and arbitrary investigation' leading to [Heck's] arrest; `knowingly destroyed' evidence `which was exculpatory in nature and could have proved [his] innocence'; and caused `an illegal and unlawful voice identification procedure' to be used at [his] trial." Id.

The Heck court analogized the plaintiff's section 1983 claims to the common-law tort of malicious prosecution because that tort permits damages for confinement imposed pursuant to a legal process. Id. at 484. To be successful, a person alleging malicious prosecution must show there was a termination of the prior criminal proceeding in favor of the accused. Id. This requirement, the court noted, advances the "strong judicial policy against the creation of two conflicting resolutions" arising from the same transaction because it precludes the potential for success in a civil suit after conviction in a criminal proceeding. Id. Prohibiting such claims also guards against attempted collateral attacks on convictions via civil suits. Id.

Having embraced the "hoary principle" that civil tort actions are inappropriate vehicles for challenging criminal judgments, the Heck court applied that principle to section 1983 damage actions that necessarily require the plaintiff to prove the unlawfulness of a conviction or confinement. Id. at 486. Thus, the court held that to recover money damages for "harm caused by actions whose unlawfulness would render a conviction or sentence invalid," an inmate must prove that her conviction or sentence has been reversed on direct appeal, expunged, declared invalid by an authorized state tribunal, or called into question by a writ of habeas corpus. Id. at 486-87. Tort claims, the success of which would imply the invalidity of the plaintiff's conviction, are not cognizable and must be dismissed. Id. at 487.

We applied Heck's reasoning to reject an inmate's tort claims against the Houston Police Department and Harris County officials in Gentry. Gentry, 2009 WL 10453387, at *2-3. There, an inmate sued the Houston Police Department, Harris County, and the "Chief Medical Examiner." Id. at *1. We noted that some of the plaintiff's claims were unclear, but they included perjury, breach of duty of care, violation of Texas and United States Constitutions, denial of equal protection of the law, illegal manufacturing of the indictment, racial profiling, entrapment, denial of the right to an examining trial before indictment, and concealment of evidence. Id.We concluded that all of the claims "focus[ed] on [the inmate's] indictment and circumstances leading to his final conviction." Id. at *2. We held that when "a conviction has not been overturned, a criminal defendant cannot recover damages resulting from his conviction" because "[a]ll of the claims . . . if true, would undermine the validity of [the] criminal conviction." Id. at *2-3 (citing Heck, 512 U.S. at 486-87). Accordingly, we affirmed the trial court's dismissal of the claims as frivolous, concluding "unless [an inmate] has proved his conviction has been overturned in some manner, a civil district court is not the proper forum for his complaints and damages are not warranted." Id. at *3.

The Second Court of Appeals applied Heck to an inmate's tort lawsuit against a judge and court reporter for allegedly committing fraud by altering the reporter's record of his criminal trial. Powell v. Wilson, No. 02-16-00023-CV, 2016 WL 3960590, at *1, 3 (Tex. App.-Fort Worth July 21, 2016, pet. denied) (mem. op.). Until the plaintiff's criminal conviction was invalidated, the court stated, "Powell's claims are not legally cognizable." Id. The court affirmed dismissal of the plaintiff's claims.

Although we have not found any Texas cases involving tort claims for damages brought by an inmate against a prosecutor, both the U.S. Court of Appeals for the Fifth Circuit and numerous district courts within its jurisdiction have applied Heck'sanalysis to bar such lawsuits when the alleged harm was caused by actions whose unlawfulness would imply a conviction's invalidity unless the challenged conviction has been reversed or otherwise overturned. See, e.g., Green v. Tex. Gov't, 704 Fed. App'x. 386, 386-87 (5th Cir. 2017) (alleging "prosecutors withheld exculpatory evidence, disobeyed discovery orders, fabricated evidence, charged [plaintiff] without probable cause pursuant to a defective and constitutionally deficient indictment, and committed prosecutorial misconduct"); Comeaux v. Texas, No. CV H-18-0187, 2018 WL 705556, at *1-2 (S.D. Tex. Feb. 2, 2018) (alleging false or fraudulent indictment was used to obtain conviction); Lewis v. Quisenberry, No. 4:17-CV-1022-A, 2017 WL 6729184, at *1-2 (N.D. Tex. Dec. 28, 2017) (alleging prosecutor "knowingly and willingly allowed purgery [sic] to be counted as evidence" during trial for traffic violation); Young v. Crane, No. A-17-CA-628-SS, 2017 WL 3499934, at *1, 3-4 (W.D. Tex. Aug. 16, 2017) (alleging prosecutor never forwarded plaintiff's writ of habeas corpus to Court of Criminal Appeals and seeking damages for wrongful incarceration); Matthews v. City of Tyler, Texas, No. 6:15CV954, 2015 WL 10153135, at *1 (E.D. Tex. Nov. 20, 2015), report and recommendation adopted, No. 6:15CV954, 2016 WL 633943 (E.D. Tex. Feb. 17, 2016) (alleging prosecutor and others violated inmate's constitutional rights and sentence was unlawful).

As we did in Gentry regarding an inmate's claims against the Houston Police Department, Harris County, and a county official, we again adhere to Heck'sreasoning as to Cooper's claims against the assistant district attorney who prosecuted her. To determine whether Cooper's allegations, if true, would imply the invalidity of her conviction for murder, we first look to the elements of the offense. A person commits murder if that person (1) intentionally or knowingly causes the death of an individual or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code § 19.02(b). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2); Cooper, 2006 WL 2974366, at *3.

Liberally construing Cooper's live pleading, we conclude Cooper asserts causes of action for abuse of process, intentional infliction of emotional distress, conspiracy to develop false testimony, and "fraudulent concealment." We examine the elements of each cause of action to determine whether success on each would undermine or imply the invalidity of Cooper's murder conviction.

We have recognized three elements to establish the tort of abuse of process: (1) the defendant made an illegal, improper or perverted use of the process, a use neither warranted nor authorized by the process; (2) the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process; and (3) damage to the plaintiff as a result of such illegal act. RRR Farms, Ltd. v. Am. Horse Prot. Ass'n, 957 S.W.2d 121, 133 (Tex. App.-Houston [14th Dist.] 1997, pet. denied); Bossin v. Towber, 894 S.W.2d 25, 33 (Tex. App.-Houston [14th Dist.] 1994, writ denied). Cooper alleges that Trent abused process by obtaining a writ to have Yates transferred to the Harris County jail before Cooper's trial. Assuming for argument's sake that Cooper has standing to assert an abuse of process against another person, Yates, Cooper's allegations depend upon the proposition that Trent made an illegal, improper, or perverted use of process in furtherance of his effort to create false testimony that Cooper participated in her father's murder.^[7] If these facts are true, they would necessarily imply the invalidity of Cooper's conviction. See Heck, 512 U.S. at 486 n.5, 487 (noting "one could no more seek compensatory damages for an outstanding criminal conviction in an action for abuse of process than in one for malicious prosecution"); see also Gentry, 2009 WL 10453387, at *3. This is so because the jury found that Cooper, with the requisite intent, solicited, encouraged, directed, aided, or attempted to aid Yates in stabbing and killing Cooper's father. Yates, not Cooper, stabbed Cooper's father to death. If it were true that, as Yates now attests, Cooper did not ask Yates to kill her father or offer him money to do so and had "no involvement" in her father's death, then Cooper would not be criminally responsible for Yates's conduct in committing the offense of murder. See Tex. Penal Code §§ 7.02(a)(2), 19.02(b). Cooper asked others besides Yates to kill her father, but all the other potential accomplices declined to assist. See Cooper, 2006 WL 2974366, at *1.

As to intentional infliction of emotional distress, Cooper would be required to show four elements: (1) the defendant acted intentionally or recklessly; (2) his conduct was extreme and outrageous; (3) his actions caused the plaintiff emotional distress; and (4) the emotional distress was severe. Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017). As alleged in Cooper's amended petition, Trent's conduct in creating false testimony that Cooper participated in her father's murder forms the factual basis of her intentional infliction of emotional distress claim. She alleges that Trent's conduct in that regard was intentional or reckless as well as extreme and outrageous. An affirmative finding on those elements depends on Cooper persuading a civil factfinder that she did not participate in her father's murder, which would conflict with the verdict and judgment in Cooper's criminal trial. Moreover, any emotional distress Cooper experienced necessarily results from her confinement and criminal conviction.^[8] Here again, a finding in favor of Cooper as to an intentional infliction of emotional distress claim would undermine the validity of her conviction. See Matthews, 2015 WL 10153135, at *1-2 (applying Heck to inmate claims of violations of his constitutional rights, unlawful sentence and custody, loss of personal liberty, and intentional infliction of emotional distress).

According to Cooper, she also asserts an independent cause of action for fraudulent concealment. But fraudulent concealment is an affirmative defense to the statute of limitations; it is not an independent cause of action. See Mayes, 11 S.W.3d at 452. Again mindful of our obligation to interpret her pleading liberally, we construe her claim as one akin to fraud by omission or fraud by nondisclosure. To establish fraud by nondisclosure, Cooper would be required to show, among other things, that Trent failed to disclose material facts to Cooper, Trent had a duty to disclose those facts, Cooper did not have an equal opportunity to discover the facts, and Cooper was injured. See Horizon Shipbuilding, Inc. v. BLyn II Holding, LLC, 324 S.W.3d 840, 850 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (listing elements of fraud by nondisclosure). Cooper alleges that Trent concealed material facts necessary for Cooper to know about Trent's and Yates's actions in concocting false testimony that Cooper participated in her father's murder. As with Cooper's abuse of process claim, if these facts are true, they similarly would imply the invalidity of her conviction. See Heck, 512 U.S. at 486-87; Powell, 2016 WL 3960590, at *1, 3 (affirming dismissal under Heck reasoning when inmate alleged intentional "manufacture of evidence"); Gentry, 2009 WL 10453387, at *1-3 (upholding dismissal of suit when inmate alleged "breach of duty of care," "manufacturing of indictment," and "concealment of evidence.").

Civil conspiracy is a vehicle to secure joint and several liability against a member of a conspiracy for the harm caused by any one member of the conspiracy. See Energy Maint. Servs. Grp. I, LLC v. Sandt, 401 S.W.3d 204, 220 (Tex. App.-Houston [14th Dist.] 2012, pet. denied). Defined as a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means, civil conspiracy is not a "stand alone" tort but rather derives from independent, underlying tortious conduct. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). In other words, a defendant's liability for conspiracy depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable. Id. Accordingly, we need not analyze this claim separately from the underlying alleged torts of abuse of process, intentional infliction of emotional distress, and fraud by nondisclosure, because we conclude that Cooper's claims involving those torts have no basis in law. See id. If those causes of action provide no foundation for Cooper's suit, neither does a civil conspiracy allegation.

In sum, the facts Cooper seeks to litigate with respect to her tort claims are facts essential to her criminal conviction: that she participated in her father's murder by soliciting Yates to kill her father. Tex. Penal Code § 19.02(b); Cooper, 2006 WL 2974366, at *3; see also Tex. Penal Code § 7.02(a)(2) ("A person is criminally responsible for an offense committed by the conduct of another if[,] acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense."). On direct appeal of her criminal conviction, Cooper challenged the evidence connecting her to the murder of her father, but the court of appeals affirmed her conviction. See Cooper 2006 WL 2974366, at *3. By her civil suit, Cooper continues to deny guilt for the crime; she also seeks to prove to a factfinder that Yates's testimony was false and, ergo, that she did not participate in her father's murder. That issue was decided against her in the criminal action when the criminal jury found Cooper criminally responsible for Yates's conduct.

Allowing Cooper to proceed with her civil tort claims without first requiring her to prove that her conviction has been reversed, invalidated, expunged, or called into question by habeas proceedings would result, potentially but unacceptably, in "two conflicting resolutions arising out of the same or identical transaction." Heck, 512 U.S. at 484, 486-87. Neither would Cooper's position, were we to embrace it, promise long-term and efficient administration of justice as to inmate litigation. Those convicted of a crime could seek civil damages in tort against prosecutors (and survive dismissal) based merely on the allegation that evidence key to their convictions was "falsely" created by prosecutors—and seek such damages before obtaining reversal or exoneration through direct appeal or habeas proceedings. Lawsuits of the sort brought by Cooper would become the rule rather than remain the exception.

Cooper says Gentry, and by extension Heck, are inapt here because Cooper expressly disavows seeking a determination of innocence, and her causes of action do not require a determination of innocence. As to the former, Cooper's requested relief in this regard is not materially different from the plaintiff's in Heck,who sought only money damages and did not seek release from custody. Heck,512 U.S. at 479. Regarding the latter, we disagree. The issue is whether proof supporting Cooper's tort claims would undermine the validity of her conviction. It would, for the reasons explained. In Gentry, we held that damages undermining the validity of a criminal conviction are not warranted when a criminal defendant has not proven her conviction "has been overturned in some manner." Gentry,2009 WL 10453387, at *3. The same principles apply here.

Citing Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013), Cooper insists that she "is not barred from suing Trent merely because she engaged in criminal conduct herself."^[9] In that case, Dugger and his friend, Joel Martinez, consumed illicit drugs containing heroin. Id. at 827. Thereafter, Martinez began choking and vomiting. Id. Dugger called Martinez's mother, Arredondo, and told her that Martinez had been drinking and was throwing up. Id. Arredondo told Dugger to let Martinez sleep it off. Id. Eventually, Dugger's father called 911, but Dugger did not tell the police or paramedics that Martinez had consumed heroin, and thus Martinez was not treated for a heroin overdose. Id. Martinez died. Id. Arredondo sued Dugger under the wrongful death and survival statutes for negligence in failing to call 911 immediately and failing to disclose Martinez's heroin use. Id.

At issue on appeal was whether the unlawful acts doctrine remained a viable affirmative defense in light of Texas's proportionate liability scheme. Id. Under that doctrine, a plaintiff could not recover damages if, at the time of injury, the plaintiff was engaged in an illegal act that contributed to the injury. Id. The supreme court held that under the proportionate responsibility scheme, a plaintiff's illegal conduct not falling within a statutorily-recognized affirmative defense must be apportioned and such illegal conduct no longer completely bars recovery. Id. (citing Tex. Civ. Prac. & Rem. Code § 93.001). The case, however, did not involve a conviction and thus did not address whether a criminal defendant can seek damages related to her conviction when it has not been overturned. We accordingly find Duggerinapplicable.

We conclude that the claims alleged by Cooper, if true, would undermine the validity of her criminal conviction. Therefore, until she has proved her conviction has been reversed, overturned, or invalidated in some manner, her claims have no basis in law and were properly dismissed on Trent's Rule 91a motion. See Heck,512 U.S. at 484-86; Gentry, 2009 WL 10453387, at *3; see also Powell, 2016 WL 3960590, at *3. Consequently, we overrule Cooper's second and fifth issues.^[10]

Conclusion

In sum, we conclude that Trent's amended Rule 91a motion to dismiss does not fail for lack of specificity. Further, because Cooper's tort claims would necessarily imply the invalidity of her conviction, which has not been reversed or invalidated by a court, we agree with the trial court that Cooper's claims lack any basis in law.

Accordingly, we affirm the trial court's dismissal order.

[1] Yates was convicted of murder and is now serving a sixty-year sentence.

[2] A conviction cannot stand upon accomplice testimony unless it is corroborated by other evidence that tends to connect the accused with the offense. Tex. Code Crim. Proc. art. 38.14.

[3] We refer to Cooper's First Amended Original Petition, the relevant pleading.

[4] Trent later filed an amended motion to dismiss, so we refer to Trent's amended motion in this opinion.

[5] Cooper asserts that Trent moved to dismiss only on the ground that Cooper's claims have no basis in law. In his motion, however, Trent stated that the claims "have no basis in both law and fact."

[6] The trial court's amended findings of fact and conclusions of law assume the truth of Cooper's claims, and the trial court did not conclude that no reasonable person could believe the facts pleaded. See Tex. R. Civ. P. 91a.1.

[7] As we explained in RRR Farms, "[P]rocess must have been used to accomplish an end which is beyond the purview of the process and which compels a party to do a collateral thing which he would not otherwise be compelled to do." RRR Farms, 957 S.W.2d at 133 (emphasis in original). Thus, to establish abuse of process, Cooper would be required to show, among other things, that Cooper was compelled to do a collateral thing that she otherwise would not be compelled to do. She alleges, however, that Yates was compelled to do a collateral thing that he otherwise would not have been compelled to do. Regardless, the issue in today's case is not whether Cooper can succeed on the merits of her abuse of process claim but rather whether the allegations supporting that claim, should she be successful, imply the invalidity of her conviction.

[8] As relevant to emotional distress, Cooper alleges damages generally for "mental anguish." In her appellate brief, Cooper concedes that "the damages caused by Trent's wrongful conduct include . . . her conviction, and/or her 60 year sentence." However, in her amended petition, she does not allege or identify any compensable mental anguish proximately caused by Trent's alleged solicitation of false testimony that also is not the proximate result of her incarceration.

[9] Our holding does not deprive inmates of the right to bring suits for civil damages when appropriate and allowed by law. We address only whether an inmate's claims for compensatory damages are barred when their success would undermine the validity of a criminal conviction.

[10] Due to our disposition, we need not address the trial court's alternative conclusion that Cooper's claims are estopped, which Cooper challenges in her third and fourth issues.

Houston Court of Appeals backs Dolcefino in conversion suit brought against him over documents he had requested under the Public Information Act (PIA)

CYPRESS CREEK EMS v. DOLCEFINO, No. 01-16-00929-CV

(Tex.App. - [Houston [1st Dist.] April 3, 2018) 

Wayne Dolcefino, formerly an investigative reporter for a local TV station, prevails in appeal of lawsuit based on wacky legal theory that he was guilty of having "converted" (stolen, sort of, in the tort sense of the term) photocopies of documents he had requested under the Public Information Act that were (allegedly) mailed to him inadvertently without prior redaction of sensitive information. The failure to blacken out sensitive information obviously wasn’t Dolcefino's fault, and he had stated that he had not even received the  documents, apparently because they had been mailed to an old address. But he was forced to hire an attorney to defend himself and his consulting LLC against the entity whose attorney had committed the error and had then sued him and forced him to endure questioning under oath in a deposition.   

    

Conversion is the unauthorized and unlawful assumption and exercise of dominion and control over the personal property of another to the exclusion of, or inconsistent with, the owner's rights. Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 386 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (citing Waisath v. Lack's Stores, Inc.,474 S.W.2d 444, 446 (Tex. 1971)). The elements of a conversion claim are (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. Id. at 386-87; Stroud Prod., L.L.C. v. Hosford, 405 S.W.3d 794, 811 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (citing Khorshid, Inc. v. Christian, 257 S.W.3d 748, 759 (Tex. App.-Dallas 2008, no pet.)).

The summary judgment evidence indicated that CCEMS sent the documents in question to Dolcefino by regular mail. There is no evidence that Dolcefino actually received the package, and there is no evidence that Dolcefino ever had possession of the documents. CCEMS has presented no evidence that Dolcefino has asserted some right over the documents. See Robinson, 117 S.W.3d at 40. CCEMS has presented no evidence that Dolcefino engaged in any action that interfered with CCEMS's right to the property or control over the property as to deprive CCEMS of its free use and enjoyment. See Pierson, 829 S.W.2d at 314. Thus, CCEMS cannot establish that Dolcefino engaged in the unauthorized and unlawful assumption and exercise of dominion and control over the documents to the exclusion of, or inconsistent with, CCEMS's rights. See Freezia, 474 S.W.3d at 386.

[...] 

CCEMS is essentially arguing that its own erroneous conduct—the inadvertent mailing of confidential documents—can be imputed as tortious conduct on Dolcefino's part. Neither the law supporting a presumption of receipt nor the law of conversion justifies such a conclusion.

CYPRESS CREEK EMS, Appellant/Cross-Appellee,
v.
WAYNE DOLCEFINO & WAYNE DOLCEFINO CONSULTING, Appellees/Cross-Appellants.

No. 01-16-00929-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued April 3, 2018.

Christin L. Grant, George William Vie, III, Cristen David Feldman, for Wayne Dolcefino & Wayne Dolcefino Consulting, Appellee.

Jennifer Chang, Andrew Todd McKinney, IV, Kim A. Cooper, for Cypress Creek EMS, Appellant.

On Appeal from the 165th District Court, Harris County, Texas, Trial Court Case No. 2015-23275.

Panel consists of Justices Jennings, Keyes, and Higley.

OPINION

EVELYN V. KEYES, Justice.

Appellant and cross-appellee, Cypress Creek EMS (CCEMS), filed suit against appellees and cross-appellants, Wayne Dolcefino and Wayne Dolcefino Consulting (collectively, Dolcefino), alleging that counsel for CCEMS had accidentally mailed certain confidential documents to Dolcefino and asserting a cause of action for conversion against Dolcefino. CCEMS also sought an injunction preventing Dolcefino from disclosing any confidential information that he received in the accidentally-disclosed documents and requiring him to return the documents. Dolcefino denied ever receiving the documents and subsequently moved for dismissal of CCEMS's claims pursuant to Texas Rule of Civil Procedure 91a and for summary judgment on both the conversion claim and the request for a permanent injunction. Dolcefino also sought sanctions against CCEMS pursuant to Texas Rule of Civil Procedure 13 and Civil Practice and Remedies Code Chapter 10.

The trial court initially granted Dolcefino's Rule 91a motion to dismiss but later vacated that order and granted summary judgment in favor of Dolcefino on CCEMS's conversion claim and request for a permanent injunction. The trial court denied Dolcefino's request for sanctions.

In three issues, CCEMS argues that: (1) the trial court erred in granting summary judgment in favor of Dolcefino on CCEMS's conversion claim, in denying CCEMS a continuance for further discovery, and in denying its motion to compel Dolcefino's response to certain deposition questions; (2) the trial court erred in granting summary judgment in favor of Dolcefino on CCEMS's permanent injunction request; and (3) as a prevailing party on a Rule 91a motion to dismiss, CCEMS was entitled to reasonable and necessary attorney's fees, and the trial court's refusal to award it the full amount it had requested was erroneous.

Dolcefino asserts in his cross-appeal that the trial court abused its discretion in overruling his motion for sanctions pursuant to Rule 13 and Civil Practice and Remedies Code Chapter 10 and in denying his motion for reconsideration of the sanctions ruling by operation of law.

We affirm.

Background

CCEMS is a Texas nonprofit corporation doing business as a non-emergency ambulance service in Harris County. CCEMS also has a "tactical medical team" that is comprised of commissioned peace officers who also have training as emergency medical technicians and who provide emergency medical care in situations that would be unsafe for traditional EMTs. Dolcefino was hired by an unidentified third party to investigate CCEMS, and, specifically relevant here, he requested documents from the organization related to the tactical medical team. On March 30, 2015, Dolcefino sent a written request pursuant to the Texas Public Information Act (PIA)^[1]seeking "documents detailing the use of any CCEMS credit card since June 1, 2015,^[2] including the statement and all receipts"; "documents detailing expense reports, or any reimbursements from Brad England [a CCEMS employee] since June 1, 2015"; "documents detailing all expenses of the [CCEMS] tactical medical team since January 1, 2013, including . . . offense reports, documentation of involvement in any law enforcement operations, including, but not limited to any dispatch records request[ing] CCEMS tactical assistance"; and "documents detailing the payroll of the tactical team members." The letter also stated, following the specific request for expense reports for England, "You may redact information made confidential under state law."

In response to this request, CCEMS sought guidance from the Texas Attorney General regarding whether an exemption from its duty to respond to PIA requests applied to certain documents requested by Dolcefino, as provided for in the PIA.^[3]CCEMS's counsel sent a letter setting out its argument for why the exemption applied to it under the circumstances, and it attached un-redacted copies of some of the information relevant to Dolcefino's request so that the Attorney General could review them. The statute also required that CCEMS notify Dolcefino. On April 20, 2015, CCEMS notified Dolcefino by mailing him a copy of the letter it had sent to the Attorney General. However, CCEMS's counsel soon came to believe that it had accidentally sent copies of the un-redacted sample documents it had provided to the Attorney General's office along with the copy of the letter it had sent.

After realizing what had occurred, CCEMS sought a temporary restraining order (TRO) on April 23, 2015, which the trial court granted. The trial court directed that Dolcefino return any documents he had received from CCEMS's attorney, not open any mail from CCEMS's attorney, and not discuss anything that he had received. On April 27, 2015, acting through his attorney, Dolcefino returned unopened a package he had received from CCEMS's counsel; however, CCEMS determined that this was not the package containing the confidential information it believed it had inadvertently sent him.

CCEMS filed the underlying suit on May 14, 2015, alleging a cause of action against Dolcefino for conversion of the documents and seeking a TRO, a temporary injunction, and a permanent injunction prohibiting Dolcefino from using or keeping the documents. Subsequently, on May 18, 2015, the trial court held a temporary injunction hearing. Kimberly Jessett, an attorney for CCEMS, testified that she prepared the letter to the Attorney General's office and attached sample documents containing "information with respect to when certain investigations were going to take place, persons of interest, people who were potentially going to be charged, their photos, their addresses," and other similar information. Jessett further testified that she sent a copy of that letter to Dolcefino at his business address in Katy, Texas—an address to which her firm had directed numerous previous communications. Jessett testified that, a few days later, she came to understand that un-redacted documents had been sent to Dolcefino along with the letter. She stated that she was preparing the confidential documents by redacting them so that they could be send to Dolcefino, but when she asked her assistant to send them to Dolcefino, the assistant informed her "that she had already sent a package out to Mr. Dolcefino." They both realized that they must have sent Dolcefino copies of the un-redacted documents.

Jessett further testified that she had a phone conversation with Dolcefino on April 23 after the underlying suit had been filed and the TRO entered, and after he received emailed notice of the TRO. According to Jessett, Dolcefino "said that he didn't know what I was talking about. He didn't know what the package was. He had not received it yet." Dolcefino told Jessett that he did not check the mail at the Katy address very often. He also represented that he would return the package to the law firm if he received it. Jessett also testified that Dolcefino initially seemed cooperative, but, over the course of the conversation, "his tone changed" and he ended the conversation by informing Jessett that he was going to contact his attorney.

Jessett testified that she had no firsthand knowledge regarding whether Dolcefino had the package in his possession, that she was not aware of any occasion on which Dolcefino had published or otherwise disseminated the information contained in the package, and that she had no knowledge of Dolcefino's publishing information that could have been considered confidential or privileged in the past. Jessett's administrative assistant also testified that she addressed the envelope containing the letter and confidential documents, put the correct postage on the envelope, and left the envelope in the mail bin so that it would be sent to Dolcefino. However, the assistant also testified that she had no personal knowledge regarding whether Dolcefino had actually obtained the package.

Dolcefino also testified at the hearing. He denied receiving the package, and he stated that he did not have it or any of the relevant documents in his possession. Dolcefino testified that, in addition to the post office box in Katy to which CCEMS's counsel mailed the package, he had moved into an office in Houston where he received mail. In February 2015, he began forwarding mail from the Katy address to his office in Houston. Dolcefino stated that he never received the package at his Houston office either.

Following the temporary injunction hearing, the trial court signed an "Agreed Confidentiality Order," in which the parties agreed to certain findings, signed by the trial court,^[4] including findings that counsel for CCEMS had "inadvertently" sent the package containing the confidential documents to Dolcefino on April 20, 2015, by regular mail properly addressed to Dolcefino; that Dolcefino had not received the package and was not responsible for the mailing of the package; and that Dolcefino had "not contributed in any manner to any threatened harm complained of by CCEMS," even though there was still an "imminent harm caused by the inadvertent disclosure of alleged ongoing law enforcement activities contained in the letter package and the potential to cause irreparable injury to CCEMS." Dolcefino agreed not to open the package if he received it in the future and to return it to CCEMS's attorney.

Dolcefino then answered CCEMS's suit by filing a general denial. He also filed a motion to dismiss pursuant to Rule of 91a, and he filed a counterclaim for sanctions arguing that CCEMS's suit was "groundless" and "brought in bad faith or with a dishonest and/or malicious purpose."

The trial court originally granted the Rule 91a motion to dismiss and awarded Dolcefino $500 in attorney's fees. However, CCEMS moved to vacate the Rule 91a dismissal arguing, among other things, that the trial court's granting of the motion had been untimely. On October 26, 2015, Dolcefino opposed the motion to vacate and, in the alternative, moved for traditional and no-evidence summary judgment on CCEMS's conversion claim. Dolcefino argued that, as a matter of law, the purportedly confidential documents were not the type of personal property that could be the subject of a conversion claim. He also argued that CCEMS had no evidence to support the elements of a conversion claim, including that it had no evidence that he had "wrongfully exercised dominion or control over the property."

CCEMS moved for a continuance of the submission and hearing on Dolcefino's motion for summary judgment, arguing that it needed additional time to depose Dolcefino and to depose a postal service employee. Subject to this motion for continuance, CCEMS also responded to Dolcefino's summary judgment motion. The following day, CCEMS moved for attorney's fees pursuant to Rule 91a, in anticipation "that the Court will correctly vacate its previous dismissal order." CCEMS asserted that, following the trial court's decision to vacate its prior ruling, it would then be a prevailing party under the rule and was thus entitled to attorney's fees. It later supplemented its request, seeking a total of $23,897.50 in attorney's fees pursuant to Rule 91a, and it supported its request with affidavits and billing records.

On December 9, 2015, the trial court vacated its previous Rule 91a dismissal and, in the same order, denied Dolcefino's 91a motion to dismiss and continued the consideration of CCEMS's motion for attorney's fees to allow Dolcefino an opportunity to controvert CCEMS's attorney's fees evidence. Dolcefino responded by opposing CCEMS's request for attorney's fees, asserting various arguments that CCEMS was not entitled to any fees, that the fee request was "unconscionable," and that the amount requested was unreasonable and unnecessary.

The trial court also granted CCEMS's motion to continue consideration of Dolcefino's motion for summary judgment, specifically stating that it was granting a continuance to allow CCEMS an opportunity to depose Dolcefino and a postal worker.

CCEMS deposed Dolcefino. Among other topics, Dolcefino answered questions regarding whether he had received the package in question, the places where he was able to receive mail and his forwarding arrangement for mail sent to his old address in Katy, people who had access to the mailbox where CCEMS sent the package in question, and his intention to return the package if it were ever received. However, on the advice of counsel, he refused to answer other questions regarding issues such as the name of the person who hired him to investigate CCEMS and other mail that he had received in the past at the address where CCEMS had sent the documents.

After Dolcefino's deposition, CCEMS moved a second time for a continuance of submission of Dolcefino's motion for summary judgment on the conversion claim, and it also moved to compel deposition testimony from Dolcefino. In its motion for continuance, CCEMS argued that "Dolcefino refused to answer most of the questions posed by counsel for CCEMS, necessitating early suspension of the deposition and the filing of this motion." CCEMS asserted that Dolcefino's counsel had announced near the beginning of the deposition that it would be "limited to the terms of the Public Information Act." CCEMS complained that Dolcefino's counsel then instructed him not to answer multiple questions, identifying questions such as: "[W]hen you're retained to investigate for a client, do you typically charge by the hour?"; "[I]n the investigation that you're doing of [CCEMS], were you retained by someone—I'm not asking who—retained by someone to investigate [CCEMS]?"; and "Were you [sending PIA requests] on behalf of a third person and for compensation?" CCEMS complained that Dolcefino refused to answer questions regarding other mail that CCEMS had sent to Dolcefino at the Katy address and that Dolcefino had apparently received, questions regarding Dolcefino's system for following up on PIA requests, and questions related to CCEMS's efforts to discover circumstantial evidence that could establish that Dolcefino had received and improperly retained the disputed package.

The trial court denied this second motion for continuance, and it granted summary judgment in favor of Dolcefino on CCEMS's conversion claim. The trial court also awarded CCEMS $850 in attorney's fees in connection with the Rule 91a motion.

Dolcefino then moved for summary judgment on CCEMS's request for a permanent injunction. He argued, among other grounds, that because the trial court had granted summary judgment in favor of Dolcefino on the conversion claim, CCEMS could not establish the existence of a wrongful act—an essential element of CCEMS's request for a permanent injunction. The trial court granted summary judgment in favor of Dolcefino on this ground.

The trial court held a bench trial on Dolcefino's request for sanctions. Dolcefino offered evidence consisting of the parties' pleadings and other relevant documents. Counsel for CCEMS, Andrew McKinney, testified regarding the circumstances surrounding CCEMS's decision to file the underlying lawsuit, stating that he had a good faith basis for filing the suit and that CCEMS had a good faith argument for the extension or modification of existing law on its claims. The trial court ultimately denied Dolcefino's request for sanctions.

CCEMS's Appeal

Summary Judgment

In its first issue, CCEMS argues that the trial court erred in granting summary judgment in favor of Dolcefino on CCEMS's conversion claim and that the trial court erred in denying CCEMS's motion for continuance of the summary judgment hearing. In its second issue, CCEMS argues that the trial court erred in denying its request for a permanent injunction based on Dolcefino's motion for summary judgment.

A. Standard of Review

[..]

B. Summary Judgment on Conversion

Conversion is the unauthorized and unlawful assumption and exercise of dominion and control over the personal property of another to the exclusion of, or inconsistent with, the owner's rights. Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 386 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (citing Waisath v. Lack's Stores, Inc.,474 S.W.2d 444, 446 (Tex. 1971)). The elements of a conversion claim are (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. Id. at 386-87; Stroud Prod., L.L.C. v. Hosford, 405 S.W.3d 794, 811 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (citing Khorshid, Inc. v. Christian, 257 S.W.3d 748, 759 (Tex. App.-Dallas 2008, no pet.)).

To be held liable, a conversion defendant must intend to assert some right in the property. Robinson v. Nat'l Autotech, Inc., 117 S.W.3d 37, 40 (Tex. App.-Dallas 2003, pet. denied); see also Dolenz v. Nat'l Bank of Tex. at Fort Worth, 649 S.W.2d 368, 370 (Tex. App.-Fort Worth 1983, writ ref'd n.r.e.) ("To constitute a conversion of property, there must be some repudiation of the owner's right or an exercise of dominion over the property, wrongfully and in denial of or inconsistent with that right; or there must be an illegal assumption of ownership."). "However, that intent need not be an intent to assert a right of ownership or title; it can be an intent to assert the right of possession." Robinson, 117 S.W.3d at 40. Stated another way, an act of conversion does not have to be an actual manual taking but merely an act that is such an active interference with the owner's right of property or control as to deprive him of its free use and enjoyment. Pierson v. GFH Fin. Servs. Corp., 829 S.W.2d 311, 314 (Tex. App.-Austin 1992, no writ) (citing Waisath, 474 S.W.2d at 447).

To recover for conversion, a plaintiff must also prove damages that are the proximate result of the defendant's conversion. MJS & Assocs., L.L.C. v. Master, 501 S.W.3d 751, 757 (Tex. App.-Tyler 2016, pet. denied) (citing United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147-48 (Tex. 1997) (per curiam)). "Generally, the measure of damages for conversion is the fair market value of the property at the time and place of the conversion." Deaton, 939 S.W.2d 146, 147-48.

Here, CCEMS asserts that Dolcefino converted personal property—in the form of copies of confidential documents that CCEMS's attorneys inadvertently mailed to Dolcefino—when it requested that he return the documents and he refused and wrongfully retained them. Dolcefino moved for summary judgment, arguing in part that CCEMS had no evidence of any element of its conversion claim. He argued that CCEMS had no evidence that he had "wrongfully exercised dominion or control over the property."

The summary judgment evidence indicated that CCEMS sent the documents in question to Dolcefino by regular mail. There is no evidence that Dolcefino actually received the package, and there is no evidence that Dolcefino ever had possession of the documents. CCEMS has presented no evidence that Dolcefino has asserted some right over the documents. See Robinson, 117 S.W.3d at 40. CCEMS has presented no evidence that Dolcefino engaged in any action that interfered with CCEMS's right to the property or control over the property as to deprive CCEMS of its free use and enjoyment. See Pierson, 829 S.W.2d at 314. Thus, CCEMS cannot establish that Dolcefino engaged in the unauthorized and unlawful assumption and exercise of dominion and control over the documents to the exclusion of, or inconsistent with, CCEMS's rights. See Freezia, 474 S.W.3d at 386.

CCEMS argues that it has raised a fact issue on this element. It argues that summary judgment evidence established that the "documents were properly addressed, sealed, and mailed to Dolcefino's business address via the U.S. Postal Service" and that this "raised a presumption that he received them." CCEMS further asserts that the presumption of receipt at least raises a fact question regarding whether Dolcefino actually received the documents and whether he has retained them improperly.

CCEMS cites Texaco, Inc v. Phan, 137 S.W.3d 763 (Tex. App.-Houston [1st Dist.] 2004, no pet.), to support its claim that the presumption of receipt raises a fact question here. In that case, Texaco challenged the trial court's default judgment against it and its finding regarding when deadlines for appealing from the default judgment began to run, arguing in part that "the evidence was legally and factually insufficient to support the trial court's finding under [Rule of Civil Procedure] 306a that it received actual knowledge of the default judgment on" a particular date. Id. at 766. In discussing the evidence regarding when Texaco received notice of the default judgment, this Court held that "[d]irect testimony that a letter was properly addressed, stamped, and mailed to the addressee raised a presumption that the letter was received by the addressee in due course." Id. at 767. We further held, "The mere denial of receipt is sufficient to rebut the presumption," but "the denial is not conclusive and merely presents a fact issue for the factfinder." Id. We stated, "The presumption of receipt is overcome conclusively only when `the evidence tending to support the contrary inference is conclusive, or so clear, positive, and disinterested that it would be unreasonable not to give effect to it as conclusive.'" Id. at 767-68 (quoting Employers' Nat. Life Ins. Co. of Dallas, Tex. v. Willits, 436 S.W.2d 918, 921 (Tex. App.-Amarillo 1968, writ ref'd n.r.e.)). This Court then concluded that the trial court properly considered the evidence—both the evidence giving rise to the presumption and Texaco's evidence rebutting it—in making a fact-finding regarding when Texaco received notice of the default judgment for purposes of its appellate deadlines. Id. at 768.

The present case is materially different from Texaco and similar cases cited by CCEMS. Here, the issue is not whether or when Dolcefino received some notice required by law to be sent to him—as was the case in Texaco—but rather whether there is any evidence that Dolcefino engaged in the unauthorized and unlawful assumption and exercise of dominion and control over the personal property of another to the exclusion of or inconsistent with the owner's rights. See Freezia, 474 S.W.3d at 386 (describing tort of conversion and setting out elements). CCEMS has not identified any case in which the presumption of receipt was considered as evidence establishing intentional, tortious conduct such as conversion, nor have we found any. CCEMS is essentially arguing that its own erroneous conduct—the inadvertent mailing of confidential documents—can be imputed as tortious conduct on Dolcefino's part. Neither the law supporting a presumption of receipt nor the law of conversion justifies such a conclusion.

At most, the evidence that CCEMS mailed the documents to Dolcefino raises a fact question regarding whether he received the documents in the mail. However, his mere receipt of the documents is no evidence that Dolcefino himself engaged in an act of conversion, and CCEMS has presented no evidence that Dolcefino improperly retained the documents or that he has used the documents in a way that was inconsistent with CCEMS's rights. See id. CCEMS asserts that Dolcefino is untrustworthy and could be lying about never having received the package, but such assertions are insufficient to raise a genuine issue of material fact regarding whether Dolcefino "wrongfully exercised dominion or control over the property" after CCEMS mailed the package to him. See Ridgway, 135 S.W.3d at 601 ("To raise a genuine issue of material fact . . . the evidence must transcend mere suspicion. Evidence that is so slight as to make any inference a guess is in legal effect no evidence."); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983) ("When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence."); Fabian v. Cantwell, No. 03-16-00712-CV, 2017 WL 1833496, at *2 (Tex. App.-Austin May 3, 2017, no pet.) (mem. op.) ("The circumstantial evidence supporting the allegation that Cantwell exercised dominion and control over Fabian's property—that the mobile home was located on his property, that he and Fabian were involved in a dispute about unpaid rent, and that the property was taken by someone—simply does not exceed a scintilla and could lead to only a guess about who took the property.").

CCEMS failed to raise a genuine issue of material fact on an essential element of its conversion claim in response to Dolcefino's no-evidence motion for summary judgment, and, thus, the trial court could properly have granted summary judgment on this ground. See TEX. R. CIV. P. 166a(i); Hamilton, 249 S.W.3d at 426. Accordingly, we overrule CCEMS's challenge to the trial court's summary judgment ruling on its conversion claim. See Lightning Oil, 520 S.W.3d at 45 (holding that courts will affirm summary judgment ruling if any ground asserted in motion is meritorious).

C. Denial of Motion for Continuance