Affirmed and Memorandum Opinion filed March 3,=20
2009.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-07-01024-CV
____________
STEVE=20
RAMON, =
Appellant
V.
DAVID R. DOW=20
AND UNIVERSITY OF HOUSTON, TEXAS INNOCENCE =
NETWORK, =
Appellees
On Appeal from the =
412th District Court
Brazoria County, =
Texas
Trial Court Cause =
No. 44,549
M E M O R=20
A N D U M O P I N I O N
Steve=20
Ramon, an inmate in the care of the Texas Department of =
Corrections,=20
appeals from the dismissal of his lawsuit against appellees, David =
R. Dow=20
and University of Houston, Texas Innocence Network. =20
Ramon sued for conversion, alleging that materials he had sent to=20
appellees were not returned. In two issues on appeal, Ramon =
contends=20
that the trial court erred in dismissing his lawsuit for failure =
to state=20
a cause of action as a matter of law. We affirm.
Discussion
In his=20
petition, Ramon alleged that on August 15, 2002, he sent various =
case=20
materials to appellees along with a request for help in proving =
his=20
innocence. Ramon further alleged that after appellees =
declined his=20
request for help on March 16, 2003, he requested that they return =
the=20
materials and even included postage with this request. After =
Ramon=20
made additional requests, appellees advised him that the materials =
had=20
been mailed back to him. Ramon maintains that he never =
received the=20
materials. The only cause of action raised in =
Ramon=3Ds petition=20
is conversion. He seeks $250,000 for loss of the materials =
and an=20
additional $250,000 in punitive damages.
Inmate=20
in forma pauperis lawsuits are governed by Chapter 14 of =
the Texas=20
Civil Practice & Remedies Code. Tex. Civ. Prac. & =
Rem. Code=20
' =
14.001‑.014. The chapter provides several grounds on =
which a court=20
may dismiss such actions. See id. ' =
14.003. Here, prior to service of process and without =
conducting an=20
evidentiary hearing, the trial court dismissed Ramon=3Ds claims=20
because it found he Afailed to=20
state a cause of action as a matter of law.@ We=20
interpret the trial court=3Ds action=20
as a dismissal based on a finding that Ramon=3Ds claims=20
are frivolous because they have no arguable basis in the =
law. See=20
id. ' =
14.003(a), (b); Minix v. Gonzales, 162 S.W.3d 635, 637 =
(Tex.=20
App.CHouston=20
[14th Dist.] 2005, no pet.). For a claim to have no arguable =
basis=20
in law, it must be based on Aan=20
indisputably meritless legal theory@ =
or on=20
wholly incredible or irrational factual allegations. Gill =
v. Boyd=20
Distrib. Ctr., 64 S.W.3d 601, 603 (Tex. App.CTexarkana=20
2001, pet denied) (quoting Neitzke v. Williams, 490 U.S. =
319, 327=20
(1989), and citing Denton v. Hernandez, 504 U.S. 25, 33=20
(1992)). Stated conversely, we review an inmate=3Ds petition=20
to determine whether it states a cause of action for which relief =
can be=20
granted. Scott v. Gallagher, 209 S.W.3d 262, 267-68 =
(Tex.=20
App.CHouston=20
[1st Dist.] 2006, no pet.). An inmate=3Ds cause of=20
action may not be dismissed merely because the court considers the =
allegations unlikely. Minix, 162 S.W.3d at 637. =
We=20
utilize a de novo standard of review in determining whether=20
Ramon=3Ds claims=20
have an arguable basis in law. See id. In =
examining the=20
pleaded cause of action, we take factual allegations in the =
petition as=20
truth. Scott, 209 S.W.3d at 267.
As stated,=20
the only cause of action raised by appellant is conversion. =
In order=20
to establish conversion of personal property, a claimant must =
prove that:=20
(1) he owned or had legal possession of the property or =
entitlement to=20
possession; (2) the defendant unlawfully and without authorization =
assumed=20
and exercised dominion and control over the property to the =
exclusion of,=20
or inconsistent with, the claimant=3Ds rights;=20
(3) the claimant demanded return of the property; and (4) the =
defendant=20
refused to return the property. Hunt v. Baldwin, 68 =
S.W.3d=20
117, 131 (Tex. App.CHouston=20
[14th Dist.] 2001, no pet.) (citing Waisath v. =
Lack=3Ds Stores,=20
Inc., 474=20
S.W.2d 444, 447 (Tex. 1971)). The factual allegations made =
in=20
Ramon=3Ds=20
petition, even if taken as truth, do not fulfill all of the =
requirements=20
for conversion. Specifically, Ramon makes no allegation that =
appellees assumed and exercised dominion and control over the =
property to=20
the exclusion of, or inconsistent with, Ramon=3Ds rights,=20
or that they affirmatively refused to return the materials. =
Ramon=20
contends only that appellees failed to ensure the return of the=20
materials.
Conversion=20
is an intentional tort. City of Houston v. Petroleum =
Traders=20
Corp., 261 S.W.3d 350, 361 (Tex. App.CHouston=20
[14th Dist.] July 24, 2008, no pet. h.). It requires an =
intent to=20
assert a right in the property, either an assumption of ownership =
or a=20
repudiation of the claimant=3Ds right in=20
the property. See Robinson v. Nat=3Dl=20
Autotech, Inc., 117=20
S.W.3d 37, 39-41 (Tex. App.CDallas=20
2003, pet. denied). It requires an act of malfeasance and =
not mere=20
nonfeasance. Branham v. Prewitt, 636 S.W.2d 507, =
510-11 (Tex.=20
App.CSan=20
Antonio), writ ref=3Dd=20
n.r.e., 643=20
S.W.2d 122 (Tex. 1982). Mere loss of possession of the =
property is=20
generally not enough to constitute conversion even if resulting =
from=20
negligent conduct. Restatement (Second) of Torts =
' =
234 cmt.=20
b (1965). Furthermore, if the initial possession of the =
property by=20
the defendant was lawful, as Ramon claims here, there must be an =
actual=20
demand for the property and an actual refusal to deliver. =
See=20
Hofland v. Elgin‑Butler Brick Co., 834 S.W.2d 409, 413 =
(Tex.=20
App.CCorpus=20
Christi 1992, no writ). Mere failure to deliver when there =
has been=20
a demand is generally not sufficient to prove an affirmative=20
refusal. 90 C.J.S. Trover and Conversion ' =
45=20
(2002). In his petition, Ramon has not alleged any facts=20
demonstrating that appellees asserted any rights in the property =
or=20
affirmatively refused to deliver the property. Accordingly, =
we=20
overrule Ramon=3Ds two=20
issues.
We affirm=20
the trial court=3Ds=20
judgment.
/s/ =20
Adele Hedges
Chief =
Justice
Panel=20
consists of Chief Justice Hedges and Justices Anderson and=20
Seymore.
In their brief, appellees assert =
that the=20
Texas Innocence Network is a separate non-profit organization and =
not a=20
part of the University of Houston. The distinction, however, =
plays=20
no role in this=20
opinion. |