Opinion issued June 5, 2008
This is an=20
appeal from a bench trial in which appellant L&L Crane =
Service, Inc.=20
sued appellee Continental Dredging, Inc. over a crane belonging to =
L&L=20
that L&L left on Continental's property. L&L sued for =
breach of=20
contract, quantum meruit, and conversion arising out of =
Continental's=20
refusal to allow L&L to reclaim its crane unless L&L first =
paid=20
storage fees to Continental. The district court rendered judgment =
that=20
L&L take nothing in damages and ordered Continental to return =
the=20
crane to L&L. L&L did not request findings of fact and =
conclusions=20
of law. On appeal,=20
L&L challenges the legal and factual sufficiency of the trial =
court's=20
judgment regarding the conversion claim. Of the four elements of=20
conversion, L&L contends only the second element--whether =
Continental=20
unlawfully and without authorization assumed and exercised control =
over=20
the crane to the exclusion of, or inconsistent with, L&L's =
rights as=20
the owner of the crane--was a disputed fact question at trial.=20
See Burns v. Rochon, 190 S.W.3d 263, 267-68=20
(Tex. App.--Houston [1st Dist.] 2006, no pet.) (setting out =
elements=20
of conversion). L&L impliedly argues that because it asked =
Continental=20
to return the crane and Continental refused, then it became =
Continental's=20
burden to establish the reasons for a reasonable, good faith =
qualified=20
refusal to return the crane. See id. at 269. L&L's =
specific=20
argument is no evidence, or factually insufficient evidence, =
exists that=20
L&L agreed to pay a storage fee to Continental; therefore, =
Continental=20
did not make a reasonable, good faith qualified refusal to return =
the=20
crane. When a=20
trial court does not issue findings of fact and conclusions of =
law, all=20
facts necessary to support the judgment, which are supported by =
the=20
evidence, are implied. BMC Software Belg., N.V. v. =
Marchand, 83=20
S.W.3d 789, 795 (Tex. 2002). Because the appellate record in this =
case=20
includes the clerk's and reporter's records, L&L may challenge =
the=20
implied finding that L&L agreed to pay a storage fee to =
Continental.=20
See id. Marvin=20
Harralson, a Continental employee, testified at trial that he =
spoke with=20
someone at L&L when the crane was initially placed on =
Continental's=20
property. Harralson told the individual from L&L that the =
crane could=20
be stored on the property for a short period of time, but if the =
crane was=20
not moved quickly, then Continental might invoice L&L for =
storage=20
fees. In addition, Jennifer Lynn Park, Continental's vice =
president,=20
testified at trial that she received a telephone call from Ray =
LeJeune,=20
one of L&L's co-owners. According to Park, when LeJeune asked =
to come=20
pick up the crane, she informed him there was a storage fee on the =
crane,=20
and LeJeune said there was "no problem" with the storage =
fee. The record=20
contains contradictory evidence concerning whether L&L agreed =
to a=20
storage fee. After viewing the evidence in a light that tends to =
support=20
the implied finding of a disputed fact and disregarding all =
evidence and=20
inferences to the contrary, we hold that there is more than a mere =
scintilla of evidence to support the implied finding concerning =
the=20
storage fee. According, we overrule L&L's no-evidence =
challenge.=20
See id.; see also Wal-Mart Stores, Inc. v.=20
Miller, 102 S.W.3d 706, 709 (Tex. 2003). When we =
consider=20
L&L's factual-sufficiency challenge to the implied finding, we =
must=20
consider and weigh all the evidence and should set aside the =
judgment only=20
if it is so contrary to the overwhelming weight of the evidence as =
to be=20
clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, =
176 (Tex.=20
1986); see also Pool v. Ford Motor Co., 715 =
S.W.2d 629,=20
635 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 =
(Tex.=20
1951). We hold the district court's implied finding was not so =
contrary to=20
the overwhelming weight of the evidence as to be clearly wrong and =
unjust,=20
and we overrule L&L's factual-sufficiency =
challenge. We must=20
also address Continental's request that we dismiss the appeal =
because=20
L&L took possession of the crane as allowed by the district =
court's=20
judgment. Continental argues that it is "unfair" for L&L to =
both take=20
possession of the crane and to appeal the portion of the judgment =
that=20
L&L take nothing on its conversion claim. Continental, =
however, did=20
not file its own notice of appeal regarding the trial court's =
judgment=20
that L&L have possession. We hold that Continental has waived =
any=20
possible complaint. We affirm=20
the district court's judgment. Sam=20
Nuchia Panel=20
consists of Justices Nuchia, Hanks, and=20
Higley.