Anthony McGill and AP McGill Enterprise, LLC v. GJG Productions, Inc.
01-17-00937-CV
Tex. App.Jun 25, 2019Background
- GJG Productions (Grega) subcontracted staging to provide a 40'×40' stage for a festival McGill planned; Starr Sound (Brown) was the primary contractor with McGill and had subcontracted staging to GJG.
- GJG set up the stage the week before the event; McGill postponed and then cancelled the festival due to rain; GJG requested to retrieve its equipment but McGill refused unless refunded his down payment.
- McGill withheld the equipment, charged/received a $750 “storage fee” before allowing removal, and refused access despite police involvement; GJG sent a demand letter and obtained a temporary restraining order to secure access.
- GJG sued McGill for conversion and civil theft under the Texas Theft Liability Act (TLA); GJG moved for partial summary judgment on liability, relying on affidavits from Grega and Brown.
- McGill failed to timely respond to requests for admissions (deemed admitted), later filed a late response and an affidavit and submitted emails; the trial court sustained GJG’s objections to McGill’s affidavit and granted partial summary judgment on liability.
- The jury later awarded GJG $16,073 in damages; McGill appealed only the partial summary-judgment ruling on liability, arguing factual disputes and errors in striking evidence and refusing to withdraw deemed admissions.
Issues
| Issue | Plaintiff's Argument (GJG) | Defendant's Argument (McGill) | Held |
|---|---|---|---|
| Whether material fact issue exists to defeat partial summary judgment on conversion and TLA liability | GJG: evidence (affidavits, demand, refusal, payment condition) establishes appropriation, lack of consent, and intent to deprive as a matter of law | McGill: affidavit/emails show he sought removal, thought Starr (not GJG) owned stage, and did not intend to deprive | Held: No genuine fact issue; summary judgment on liability affirmed |
| Admissibility/effect of McGill’s late responses to requests for admissions | GJG: deemed admissions conclusively establish facts; McGill cannot controvert them | McGill: late responses caused by counsel confusion; sought to withdraw admissions | Held: Court refused to strike deemed admissions; appellate court need not decide abuse because McGill’s evidence fails regardless |
| Sufficiency of McGill’s affidavit and emails as summary-judgment evidence | GJG: affidavit/emails unreliable, inconsistent, and do not negate elements (ownership, demand, conditioned return) | McGill: affidavit/emails create factual disputes about ownership and communications | Held: Affidavit/emails do not create material fact issue; contradictions and lack of proof they reached Brown fatal |
| Whether TLA's "deprive" element satisfied | GJG: McGill conditioned return on refund/compensation, satisfying "deprive" as a matter of law | McGill: denies intent to permanently deprive; claims mere storage/delayed retrieval | Held: Payment condition to restore property meets statutory definition of "deprive"; element satisfied |
Key Cases Cited
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (summary-judgment review is de novo)
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (movant’s burden in summary judgment)
- MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986) (plaintiff moving for summary judgment must prove each element)
- Marshall v. Vise, 767 S.W.2d 699 (Tex. 1989) (party may not controvert deemed admissions)
- Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (evaluate evidence in light most favorable to nonmovant)
- Stroud Prod., L.L.C. v. Hosford, 405 S.W.3d 794 (Tex. App.—Houston [1st Dist.] 2013) (elements of conversion)
- Winkle Chevy-Olds-Pontiac, Inc. v. Condon, 830 S.W.2d 740 (Tex. App.—Corpus Christi 1992) (civil theft vs. conversion: intent requirement)
- Weeks Marine, Inc. v. Garza, 371 S.W.3d 157 (Tex. 2012) (briefing rules construed liberally)