486 S.W.3d 88
Tex. App.2016Background
- Find It Apartment Locators and Find It Enterprises, operated by Sherman, were involved in a referral-fee factoring scheme with Mr. Day Rents and Boston.
- Boston, initially Find It’s agent, later formed Mr. Day Rents to pursue apartment-locating referrals; a factoring agreement was used to advance funds against invoices.
- Find It stopped advancing funds after discovering Boston allegedly misappropriated checks payable to Mr. Day Rents and collected funds directly.
- Boston and Day Rents asserted counterclaims; Find It was not served with citation after being dismissed from the petition, and no appearance was made on Find It’s behalf.
- The bench trial proceeded with Boston appearing pro se, and the court entered judgments including a take-nothing on Sherman’s claims and a conversion award to Boston and Day Rents, later appealed by Sherman and Find It.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction over Find It | Find It was never served or appeared; court lacked jurisdiction | Find It had been dismissed and remained a non-party; service not required | Judgment void for lack of personal jurisdiction; dismissal of Find It's claims |
| Standing to sue for conversion | Boston had standing to pursue Day Rents’ funds | Funds belonged to Day Rents; Boston lacks standing | Boston lacks standing; conversion claim against Sherman dismissed for lack of standing |
| Sufficiency of the evidence for Day Rents’ conversion | Evidence supported Day Rents’ conversion against Sherman | Evidence insufficient due to lack of licensed attorney representation | Evidence insufficient; Day Rents’ conversion judgment reversed and rendered take-nothing |
| Attorney representation and preservation of error | Day Rents was not represented by a licensed attorney; error should void judgment | No preservation of error in trial court; not fundamental | Error not preserved; nonetheless, court reverses and renders take-nothing on Day Rents’ claim; discussion in concurrence note disagreement about analysis and preservation |
Key Cases Cited
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (personal jurisdiction requires proper service or appearance)
- In re D.A.P., 267 S.W.3d 485 (Tex.App.-Houston [14th Dist.] 2008) (procedural posture on jurisdiction and service)
- Houston Crushed Concrete, Inc. v. Concrete Recycling Corp., 879 S.W.2d 258 (Tex.App.-Houston [14th Dist.] 1994) (counterclaims and service considerations for inter-venors)
- Yuen v. Gerson, 342 S.W.3d 824 (Tex.App.-Houstn [14th Dist.] 2011) (nonappearance effects on jurisdictional status; no voidness automaticity)
- McClane v. New Caney Oaks Apartments, 416 S.W.3d 115 (Tex.App.-Beaumont 2013) (non-attorney representation at trial; effect on legal-sufficiency analysis)