Franklin Jones, Sr., filed suit against Pargas to recover damages resulting from Pargas’s removal of a butane gas tank from his property. Liability was predicated upon three theories: violation of the Texas Debt Collection Act, 1 willful trespass, and conversion. After a non-jury trial the district court awarded Jones $175.00 for the value of the tank, $750.00 damages for mental anguish, $1,000.00 exemрlary damages and $1,250.00 attorney’s fees.
The trial court’s findings of fact reveal that, shortly after World War II, Jones installed a butane gas system at his second residence on Caddo Lake. The system con *573 sisted of one unit with outlets in the residence and a buried storage tank connected to the outlets by buried pipes. In 1967, the buried tank was replaced by a larger 250 gallon tаnk installed by Pargas. The replacement tank was not buried but was placed on concrete blocks and was connected to the gas system as an integral part of it. Jones was under the impression that he purchased the tank and that it was to be paid for periodically as he purchased gas. Pargas contended that it merely leased the tank to Jones, but it did not charge a rental for the tank as long as the customer was purchasing gas. The tank remained at the residence and there was no dispute until September of 1976 when Pargаs wrote Jones that, because he had not purchased any gas from it since 1973, 2 it would like to pick up the tank and replace it with a smaller one. Jones replied that he thought he had bought the tank, but offered to purchase it if he had not already done so. Pargas then advised Jones by mail that its previous letter was in error and that the tank would be picked up оn November 1, 1976, “when the lease runs out” unless Jones gave notice to the contrary. Jones thereupon demanded that Pargas produce its lease covering the tank, if it had onе, and warned that any attempt to remove the tank would be a trespass which he would resist. Without further response or notice, Pargas’s employee Scott and a helper wеnt to Jones’s property between Christmas and New Years, entered the fenced and locked premises by removing wires from the fence, ruptured the gas lines, disconnected the tank and carried it away. The court found there was no written lease between Pargas and Jones covering the tank; the tank had become Jones’s property as a fixture attached to the realty; Pargas had no contractual or other right to invade Jones’s premises; and that the entry was deliberate, willful and unlawful.
Pargas has assigned seventeen points оf error which contend generally that the Debt Collection Act was not applicable and that the awards for mental anguish, exemplary damages and attorney’s fees were not authorized.
The cause of action did not come within the provisions of the Debt Collection Act. That Act applies to certain prohibited actions of a creditor or a debt collection agency in an attempt to collect a debt arising from a consumer transaction. The controversy here does not involve a debt- or/creditor relationship. It is simply a dispute over the ownership of a tank and the corollary right of the alleged owner to retrieve that property. The district court concluded that Jones’s alleged obligation to return the tank was a “debt,” analogous to the situation in
Ledisco Financial Services, Inc. v. Viracola,
However, as the court found that Pargas had no contractual or other right to go upon Jones’s property and by doing so committed a deliberate, willful and fоrcible trespass, the judgment, except for attorney’s fees, was authorized on the theory of trespass and conversion.
The trial court found that the tank had been installed in such a manner that it became an integral part of the heating sys
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tem of the residence and thus was attached to and became a part of the realty as a fixture. There is ample evidence to sustain such a finding. Consequently, the tank became Jones’s property, and a recovery of its stipulated value was proper. 25 Tex.Jur.2d, Fixtures, Sec. 3, p. 394; see аlso,
Harris v. Harris,
The court also awarded $750.00 as actual damages for mental anguish suffered by Mr. Jones. Ordinarily, damages for mental suffering are not recoverable unless they result from or are accompanied by physical injury. But one exception to the rule is that actual damages resulting from mental distress may be recovered, as a separate and indepеndent element, when caused by a deliberate and willful trespass in which actual damage to plaintiff’s property is sustained.
Michels v. Crouch,
Pargas also attacks the award of exemplary damages. In the case of a trespass, punitive damages may be recovered if actual damage has been sustained and the trespass upon the plaintiff’s property is shown to have bеen deliberate and intentional.
Hood v. Adams,
The judgment’s award of attоrney’s fees was based upon the provisions of the Debt Collection Act authorizing such an award in cases coming within the Act. As this case did not come within that Act, and an award of attorney’s fees is not authorized in suits for trespass and conversion, the award cannot be sustained and will be deleted from the judgment.
The judgment of the district court is reformed to delete therеfrom the award of attorney’s fees. As reformed, the judgment is affirmed.
ON REHEARING
In its motion for rehearing Pargas argues that, even though the tank became a fixture, it did not become Jones’s proрerty absent a conveyance or an establishment of title by limitation.
The significance of a fixture is that it becomes a part of the land to which it is
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attached. 35 Am.Jur.2d, Fixtures, Sec. 3, p. 700, and cases cited. When a person having no estate in land enters thereon and affixes personalty thereto, the personalty becomes part and parcel of thе freehold, and its title passes to the landowner unless there is an express or implied agreement to the contrary.
Meeker v. Oszust,
The motion for rehearing is respectfully overruled.
HUTCHINSON, J., not participating.