### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00451- CV

F lora J. Mire les, Appellan t

v. Danny Morm an, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 4 O F WI LLIAM SO N COUNTY NO. 08- 1486 -CC4, HO NORAB LE JO HN MCM ASTER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n a dispute reg arding owner ship of a puppy , Flora J

. Mireles appea ls from a final summary judgme nt awa rding Danny Morman $6,800 in damag es and $3,500 in attorney ’s fee s. Following a storm in Wil liamson County , sever al of appellee Danny Morman’s Bullmastiff puppies

esca ped. Appellant Flora J

. Mireles found one of the puppies and g ave it to her y oung son. When she was eventua lly confr onted by Morman, Mireles ref used to return the puppy , and Morman filed suit alleg ing conver sion and ultimately reque sting return of the puppy , damag es, and attorney ’s fee s. The trial court g rante d summary judgme nt, requiring Mireles to either pay $800 for the puppy or to return the puppy . I ncluding that $800, the trial court awa rded damag es to Morman in a total amount of $6,800, plus $3,500 in at t o rn ey ’s fee s. Mireles appea ls, asser ting on multipl e g rounds that summary judgme nt was improper. We conclude that the trial court acte d wi thin its discretion in ref using to a llow Mireles to withdraw deemed admissions and that thos e admissions conclusivelyestablished Mireles’s liability as to conver sion. Ho we v er , b eca use we also conclude that the summary -judg ment evidenc e do es not support the damag es awa rd, that attorney ’s fee s wer e unavailable , and that the judgme nt g rante d more relief than was soug ht in Morman’s motion, we will

r e v e r s e the district court’s judgme nt and rema nd for further proce eding s consistent with this o p in io n .
BACK GR OUND Appell ee M orman raises Bullmastiff puppies. On Fe bruar y 15, 2008, four of Morman’s puppies escap ed h i s proper ty when a storm blew open a g ate. Whil e Morman soon

rec overe d three of the puppies, the f ourth rema ined missing. About two months after the storm, a neig hbo r t o l d M o rm an that she had seen a woman who lived near by —appellant Mireles—in possession of a B ullmastiff puppy matching the desc ription of Morman’s f ourth lost puppy

. Upon l ear ning this information, M orman and his wife we n t t o M i rele s’s house. A confr ontation ensued in wh i ch M i re les g ave conflicting acc ounts of how she came to be in possession of the puppy . I t is undisputed that Mireles and Morman eventua lly ag ree d that Mireles would pay $800 to ke ep the puppy , and Mireles signe d a promissory note to tha t e ffe ct. Howeve r, afte r Mireles neither p ai d t h e $800 nor returne d the puppy , Morman filed suit in the Wil liamson County Court-at-L aw. I n his “Or igina l Petition for Recove ry of Dog , ” M o rm an alleg ed that Mireles had

conver t ed t h e p uppy and sought judgme nt that the puppy be returned to him, plus attorney ’s fees. Mireles, appea

ring pro se, timely filed a g ener al denial and a “counte rs u i t ” for emotional distress damag es plus, conting ent on the trial court’s g ranting Morman t i tle to the puppy , expenses that Mireles had incur

red in car ing for the puppy and additional emotional-distress damag es. Morman
2propounded written discovery reque sts, including reque sts for admi s s ion and interrog atories.

Although Mire les eve ntually responde d, she ser

ved her response s eig ht day s late. There afte r, Morman fi l ed a motion for traditional summary judgme nt on his

conver sion clai m as well as a claim for “The ft of Property /Trial to Title Right to Property .” Reg arding the latter claim, Morman’s motion addre ssed eac h of the elements of theft as define d in the penal code, which are in turn made a basis for civil liability under the Texas Theft L iability Act. 1 See Tex. Civ. Prac. & Rem. Code Ann. § 134.003(a) (West 2005) (“A person who commits theft is liable for the damag es resulting from the theft.”) , § 134.005 (West 2005) (“[A] person who has sustained damag es resulting from theft may rec over . . . the amount of actua l damag es found by the trier o f fact and, in addition to actua l damag es, damag es awa rded by the trier of fac t in a sum not to exceed $1,000,” plus court costs and rea sonable and nece ss ar y at t o rn ey ’s fee s.). Howeve r, as Morman acknow ledg es, neither his petition nor his summary -judg ment motion expli citly mentioned this statute. I n his motion, moreove r, Morman pray ed not only that Mireles be order ed to return the puppy to him, as he had reque sted in his petition, but also for “at least $5,800 as actua l, specia l, and conseque ntial damag es,” “ statutory damag es of $1,000,” attorney ’s fe es, and c osts. I n support of his summary -judg ment m o t i o n , Morman attache d Mireles’s deeme d admissions, his own aff

idavit (with attachme nts that i n cl u d ed what purported to be the puppy ’s Americ an Kenne l Club paper s ), and a n aff idavit from his attorney

reg arding fee s. Mireles filed a 2

See Tex. Penal Code Ann. § 31.03(a) & (b) (West Supp

. 2 0 0 8 ) (“A person commits an 1 offe nse if he unlawfully appropr iates proper ty [i .e., appropr iating it without t he owner ’s ‘ef fec tive consent’] with intent to deprive the owne r of pr operty .”). These doc uments ref

lect that the puppy ’s name w as “JC’s Dora the Explorer.” 2 3response , attaching her own evidenc e, including two incident repor ts from the Wil liamson County Sheriff’ s Offic e, a witness statement provided by Morman’s wife, and an orig inal pet i tion that Morman had previously filed ag ainst her in justice court. Morman object ed to all of Mireles’s 3 summary -judg ment evidenc e on g rounds of he arsa y . A hear ing was held. The trial court sustained all of Morman’s hear say objections and excluded all of Mirele s’s summary -judg ment evidenc e. After inqui ring whether law enforce ment should be i n v o l v ed i n the matter and afte r Mireles beg an making repr esenta tions to the court reg arding the underly ing fac ts, the court asked that both p ar t i es be sworn in. During the ensuing

exc h an ge, Mireles acknow ledg ed that during her initial confr ontation with the Mormans, she had offe red to pay them $800 for the puppy , which they had acc epted, and that she subsequently h ad rene g ed on the deal. Eventually , the trial court g rante d summary judgme nt for M o rm an , 4 order ing that Mireles surre nder possession of the puppy by 5:00 p.m. that day and awa rding Morman actua l damag es of $6,800, $3,500 in trial-leve l attorn e y ’ s f e e s , a n o th e r $ 6 ,000 in conting ent appellate attorney ’s fee s, costs, and interest. Howeve r, the trial court further order ed that Mireles could keep the puppy if she tender ed a cashie r’s chec k for $800 to Morman within one wee k, in which case the
amount of actua l damag es awa rded in the judgme nt would be reduc ed by $800, to $6,000. Mireles tender ed the c ashier’ s chec k and kept the puppy

.

Morman had orig inally filed suit in a Wil liamson County justice court , seeking 3 injunctive relief for possession of the puppy . The justice court rende red a take- nothing judgme nt for both parties. Mireles claimed that she had called Morman ag ain and insiste d t h at s h e should have to 4 pay only $400 for the puppy afte r she had hear d from neig hbors that the other puppies had sold f or less than $800. She furthe r justified her a ctions on the basis that “I had already paid for the dog ,” claiming that she had pur chase d the puppy from an unide ntified neig hborhood boy

. 4Mirele s t h ereafte r obtained her curr ent counsel and filed a motion to modify the

judgme nt and for new trial. After these motions wer e denied by opera tion of law, Mireles appea led.

ANALYSIS Mireles bring s five issues on appea l. Her primary arg ument , t h e s ubject of her first two issues, is that the trial court should have awa rded no more than $800 in d amag es, a sum that, Mireles contends, repr esents the marke t value of the lost dog , and that any additional damag es

or attorney ’s-fe e awa

rd was err or. Ba sed on these arg uments, and in a profe ssed desire to bring this litigation t o an efficient c onclusion, Mireles asks us to modify the t rial court’s judgme nt to awa rd Morman only

$800 (an a

mount she has alre ady

paid to Morman in re turn for the puppy ). I n the alter

native, Mi rele s arg ues that the trial c ourt’s judg ment should be reve rsed in its entirety and the case rema nded for further proce eding s. I n her third issue, Mireles urg es that the t rial court should have permitted her to withdra w her deeme d admissions. I n her fourth issue, she complains that the trial court “should not have sworn in a pro se litigant and taken live testimony
at a summary -judg ment h ea ri n g. ” I n Mireles’s fifth issue, she arg ues t hat M orman failed t o meet his summary -judg ment burden. Finally , in her six th issue, Mireles contends that the trial court err ed in rende ring a fina l judgment whe n Morman’s motion did not address he r counte rcla ims.

Stand ard of review

We revie w the district court’s summary judgme nt de novo. Valence Operating Co.

v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005); Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). As the m ovant on a traditional sum m ar y -j u d gm ent m otion on

5his aff

irmative claims, Morman had the initial burden of establishing his entitlement to judgme nt as

a matter of law by conclusively establishing eac h element of eac h o f h i s cause s of action. See M.D. Anderson Hosp. & Tumor Inst. v. W illri ch , 28 S.W .3d 22, 23 (Tex. 2000) (per curia m). Only if Morman met this burden would the burden shift to Mireles to raise a g enuine issue of materia l fac t prec luding summary

judgme nt. See id. When revie wing a summary judgme nt, we take as true all evidenc e favor able to the non-movant, and we indulge ever y rea sonable infere nce and resolve any doubts in the non-movant’s favor

. Valence Operating Co. , 164 S.W .3d at 661; Knott , 128 S.W .3d at 215. Summary judgme nt is pr oper when there are no disputed issues of materia l f act and the movant is entitled to judgment

as a matter of law. Tex. R. Civ. P. 166a(c ). The evidenc e raises a g enuine issue of fac t if rea sonable and fair- minded jurors could differ in their conclusions in light of all of the summary -judg ment evidenc e. Goodye ar Tire & Rubber Co. v. May es , 236 S.W .3d 754, 755 (Tex. 2007).

Dee m ed adm ission s

As we explain below, the premise underly ing Mireles’s first issue—that the judgme nt aff

ording Mireles the option of pay ing Morm an $800 for the puppy repr esents a judicial deter

mination of t he puppy ’s m arke t value—is ul timately flaw ed

. Consequently , we will beg in with Mireles’s alterna tive issues challeng ing Morman’s entitlement to summary judgme nt as to liability

. I n her third issue, Mireles arg ues that the summary judgme nt should be vacated beca use it is based solely on her deeme d admissions as a p ro se defe ndant. Acc ording to Mireles, the trial court had t h e p o we r t o —and should have—e ither allowed Mireles to withdraw her deeme d response s or ac cepte d Mireles’s la te-filed r esponses.

6I n addre ssing this issue, both parties rely on W heele r v. Gree n , 157 S.W .3d 439, 444 (Tex. 2005). I n W

heele r , the Supreme Court re v er sed a summary judgme nt based entirely on a pro se defe ndant’s deeme d admissions. As a result of the summary judgme nt, Whee ler, the pro se defe ndant, was terminated as joint mana g ing conser vator of her daug hter, and Gre en, the plaintiff,

was made sole manag ing conser vator. Id. at 441. Wheeler had serve d answe rs to Gre en’s reque sts for admissions, but application of the mailbox rule made her response two day s late. Id

. The trial court g rante d Green ’s s u m mary judgme nt based on the deeme d admissions and denied Wheeler’ s motion for new t rial, i n which she arg ued that h er response s to the deemed admis sions

wer e, in fac t, timely

. Id. at 441-42. The court of appea ls aff irmed, and the Supreme Court reve rsed, holding that Wheele r had shown g ood cause for he r late r esponses in that her motion for new tria l showed that Wheeler was m istaken as t o when service occur red and, based on Wheeler’ s motion, “the lower courts could have conclude d that [W heele r] wa s wrong on her dates and wrong on how
to corre ct them, but not that either wa s the result of intent of c onscious indiffer ence .” Id. at 442.

H e r e , a lt h o u g h we are confr onted with somewhat simil ar fac ts a n d s im il a r d u e p r o c e s s

conce rns, we cannot conclude that the trial court abused its discretion in g ranting summary judgme nt based on deeme d admissions or in deny ing Mirel es ’s motion for new trial, as Mireles has neither

asser ted that she had g ood cause for failing to timely respond to Morman’s reque sts for admissions,

n o r h as s h e prese nted any evidenc e to show g ood cause . A showing of both g ood cause and n o undue prejudice is re q u i re d by rule befor e a trial court may allow a party to withdraw deeme d admissions. See Tex. R. Civ. P. 198.2; W heele r , 157 S.W .3d at 442. To show g ood cause , a party must show that his failure to timely respond was due to acc ident or mistake. Tex. R. Civ. P. 198.2;

7W

heele r , 157 S.W .3d at 442. Mireles has neither shown nor tried to show either acc ident or mistake in failing to file timely

response s. Our holding on this point is consistent with this Court’s rec ent application of W heele r in Van Hoose v. V

a n d er b i lt Mortgage and Finance, Inc. , No. 03-08-00573- CV, 2009 Tex. App. L EXI S 3136, *6-7 (Tex. App.—Austin May 8 , 2 0 0 9, pet. denied) (mem. op.). I n Van Hoose , summary judgme n t wa s grante d ag ainst the Van Hooses, pro se defe ndants, based on deeme d admissions. Id. at *2. As here , the Van Hooses did not arg ue that their failure to timely respond to reque sts for admission was a result of acc ident or mistake. Id

. at * 7 ; see Tex. R. Civ. P. 198.2; W heele r , 157 S.W .3d at 442. Rather, they stated that their failure to r espond was due “‘in part,’ to Ms. Van Hooses’s medical condition, which require d her to avoid the stress of court proce eding s.” Van Hoose , 2009 Tex. App. L EXI S 3136, at *7. Acc ording ly , this Court aff irmed the trial court’s summary judgme nt ag ainst the Van Hooses. Id. For the same rea sons, we find no err or i n the
t ri al co u rt ’s ref

usal to allow Mireles to withdraw her deeme d in admissions or in the court’s consideration of Mireles’s d ee m ed admissions as competent summary judgme nt evidenc e. We

overr ule Mireles’ s third issue. 5

Summ ary judgm ent

I n her first and fifth issu es , M i reles arg ues that Morman failed to meet his burden of estab l i s h i ng his entitlement to judgme nt as a matter of law by conclusively establishing both

On this issue, howeve r, we make no deter mination a s to w hether the dee med admissions 5 wer e sufficie nt to support the trial court’s judgme nt. We discuss t h e s ufficie ncy of the evidenc e below. 8liability and damag es. See M.D. Anderson Hosp. & Tumor Inst. , 28 S.W .3d at 23. Relatedly , in her

first issue, Mireles urg es that to the extent Morman is entitl ed to summary judgme nt as to liabilit y for c onversion, the tria l court er red in a war ding da

mag es in excess of $800. The deeme d admissions co n cl u s ively established eac h element of Morman’s

conver sion claim, the sole claim asser ted in Morman’s pleading s. To prove conver sion, a plaintiff
must show that: (1) he owned or had leg al possession of the proper ty or entitlement to possession; (2) the defe n d an t unlawfully and without authorization assumed and exercised dominion and control over the proper

ty to the exclusion of, or inconsistent with, the plaintiff’s rig hts as an owner ; (3) the plaintiff demande d return of the proper ty ; and (4) the defe ndant ref used to return the proper

ty

. Smith v. Maximum Racing, Inc. , 136 S.W .3d 337, 341 (Tex. App.—Austin 2004, no pet.). Mireles’s deeme d a d

mi s s io n s e s ta

blished eac h of these elements—that (1) Morman owned the dog ; (2) Mireles knew the dogwas Morma n’s and intended to deprive Morman of the dog ; (3) Morman de manded the dog be returne d, and (4) Mireles ref used to return the dog

. Be cause Mireles’s deeme d admissions conclusively establish eac h element of liability on Morman’s conver sion cause of action, summary judgme nt was prope r as to liability

. Morman has also relied on the deeme d admissions as conclusive proof of Mireles’s liability under the Texas Theft L iability Act. Howeve r, as Morman acknow ledg es, he did not plead such a claim. Morman ins i s t s t h at, nonetheless, the parties tried this claim by consent. Morman observe s that his su m m ar y -judg ment motion addre ssed each of the elements for recove ring under the Act in a section addre ssed to “The ft of Property ;” reque sted “statutory damag es of $1,000,” the maxi mum amount of statutory d am ag es available under the Act; and also soug ht attorney ’s fee s,

9a reme dy available under the Act and not his conver sion claim. Morman also points to a statement

by his counsel during the summary -judg ment hear ing indicating that Morman was reque sting $6,800 in damag es, an a

mount that “includes the statutory penalty under the Theft Ac t.” We cannot ag ree with Morman that the issue wa s tried by consent a t the summary

judgme nt hear ing. The sole mention of the theft liability act was a statement by Morman’s counsel
at the conclusion of the hear ing that Morman was reque sting $6,800 in damag es, an amount that “includes the statutory penalty under the Theft Act.” When Morman’s counsel made this statement, Mireles, who appea

red pro se at the hear ing, repe atedly attempted to seek clar ification, despite the trial court’s admonishments to her for “interr upting.” Specifical l y , as to this theft alleg ation, Mireles prote sted:

I was never told in these documents that it was theft. I was under the impression that I had obtained this dog

— At this juncture, the trial c ourt interjec ted: Madam, this is a civil court. Ba sed on the evidenc e that I ’ve g ot be fore me, I think there ’s a serious question of a violation that’s criminal. But that’s not what I ’m here to hear and that’s not bef

ore me . And for tha t, y ou might be f ortunate. But in reg ards to what I ’m able to do, is I ’m able to a war d damag es to him over the fac t that y ou have injured him and maintained dominion over proper ty which did not b el o n g t o y o u , knowing that it did not belong to y ou. Now, do y ou have any thing rele vant to a civil ca se?

We believe that Mireles’s indications that she was unawa re of the theft alleg ation wer e sufficie nt to raise her objection to trial on theft alleg ations that had not been raised in Morman’s pleading s. Although the trial court acknow ledg ed Mireles’s objection, the court’s response indicated t h at it,

10like Mireles, was unclea r as to exactly what was being pleade d or had been arg ued. On this rec ord,
we cannot s ay that this issue was tried by consent. See Tex. R. Civ. P. 67; Hartford Fire Ins. C o.

v. C. Springs 300, Ltd. , 287 S.W .3d 771, 780 (Tex. A pp.—Houston [1st Dist.] 2009, no pet.) (trial by consent require s that evidenc e on the issue be develope d und er circ umstances indicating that the parties understood the issue was in t h e ca s e and made no objection). Consequently , Morman

was not entitled to summary judgme nt on his un-pled claim un d er the Texas Theft L iability Act. Any relief awa rded in the judg ment must inst ead r est upon Morman’s c onversion cla im. As for actua l dama ges, as previously explained, the judgme nt awa rded Morman a principal amount of $ 6,800, subject to reduc tion by $800 if Mireles opted to pay Morman that
amount for the puppy . As proof of his damag es, Morman relies on his aff idavit, in which he testified, in pertinent pa

rt:

The dog had a value of $1,000, but can no longe r be s o l d fo r t h at amount, as in essenc e, it is a used dog

. The dog is AKC reg istered and I could have shown the dog in competitions, which would g ener ate monetary awa rds. I also could have used the dog for bree ding purposes, but lost out on this opportunity

. As the result of the lost bree ding oppor

tunities and inability to show[] the dog, I have be en dama g ed in the amount of $4,800.00. * * * I am reque sting that the court g rant me damag es in the amount of $6,800.00 for the loss of use, loss [si c] bree ding opportunity , loss of opportunity to show my dog , loss [si c] profits and statutory

reme dy for De fenda

nt’s unauthorized appropr iation.
Thus, the amount of actua l damag es awa rded by the trial court corr esponded to t h e t o t al amount of damag es that Morman claimed in his aff idavit. On appea l, Morman acknow ledg es that “[o] f the $6,800 awa

rded, $1,000 was the statutory penalty under the Texas Theft L iability Act.” Be cause we
11have concluded that Morman was not entitled to sum m ar y j udg ment on such a claim, i t was error

for the trial court to include in the actua l damag es awa rd $1,000 in statutory damag es under the Act. Ex cluding the statuto ry d amage s, Morman asser ts that his aff

idavit conclusively established act u al d amage s of $5,800 (a sum corr esponding to Morman’s claimed $4,800 in “lost bree ding opportunities and inability to s h o w[ ] the dog ” plus the $1,000 in marke t value Morman

aver red the dog once ha d). As thi s Court has recog nized, the actual damag es t hat can be aw arde d for loss of a dog are limit ed to either: (1) mark et v al u e, i f one can be asce rtained, or (2) some “spec ial or pecunia

ry ” economic value to its owner that is der i v ed from the dog ’s usefulness and service s. Petco Animal Supplies, Inc. v. Schuster , 144 S.W .3d 554, 560-61 (Tex. App.—Austin 2004, no pet.) (c iting Heiligmann v. Rose , 16 S.W . 931 (Tex. 1891)). Mar ket value is the amount that would be paid in ca s h b y a wi l l ing buy er who desires to buy , but who is not require d to buy , to a willing seller who desires to sell, but who does not need t o s ell. GJP v. Ghosh , 251 S.W .3d 8 5 4 , 8 8 8 (Tex

. App.—Austin 2008, no pet.). A “spec ial or pecunia ry value to the owner ” might be an economic value specific to that owner , such as a dog specific ally trained to assist someone with a disability

.

Mireles ar gu es that Morman’s aff idavit is incompetent to conclusively establish either marke t va lue or specia l or pecunia ry economic value. She adds that by awa rding $1,000 for the puppy ’s marke t value plus lost profits from bree ding and show opportunities, t h e t ri al court permitted Morman to double-re cover lost economic value that woul d have been ref lected in marke t value. This double-c ounting is further compounde d b y t he $800 she paid Morman for the puppy . Mireles rea sons that the judgme nt permittin g h er t o keep the puppy in exchang e for

12pay ing Morman $800 established the p u ppy ’s m arke t value. She asser ts that the award of $800 in “mar ket value,” plus another $1,000 for diminuti on in the puppy ’s marke t value, plus compensa tion for lost ear

nings from dog bree ding and shows amounted to double- or triple-counting of economic value that woul d al re ad y have been ref lected in the $800 marke t value she paid Morman for the animal. Additionally , beca use $800 was the puppy ’s marke t value, Mireles arg ues, any additional damag es would have compensa ted Morman for the puppy ’s “spec ial or pecunia ry ” economic value, and const i t ute an improper duplicative awa rd of both marke t value and “spec ial or pecunia ry ” economic va lue. See P etco , 144 S.W .3d at 560-61.

Contrary to Mir el es ’s asser tions, the trial court’s judgme nt reg arding the $800 pay ment d o es n o t purport to be a deter mination of the puppy ’s marke t value at the time of

conver sion. The trial court’s order mere ly allowed Mireles to keep the puppy (which had been spay ed in the meantime) and to reduce t h e j u d gment by $800 if she tender ed that amount to Morman. As for any potential double-c ounting of this amount and the amounts awa rded as actua l 6

Nor was there any competent summary -judg ment evidenc e that t h e p ar ties had ag ree d 6 Mireles could purcha se the puppy for that amount—the trial court, ag ain, excluded all of Mireles’s summary -judg ment evidenc e (which had included proof of that ag ree ment) and the parties ag ree that any live testimony by Mireles during the hear ing is not competent summary -judg ment evidenc e. See Tex. R. C iv. P. 166a(c). On the other hand, there appea rs to be no dispute on appea l that the ag ree ment was made. The trial c ourt rec og nized as much on the re cord a t the hear ing: You made an orig inal deal with he r of $800 for the purcha se of that dog , which has now been spay ed. I want that dog re turned to y ou unless y ou g et a cashie r’s check or money order for $800 within the next week. Yet it rema ins that this ag ree ment to pay a particula r amount for the puppy on the date of the parties’ confr ontation would not be evidence of the puppy ’s m arke t value when M ireles be g an conve rting 13damag es, the judgme nt avoided this by reduc ing the judgme nt a mount by $800 when Mireles paid Morman for

the puppy

. Although Morman testified that the puppy had a marke t value of $1,000 at the time of

conver sion, he now arg ues that the $1,000 does not repr esent the full marke t-value. He asser ts that he is entitled to an additional $4,800 for lost bree ding opportunities. Howeve r, as Mireles points out,

awa rding sums both for t h e p u p p y ’s marke t value and for its possible future economic value to the owner is a double-re cover y . Morman aver s that—had the puppy been immediately returne d—it would have had a marke t value o f $ 1 , 000. I n other words, $1,000 would have been the price at which Morman could have sold the puppy , in which case , he would not have been able to use the dog for breeding purpo s es . On t he other hand, if Morman had elec ted not to sell the puppy , he would not have r ece ived $1,000 for its sale but ma y have been able to use the dog for br eeding purposes, which may have y ielded $4,800. Allowing rec overy on both measure s of damag es allows Morman to collect both as i f he had retained the dog a nd as if he had s old it. Both are ulti mately measure s of marke t value.

As n o t ed, marke t value—whic h Morman aver s was $1,000 at the time the d o g

was lost—is the price that would be paid in ca s h b y a wi lling buy er who desires to buy , but who is not require d to buy , to a willing seller who desires to se ll, but who does not need to sell. Ghosh , 251 S.W .3d at 888. This me asure of value acc ounts f or the potential futur e ec onomic value to the buy er, as well as the economic risk to the buy er. I ndeed, in valuing proper ty , Texas courts have long

it. Moreove r, as previously noted, marke t value is the price that would be paid in cash by a willing buy er who desires to buy , but who is not require d to buy , to a willing seller who desires to sell, but who does not need to sell. GJP v. Ghosh , 251 S.W .3d 854, 888 (Tex. App.—Austin 2008, no pet.). 14held that a fac t-finder may consider all fac tors that a rea sonable buy er and seller would consider in

their neg otiations, including future potential uses of the proper ty , and acc ompany ing risks. See State v. Mc Carley , 247 S.W .3d 323, 325-27 (Te x . App.—Austin 2007, pet. denied)

.

I n addition to double-c ounting the puppy ’s marke t valu e, Morman’s testimony reg arding “lost bree ding opportunities and inability to show[] the dog ” is not competent summary judgme nt evidence . The rule s of civil proce dure pr ovide:

A summary judgme n t may be based on uncontrove rted testimonial evidenc e of an interested witness,

. . . if the evidenc e is clea r, positive and direc t, otherwise cre dible and fre e from contra dictions and inconsistencies, and could have been rea dily controve rted.

Tex. R. Civ. P. 166a(c ). Affida vits containing unsubstantiated fac tual or lega l conclusions or subjective beliefs that are not supported by evidenc e are not competent summary -judg ment proof beca use they are not cre dible or susceptible to being rea dily controve rted. See, e.g. , Ryland Group, Inc. v. Hood , 924 S.W .2d 120, 122 (Tex. 1996) (per curia m) (citing Tex. R. Civ. P. 166a(c ) & (f) ); Rizkallah v. Conner , 952 S.W .2d 580, 586-88 (Tex. App.—Houston [1st Dist.] 1997, no writ). Her e, Morman provides no fac tual support for his asser tions that he could have rea liz ed $4,800 by bree ding

or showing the dog

. To rec over lost profits, a plaintiff i s required to prove the loss amount by competent e vidence with rea sonable c erta inty

. Helena Che m. Co. v. W ilkins , 47 S.W .3d 486, 504 (Tex. 2001). At a mi nimum, this fac t-intensive determination require s that the l ost profit opinion

or estimate be based on “objec tive fac ts, fig ures, or data from which the lost-profits amount may be

asce rtained.” Id. Morman has provided no evidenc e at all to support his asser tion that he suffe red $4,800 in lost profits.
15I n sum, there is no competent summary -judg ment evidenc e to support a

judgme nt based on either of Morman’s two cate g ories of damag es. Compounding the absenc e of any competent summary -judg ment evidenc e to support these measure of damag es, the parties have been inconsistent in their arg uments throug hout these proce eding s as to what eac h cate g ory repr esents and

as to what the true marke t value of the puppy is or was at any g iven time. Both parties’ s arg uments indicate a rec og nition that either the measure of damag es repr esente d by eac h cate g ory is unclea r or that these two cate g ories of damag es at lea st partially overla p. Ba sed on t his rec ord, we conclude that Morman met his summary -judg ment burden as to neither measure of damag es, and the trial court

err ed in g ranting summary judgme nt awar ding Mor

man $6,800 in actua l damag es. 7

Attor ney’s fees

I n her second issue, Mireles arg ues that the trial court err ed in awa rding Morman attorney ’s fee s becau s e s u ch fees cannot be awa rded under his common-law conver sion cause of action. The parties ag ree that the only possible basis for the trial court’s awa rd of attorney ’s fee s was the theft liability act. Given our deter mination that the issue was not proper ly pleade d and was not tried by consent, we sustain Mireles’s sec ond issue.

Appar ently in further support of the trial court’s damag e awa rd, Morm an m en t i o n s 7 a reque st for admissio n , t h ro u gh which Mireles is deeme d to have admitted that Morman “has incurre d damag es of at least $7,500.” Howeve r, summary judgme nt b as ed on such an admission would be improper, as there is no indication as to whether these $7,500 in damag es would be rec overa

ble under Petco

. See Petco Animal Supplies, Inc. v. Schuster , 144 S.W .3d 554, 560-61 (Tex. App.—Austin 2004, no pet.). 16Counterc laim s I n her six th issue, Mireles arg ues that the trial court’s summary judgme nt err oneously disposed of her two counter claims when they wer e not addr essed in Morman’ s motion. Morman, the defe ndant as to these claims, was require d to conclusively disprove at least one element of eac h claim to be entitled to summary judgme nt. See Randall’s Food Mkts., Inc. v. Johnson , 891 S.W .2d 6 4 0 , 6 4 4 (Tex. 1995). Morman responds that Mireles failed to g ive fair and adequate no t i ce o f the claims s h e was asser

ting and, there fore , did not raise cause s of action to which Morman was require d to respond.

Reg ardle ss of how these claims wer e pleade d, both Morman and the t ri al court

we re require d to addre ss them befor e final judgme nt could be enter ed. Morman could have fi l ed specia l exceptions or summary judgme nt as to these claims, but he did not. Consequent l y , t he trial court’s judgme nt “fina lly dispos[ in g] o f all parties and claims,” while final, is err oneous in purporting to fore close Mireles’s counter claims. See Bandera Elec. Coop. v. Gilchrist , 946 S.W .2d 336, 337 (Tex. 1997) (per curiam) (rever sing por t i on of purportedly final sum mary judgme nt that disposed of c o u

n te r c la im s n o t a d d

r essed by movant). Acc ording ly , we sustain Mireles’s six th issue. 8

Summ ary-j udgme nt hearing

I n her fourth issue, Mireles arg ues that the tr i al co u rt improperly swore in Mireles and took her oral testimony

. Rule 166a(c ) prov i d es : “N o oral testimony shall be rec eived at the hear ing.” Under this rule, it would be er ror f or the trial c ourt to g rant or deny summary judgme nt

We express no opinion, of course , reg arding the ultimate viability of the counter claims 8 Mireles ha s pled. 17b ased upon oral testimony , as opposed to arg ument and the summary -judg ment rec ord

. W h et h er

this is what the trial court did or that any such “e vidence ” proba

bly cause d an improper

judgme nt, howeve r, is ultimately

irrele vant in light of our

ultimate disposit ion. See Tex. R. App. P . 44.1.

CONCLUSION We have overr

uled Mireles’s third and fifth issues, concluding that the trial court did
not abuse its discretion in ref using to allow Mireles t o withdraw the deeme d admissions and that these deeme d admissions are sufficie nt to support summary judgme nt on liability for common-law

conver sion, as set out in Morman’s live pleading s. Howeve r, we have sustained M ireles’ s first, second, and six th issues and, acc ording ly , reve rse those portions of the court’s judgme nt and rema nd to the trial court f

or fur ther proc eeding s consistent with this opi nion. 9

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Patterson, Pury ear and Pember

ton; Concurring and Dissenting Opinion by J ustice Patterson Reverse d and Remande d Filed: Aug ust 6, 2010

I n light of this disposition, we made no dete rmination as to Mireles’s f ourth issue. 9 18