### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 23
- 00265
- CV

Bo Ren and Wei Liu , Appellant s

v. Service King Collision Austin , Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO. C-1- CV -22-001693 , THE HONORABLE TODD T. WONG , JU D GE PRESIDING

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

This is a dispute over certain fees that Servi c e King Collision Austin charged appellants Bo Ren and Wei Liu in connection with repairing their vehicle after an accident. Appellants , who represent them se lves, cha llenge the trial court ’ s grant of summary judgment based on the statute of limitations

. We affirm.

BACKGROUND On March 13, 2019, a ppellants took their car to Service King on the instructions of their insurer to repair damage from a collision

. Se rvice K ing completed repairs

on March 25, 2019

. A ppellants picked u p the car the same day after paying $866.54 in t owing, storage fees, and repair costs. Appellants , acting pro se , sued Servi ce King in justice court on March 30, 2021

. They alleged tha t S ervice King “ refused to re lease ” their vehicle and “ for ced ” them to pay those2 fees and c osts to recover their c ar
. Construing this as a claim for conversion, Service King filed

a traditional motion for summary judgment on the pleadings based on the sta tut e of l imitations

. See Tex. Civ. Prac. & Rem. Code § 16.003 (a) (r equi rin g person to bring suit for conversion “ not later than two years after the day the cause of action accrues ” ). Service King argued in the motion that appellants ’ original petition wa s f iled two ye ars and five days after the claim accrued

. The just ice cour t granted Service King ’ s motion and dismissed the case.
A ppellants appealed to the count y court for a trial de novo

. Service King filed a traditional motion for summary judgment bas ed on limita ti ons and lack of diligence in service. Appellants filed a response in which they argued generally that summ ary judgment was inappropriate because fact questions existed but did not address limitations. On January 30, 2023 , the trial cou rt si gne d a final jud g ment gra nting Service King ’ s motion and dismiss ing the case with prejudice. On Febru ary 6, 202 3 , appellants filed, without leave of court, an amended petition adding claims for breach of contract and fraud. This appeal followed.

DIS CUSSI ON Ap pellants hav e filed a pro se brief challenging the trial court ’ s judgment in twelve issues. L iberal ly construing appellants ’ brief , we understand them to assert that the tr ial

c ourt erred by (1) granting Service King ’ s motion for summary judgment on con versio n, a cla im which they had not pled ; and (2) “ ignoring ” the claims for fraud and br ea ch of contrac t in their amended petition

. 1 As relief , they ask u s to remand to the trial court for a jur y trial on those claims

.

1 Although litigan ts who represent themselves m ust meet the same st andards a s licen sed attorneys, Wheeler v. Green , 157 S.W.3d 439, 444 (Tex. 2005 ) , we construe pro se filings “libera lly and with patience ‘so as to obtain a just, fair and equ itable adjudication of the3 Standard of Review
W e review a tr ial c ourt ’ s grant o f summary judgment de novo. Zi ve v. Sandberg , 644 S.W.3d 169, 173 (Tex. 2022). To prevail on a motion for traditional summary judgment, the movant must show that “there is no genuine issue as to any material fact” and that it is “entit led to judgment a s a matter of law.” Tex. R. Civ. P. 166a(c). A genuine issue of material fact exists if the conflict “rises to a level that would enable reasonable and fair

- minded people to differ in their conclusions.” First United Pentecostal Church of Beaumont v. Pa rk er , 514 S.W.3d 214, 220 (Tex. 2017) (citing M errell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)). Evidence does not create an issue of material fact if it is “so weak as to do no more than create a mere surmise or suspi cio n” that the fa ct exists. Id . (citing Kia Motors Corp. v. Rui z , 432 S.W.3d 865, 875 (Tex. 2014)). Although a plaintiff ’ s pleadings are generally not comp etent summary

- judgment evidence, “ t hey may form the basis of summary judgment when the defendant ass ert s limitations ” as a n affirmative defense. S outh Tex. Coll. of Law v. KBR, Inc. , 433 S.W.3d 86, 90 (Tex. App.

— Houston [1st Dist.] 2014, pet. denied)

. When a motion for summary judgment is directed solely at the plaintiff ’ s petition, we take “ all allega tio ns, facts, and inferences in the pleadings as true , view ing them in a light most favorab le to the pleader , ” and will affirm summary judgment “ only if the pleadings are legally insufficient. ” Natividad v. Alexsis, Inc. , 875 S.W.2d 695, 699 (Tex. 1994)

. If the pleading on its face “ conclusively shows the moving party is entitled to summary judgment based on its affirmative defense, ” the motion should be granted. S outh Tex. Coll. of Law , 433 S.W.3d at 90

.
p arties’ rights , ’ ” Hou s ing Auth. of C ity of Austin v. Elbendar y , 581 S .W.3d 488, 491 n.1 (Te x. App.

— Austin 2019, no pet.) (quoting Ve igel v. Tex as Boll Weevil Eradication Found., Inc. , 549 S.W.3d 193 , 195 n.1 (Tex. App.

— Austin 20 18, no pet.) ).4 C onversion Appellants argue in their first iss ue tha t the t rial c ourt erred by granting Service King ’ s motion for summary judgment based on the statute of limitations . Appellants argue that Service King sought summary judgment on a claim

— conversion

— that they never asserted

. They do not, however, provi de a n alternati ve label for their claim. Service King responds that the substance o f appellants ’ claim is for conversion and that there is no genuine issue of material fact that appellants filed suit beyond the limitations period. We agree with Service Ki ng. “ T he true natur e of a cause of action depends on the facts alleged in the petit ion, the rights asserted, and the relief sought, not on the descriptive terms or labels used. ” Charlie Thomas Chevrolet, Ltd. v. Martinez , 590 S.W.3d 9, 17 (Tex. App.

— Hous ton [1 st Dist.] 2019 , no pet.)

. In the absence of special exceptions, we cons true t he pleadings liberally and will “ uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cau se o f action is
not specifically alleged

. ” Tex as Dep ’ t of State Health Serv s
. v. Cr own Distrib. LLC , No. 03

- 20

- 00463

- CV, 2021 WL 3411551, at * 3 n.2 (Tex. App.

— Austin Aug. 5, 2021, no pet.) (mem. op. ) ( citing Boyles v. Kerr , 855 S.W.2d 593, 601 (Tex. 1993) )).
A ppellants alleg ed the following against Service King in their original petition :
On 3/25/2019, Defendant forced Plaintiffs to pay the bill of TOWING, 13 days STORAGE and 4 hours of labor which caused Plaintiffs’ vehicle to be TOWED. Oth erwise, De fend ant w ould conti nue to refuse to release Plaintiffs’ vehicle and continue to charge Pla intiffs STORAGE everyday. After Defendant and Defendant’s Partner Insurer Progressive’s estimates, on the morning of 3/13/2019, Plaintiff drove Plaintiffs’ vehicle to Def end an ts for 41. 8 hours REPAIR and got the rental there by Defendant’s Partner Insurer Progressive’s arrangement. Defendant caused more than $20,000 damages to Plaintiffs’ recovery from the car accident.5 Construing the p etition liberally , a ppellants allege that Service Ki ng unla wfully and without authorization refused t o return appellant s ’ v ehicle unless they paid certain fees. Conversion is the “ unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to t he exclusi on of or inconsistent wit h the owner ’ s rights

. ” Waisath v. Lack ’ s Stor es, Inc. , 4 74 S.W.2d 444, 447 (Tex. 1971)

. The elements of a conversion claim are (1) “the plaintiff owned or had legal possession of the property or entitlement to
poss essio n”; (2) th e defendant “unlawfully a nd without authori zation assumed and exercised dominion a nd control over the property to the exclusion of, or inconsistent with, the plaintiff ’ s rights as an owner”; (3) “the plaintiff demanded return of the property ”; an d (4) “the defendant refused to ret urn the property.” Smith v . Maximum Racing, I nc. , 136 S. W.3d 337, 341 (Tex. App.

— Austin 2004, no pet.)

. The substance of appellants ’ claim is for conversion.
We also agree with Service King that there is no issue of mat erial fac t that limitations bars appellant s ’ suit

. T o obtain traditiona l summary judgment based on limitations,

“ t he defendant must conclusively prove (1) when the cause of action accrued, and (2) that the plaintiff brought its suit later th an the applica b le number of years thereafter

— i.e., that ‘the
st atute of limitations ha s run.’ ” Draughon v. Johnson , 631 S.W.3d 81, 89 (Tex. 2021) (citing Provident Life & Acc. Ins. v. Knott , 128 S.W.3d 211, 220 (Tex. 2003) ). A person must bring suit for conver sion of personal propert y “ not later than two years after the day the cause of action

accrues. ” Tex. Civ. Prac. & Rem. Code § 16.003 (a). A cause of action accrues “when a wrongful act causes some legal injury, even if the fact of injury is not disco vered until la ter, and even if all resulting damages have not yet occurred.” Arch er v. Tregellas , 56 6 S.W.3d 281, 288 (Tex. 2018)

. Generally, a claim for conversion accrues at the time of t he unl awful taking. Wells Fargo Bank Nw., N.A. v. RPK6 Capital XV I, L.L .C. , 360 S.W.3d 691, 700 (Tex. App.

— Dallas 2012, no pet.)

. If t he original possession of the property was lawful, however, the claim does not begin to accrue “ until the return of the property has been demanded and refused, or until the person in pos sessio n has

un equivocally exer cised acts of domination over the property inconsist ent with the claims of the owner or the person entitled to possession. ” Id. Appellant s allege in their original petition that on March 2 5, 2019, Service King allegedly “fo r ced [ap pel lants ] to pay t he bi ll of TOWING, 13 days STORAGE and 4 hours of labor ” o r Service King “ w ould continue to refuse to release [a ppellants ’ ] vehicle ” and continue to charge the m fees. In other words , appellants allege dly demanded return of their property an d
Ser vi ce King wrongfu lly refused. Taking that allegation as true , appel lants ’ conversion claim

ac crued when Service King refuse d to return their v ehicle without payment on March 25, 2019

. S

ee Wells Fargo Bank Nw. , 360 S.W.3d at 700

. Appellant s file d sui t on March 30, 2021, two years and five days later . The i r original petit ion conclusively shows that Service King is en title d to summary judgment based on the statute of limitations

. 2 See S outh Tex. Coll. of Law , 433 S.W.3d at 90 ( “ I f the plead ing on i ts f ace conclusively shows the moving party is entitled to summary judgment b ased on its affirmative defense

. . . the motion will be granted. ” ). We overrule appellants ’ first issue.

2 Because we uphold the trial court ’ s ruling on limitations, we do not re a ch Serv ice King ’ s alternative argument that appellants were not diligent in effecti ng service

. See Tex. R. A p p. P. 47.1 ( “ The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised a nd nece s sary to final disposition of the appeal. ” ).7 Fraud and Brea ch of Contract
A ppellants argue in what we constru e as the ir s econ d issue t hat the trial court erred by gran ting a final judgment witho ut addressing their claims for fraud and breach of
contrac t . Service King responds that those claims were not properly bef ore the trial court because the amended petition was not on file when the trial court signed the jud gment. We agree with Service King

. Our rules provide that a traditional motion for
summary judgment must be rendered on the pleadings “ on file at the time of the hearing, or filed thereafter and before j udgment wit h per mission of the court

. ” Tex. R. Civ. P . 166a (c)

. A trial
court generally canno t grant permission to file amended pleadings after it has rendered judgment. Murphy v. Arcos , 615 S.W.3d 676, 697 (Tex. App.

— Dallas 2020, pet. denied) ; see Gree nhalgh

v . S e rv ic e Lloyds Ins , 787 S.W.2d 938, 940 (Tex. 1990) ( “ It is well established that a party may amend its pleading after verdict but before judgment. ” ). Beca use appellant s ’ amended petition

was not filed before judgment with permission of the cour t, t he t r ial c ou rt did not err by refusing to consider either claim. See Prater v. State Fa rm Lloyds , 217 S.W.3d 739, 741 (Tex. App.

— Dallas 2007, no pet.) ( concluding trial court was not required to consider amended petition filed after court signed final judgmen t )

. We overrule a ppellants ’ second issue.

CONCLUSION We affirm the trial court ’ s judgme nt.8 __________________________________ _______ _ R osa Lope z Theofa nis , Justice Before Chief Justice Byrne, Justices Kelly and Theofanis Affirmed Filed: April 24, 2024