Affirmed and Memorandum Opinion filed August 11, 2015.

In The 

Fourteenth Court of Appeals 

NO. 14-14-00212-CV

TCHEWAM LILY MUKWANGE, Appellant/Cross-Appellee 

V.

PUBLIC STORAGE, INC., Appellee/Cross-Appellant 

On Appeal from the 234th District Court 

Harris County, Texas 

Trial Court Cause No. 2012-45830 

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

Appellant/cross-appellee Tchewam Lily Mukwange sued appellee/crossappellant Public Storage, Inc. for the unlawful conversion of the contents contained 

in her storage unit. The trial court signed a judgment in Mukwange’s favor and 

awarded her $5,000 in damages. In several issues, Mukwange contends that the 

trial court erred by concluding that there was insufficient evidence to support her 

claim for fraud and that she was only entitled to recover $5,000 in damages. In a 
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cross-appeal, Public Storage asserts that the evidence is legally insufficient to 

support Mukwange’s damages, and in the alternative, the trial court properly 

limited Mukwange’s damages to $5,000. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

On February 17, 2011, Mukwange began renting a self-storage unit at a 

Public Storage facility, located at 9811 North Freeway, Houston, Harris County, 

Texas. Mukwange agreed to pay $30.00 per month rent, due on the first day of 

each month. Late charges of $20.00 per month became due if rent was not paid by 

the sixth day of the month. As of April 30, 2011, Mukwange’s balance due to 

Public Storage was $0. 

Mukwange testified that on April 30, 2011, she dropped a money order in 

the mail slot of a different Public Storage facility, located at 6336 Fairdale Lane, 

Houston, Texas. Mukwange stated that the money order was in the amount of 

$60.00 and was intended to cover rent for May and June. Mukwange testified that 

she had paid Public Storage in this manner on previous occasions. On that same 

day, Mukwange placed the money order receipt in her storage unit. 

Public Storage claimed that it had no record of ever receiving Mukwange’s 

money order and on May 8, it began calling Mukwange to inform her that her rent 

was past due. On June 1, Public Storage sent Mukwange the statutorily required 

notice of claim. The notice of claim was sent to the address that Mukwange 

provided in her lease agreement. On July 27, Public Storage auctioned the contents 

of Mukwange’s storage unit. 

On several occasions, Mukwange attempted to notify Public Storage that she 

had paid rent for May and June. Mukwange wrote Public Storage a letter, 

explaining the situation and also met with several employees in-person. On July 
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12, Mukwange received an invoice from Public Storage indicating that her balance 

was $205.00. The following day, Mukwange went to the Public Storage facility 

and paid $30.00 in cash for July rent. Mukwange did not pay the associated late 

fee. An employee explained that this payment would not stop the auction from 

proceeding. On July 27, Public Storage auctioned the contents of Mukwange’s 

storage unit to the highest bidder at a public sale. The unit sold for a total of 

$105.19. 

Appearing pro se, Mukwange filed suit against Public Storage, claiming that 

it breached the lease agreement and wrongfully sold her property. Public Storage 

filed a motion for partial summary judgment, seeking for the enforcement of a 

limitation of liability clause in the lease agreement. On September 3, 2013, the trial 

court granted Public Storage’s motion for partial summary judgment and ruled that 

Mukwange’s recovery of actual damages, if any, would be limited to $5,000.00. 

The parties proceeded to a bench trial, in which the trial court ruled in 

Mukwange’s favor. On March 7, 2014, the trial court issued a final judgment and 

findings of fact and conclusions of law. The trial court found that Public Storage 

breached the lease agreement and caused Mukwange to suffer damages in the 

amount of $5,000.00. 

ISSUES AND ANALYSIS

Because Mukwange is proceeding as pro se, we will liberally interpret the 

issues raised in her brief. However, we recognize that in Texas, pro se plaintiffs are 

held to the same standards as those applied to attorneys. See Mansfield State Bank 

v. Cohn, 573 S.W.2d 181, 184−85 (Tex. 1978). To do so otherwise could give a 

pro se litigant an unfair advantage over litigants represented by counsel. Id. at 185. 

Here, our liberal interpretation of the issues raised by Mukwange results in two 

basic complaints—specifically, that the trial court erred by finding that she failed 
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to prove fraud and erred by limiting her damages to $5,000. 

In a cross-appeal, Public Storage asserts that the evidence is legally 

insufficient to support the trial court’s award of damages. 

I. Fraud 

In several issues, Mukwange contends that (1) she properly pleaded a fraud 

claim, not a breach of contract claim; (2) the trial court erred by only ruling on her 

breach of contract claim, instead of her fraud claim; and (3) the trial court erred by 

finding that she presented insufficient evidence of fraud. Mukwange asserts that 

because she sufficiently pleaded and proved fraud by a preponderance of the 

evidence, she was entitled to exemplary damages and damages for mental anguish. 

Mukwange asserts that the trial court erred by ruling on a breach of contract 

claim because she did not bring suit under a theory of breach of contract. 

Mukwange’s original petition states that “Public Storage acted in violation of 

Texas Property Code sections 59.042, 59.043, 59.044, and 54.042, and thus 

breached its rental agreement with plaintiff.” In its findings of fact, the trial court 

stated that “[t]he petition does not clearly define the causes of action under which 

relief is sought but Ms. Mukwange testified that she was suing for breach of 

contract and conversion.” The trial court concluded that Mukwange brought suit 

under theories of conversion and breach of contract only. The lease agreement was 

admitted without objection at trial and discussed in detail. When viewing 

Mukwange’s original petition and the testimony at trial, the trial court properly 

concluded that Mukwange brought a breach of contract claim. See Jim Walter 

Homes, Inc. v. Reed, 711 S.W.2d 617, 617−18 (Tex. 1986); see also Kline v. 

O’Quinn, 874 S.W.2d 776, 788 (Tex. App.—Houston [14th Dist.] 1994, writ 

denied) (“In determining whether an action is in tort or in contract, we must look to 

the substance of the cause of action, not the manner in which it was pleaded.”). 
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Mukwange also complains that the trial court erred by finding that she did 

not plead a claim for fraud. The trial court’s conclusions of law stated the 

following: 

Although the Court does not find that Ms. Mukwange pled a claim for 

fraud, if her petition is construed to include such a claim, Ms. 

Mukwange did not present sufficient evidence to justify a finding of 

fraud by a preponderance of the evidence. Specifically, Ms. 

Mukwange did not present evidence of a material, false representation 

made by Public Storage that Public Storage knew to be false or that 

Public Storage made recklessly without knowledge of the truth. 

We review the trial court’s conclusions of law de novo. Smith v. Smith, 22 S.W.3d 

140, 143−44 (Tex. App.—Houston [14th Dist.] 2000, no pet.). We will uphold 

conclusions of law on appeal if the judgment can be sustained on any legal theory 

the evidence supports. Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.—

Houston [14th Dist.] 1996, no writ). 

Assuming without deciding that Mukwange pleaded a claim for fraud, the 

record reflects that Mukwange did not present sufficient evidence to justify a 

finding of fraud. Mukwange claims that Public Storage committed fraud by 

sending her an invoice on July 12, 2011, in which Public Storage informed her that 

her balance due was $205.00. Mukwange argues that the invoice is a material 

representation because it “makes no mention of a possible auction or ongoing 

auction process.” Mukwange asserts that she relied on the invoice and believed that 

it was an extension of grace provided in response to the letter she sent Public 

Storage in June. 

A cause of action for fraud requires (1) a material misrepresentation; (2) 

which was either known to be false when made or was asserted without knowledge 

of its truth; (3) was made with the intention that it be acted upon by the other party; 

(4) the other party acts in reliance upon it; and (5) the other party suffers harm as a 
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result of that reliance. Formosa Plastics Corp. USA v. Presidio Eng’rs & 

Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998). Fraud requires a showing of 

actual and justifiable reliance. Grant Thornton LLP v. Prospect High Income Fund, 

314 S.W.3d 913, 923 (Tex. 2010). In evaluating justification, the court considers 

whether, given a fraud plaintiff’s individual characteristics, abilities, and 

appreciation of facts and circumstances at or before the time of the alleged fraud, it 

is extremely unlikely that there is actual reliance on the plaintiff’s part. Id. One 

may not justifiably rely on a representation when there are “red flags” indicating 

that such reliance is unwarranted. See id. 

Michelle England, a district manager for Public Storage, testified about 

Public Storage’s policies for handling accounts with delinquent rent. England 

stated that after sending the July 12 invoice, Public Storage informed Mukwange 

several times that her partial payment of rent would not prevent the auction from 

proceeding. England testified that on July 15 and July 19, Public Storage explained 

to Mukwange that she still had a balance due on her account and that they were 

going to auction the contents of her storage unit. Mukwange admitted that when 

she went to Public Storage on July 15, an employee told her that her property may 

still be auctioned. Thus, Mukwange cannot show that she relied on the invoice as a 

representation that the auction had been cancelled because Public Storage notified 

her that the auction would continue to proceed. Because Mukwange cannot show 

that she relied on any alleged material misrepresentation in the invoice, Mukwange 

cannot prove that the evidence was sufficient to support her fraud claim. The trial 

court properly concluded that Mukwange did not present sufficient evidence to 

justify a finding of fraud by a preponderance of the evidence. See Waggoner, 932 

S.W.2d at 631 (“We will uphold conclusions of law on appeal if the judgment can 

be sustained on any legal theory the evidence supports.”). 
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We overrule Mukwange’s issue. 

II. Damages 

In a cross-appeal, Public Storage contends that Mukwange failed to present 

any evidence of damages, or in the alternative, that the evidence is legally 

insufficient to support the trial court’s award of damages. Mukwange asserts that 

the trial court erred by ruling that her damages were limited to $5,000. 

A. The Evidence is Legally Sufficient to Support the Trial Court’s 

Award of Damages 

Public Storage asserts that Mukwange failed to present any evidence of 

damages at trial, or alternatively, that Mukwange presented insufficient evidence at 

trial to support the trial court’s award of damages. 

In determining whether there is legally sufficient evidence to support the 

finding under review, we must consider evidence favorable to the finding if a 

reasonable factfinder could and disregard evidence contrary to the finding unless a 

reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827

(Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to 

support the finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 

(Tex. 1996). More than a scintilla of evidence exists if the evidence furnishes some 

reasonable basis for differing conclusions by reasonable minds about the existence 

of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 77 

S.W.3d 253, 262 (Tex. 2002). 

 The trial court has discretion to award damages within the range of evidence 

presented at trial. Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002). 

Generally, the measure of damages to personal property is “the difference in its 

market value immediately before and immediately after the injury, at the place 

where the damage occurred.” Thomas v. Oldham, 895 S.W.2d 352, 359 (Tex. 
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1995). Market value is defined as the amount that a buyer who desires to buy but is 

under no obligation to buy, would pay to a willing seller who desires to sell but is 

under no obligation to sell. City of Pearland v. Alexander, 483 S.W.2d 244, 247 

(Tex. 1972). However, not all property has a “market value.” Gulf States Utils. 

Co., 79 S.W.3d at 566. The Texas Supreme Court has recognized “that used 

household goods, clothing and personal effects have no market value in the 

ordinary meaning of that term.” Crisp v. Sec. Nat’l Ins. Co., 369 S.W.2d 326, 328 

(Tex. 1963). Therefore, the measure of damages that should be applied to 

household property is the actual value of the property to its owner for use in the 

condition in which it was at the time of the injury. Id. at 329 (“Where property, 

such as household goods and wearing apparel, has no recognized market value, the 

actual value to the owner must be determined without resort to market value.”). 

 In determining actual value to the owner, the trial court may consider the 

original cost, replacement cost, opinions of qualified witnesses, the property’s use, 

and any other reasonably relevant facts. Gulf States Utils. Co., 79 S.W.3d at 566. A 

property owner may testify about the value of her personal property. Id. 

 Mukwange testified at trial that the contents in her storage unit contained her 

“life-long properties” and that she “stored everything [she] owned” in the unit. 

Mukwange stated that she valued her coin collections and stamp collections and 

that the unit contained literary work she had written and a family photo album. 

Further, an exhibit was admitted into evidence at trial which consisted of a series 

of communications between Mukwange and Public Storage. Mukwange’s email to 

Public Storage explained that the storage unit contained her literary works, legal 

documents, certificates, books, work tools, children’s clothing and toys, and her 

clothing. The record reflects that Mukwange presented evidence showing that the 

storage unit contained household items and personal effects. See Crisp, 369 
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S.W.2d at 329 (noting that “household furniture, family records, wearing apparel, 

personal effects, and family portraits” are examples of property held for the 

comfort and well-being of the owner); Dearman v. Dutschmann, 739 S.W.2d 454, 

455 (Tex. App.—Corpus Christi 1987, writ denied) (“Personal effects are defined 

to mean articles of personal property bearing intimate relation or association to 

[the] person. Generally considered as personal effects are clothing, jewelry, and 

similar chattels.”) (Internal quotations and citations omitted). As owner of the 

property, Mukwange was allowed to testify as to the value of her personal 

property. See Gulf States Utils. Co., 79 S.W.3d at 566 (stating that when measuring 

damages for household goods, “[i]t is well settled that a property owner may opine 

about the property’s value”). 

Mukwange testified that she believed her property was worth $100,000.00 

and that her literary work was worth $75,000.00. In reaching these values, 

Mukwange stated that she browsed stores online to determine what the 

replacement costs for the goods would be. See Allstate Ins. Co. v. Chance, 590 

S.W.2d 703, 704 (Tex. 1979) (holding that the factfinder may consider 

replacement costs to determine the actual value to the owner). She explained that 

the values were very conservative and low-end estimates for her property. 

 The trial court awarded Mukwange $5,000.00 in damages but stated that he 

believed her items were worth more than that amount. Because Mukwange 

testified on the value of her property and the trial court awarded an amount within 

that range of evidence presented at trial, the evidence is legally sufficient to 

support the trial court’s value determination. 

 We overrule Public Storage’s cross-point. 
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B. The Trial Court Properly Limited Mukwange’s Damages 

Mukwange contends that the trial court erred by limiting her actual damages 

to $5,000.00. 

A general measure of damages is subject to any agreement that the parties 

might have made with respect to damages because parties to a contract are free to 

limit or modify the remedies available in the event of a breach of the contract. GT 

& MC, Inc. v. Tex. City Refining, Inc., 822 S.W.2d 252, 256 (Tex. App.—Houston 

[1st Dist.] 1991, writ denied); see also Head v. U.S. Inspect DFW, Inc., 159 

S.W.3d 731, 748 (Tex. App.—Fort Worth 2005, no pet.) (“In the absence of a 

controlling public policy to the contrary, contracting parties can limit their liability 

in damages to a specified amount.”). Here, the lease agreement reflects that the 

parties agreed to limit their liability in damages to a specified amount. 

The lease agreement provides that “Occupant agrees that under no 

circumstances will the aggregate value of all personal property stored in the 

Premises exceed, or be deemed to exceed $5,000 and may be worth substantially 

less than $5,000.” The lease agreement also contains a limitation of liability clause, 

stating: 

Owner and Owner’s Agents will have no responsibility to Occupant or 

to any other person for any loss, liability, claim, expense, damage to 

property or injury to persons (“Loss”) from any cause, including 

without limitation, Owner’s and Owner’s Agents active or passive 

acts, omissions, negligence or conversion, unless the Loss is caused 

by owner’s fraud, willful injury or willful violation of the law . . . 

Occupant agrees that Owner’s and Owner’s Agent’s total 

responsibility for any Loss from any cause whatsoever will not exceed 

a total of $5,000. 

Mukwange initialed this paragraph and testified at trial that they looked like her 

initials. 
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 Mukwange argues that the trial court erred by limiting her damages because 

she proved fraud. However, as we have discussed above, Mukwange did not 

present sufficient evidence for a fraud claim. Thus, the trial court properly limited 

her damages to $5,000.00, the amount provided in the lease agreement. 

CONCLUSION

 We overrule Mukwange’s issues and Public Storage’s cross-point and affirm 

the judgment of the trial court. 

 

 /s/ Ken Wise 

 Justice 

Panel consists of Justices Christopher, Donovan, and Wise.