Emzy T. Barker, III and Ava Barker DBA Brushy Creek Brahman Center and Brushy Creek Custom Sires v. Walter W. Eckman, Ind., and as Nominee and Trustee, Eckman, Inc., and Larry Eckman--Appeal from 151st District Court of Harris County

Opinion issued January 23, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00079-CV

EMZY T. BARKER, III AND AVA BARKER, D/B/A BRUSHY CREEK BRAHMAN CENTER AND BRUSHY CREEK CUSTOM SIRES, Appellants

V.

WALTER W. ECKMAN, INDIVIDUALLY AND AS NOMINEE AND TRUSTEE OF THE ECKMAN FAMILY TRUST; ECKMAN, INC.; AND LARRY ECKMAN, Appellees

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 97-29163

MEMORANDUM OPINIONThis appeal arises out of an agreement to store bull semen. Appellee Walter W. Eckman sued both individually and on behalf of others appellants Emzy T. Barker, III and Ava Barker, who do business under the names Brushy Creek Brahman Center and Brushy Creek Custom Sires. The Eckmans // sued for breach of contract, alleging that the Barkers made sales of semen without providing notice and payment and that the Barkers improperly charged them for storage.

The jury awarded the Eckmans $111,983.58 in actual damages and $222,000 in attorney s fees for the trial. The Barkers subsequently moved for judgment notwithstanding the verdict, claiming the four-year statute of limitations barred the Eckmans claims for all but $16,180.14 in actual damages. See Tex. Civ. Prac. & Rem. Code Ann. 16.004(a)(3) (Vernon 2002) (four-year limitations period for debt), 16.051 (Vernon 1997) (two-year residual limitations period). The Eckmans argued the lawsuit was timely filed under either the two- or four-year statute of limitations, because they claim a cause of action for bailment does not accrue until the bailor makes a demand on the bailee. // See Tex. Civ. Prac. & Rem. Code Ann. 16.003 (Vernon 2002) (two-year limitations period). The trial court denied the Barkers motion and signed a final judgment on the jury s verdict.

The Barkers bring three issues on appeal: (1) the Eckmans breach-of-contract claims are barred by limitations; (2) to the extent the Eckmans claims are for conversion, attorney s fees are not recoverable; and (3) the $222,000 award of attorney s fees is not reasonably proportional to the Eckmans remaining $16,180.14 in actual damages. We affirm.

The parties disagree on the nature of the bailment between them and the cause of action for which the Eckmans sued. We agree with the Barkers that the bailment between them and the Eckmans constitutes a contractual relationship. See Sanroc Co. Int l v. Roadrunner Transp., Inc., 596 S.W.2d 320, 322 (Tex. Civ. App. Houston [1st Dist.] 1980, no writ). We also agree that this bailment relationship does not create a special cause of action, but instead allows the bailors to chose specific relief for a breach of the bailment contract, e.g., an action for breach of contract or an action for conversion. See Int l Freight Forwarding, Inc. v. Am. Flange, 993 S.W.2d 262, 269 (Tex. App. San Antonio 1999, no pet.). We also agree with the Barkers that the Eckmans elected to sue for breach of contract, rather than conversion. However, we do not agree that the Barkers have conclusively demonstrated that the Eckmans claims are barred by the four-year statute of limitations.

Issue one is, in essence, a legal-sufficiency complaint. If we agree as we do that the Eckmans claims are based exclusively on breach of contract, then the Barkers ask us to hold as a matter of law that those claims are barred by the four-year by limitations. The Barkers preserved this issue in the trial court in their motion for judgment notwithstanding the verdict.

On appeal, we review the denial of a motion for judgment notwithstanding the verdict under a legal-sufficiency standard. Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex. 1986). Because the Barkers had the burden of proof on the limitations issue, they must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of limitations. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

The Barkers point us to plaintiffs exhibit 46, a summary of damages, as the only evidence supporting their argument. They do not make a formal matter of law challenge by (1) examining the record for evidence that supports the jury s implied finding, while ignoring all evidence to the contrary and, (2) if there is no evidence to support the finding, then examining the entire record to see if limitations is established as a matter of law. See Sterner, 767 S.W.2d at 690; see also Tex. R. App. P. 38.1(h) (appellate brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record). The Barkers have, therefore, waived issue one.

We overrule issue one.

In light of our previous discussion upholding the award of $111,983.58 in actual damages, we need not address the Barkers remaining issues regarding whether the Eckmans have asserted a claim for conversion or whether the attorney s fees are disproportionate in the event the Eckmans can only recover $16,180.14.

We affirm the trial court s judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Hedges and Nuchia.