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Burlington Northern Railroad Company v. General Projection Systems. Inc.5/2/2000
ture. Solis, 951 S.W.2d at 391. The court held that Solis failed to produce any evidence of malicious or wanton conduct. Id.
As evidence that Burlington acted with malice and gross negligence, GPS cites:
(1) Burlington's seizure of GPS's property without the requisite notice; (2) the presence of armed guards at the termination meeting even though a Burlington representative admitted at trial that Burlington did not fear theft, vandalism, or violence on the part of GPS's employees; (3) Burlington's seizure of items that no reasonable person would believe it had a right to seize, such as a lunch pail; and (4) Burlington's refusal to allow GPS to inventory its property and to videotape the location. These facts are virtually identical to the facts of Solis. In Solis:
(1) Argee did not give adequate notice that it was terminating the contract and taking possession of Solis's equipment; (2) Argee used law enforcement personnel to keep Solis's employees from gaining access to the job site; (3) Argee had no use for the equipment it impounded; and (4) Argee impounded Solis's equipment without making an inventory of the equipment and took no measures to insure that the equipment was kept in a safe manner. Yet the supreme court held there was no evidence of malice.
Contrary to Solis, there are several cases, including at least one from this Court, stating that malice can be implied from the knowing conversion of another's property without justification. See, e.g., Bosworth v. Gulf Coast Dodge, Inc., 879 S.W.2d 152, 159 (Tex. App._Houston [14th Dist.] 1994, no writ); Federal Deposit Ins. Corp. v. Golden Imports, Inc., 859 S.W.2d 635, 644 (Tex. App._Houston [1st Dist.] 1993, no writ); Morey v. Page, 802 S.W.2d 779, 787 (Tex. App._Dallas 1990, no writ). However, the operative facts on which the supreme court based its decision in Solis are indistinguishable from the operative facts in this case.
GPS also contends the fact that Burlington allowed GPS's competitors access to GPS's computer files is evidence of Burlington's malice or gross negligence. Those circumstances clearly differ from the facts in Solis. However, evidence that Burlington gave GPS's competitors access to GPS's computer files does not support a finding of malice or gross negligence because GPS did not prove any actual damages resulted from that conduct. Recovery of punitive damages requires a finding of an independent tort with accompanying actual damages. Schleuter v. Schleuter, 975 S.W.2d 584, 589 (Tex. 1998); Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex. 1995). Absent actual damages proximately caused by a tort, punitive damages are not recoverable. Upjohn Co. v. Freeman, 885 S.W.2d 538, 550 (Tex. App._Dallas 1994, writ denied).
In summary, because GPS did not prove any actual damages resulting from Burlington's conversion of GPS's computer files, that conversion cannot be used to support the jury's findings of malice and gross negligence by Burlington. Further, based on the supreme court's opinion in Solis, we are constrained to conclude the evidence of Burlington's other tortious conduct is legally insufficient to prove malice or gross negligence. Therefore, there is no evidence to support the jury's malice and gross negligence findings. Accordingly, GPS is not entitled to any punitive damages. We sustain Burlington's fifth point of error.
In its sixth point of error, Burlington contends the trial court erred in denying its motion for new trial because the jury's award of exemplary damages was grossly disproportionate to actual damages and thus deprived Burlington of due process of law in violation of the Fourteenth Amendment. In light of our dispositio
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