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Burlington Northern Railroad Company v. General Projection Systems. Inc.5/2/2000
tract, and that the trial court properly denied Burlington's motions on this ground. We overrule Burlington's third point of error.
Award of Tort Damages
In its fourth point of error, Burlington contends the trial court erred in denying its motion for judgment notwithstanding the verdict and its motion for new trial because the evidence is legally and factually insufficient to support the award of tort damages. The jury's answer to the tort damages question was conditioned on an affirmative answer to either the conversion question or the negligence question. The jury was asked what sum of money would fairly and reasonably compensate GPS for the damages proximately caused by Burlington's actions. The jury awarded $5,000,000. GPS later agreed that the award should be reduced to $64,000.
GPS's Chief Financial Officer, Robert Michaels, Jr., testified regarding GPS's tort damages. Michaels indicated GPS had three categories of tort damages totaling $64,000 _ $17,000 for property Burlington confiscated from GPS and did not return, $7000 for the rental value of the property that was returned for the time it was in Burlington's possession, and $40,000 for the cost of creating its computer files. Burlington contends there is no evidence or insufficient evidence to support any of these damages.
We first address the evidence of damages caused by Burlington's conversion of GPS's property that Burlington did not return. Michaels testified that the property confiscated from GPS and not returned was worth $17,000. He stated that $17,000 was the cost to replace that property. Burlington maintains that because Michaels's testimony was based on replacement cost, as opposed to fair market value, it is no evidence of damages. We agree.
A plaintiff who establishes conversion is entitled to either (1) the return of the property and damages for the loss of use during the defendant's detention, or (2) the value of the property. Varel Mfg. Co. v. Acetylene Oxygen Co., 990 S.W.2d 486, 497 (Tex. App._Corpus Christi 1999, no pet.); see First Nat'l Bank v. Gittelman, 788 S.W.2d 165, 169 (Tex. App._Houston [14th Dist.] 1990, writ denied). If the plaintiff elects to recover the value of the property, actual damages are determined by the fair market value of the property at the place and time of conversion. Varel Mfg. Co., 990 S.W.2d at 497. A property owner is qualified to testify to the market value of his property. Redman Homes, 920 S.W.2d at 669. This evidence is probative if it is based on the owner's estimate of market value and not some intrinsic or other value such as replacement cost. Id.; Porras v. Craig, 675 S.W.2d 503, 505 (Tex. 1984). Thus, Michaels's testimony about the cost to replace the converted property is no evidence of the used property's market value. See Redman Homes, 920 S.W.2d at 669; Porras, 675 S.W.2d at 505.
We turn to GPS's damages for loss of use of its property converted by Burlington but later returned. The correct measure for loss of use damages is the reasonable rental value of the property or a substitute. Chemical Express Carriers, Inc. v. French, 759 S.W.2d 683, 687 (Tex. App._Corpus Christi 1988, writ denied). Michaels testified that he made a list of the property that was returned and determined its rental value for the three-week period it was in Burlington's possession. Michaels testified that the rental value of the property was $7000. Michaels's testimony is some evidence of the property's reasonable rental value. We conclude the evidence is legally and factually sufficient to support an award of $7000 in loss of use damages.
Finally, we consider the evidence of GPS's damages resulting from Burlington's conversion of
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