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Burlington Northern Railroad Company v. General Projection Systems. Inc.5/2/2000
d for the rights of others and with actual awareness on the part of the defendant that the act will, in reasonable probability, result in property damage." See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.12, 1987 Tex. Gen. Laws 44 (amended 1995) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 41.001(7) (Vernon 1997)).
A finding of gross negligence will also support an award of punitive damages. As defined in the trial court's charge, "gross negligence" means "more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to indicate that the act or omission complained of was the result of conscious indifference to the rights, safety, or welfare of the persons affected by it." See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.12, 1987 Tex. Gen. Laws 44, amended by Act of April 11, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex. Gen. Laws 108, 109.
Burlington asserts the Texas Supreme Court's decision in Green International, Inc. v. Solis compels the conclusion that punitive damages are not appropriate under the facts of this case. In Solis, a general contractor for the construction of three prisons sued a subcontractor for breach of contract and other claims. Id. at 386. The subcontractor, Solis, brought a counterclaim for conversion, alleging that the general contractor, Argee, converted his equipment at two of the prisons _ the Dayton and Woodville projects. A jury found that Argee wrongfully converted Solis's property and awarded actual damages. On appeal, Solis asserted the trial court erred by refusing to submit a jury question regarding Argee's malice and possible exemplary damages for conversion. Id. at 391.
In its discussion of the evidence of Argee's malice, the court of appeals' opinion set out the following facts:
Solis informed Argee that Solis would be unable to meet his payroll obligation due to Argee's failure to pay Solis as required under their contracts. Argee gathered Solis' employees at the Dayton and Woodville sites to the parking lot and informed them that they would not be allowed to return to the job sites. At the Woodville job site, Argee called the Texas Highway Patrol and Sheriff and requested that they stand outside the gate in order to keep Solis' employees from gaining access to the job site. Argee impounded Solis' equipment without making an inventory of the equipment and took no measures to insure that the impounded equipment was kept in a safe manner. According to the evidence, Argee never returned most of the equipment owned by Solis. Argee did eventually return two forklifts leased by Solis; however, said forklifts were extensively damaged. Argee contends that the impounding of Solis' equipment was done pursuant to Paragraph 24 of the Woodville and Dayton Subcontracts.Argee Corp. v. Solis, 932 S.W.2d 39, 65 (Tex. App._Beaumont 1995), rev'd sub nom. Green Int'l v. Solis, 951 S.W.2d 384 (Tex. 1997). Further, Argee failed to comply with Paragraph 24 of its contract by failing to give Solis three days' notice that it was terminating the contract and taking possession of Solis's equipment. Also, Argee had no use for the impounded equipment and did not need it for completion of the projects. Solis, 932 S.W.2d at 65.
The court of appeals held that there was more than a scintilla of evidence tending to support a question regarding malice or exemplary damages and thus reversed and remanded for a new trial. Id. Argee appealed to the Texas Supreme Court. The supreme court stated that to establish malicious conversion, the plaintiff must show more than bad faith and wrongful conduct; the plaintiff must show that the wrongful act was of a wanton and malicious na
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