Wesley Henson v. Allen Reddin

                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00029-CV


WESLEY HENSON                                                        APPELLANT

                                        V.

ALLEN REDDIN                                                           APPELLEE


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          FROM THE COUNTY COURT AT LAW OF WISE COUNTY

                                     ----------

                                   OPINION
                                     ----------

                                 I. INTRODUCTION

      We address two issues in this appeal: whether the evidence is legally and

factually sufficient to establish that Appellant Wesley Henson converted parts

belonging to Appellee Allen Reddin and whether Reddin’s evidence of

conversion damages is legally and factually sufficient to support the trial court’s

judgment awarding Reddin $4,561.52 in damages.          Because the evidence is

legally and factually sufficient to establish a conversion and because the
evidence of damages is legally and factually sufficient to support the trial court’s

judgment, we will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

                                   A. Overview

       The dispute between Henson and Reddin centered on a polyurethane

machine used to spray truck bed liners, insulation, ―or whatever you want to

spray with it.‖1 The polyurethane machine was permanently mounted inside an

enclosed gooseneck trailer that had ―Discount Industrial Coating, Incorporated‖2

emblazoned on it.3 The polyurethane machine had not been used for a while, so

it had become clogged and was not in working order. Henson owned a one-half

interest in Discount Industrial Coating, Inc.; Joseph Brophy owned the other one-

half interest.

       Henson decided that he wanted to sell his one-half interest in the

company, and Reddin let Henson know that he was interested in purchasing the


       1
       The polyurethane machine had heat pumps to make the liquid come
through the hoses and spray onto barns or bed liners. Reddin said that there
were two sides with a mix at the end of the ―gun.‖
       2
       We note that the reporter’s record refers to the company as ―Discount
Industrial Coatings, Incorporated‖ while the pleadings refer to ―Discount Industrial
Coating, Incorporated.‖ For consistency, we use the party name shown in the
pleadings.
       3
       We note that the record contains references to a trailer and a rig, as well
as to a machine, a gun, and a compressor. Because some of these terms
appear to be used interchangeably, it is not always clear from the testimony what
the parties are referring to.


                                         2
polyurethane machine if he could get it in working order. Reddin purchased parts

and began working on the polyurethane machine in an attempt to get it in

working order. After Reddin had purchased parts and had added them to the

polyurethane machine, Henson moved the trailer in which the polyurethane

machine was located. Henson did not return any parts to Reddin and did not

disclose the location of the polyurethane machine.

                            B. Reddin’s Testimony

      Regarding the parts that were added to the polyurethane machine, Reddin

testified that he had paid $2,690.28 for a fusion gun and a transfer pump; $1,800

for one kit of foam;4 $57.66 for a set of hoses; and $13.68 for a ―Y strainer iron

body 20 mesh.‖ Reddin provided receipts for the amounts that he had spent on

the parts, and the receipts were admitted into evidence without objection.

Reddin and Brophy attached the parts to the polyurethane machine on a Friday,

but they were not able to get the polyurethane machine in working order that day.

      According to Reddin, on the same day that he added the parts to the

polyurethane machine, he talked to Henson about the price of the polyurethane

machine.   Henson asked $10,000 for the polyurethane machine, and Reddin

offered $5,000. Reddin said that Henson indicated he ―was going to think about

it.‖ During this conversation, Reddin told Henson that the parts were on the

trailer. By Monday, the trailer was gone.

      4
       The receipt shows $18,000 for ten kits of foam, but Reddin testified that
only one was added to the polyurethane machine.


                                        3
      Reddin testified that he called Henson several times indicating that he

needed to get the parts back from the trailer, but Henson did not return his calls.

Reddin was able to talk to Henson one time about getting the parts back, but

Henson told him that ―he wasn’t bringing nothing back.‖

      After four to six weeks had passed, Reddin saw the trailer in Newark and

called Brophy. They went and retrieved the trailer, but police stopped them and

told them to take it back. They returned the trailer to the place where they had

found it. Reddin testified that the plan in retrieving the trailer was for him to

remove parts and for Brophy to keep the trailer and work out the issue with

Henson.

      Reddin thereafter sued Henson for conversion and sought to recoup the

damages that he had sustained when the parts that he had installed on the

polyurethane machine were ruined.5

                            C. Brophy’s Testimony

      Brophy was familiar with the polyurethane machine that Reddin was

interested in acquiring, and Brophy knew that the machine was not working

because a substance had crystallized in the machine. Brophy told Reddin that


      5
        Reddin explained that the parts that he had added to the polyurethane
machine were ruined because the resin he had attempted to run through the
lines in the polyurethane machine had sat in the pump and had crystallized when
he was denied access to the machine. Reddin testified that it is not normal
practice to clean the lines on the polyurethane machine every day and that the
machine could have been cleaned out up to a week later without any harm to the
parts that he had installed.


                                        4
he would need to bring parts to test the machine and to see if it could be restored

to working order. Reddin purchased the parts, and they were installed on the

machine, but Brophy testified that he and Reddin were not able to get the

machine to work.     Brophy and Reddin finished working on the machine one

Friday evening, and when they came back on the following Monday, the trailer

was gone.

      Brophy said that the trailer was later discovered at Henson’s in-laws’

house in Newark, that he did not know how the trailer got there, and that he did

not contact Henson about it. Brophy hooked up the trailer and attempted to bring

it back to where it had previously been located because he owned a one-half

interest in the trailer and equipment.

      When Brophy was about a half a mile down the road with the trailer, he

was pulled over by a Rhome Police Officer, who told him to take the trailer back

and to settle the issue in court. Brophy asked Henson why

      he was trying to have me thrown in jail for stealing something that I
      owned half of. And what he was doing. And why he was doing it.
      And he said this is a matter that has to be solved in Court, and I’ll
      see you in Court. And you won’t get anything until we go to Court.

Brophy also told Henson during the above conversation that Reddin’s parts were

on the rig.

                             D. Henson’s Testimony

      Henson testified that he knew that Reddin was working on the machine to

see if he could get it in working order to purchase it. Reddin had to bring his own



                                         5
parts in order to make repairs on the machine. Henson, however, testified that

he did not authorize Reddin to make any repairs.

      Henson testified that he and Reddin never reached a deal for the sale of

the machine or for Henson’s interest in Discount Industrial Coating.       Henson

testified that he never told Reddin that he would ―think about his offer.‖ Instead,

he told Reddin that he should buy a polyurethane machine that Henson had seen

online for $4,500. From Henson’s standpoint, he had already declined Reddin’s

offer, so Reddin was no longer purchasing the machine.

      Henson testified that the trailer in which the machine was mounted was his

property, not the property of Discount Industrial Coating. Henson said he got the

trailer on January 13, 2007, and took it to his father-in-law’s home because he

was trying to sell the machine to a business owned by his father-in-law.

      Henson received a call from Brophy on January 15, 2007, telling him that

Reddin had some property in the trailer; Henson testified that Brophy’s call was

the first time that Henson was informed that Reddin had property on the trailer.

Henson told Brophy, ―Just tell Allen to call me, and he can get his stuff off.‖

Henson said Reddin never contacted him and did not return his phone calls.

Henson later clarified that he had in fact received a phone call from Reddin while

he was on the phone with Brophy. Henson said he returned Reddin’s call and

left a message that Reddin could call and come get the parts, but Reddin never

called him.




                                        6
       The next day, on January 16, 2007, Henson received a call that the trailer

was being stolen, and the police were called.          The trailer was returned to

Henson’s in-laws’ property. After Brophy returned the trailer, Henson moved the

trailer to a new location.

       Upon cross-examination, Henson testified that he was aware as of January

15, 2007, that Reddin’s property was on the rig. Henson was also aware that

Reddin was running resin and polycarbonate through the hoses to get the

machine to work. Henson initially testified that he was not aware that if Reddin

did not get his parts off the rig that the resin would eventually set up, crystallize,

and cause the parts to become useless. Henson later testified that he knew that

if Reddin was not able to recover the parts that he had added to the machine,

they would become worthless; that was why Henson told Reddin to come and get

his ―stuff.‖

                                  E. The Lawsuit

       Reddin sued Henson in the justice court asserting a conversion claim and

a money had and received claim. Henson failed to appear, and Reddin obtained

a default judgment for $4,457—the amount he paid for the parts, plus court

costs—against Henson. Henson appealed the judgment to the county court at

law, arguing that Discount Industrial Coating, Inc. should be added to the suit.

Reddin added Discount Industrial Coating as a defendant, and Henson and

Discount Industrial Coating moved for summary judgment on Reddin’s

conversion claim and on his money had and received claim. The county court at


                                          7
law denied summary judgment on the conversion claim but granted summary

judgment on the money had and received claim. The conversion claim was tried

to the court.

      After hearing the testimony from Reddin, Henson, and Brophy, the county

court at law signed a judgment for Reddin in the amount of $5,419.46––

$4,561.52 in damages plus $857.94 in prejudgment interest.          The trial court

made the following findings of fact:

      1. On or about December 2006, Defendant Wesley Henson became
      interested in selling either his share of Defendant Discount Industrial
      Coating, Inc., or a machine that was an asset of that corporation.

      2. On or about December 2006, Plaintiff became interested in
      purchasing either the business interest or the machine.

      3. The machine was not in working order.

      4. On or about December 2006 and January 2007, Plaintiff
      purchased certain items of equipment and tools for the purpose of
      repairing the machine and estimating its value.

      5. The items and tools included a kit of foam, a transfer pump, a
      fusion gun, and assorted hoses, hereinafter called the ―property.‖

      6. Plaintiff purchased the property on the open market from retailers
      for the amount of $4,561.52.

      7. The value of such items in Wise County, Texas, at that time was
      $4,561.52.

      8. At the time of the events described below, Plaintiff Allen Reddin
      was the owner of the property.

      9. In early January, 2007, Defendant Henson took a trailer
      containing the property and held it away from Plaintiff, which had the
      effect of destroying the property for its intended use.



                                        8
      10. By January 15, 2007, Defendant Henson unlawfully assumed
      and exercised control over the property to the exclusion of Plaintiff
      Reddin’s rights as an owner.

      11. Defendant Henson refused to return the property to Plaintiff
      Reddin after Plaintiff Reddin demanded the return of the property
      from Defendant Henson personally and through Defendant Henson’s
      business associate.

      12. Plaintiff Reddin originally filed suit in this cause on March 13,
      2007.

      The trial court also made the following conclusions of law:

      1. Defendant Wesley Henson individually converted the property
      belonging to Plaintiff Allen Reddin.

      2. Defendant Henson is individually liable to Plaintiff Reddin for
      actual damages in the amount of $4,561.52, and for prejudgment
      interest in the amount of $857.94.

      3. The indebtedness of Defendant Henson to Plaintiff Reddin bears
      interest at the rate of 5.00% from December 16, 2010 until paid.

Henson perfected this appeal.

                           III. STANDARDS OF REVIEW

      Findings of fact entered in a case tried to the court have the same force

and dignity as a jury=s answers to jury questions. Anderson v. City of Seven

Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court=s findings of fact are

reviewable for legal and factual sufficiency of the evidence to support them by

the same standards that are applied in reviewing evidence supporting a jury=s

answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994).




                                        9
                         A. Legal Sufficiency Standard

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a

mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and

"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). 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. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

                        B. Factual Sufficiency Standard

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and




                                        10
a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

                            IV. SUFFICIENCY ANALYSES

                            A. Claim for Conversion

      In his first issue, Henson argues that the evidence is legally and factually

insufficient to establish that he converted any property belonging to Reddin;

Henson argues that the evidence is legally and factually insufficient to establish

that he knew at the time he removed the trailer that he was taking Reddin’s

property.

      Conversion is the unauthorized and wrongful assumption and exercise of

dominion and control over the personal property of another to the exclusion of, or

inconsistent with, the owner’s rights. Khorshid, Inc. v. Christian, 257 S.W.3d 748,

758–59 (Tex. App.—Dallas 2008, no pet.) (citing Waisath v. Lack’s Stores, Inc.,

474 S.W.2d 444, 447 (Tex. 1971)).        To establish a claim for conversion of

personal property, a plaintiff must prove that (1) he owned or had legal

possession of the property or entitlement to possession; (2) the defendant

unlawfully and without authorization assumed and exercised dominion and

control over the property to the exclusion of, or inconsistent with, the plaintiff’s

rights as an owner; (3) the plaintiff demanded return of the property; and (4) the

defendant refused to return the property. Id. at 759 (citing Smith v. Maximum

Racing, Inc., 136 S.W.3d 337, 341 (Tex. App.—Austin 2004, no pet.)). Acting




                                        11
with good faith or innocence is not a defense to conversion. Id. (citing Maximum

Racing, Inc., 136 S.W.3d at 343).

      Here, as set forth above, the trial court found that Reddin had ―purchased

certain items of equipment and tools for the purpose of repairing the machine

and estimating its value‖; that Henson had taken ―a          trailer containing the

property and [had] held it away from [Reddin], which had the effect of destroying

the property for its intended use‖; that ―Henson unlawfully [had] assumed and

[had] exercised control over the property to the exclusion of Plaintiff Reddin’s

rights as an owner‖; and that ―Defendant Henson [had] refused to return the

property to Plaintiff Reddin after Plaintiff Reddin [had] demanded the return of the

property from Defendant Henson personally and through Defendant Henson’s

business associate.‖ The record supports these findings.6

      The testimony at trial established that Reddin was attempting to get the

polyurethane machine in working order, that Reddin had purchased parts for the

machine, that Reddin had installed the parts on the machine, and that Henson

thereafter moved the trailer in which the machine was mounted. Reddin testified

that he had called Henson numerous times, attempting to retrieve the parts, but

Henson did not answer; the one time that Henson answered, he refused


      6
        We note at the outset that Henson’s ownership of the trailer and one-half
interest in the machine fails to authorize Henson’s conversion of the parts Reddin
added to the machine. See Burns v. Rochon, 190 S.W.3d 263, 266–70 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (lessor’s right to lockout holdover tenant
failed to authorize conversion of lessee’s leased equipment).


                                        12
Reddin’s request. Viewing the evidence favorable to the trial court’s findings, as

we must, and disregarding the evidence to the contrary because a reasonable

factfinder could do so based on a credibility determination, the evidence is legally

sufficient to support the trial court’s findings supporting each element of

conversion of Reddin’s property by Henson. See Burns, 190 S.W.3d at 270

(holding evidence legally sufficient to support conversion judgment); Automek,

Inc. v. Orandy, 105 S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2003, no pet.)

(holding evidence legally and factually sufficient to support conversion judgment

against one defendant); see also Cargal v. Cargal, 750 S.W.2d 382, 384 (Tex.

App.—Fort Worth 1988, no writ) (holding evidence legally sufficient to support

conversion judgment).

      In considering the factual sufficiency of the evidence to support the trial

court’s findings, we consider Henson’s testimony that is contrary to the findings.

Henson testified that he did not know until after he moved the trailer that Reddin

had parts on it. But even if Henson did not know about Reddin’s parts until after

the trailer was moved, his innocence is no defense to conversion. See Khorshid,

Inc., 257 S.W.3d at 759; Am. Petrofina, Inc. v. PPG Indus., Inc., 679 S.W.2d 740,

759 (Tex. App.––Fort Worth 1984, writ dism’d) (holding that neither complete

innocence nor perfect good faith are defenses to an action for conversion);

Chrysler Credit Corp. v. Malone, 502 S.W.2d 910, 914–15 (Tex. Civ. App.—Fort

Worth 1973, no writ); White-Sellie's Jewelry Co. v. Goodyear Tire & Rubber Co.,

477 S.W.2d 658, 662 (Tex. Civ. App.—Houston [14th Dist.] 1972, no writ)


                                        13
(same).     Additionally, although the record contains conflicting testimony

regarding Henson’s refusal to return Reddin’s parts to him––Henson claimed he

offered to let Reddin call and come get the parts, while Reddin testified that

Henson would not return his calls and refused to permit him to come get the

parts––the trial court is the sole judge of the credibility of the witnesses and is to

resolve any inconsistencies in their testimony. See Burns, 190 S.W.3d at 269–

70 (recognizing trial court could reject conversion-judgment defendant’s version

of events, including that he had offered to return property). Considering and

weighing all of the evidence in the record pertinent to that finding, including that

Henson’s delay in authorizing the retrieval of the property that had the effect of

destroying the parts, the credible evidence supporting the finding is not so weak,

or so contrary to the overwhelming weight of all the evidence, that the finding

should be set aside and a new trial ordered. See id. at 270 (holding evidence

factually sufficient to prove that defendant refused plaintiff’s request for return of

the equipment); Automek, Inc., 105 S.W.3d at 63 (holding evidence factually

sufficient to support conversion because plaintiff made demand and defendant

refused).   We overrule Henson’s first issue challenging the legal and factual

sufficiency of the evidence to show that a conversion took place.

                                   B. Damages

      In his second issue, Henson argues that the evidence is legally and

factually insufficient to support the judgment’s damage award. Henson contends

that the only evidence in the record concerning damages consisted of Reddin’s


                                         14
receipts for the property. Henson argues that while this evidence establishes the

purchase price of the property, it wholly fails to establish the fair market value of

the property, which Henson contends is the sole measure of damages for

conversion.

      Generally, the measure of damages in a conversion case is the fair market

value of the property converted at the time of the conversion, with legal interest.

United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147–48 (Tex. 1997).

Fair market value has been defined as the price that the property would bring

when it is offered for sale by one who desires, but is not obliged to sell, and is

bought by one who is under no necessity of buying it. Burns, 190 S.W.3d at 270.

A property owner may testify about the market value of his property if his

testimony shows that he is familiar with the market value and his opinion is based

on that market value. Khorshid, 257 S.W.3d at 760.

      However, when converted property has no readily ascertainable fair

market value, the measure of damages is the actual value of the property to the

owner at the time of its loss. Burns, 190 S.W.3d at 270 (citing Crisp v. Sec. Nat’l

Ins. Co., 369 S.W.2d 326, 328–29 (Tex. 1963)). In such circumstances, the

purchase price is probative of actual value. See id. The original cost in the

market and the manner and time and place of its use, the appearance before and

after the alleged injury, and the relative usefulness and physical condition may be

offered into evidence to establish conversion damages. Wutke v. Yolton, 71

S.W.2d 549, 552 (Tex. Civ. App.—Beaumont 1934, writ ref’d).


                                         15
       For example, the Beaumont court in Wutke examined what type of

evidence was admissible to determine actual value for secondhand furniture

because no standard of market value existed. Id. The appellate court explained

that the trial court

       did not err in receiving evidence as to what appellees paid for the
       furniture ―several years before the date of the conversion.‖ This
       testimony was admissible on the issue of actual value. . . . ―When
       goods of this character are destroyed, a proper method of arriving at
       their value at the time of loss is to take into consideration the cost of
       the articles, the extent of their use, whether worn or out of date, their
       condition at the time, etc., and for them to determine what they were
       fairly worth. The cost alone would not be the correct criterion for the
       present value, but it would be difficult to estimate the value of such
       goods, except by reference to the former price in connection with
       wear, depreciation, change of style, and present condition.

Id.

       Testimony and evidence regarding purchase price, however, standing

alone, is not factually sufficient to support a fair-market-value damages award or

an actual-value damages award. See Lee v. Dykes, 312 S.W.3d 191, 199 (Tex.

App.—Houston [14th Dist.] 2010, no pet.) (stating that ―it is not axiomatic that a

plaintiff can sell property for the same amount at which he purchased it‖). When

converted property has no readily ascertainable fair market value, the measure of

damages is the actual value of the property to the owner at the time of its loss

and evidence of purchase price constitutes a starting point for determining actual

damages. See Wutke, 71 S.W.2d at 552. From that starting point, amounts are

subtracted for wear and tear, depreciation, etc. See id.




                                          16
      Here, Reddin offered receipts for the parts into evidence and testified as to

the purchase price of the parts that he had installed on the polyurethane

machine. The receipts document that all of the parts were purchased within two

to three weeks of the date they were installed on the polyurethane machine. The

receipts indicate that M&M Insulation purchased the parts; Reddin testified that

M&M Insulation was Brophy’s company and that he, Reddin, had actually paid for

the parts.   Reddin said that he purchased them through Brophy’s company

because ―I get my stuff cheaper through his account. I didn’t have an account

with companies that he’s got.‖ Reddin also testified that the parts were worthless

after the conversion because they had been ruined by the resin crystallizing in

the polyurethane machine. The evidence conclusively establishes that the new

parts were installed on the polyurethane machine on a Friday and that Henson

moved the trailer with the machine mounted in it either one or two days after the

new parts were installed; when Reddin and Brophy returned to work on the

machine on Monday, it was gone.

      Considering the evidence favorable to the trial court’s finding that Reddin

purchased the parts for $4,561.52 and its finding that the value of the parts in

Wise County, Texas, at the time was $4,561.52, legally sufficient evidence exists

to support these findings. Reddin testified to the purchase price of the parts and

provided receipts documenting the prices; the parts were purchased within a few

weeks of the date they were installed on the polyurethane machine and were on

the machine only one or two days before they were converted. This evidence is


                                       17
legally sufficient to support the trial court’s award of $4,561.52 in damages to

Reddin under either an actual value or a fair market value measure of damages.

See Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex. 1996) (holding

evidence legally sufficient to allow jury to assess damages when property owner

gave dollar figures regarding price he would place on personal items lost in

mobile home fire); Burns, 190 S.W.3d at 271 (holding evidence legally sufficient

to sustain assessment of damages based on testimony of purchase price paid for

bar equipment). We therefore overrule the portion of Henson’s second issue

challenging the legal sufficiency of the evidence to support the damages award.

      This evidence is likewise factually sufficient to support the trial court’s

award of $4,561.52 in damages to Reddin under either an actual value or fair

market value measure of damages.            As mentioned above, the evidence

established the price Reddin paid for the parts just a few weeks before he

installed them on the machine, meaning there was little time for depreciation of

the parts.   Compare Lee, 312 S.W.3d at 199 (holding plaintiff’s testimony of

purchase price of diamond ring one and one-half years before conversion did not

establish fair market value of ring in absence of evidence of appreciation or

depreciation since purchase), with Wutke, 71 S.W.2d at 552 (recognizing

depreciation is one factor in establishing actual value). The evidence established

that Reddin was able to purchase the parts at a lower price by purchasing them

through Brophy’s company’s account, meaning there was little risk that Reddin

had overpaid for the parts and was seeking recovery of more than what the parts


                                       18
were actually worth.     Compare Lee, 312 S.W.3d at 199.           The evidence

established that the machine was converted one or two days after the installation

of the new parts, meaning that the parts had experienced little wear and tear

prior to their conversion. See Wutke, 71 S.W.2d at 552 (recognizing purchase

price minus wear, depreciation, change of style, and present condition can

establish actual value).    Thus, here, evidence of purchase price existed,

evidence of no or only a few weeks’ of depreciation existed, evidence of the

fairness or lowness of the purchase price existed, and evidence of no or very

little wear and tear on the parts existed. No controverting evidence probative of

fair market value or of actual value was introduced into evidence.           After

considering and weighing all of the evidence in the record pertinent to the trial

court’s $4,561.52 damages finding, the credible evidence supporting the finding

is not so weak that the answer should be set aside and a new trial ordered, and

the finding is not contrary to the overwhelming weight of all the evidence because

no controverting evidence probative of actual value or of fair market value was

introduced into evidence. We overrule the portion of Henson’s second issue

challenging the factual sufficiency of the evidence to support the damages

award.




                                       19
                                V. CONCLUSION

     Having overruled both of Henson’s issues, we affirm the trial court’s

judgment.


                                             SUE WALKER
                                             JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DELIVERED: January 5, 2012




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