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TexLaw, Attorney
Category: Legal
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I need to file suit in District Court. I know that sheriff

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I need to file suit in District Court. I know that sheriff will go and pick up my belongings when I post the replevin bond. My question is: Since there will be a whole house full of my belongings I imagine a u-haul or large enclosed trailer will be needed to move it all out, Do I tell the sheriff this in advance and have him bring extra help? Also, what are the steps for getting the replevin bond as far as; do I have to wait for the judge to tell me how much it should be? I have added up as close as I can the amount of the belongings he has of mine. A lot of them are antiques, so the values are high.
I need a few questions answered before I can tell you the answer to your question.

1. Who has your property and how did they get it?

2. Have you sued this person and won a judgment to establish a right to the property?

I look forward to hearing back from you.
Customer: replied 5 years ago.
My ex boyfriend will not return my antiques and furniture. We lived together in his house for 2 years, I moved out in May 2010. He is refusing to return all my items. What can I do to get my items back? Some are on my divorce decree from 2007 that I brought with me to his house when I moved in 2 years ago, is that proof enough for the court the items belong to me? What about the items I don't have a receipt for? How can I prove they are mine? Please advise as the total dollar amount of my items is about $20,000.00. He also has my computer which has all of my receipts and proof of my ownership.  

Already Tried:
Certified letter requesting items back. Email requesting items back. phone call and voice message. Text message.
Thank you for answering my questions. You are jumping the gun by talking about replevlin.

When someone takes possession of your personal property, you have a claim for what is called "conversion." To establish a conversion, you have to file suit in court and prove that your ex boyfriend has your stuff and won't return it. When you file the lawsuit, you can seek an injunction for immediate release of the goods. At this point, the court will instruct you on any bond that might be needed. Then you will be given an order from the court and can take that, along with a sheriff, to go get your personal property. You will be responsible for getting a moving van and hiring movers. The sheriff is there only to enforce the court's order. You will then have to continue the lawsuit and prove that the property belongs to you, through testimony, receipts, etc.

Because the amount of your goods is valued at $20,000.00, this case will need to be filed in County Court. While you could proceed without an attorney as a "pro se" litigant, I do not advise it, as this process can be technical.

You should also consider filing a report with the police. Technically, your ex's refusal to give you your property is a theft. You might try simply calling the police and asking them to accompany you to the house so that you can get your stuff and tell them that you are afraid of your ex's reaction. If they won't help you do this, then try to press charges for theft. They may refuse to file a report and tell you that this is a civil matter, in which case you will have to file suit for the conversion.

Please let me know if you need further information.

Best of Luck,
Zachary D. Norris
Customer: replied 5 years ago.
It is my understanding that conversion cases are for the monetary value. Not, for return of my items. It's been converted if he sold my items. Replevin or detinue is for the return of my belongings. I have sent him a demand letter and he replied that he will not return my belongings. (his words).
The sheriff refused to file a report or help me. They said I had to file a case.
I just want my antiques and household goods back that I brought over to his house.
Am I mistaken?

Strictly speaking, replevin is an older form of quasi remedial action which lies in the Court's equity powers. Today, one may simply plea a claim for conversion and seek an injunction ordering turn over in lieu of damages.

The terminology of actions at law and actions at equity have been merged in the modern practice.

Nevertheless, replevin and detinue are still technically viable actions. In fact, suing for replevin will require you to put up the bond and for the personal property to be confiscated, but it is held in the court's possession until the case is decided.

If you want to immediately get the property out of his hands, you would file both conversion and replevin, and ask for the property to be confiscated and placed in the court's registry until the controversy is decided. You would request a temporary injunction for replevin and seek an emergency ex parte hearing with the court. The court would at that point give a cursory review of the merits of your case and then issue an order requiring a replevin bond. The bond will be corresponding to the value of the goods, and the likely value that a defendant would face in defending a wrongfully pled claim. This will be up to the judge in the end.

To establish conversion of personal property, a plaintiff must prove that: (1) the plaintiff 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; and (3) the plaintiff suffered injury. United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147-48 (Tex. 1997); Apple Imports, Inc. v. Koole, 945 S.W.2d 895, 899 (Tex. App.--Austin 1997, pet. denied). If the defendant originally acquired possession of the plaintiff's property legally, the plaintiff must establish that the defendant refused to return the property after the plaintiff demanded its return. Presley v. Cooper, 155 Tex. 168, 284 S.W.2d 138, 141 (Tex. 1955); Apple Imports, 945 S.W.2d at 899.

At common law when a defendant unlawfully detained property from a plaintiff, the plaintiff might sue him either in detinue or trover. If he sued in detinue it was because he desired to recover his property together with damages for its unlawful detention. If he sued in trover it was because he elected to treat the detention as a conversion of the property by defendant, whereby the title thereto passed to defendant as of the time of the conversion, and he recovered the value of the property at the time it was converted.
Hankey v. Employer's Cas. Co., 176 S.W.2d 357, 360-61 (Tex. Civ. App.--Galveston 1943, no writ).

An action for trespass to chattels is similar to conversion but differs in the measure of damages recoverable. O'CONNOR'S TEXAS CAUSES OF ACTION 159 (2008). On a trespass to chattels claim, the plaintiff can recover only the diminished value of his property and the damage to his interest in its possession or use. Id. (citing RESTATEMENT (2D) OF TORTS § 222A comt. c)); see Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365, 395 (Tex. App.--Houston [14th Dist.]. 2004), [*28] rev'd on other grounds, 184 S.W.3d 707 (Tex. 2006). An action for trespass to personal property, or personalty, "is an unlawful injury to, or interference with, possession, with or without the exercise of physical force." Jamison v. Nat'l Loan Investors, L.P., 4 S.W.3d 465, 469 n.2 (Tex. App.--Houston [1st Dist.] 1999, pet. denied).

A statutory civil action for theft of personal property exists, the difference with a conversion action being the defendant's intent to deprive the plaintiff of the property and additional damages. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 134.003(a), 134.005(a)(1) (Vernon 2005); TEX. PEN. CODE ANN. § 31.03(a), (b) (Vernon Supp. 2009). Conversion does not require proof of wrongful intent to deprive. O'CONNOR'S TEXAS CAUSES OF ACTION 871 (2008).

Replevin is an "action for the repossession of personal property wrongfully taken [*29] or detained by the defendant, whereby the plaintiff gives security for and holds the property until the court decides who owns it." BLACK'S LAW DICTIONARY 1302 (7th ed. 1999); see, e.g., Seureau v. Mudd, 515 S.W.2d 746 (Tex. Civ. App.--Houston [14th Dist.] 1974, writ ref'd n.r.e.).

Thus, you will want to file claims for both conversion, trespass to chattels, and replevin, just in case any of your possessions are damaged or have been sold.
TexLaw and other Legal Specialists are ready to help you
Customer: replied 5 years ago.
Based on your answer I will file conversion, detinue and trespass ."On a trespass to chattels claim, the plaintiff can recover only the diminished value of his property and the damage to his interest in its possession or use."
what exactly does diminished value mean? As far as damages for loss of use, how does one figure that amount out?
Good questions.

Diminished value is calculated by having an expert come and look at the property as it is, and then comparing it to the value of a piece of like property on the market prior to the trespass. For antiques, you need to get an antiques collector to give an opinion.

Loss of use will be the equivalent of the amount it would take to rent an item of like quality and kind to use during the time period you haven't had use of it. This will not apply to many personal property items. But for example, lets say it was a television. You could technically seek the amount it would cost to rent a TV from Rent-A-Center for the time period you didn't have the TV.

This can all be done later on in the lawsuit. For the Petition, you only need to put that you are seeking the category of the damages (i.e., economic loss, loss of use and enjoyment, diminished value).

Good luck,
Customer: replied 5 years ago.
One last clarification; loss of use, in your example on the TV. Does that apply even if I have not replaced the item?
For example, I could technically get damages for the cost to rent a computer? Regarding my antiques, I gather diminished value is like a vehicle. They obviously go down in value every year. I'm just not clear on how that would be figured. Say, antique desk is worth $1000. The day it was taken, what is diminished value now? I imagine the clock started ticking when he refused to return items once demand letter was sent. True?

Your answers are terrific and helping me a great deal clarify issues. Thank you.
Hi! I'm glad to be here to help.

Loss of use does count even if you have not replaced the item. However, it is a harder evidentiary burden to satisfy. For example, if you had actually went out and leased a TV, you would simply prove the damages by submitting the rental bill to the court. If you haven't replaced the item with a rental, you must prove the loss of use claim through expert opinion.

In regard to your antiques, diminished value will only be applicable if the antique has actually diminished in value. That means, if it has been damaged in some way. The simple fact that it is older does not diminish the value of the antique. In other words, when looking at an antique, it is the loss of value because of damage that is considered in a diminished value claim. Now, if we were talking about a load of corn, the longer that the person had the corn, the less value the corn would have because it is perishable. Thus, the longer the time it is away from its rightful owner, the more the value of the property is diminished.

As far as when the clock starts ticking, you are correct, it is when he refused to turn over the property after your demand.
Customer: replied 5 years ago.
As for the load of corn, it may not have diminished value because the older it gets, it dries out, then you can make popcorn. Just my thought.
Am I correct that the statute of limitations is 4 years? I'm assuming that is four years from the date I left the residence?
Lol! Ok may be corn was a bad example.

But now I'm getting very concerned, the statute of limitations is 2 years in Texas for torts such as the ones we are speaking of in this case. The date from which the statute of limitations starts to run is going to be the date that he rejected the demand letter, not the date you moved out. Hopefully, you still have time.

Even if you don't though, the statute of limitations is an affirmative defense. That means that he has to plead it in his answer and the prove it and the burden is on him to do the same. If he doesn't do it, then you still win the claim (all else considered).

I haven't heard back from you. I've done a lot of work on your file, but have not yet been given credit for the work I've performed. Please signify that you are satisfied with my work by pressing "Accept". You will be able to continue asking questions on this subject after you have done this.

Zachary D. Norris
Customer: replied 5 years ago.
I did hit the accept button for you and gave you a tip.
I was given gifts by my ex during the relationship. Now he is saying that I owe him for the gifts.
I do have a witness that was present when he gave me the gifts.
Is a witness enough evidence? ( Along with my testimony)?
Thank you for accepting and for the tip. It will be your word against his. The witness will help you. In the end on this issue its simply a matter of who the judge/jury decide to believe. If the gifts are things that seem like gifts (i.e., they are not things like he paid your tuition in school or paid your rent), then his claim becomes even weaker.

Best of Luck,
Zachary D. Norris
Customer: replied 5 years ago.
Re: loss of enjoyment; almost every one of my personal belongings have been gone for 2 years. All of my furniture, my personal family photos, my digital video camera, antiques, computer with over 3000 songs on it, art, dishes, fishing equipment etc. I would like to know how loss of enjoyment is figured?
Hi. This is outside the scope of the original question. JustAnswer requires that it be submitted as a new question on the thread. If you want me to specifically answer it, please request me as an expert.

Sorry for the inconvenience.

-Zachary D. Norris