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Kelvin Malone Attorney Dallas Paper

Words: 692, Paragraphs: 7, Pages: 3

Paper type: Essay , Subject: Common Law

Terry Fedrick v. Cliff Nichols d/b/a C&N Truck and Trailer Repair The term Bailment is derived from the French Bailor, “to deliver”. A bailment is a temporary transfer of property to another for a limited time and for a specific purpose. The transfer of property in a bailment is only in regards to possession, not ownership. The bailor is the owner of the transferred property. The bailee holds the transferred property. The property is held in trust for the benefit of the bailor. A bailment is completely different from a bail bond.

The bailor is the owner of the transferred property. As the bailor, you have the right to receive your property back in an acceptable manner. For example, your car should be returned to you in the same condition you left it if you valet parked it. What is considered acceptable returned property by the bailee depends on the situation. The bailee must return the property to the owner (bailor) in an acceptable manner. Otherwise, the bailee can be liable for the full value of the property. Vicarious liability often makes the employer of the bailee the responsible party.

For example, if a valet attendant at a hotel crashes your car, the hotel may be liable for the damage to the car rather than the employee. Date: 09-12-2008 Case Style: Terry Fedrick v. Cliff Nichols d/b/a C&N Truck and Trailer Repair Case Number: 12-07-00178-CV Judge: Brian Hoyle Court: Texas Court of Appeals, Twelfth District on appeal from the 402nd District Court Wood County Plaintiff’s Attorney: Richard Malone, Kelvin Malone Firm, Dallas, Texas Defendant’s Attorney: Mark W. Breding Description: Terry Fedrick appeals from a take nothing judgment following a bench trial.

Cliff Nichols

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In one issue, Fedrick argues that he was entitled to a judgment as a matter of law in light of factual findings made by the trial court. We affirm. * * * Fedrick is a truck driver, and he owns a commercial truck manufactured in 1994. The truck apparently developed a short circuit in the wiring and caught fire while it was parked outside Fedrick’s home. Fedrick was able to extinguish the fire, and had the truck towed to Nichols’s repair facility. Nichols agreed to attempt to repair the truck. One of his employees began the repair job, but could not complete the repair because a part had not yet arrived.

The truck was parked outside Nichols’s facility overnight when it caught fire again and was burned beyond repair. Fedrick sued Nichols, alleging that Nichols had contracted to repair the truck and did not repair it, and that Nichols destroyed it. Nichols filed a general denial, and later amended his answer to include affirmative defenses and a counterclaim for the unpaid repair costs, towing costs, and storage costs as well as for the damage his building sustained as a result of the fire. After an unsuccessful mediation, the parties tried the case to the court.

The trial court found that Nichols did not breach his contract with Fedrick to install the parts and to attempt to repair the truck, and that there was insufficient evidence to support Nichols’s counterclaim. The trial court determined that Fedrick should take nothing on his claim and that Nichols should take nothing on his counterclaim. This appeal followed. Sufficiency of the Evidence In one issue, Fedrick argues that he is entitled to judgment as a matter of law. Specifically, Fedrick argues that a bailment was created, and that Nichols, the bailee, did not demonstrate that he acted without negligence.

Outcome: The trial court could not award judgment on an unpleaded cause of action. Fedrick does not contest the ruling, if it was made, that he did not plead a breach of a bailment contract cause of action, and so we do not consider whether the trial court properly could have refused to consider that cause of action. Alternately, if the trial court considered Fedrick’s bailment claim on the merits, legally sufficient evidence supports the conclusion that Nichols rebutted any presumption of negligence or that Fedrick did not meet his burden to prove that Nichols was negligent. Accordingly, we affirm the judgment of the trial court.

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