Jose R. Rodriguez D/B/A Diamond Towing & Recovery, Belen Rodriguez, and John Paul Obregon v. Adriana P. Olivares ( 2021 )

NUMBER 13-19-00609-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSE RODRIGUEZ D/B/A DIAMOND TOWING
& RECOVERY, BELEN RODRIGUEZ,
AND JOHN PAUL OBREGON, Appellants,
v.
ADRIANA P. OLIVARES, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Tijerina
In this restricted appeal, appellants Jose Rodriguez, Diamond Towing and
Recovery, Belen Rodriguez, and John Paul Obregon appeal the trial court’s grant of
summary judgment in favor of appellee Adriana P. Olivares. By four issues that we
construe as five, appellants contend that: they did not participate in the decision-making
proceedings (issue one); there is error on the face of the record because the judgment is
not final (issue two); and the evidence is insufficient to support a finding that Olivares
established as a matter of law the elements of her causes of action for violation of the
Deceptive Trade Practices Act (DTPA), conversion, and fraud (issues three through five).
We affirm.
I. BACKGROUND
Olivares filed suit against appellants on March 15, 2018. Olivares set out the facts
of her claims in her petition as follows:
On May 8, 2017 Eduardo Cardenas (driver) of the truck and trailer #KW
2000 W900 was involved in an auto accident. [Diamond] went to the location
of the accident and towed the trailer to their location 3833 FM 892
Robstown, Tx. 78380. The next day[,] May 9, 2017, Eduardo Cardenas
(driver) went to the towing company to pick up his belongings and to request
a detailed bill. Belen[,] his office administrator told him the bill for services
rendered was $13,000.00 and that he could pay half[,] once paid he [could]
take possession of the truck and trailer.
Eduardo Cardenas (driver) and [Olivares] took the case before Judge
Gonzalez[,] JP Court in Robstown, Nueces County, Texas. On May 26,
2017 the Judge rendered a judgment and reduced the fees to $6,835.00.
A couple of days after the judgment was granted the [Olivares] called
[Diamond] to discuss a form of payment. Belen with [Diamond] stated to her
that she was not going to allow [Olivares] to pay any less than what the
original fees were.
On August 8, 2017 [Olivares] attempted to pay the fees to [Diamond]; but
[was] told that [Olivares] could not take possession of the truck and trailer
because it had been sold.
Olivares sought damages from appellants due to their failure to comply with the judgment
on the basis of DTPA violations, fraud, and conversion.
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On July 24, 2018, appellants filed a general denial denying their liability and
asserting what they alleged were their affirmative defenses as follows:
[Appellants] are not liable as alleged by [Olivares] because the injuries and
damages alleged are not recoverable under the [DTPA]. [Appellants] have
complied with all statutory requirements regarding the disposal of property
subject to a tow lien and in compliance with the Texas Occupations Code
and the Texas Property Code.
. . . . [Appellants] are not liable as alleged by [Olivares]
because . . . [Olivares] failed to secure possession of the impounded
property within the time constraints allowed by law.
. . . . [Appellants] are not liable as alleged by [Olivares]
because . . . [Olivares] is prohibited by Statute in bringing forth her claim as
asserted within her Original Petition as she failed to secure the release of
her property in compliance with State Law.
. . . . [Appellants] are not liable as alleged by [Olivares] because
of . . . [Olivares’s] failure to claim her property, acted as a release of all
claim and right to said property.
. . . . [Appellants] are not liable as alleged by [Olivares] because . . . [she]
waived whatever claims to the property at issue that she may have had by
her failure to timely redeem the property in compliance with State Law.
. . . . [Appellants] are not liable as alleged by [Olivares] because . . . [she]
consented to the sale and disposal of the property when she failed to
redeem the property and pay the amount owing to [Diamond].
. . . . [Appellants] are not liable as alleged . . . because . . . [Olivares failed]
to mitigate. . . [and she failed] to redeem the property caus[ing] the property
to be forfeited and all claims and right to said property transferred to
[Diamond] who had perfected their lien.
On March 12, 2019, Olivares filed a motion for traditional summary judgment on
her DTPA, fraud, and conversion claims. Appellants did not respond. The trial court held
a summary judgment hearing on April 29, 2019. Appellants did not appear at the hearing.
The trial court granted Olivares’s motion for traditional summary judgment on all her
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claims on May 31, 2019. This appeal followed.
II. RESTRICTED APPEAL
Generally, a notice of appeal is due within thirty days after a final judgment is
signed. TEX. R. APP. P. 26.1. Nonetheless, a party may obtain relief via a restricted appeal
if it is established that (1) the appellant filed a notice of the restricted appeal within six
months after the judgment was signed; (2) the appellant was a party to the underlying
lawsuit; (3) the appellant did not participate in the hearing that resulted in the complained-
of judgment and did not timely file any post-judgment motions or requests for findings of
fact and conclusions of law; and (4) error is apparent on the face of the record. See id.
26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
It is undisputed that appellants filed a notice of the restricted appeal within six
months after the judgment was signed and were parties to the underlying lawsuit.
Therefore, we proceed to consider the third and fourth elements of a restricted appeal.
III. PARTICIPATION
By their first issue, appellants contend that they met the nonparticipation element
of a restricted appeal. Olivares responds that appellants did not participate in the
summary judgment proceedings because appellants chose not to respond to the motion
for summary judgment and chose not to appear at the summary judgment hearing.
A. Applicable Law
An appellant satisfies the non-participation element for a restricted appeal only if
the appellant did not take part in the “decision-making event” that resulted in an
adjudication of its rights. See Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586,
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589 (Tex. 1996). “The decision-making event is the proceeding in which the questions of
law and fact are decided.” Cox v. Cox, 298 S.W.3d 726, 731 (Tex. App.—Austin 2009, no
pet.). The policy underlying the nonparticipation requirement is to deny restricted appeals
to those who should reasonably have pursued the quicker method of ordinary appeal.
Texaco, Inc., 925 S.W.2d at 590. Courts construe the nonparticipation requirement
liberally in favor of a right to appeal. Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985).
It is the fact of nonparticipation, not the reason for it, that determines a person’s right to
pursue a restricted appeal. Texaco Inc., 925 S.W.2d at 589.
In the context of summary judgment proceedings, “[a] restricted appeal is only
available where appellant neither filed a response nor appeared at the hearing on the
summary judgment motion.” Lake v. McCoy, 188 S.W.3d 376, 378 (Tex. App.—Dallas
2006, no pet.) (citing Stiver v. Tex. Instruments, Inc., 615 S.W.2d 839, 842 (Tex. App.—
Houston [1st Dist.] 1981, writ ref’d n.r.e.)); see Texaco, Inc., 925 S.W.2d at 589
(describing that participation of a party in a summary judgment proceeding requires that
the party take part in all steps of that summary judgment proceeding except the
hearing . . . .’”); Havens v. Ayers, 886 S.W.2d 506, 509 (Tex. App.—Houston [1st Dist.]
1994, no writ) (“This Court has held that where an appellant neither filed a response nor
appeared at the hearing on a summary judgment motion, appeal by writ of error
[(restricted appeal)] is permissible.” (citing Stiver, 615 S.W.2d at 842)); see also Aldrete
v. City of McAllen, No. 13-16-00587-CV, 2018 WL 1417485, at *2 (Tex. App.—Corpus
Christi–Edinburg Mar. 22, 2018, pet. denied) (mem. op.).
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B. Analysis
In this case, the trial court’s summary judgment ruling constitutes the relevant
decision-making event in determining nonparticipation because it resulted in the
adjudication of the parties’ rights and led to the complained-of judgment. See TEX. R. APP.
P. 30; Texaco Inc., 925 S.W.2d at 589. It is undisputed that appellants did not file a
response to Olivares’s motion for summary judgment and did not attend the summary
judgment hearing. Still, Olivares argues that appellants participated in the decision-
making event by choosing not to file a response and not to appear at the summary
judgment hearing after they were properly notified of both. Olivares states that
“‘participation by active refusal to participate’ is participation to a degree this Court has
the discretion to designate.”
However, as set out above, “‘[i]t is the fact of nonparticipation, not the reason for
it,’” that determines a party’s right to a restricted appeal. Texaco, Inc., 925 S.W.2d at 590.
“As in an ordinary appeal, a writ of error [(restricted appeal)] appellant is not required to
show diligence or lack of negligence before its complaints will be heard.” Id. Accordingly,
as we must construe the nonparticipation requirement liberally in favor of a right to appeal
and we are not to look at the reason for nonparticipation, we conclude that appellants did
not participate in the summary judgment proceedings below and therefore established
that element of a restricted appeal. See Stubbs, 685 S.W.2d at 645; Rivero v. Blue Keel
Funding, L.L.C., 127 S.W.3d 421, 424 (Tex. App.—Dallas 2004, no pet.) (determining
that a defendant met the non-participation requirement even though he filed an answer,
was served with requests for admissions, and had notice of the motion for summary
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judgment but did not respond to the motion or appear at the summary-judgment hearing);
see also Tex. Dep’t of Pub. Safety v. J. W. D., No. 03-14-00101-CV, 2014 WL 7464229,
at *1 (Tex. App.—Austin Dec. 31, 2014, pet. denied) (mem. op.) (“The fact that the
Department had filed an answer and had notice of the hearing does not alter the fact that
the Department did not participate in the actual decision-making event from which the
expunction order resulted.”); Meadows v. FIA Card Servs., N.A., No. 09-12-00051-CV,
2012 WL 3860648, at *1 (Tex. App.—Beaumont Sept. 6, 2012, no pet.) (mem. op.)
(concluding that, although the appellant filed a summary judgment response and a motion
to defer a summary judgment hearing, “those documents were filed . . . long after the trial
court had granted [the summary judgment] motion” and therefore the record did not
indicate that the appellant had “filed a timely summary judgment response or any post-
judgment motions or requests that amount to participation in the decision-making event”);
Hornsby v. Alter’s Gem Jewelry, Ltd., No. 09-04-0542 CV, 2005 WL 3073790, at *2 (Tex.
App.—Beaumont Nov. 17, 2005, pet. denied) (mem. op.) (explaining that the appellant
did not participate in the summary judgment proceedings because he did not file a
response to the summary judgment motion or attend the hearing); Bass v. Bass, No. 01-
00-00745-CV, 2002 WL 1227193, at *4 (Tex. App.—Houston [1st Dist.] June 6, 2002, no
pet.) (mem. op.) (concluding that the appellant met the non-participation requirement
even though the appellant either “deliberately or intentionally” did not participate in the
decision-making event). We sustain appellants’ first issue.
IV. ERROR ON THE FACE OF THE RECORD
By their second and third issues, appellants contend that there is error on the face
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of the record because (1) the summary judgment is not final for purposes of appeal and
(2) even if the judgment is final, there is insufficient evidence to support it.
A. Finality of the Judgment
By their second issue, appellants contend that the judgment is not final for
purposes of appeal because the trial court did not dispose of their request for attorney’s
fees. Specifically, appellants claim that they “made a counterclaim for attorney’s fees that
were allowed under the Declaratory Judgment Act for their towing services, as well as
allowed under the Texas Property Code Section 70.08 allowing for attorney’s fees for a
property lien on the recovered vehicle.”1 Therefore, due to the alleged nonfinality of the
judgment, appellants claim that “there is clear error on the face of the record.” Olivares
responds that the judgment is final because “[a]ppellants never completed a counterclaim
for attorney’s fees, [thus] there were no claims made by [a]ppellants to consider.”
We note that if we find that the summary judgment is not final, then the proper
disposition is to dismiss appellants’ appeal. See Frausto v. RC Indus. LLC, 605 S.W.3d
54, 56 (Tex. App.—San Antonio 2020, no pet.) (“If an order on a motion for summary
judgment is not final, and the order is not an appealable interlocutory order, we must
dismiss the appeal for lack of jurisdiction.” (citing Estate of Aguilar, 521 S.W.3d 389, 390
(Tex. App.—San Antonio 2017, no pet.))). Therefore, we must determine whether the
judgment is final for purposes of appeal. If it is final, we may continue with our restricted
1 Appellants did not make a counterclaim pursuant to the Declaratory Judgment Act or the Texas
Property Code. Instead, they asserted their affirmative defenses as follows: “Defendants have complied
with all statutory requirements regarding the disposal of property subject to a tow lien and in compliance
with the Texas Occupations Code and the Texas Property Code.” As set out above, appellants did not
mention the Declaratory Judgment Act or 70.08 of the Texas Property Code in their pleading.
8
appeal analysis. However, if it is not final, we must dismiss this appeal for lack of
jurisdiction.2 City of San Antonio v. Tommy Harral Constr., Inc., 486 S.W.3d 77, 80 (Tex.
App.—San Antonio 2016, no pet.).
“Unless a statute authorizes an interlocutory appeal, appellate courts generally
only have jurisdiction over final judgments.” City of San Antonio, 486 S.W.3d at 80; see
also TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a). We must strictly construe statutes
providing for interlocutory appeals of orders that are not final or generally appealable. City
of Houston v. Estate of Jones, 388 S.W.3d 663, 666 (Tex. 2012) (per curiam); Tex. A &
M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007).
Here, Olivares filed suit for conversion, DTPA violations, and fraud; she also
requested attorney’s fees. Appellants filed a general denial asserting several affirmative
defenses including claims that they complied with the DTPA, the Texas Occupations
Code, and the Texas Property Code, contributory negligence, illegality, release, waiver,
consent, and failure to mitigate. Appellants made a general claim for attorney’s fees;
however, they did not seek affirmative relief. Olivares filed a motion for traditional
summary judgment on her DTPA, conversion, and fraud claims and sought attorney’s
fees for each claim. The trial court granted summary judgment in favor of Olivares on all
three causes of action, and it awarded attorney’s fees to Olivares based on each cause
of action.
As stated above, Olivares moved for summary judgment on each of her causes of
action and affirmative claims for attorney’s fees. The judgment specifically states that
2 We would not find error on the face of the record.
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Olivares’s request for attorney’s fees is granted. Even if we were to construe appellants’
answer as requesting attorney’s fees as to Olivares’s DTPA claim, the trial court awarded
attorney’s fees to Olivares as the prevailing party; thus, it was not necessary for the trial
court to state in its motion that it had denied appellants’ request for attorney’s fees. See
TEX. BUS. & COM. CODE ANN. § 17.50(c) (establishing that the defendant may only obtain
attorney’s fees pursuant to the DTPA “[o]n a finding by the court that an action under this
section was groundless in fact or law or brought in bad faith, or brought for the purpose
of harassment”), § 17.50(d) (providing that “[e]ach consumer who prevails [on a DTPA
claim] shall be awarded court costs and reasonable and necessary attorneys’ fees”).
Appellants also claim that they were entitled to attorney’s fees pursuant to the
Texas Declaratory Judgment Act. However, appellants did not file a claim for a
declaratory judgment in their answer, and upon our review of their answer they did not
seek any other affirmative relief entitling them to attorney’s fees. See Leon Springs Gas
Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 578 (Tex. App.—San Antonio 1997, no
pet.) (explaining that a defendant’s request for attorney’s fees in its answer does not
constitute a claim for affirmative relief if the request is not made in connection with an
affirmative claim); see also Villafani v. Trejo, 251 S.W.3d 466, 470 (Tex. 2008); Spicer,
Tr. for Estate of Brady v. Maxus Healthcare Partners, LLC, 616 S.W.3d 59, 128 (Tex.
App.—Fort Worth 2020, no pet.) (stating that “a party seeking recovery of attorney’s fees,
even under a mandatory statute, must still sufficiently notify the court and opposing party
of his intent to recover his attorney’s fees under that statute” and explaining that although
the defendant could have asked for attorney’s fees pursuant to a statute, he did not plead
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them pursuant to that statute and thus could not be awarded them); Shaw v. Lemon, 427
S.W.3d 536, 540 (Tex. App.—Dallas 2014, pet. denied) (“In summary, a pleading that
does not ask for an award of attorney’s fees under a mandatory statute does not give
notice to the opposing party of all the relief sought.”); Alan Reuber Chevrolet, Inc. v. Grady
Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex. App.—Dallas 2009, no pet.) (“A general
prayer for relief will not support an award of attorney’s fees because it is a request for
affirmative relief that must be supported by the pleadings.”); Grant v. Hope Vill.
Apartments, No. 09-09-00527-CV, 2010 WL 4262001, at *3 (Tex. App.—Beaumont Oct.
28, 2010, pet. denied) (mem. op.). We are unable to determine how appellants could be
entitled to attorney’s fees when they made no claim for declaratory judgment or any other
affirmative relief, and they do not provide any argument supporting such a conclusion.3
See TEX. R. APP. P. 38.1(i). We conclude that the trial court’s summary judgment disposed
of all parties and all claims and is final for purposes of appeal. 4 Therefore, we may
proceed to analyze appellants remaining issues. We overrule appellants’ second issue.5
3 Appellants made a general request for attorney’s fees in their answer. However, they did not
request a declaratory judgment or state how they were entitled to affirmative relief entailing the award of
attorney’s fees.
4 It is unclear if appellants argue that they were entitled to attorney’s fees based on their affirmative
defenses. Nonetheless, a party relying on an affirmative defense to defeat a motion for summary judgment
must raise a genuine issue of fact as to each element of the defense. Brownlee v. Brownlee, 665 S.W.2d
111, 112 (Tex. 1984); Birenbaum v. Option Care, Inc., 971 S.W.2d 497, 504 (Tex. App.—Dallas 1997, pet.
denied). However, here, appellants did not respond to Olivares’s motion for summary judgment. Therefore,
they did not raise an issue of fact as to the elements of their affirmative defenses. Appellants cite no
authority, and we find none, supporting a conclusion that the trial court had to address appellants’
affirmative defenses in its summary judgment when appellants failed to file an answer with evidence to
support their defenses. Therefore, we reject appellants’ argument to the extent that they claim they were
entitled to attorney’s fees based on their affirmative defenses.
5 As a sub-issue to their second issue, appellants state, “As Appellants have shown that the order
is not a final order subject to execution, Appellants will raise Res Judicata upon return to the trial court.” It
appears that this sub-issue depends on a conclusion that the trial court’s summary judgment is not final for
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B. Sufficiency of the Evidence
Next, by what we construe as their third through fifth issues, appellants contend
that there is error on the face of the record because the evidence is insufficient to support
the trial court’s summary judgment for DTPA violations, fraud, and conversion.
1. DTPA
In their third issue appellants argue as follows:
The evidence supporting the claims raised here was insufficient as a matter
of law. A trial court may not grant a summary judgment for lack of response
to the motion by the nonmovant when the movant’s summary judgment
proof is legally insufficient. Summary judgments must stand on their own
merits, and the nonmovant’s failure to answer or respond cannot be
supplied by default to the summary judgment proof necessary to establish
the movant’s right.
. . . . The elements of a claim under the DTPA are (1) the plaintiff is a
consumer, (2) the defendant engaged in false, misleading, or deceptive
acts, and (3) these acts constituted a producing cause of the consumer’s
damages. Reliance is a necessary element of a DTPA claim based on false,
misleading, or deceptive acts.
Further: “A section 17.46(b)(12) violation depends upon the existence of an
underlying contract or agreement, the terms of which are misrepresented.”
It does not include representations that are not connected to another
agreement. Here the only misrepresentation alleged in the admissions is
that the truck would be returned upon payment.
Here, there is no evidence of an underlying agreement upon which to base
a misrepresentation in this case. Further, simply requiring payment for
services would not seem sufficient to qualify as a misrepresentation on a
non-existent underlying agreement. No/insufficient evidence was presented
on this claim and summary judgment was improper.
(Internal citations omitted).
purposes of appeal. However, we have concluded that the judgment is final. Therefore, this issue is not
dispositive, and we decline to address it. See TEX. R. APP. P. 47.1.
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In her pleadings, Olivares alleged appellants violated § 17.50(a)(2) of the DTPA.
See TEX. BUS. & COM. CODE ANN. § 17.50(a)(2) (providing that a consumer may maintain
an action where a breach of an implied warranty constitutes a producing cause of
economic damages or damages for mental anguish). She moved for traditional summary
judgment based on this cause of action and based on appellants’ deemed admissions.
The trial court set out the deemed admissions, in pertinent part, as follows: (1) appellants
violated the DTPA; (2) they charged an “exorbitant fee ($13,000) for the towing services
that were provided”; (3) they refused “to accept the amount that Judge Gonzalez ordered
that [appellants] accept for the return to [Olivares] of her truck”; and (4) they gave
Olivares’s truck to Obregon which was “unconscionable and caused economic damages
to [Olivares].”6 See id. § 17.50(a)(2).
Section 17.46(b)(12) establishes that a party may sue pursuant to the DTPA for
false, misleading, or deceptive acts or practices in the conduct of any trade or commerce
and that “false, misleading, or deceptive acts or practices” include, but are not limited to,
“representing that an agreement confers or involves rights, remedies, or obligations which
it does not have or involve, or which are prohibited by law.” Id. § 17.46(b)(12). Olivares
did not cite or claim that appellants violated § 17.46(b)(12) in her pleadings, and she did
not allege a DTPA violation on the basis that appellants represented that an agreement
conferred or involved rights, remedies, or obligations which it did not have or involve, or
which were prohibited by law. Other than claiming that Olivares failed to establish her
entitlement to relief pursuant to § 17.46(b)(12), appellants have not presented any
6 Appellants did not challenge the deemed admissions in the trial court and do not do so on appeal.
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substantive legal argument with citation to legal authority to support their third issue.7 See
TEX. R. APP. P. 38.1(i); TEX. BUS. & COM. CODE ANN. § 17.46(b)(12). Therefore, appellants
have not shown error on the face of the record on this basis. We overrule appellants’ third
issue.
By a sub-issue to their third issue, appellants contend that there is no evidence
supporting the trial court’s award of treble damages because there is no evidence that
Olivares suffered mental anguish. Olivares responds that the statute allows for treble
damages on a finding by the trial court that appellants’ “conduct was committed
knowingly, not whether or not [a]ppellee presented evidence of mental anguish.”
If a defendant’s conduct was committed knowingly or intentionally, a plaintiff who
prevails under the DTPA may recover additional treble damages. TEX. BUS. & COM. CODE
ANN. § 17.50(b)(1); Emmanuel v. Izoukumor, 611 S.W.3d 453, 458 (Tex. App.—Houston
[14th Dist.] 2020, no pet.) (noting that the “plaintiff may recover up to three times its actual
damages if trier of fact finds defendant violated DTPA ‘knowingly’”). Thus, in addition to
mental anguish damages, when conduct is committed knowingly, the consumer may be
awarded up to three times the amount of economic damages. TEX. BUS. & COM. CODE
ANN. § 17.50(b)(1).
Here, the trial court did not award mental anguish damages to Olivares. Instead,
the trial court states in the judgment, “This Court further exercises [its] discretion, pursuant
7 Even if Olivares claimed that appellants violated § 17.46(b), there is nothing in the record
establishing that she did so on the basis that appellants claim that she did. Section 17.46(b) is a non-
exhaustive list of conduct constituting a “false, misleading, or deceptive act or practice.” See TEX. BUS. &
COM. CODE ANN. § 17.46(b); see also Froemming v. Perez, No. 04-05-00514-CV, 2006 WL 704479, at *3
(Tex. App.—San Antonio Mar. 22, 2006, no pet.) (mem. op.) (“A noninclusive list of conduct constituting a
‘false, misleading, or deceptive act or practice’ is set forth in section 17.46(b) of the statute.”).
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to the [DTPA], to award [Olivares] up to three (3) times (x) her actual damages and the
Court determines that it will multiply [Olivaress’] actual damages by three (3) times.” As
the trial court did not include any mental anguish damages, no evidence of mental anguish
was required. The trial court’s award of treble damages was based on its finding that
appellants’ acts were committed knowingly, a finding not challenged on appeal. See id.Therefore, appellants’ sub-issue to their third issue is without merit. Accordingly,
appellants have not shown error on the face of the record in this regard. We overrule
appellants’ sub-issue to their third issue.
2. Conversion
By their fourth issue, appellants contend that the evidence is insufficient to show
that their possession of the vehicle was unlawful; thus, summary judgment was
improperly granted on Olivares’s conversion claim. Specifically, after setting out the
elements of conversion, appellants state:
There was no evidence that Appellants exercised unlawful possession as []
there are clear statutory requirements that must be followed in Texas
Property Code Section 70.06 regarding liens on towed vehicles and their
sale. No evidence was presented that Appellants failed to follow the
procedures in the statute (as was raised as an affirmative defense) or that
Olivares[] complied with [her duty] under that statute to pay for the vehicle
within 30 days. Therefore, the evidence is insufficient to support a claim for
Conversion.
Other than the assertions stated above with citation only to the elements of conversion,
appellants have not presented any substantive legal argument applying legal authorities
to the facts of this case. See TEX. R. APP. P. 38.1(i). Appellants merely make a global and
unsubstantiated allegation with general citation to authority, without explaining how that
authority cited applies to the facts here. Thus, appellants have failed to provide any
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substantive analysis in such a manner as to demonstrate that there is error on the face
of the record. We are prohibited from making appellants’ argument for them, and we
refuse to do so. Moreover, we are prohibited from researching the law and then fashioning
a legal argument for appellants when they have failed to do so. See Canton-Carter v.
Baylor Coll. of Med., 271 S.W.3d 928, 932 (Tex. App.—Houston [14th Dist.] 2008, no
pet.); see also Atkinson v. Sunchase IV Homeowners Ass’n, Inc., No. 13-17-00691-CV,
2020 WL 2079093, at *2 (Tex. App.—Corpus Christi–Edinburg Apr. 30, 2020, no pet.)
(mem. op.). We overrule appellants’ fourth issue.
3. Fraud
By their fifth issue, appellants argue as follows:
What is important for the court to realize is that there are not common law
requirements for towing and releasing a vehicle. These items are governed
by Statute (as was affirmatively plead) under the Transportation Code as
well as the Property Code. No/insufficient evidence was presented to have
the court determine that Appellants failed to comply with any statutory
requirements regarding the tow. Any common law claims in this case are
preempted by the statutory requirements. None of the statutory
requirements were presented, discussed or even referenced in the
summary judgment or order. A[s] such there is no/insufficient evidence upon
which to base a finding of fraud /misrepresentation or any other common
law claim.
This is the extent of appellants’ argument supporting its contention that summary
judgment was improper as to Olivares’s fraud claim. As we understand it, appellants
argue that Olivares did not address their affirmative defenses in her motion for summary
judgment. However, Olivares had no burden to disprove appellants’ affirmative defenses
in her motion for summary judgment. Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704
(Tex. App.—Houston [1st Dist.] 2014, no pet.) (“To defeat summary judgment by raising
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an affirmative defense, the nonmovant must do more than just plead the affirmative
defense,” and “[h]e must come forward with evidence sufficient to raise a genuine issue
of material fact on each element of his affirmative defense”). Olivares’s summary
judgment burden required that she establish a right to judgment as a matter of law by
providing summary judgment evidence supporting each element of her causes of action.
See Geiselman v. Cramer Financial Group, Inc., 965 S.W.2d 532, 535 (Tex. App.—
Houston [14th Dist.] 1997, no writ). On appeal, appellants do not dispute that Olivares
met her burden of establishing the elements of fraud. 8 Thus, once Olivares met her
burden, the burden shifted to appellants to raise a material fact issue sufficient to defeat
summary judgment, and they did not do so because they did not respond to Olivares’s
motion for summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
(Tex. 1995). Appellants have not shown that error is apparent on the face of the record in
this regard. We overrule appellants’ fifth issue.
V. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Delivered and filed on the
6th day of May, 2021.
8 The elements of fraud are as follows: (1) the defendant made a material false representation; (2)
the defendant knew the falsity of the representation “‘or made it recklessly as a positive assertion without
any knowledge of its truth’”; (3) “the defendant intended to induce the plaintiff to act upon the
representation”; and (4) “the plaintiff actually and justifiably relied upon the representation and suffered
injury as a result.” JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex.
2018).
17