National Casualty Company v. Charlie Hinds Paint & Body, Inc. D/B/A Charlie Hinds Paint & Body , 2014 Tex. App. LEXIS 4306 ( 2014 )

Opinion issued April 22, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00130-CV
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NATIONAL CASUALTY COMPANY, Appellant
V.
CHARLIE HINDS PAINT & BODY, INC.
D/B/A CHARLIE HINDS PAINT & BODY, Appellee
On Appeal from the County Civil Court at Law No 3
Harris County, Texas
Trial Court Case No. 954708
OPINION
In four issues, National Casualty Company appeals a judgment entered after
a bench trial, in which the trial court awarded damages to Charlie Hinds Paint &
Body, Inc. for the storage of a wrecked tow truck, plus attorney’s fees. On appeal,
National Casualty contends that the trial court erred in its application of the
Vehicle Storage Facility Act, Chapter 2303 of the Texas Occupations Code,
because there is insufficient evidence to support the judgment or award of
damages. National Casualty also contends that the award of attorney’s fees was
improper, because that award depends on the underlying finding of liability.
Because there is no evidence that the tow truck was ever stored against the consent
of its owner, we agree with National Casualty and reverse the judgment of the trial
court.
Background
Charlie Hinds is the chief executive officer and sole shareholder of Charlie
Hinds Paint & Body (“CHPB”). CHPB is an automotive paint and body shop that
also operates as a vehicle storage facility and wrecker storage yard. In July 2005, a
CHPB employee was driving a company tow truck, with authorization to do so,
when he was involved in an accident that severely damaged the truck. CHPB
carried an insurance policy on the truck, issued by National Casualty.
Immediately after the accident, another employee of CHPB towed the
damaged truck to CHPB’s storage lot, using another CHPB truck to do so. Hinds
testified at trial that he understood this to be a “nonconsent tow” under Texas law,
explaining that, in his understanding, “The state calls it a nonconsent anytime it’s
involved in an accident and the police department is called.” The vehicle was then
stored at the CHPB facility and has remained there since that time.
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On or about March 7, 2006, National Casualty paid CHPB’s claim on the
damaged truck as a total loss, issuing a check for approximately $26,000. At that
time, National Casualty sent Hinds a power of attorney form. Within a few days of
receiving the form, Hinds completed it, had it notarized, and returned it to National
Casualty. At the same time, he also sent the vehicle’s title, endorsed to National
Casualty, but the insurer has never registered the title or filed it with any
governmental agency. Hinds requested that National Casualty leave the vehicle on
CHPB’s lot temporarily after payment of the claim, to allow him time to remove
equipment from the truck. National Casualty consented to this request.
National Casualty intended to sell the tow truck as salvage. Approximately a
week after paying CHPB’s claim, National Casualty’s agent, Insurance Auto
Auctions, contacted Hinds to arrange to pick up the tow truck. Hinds informed the
caller of the storage fees that CHPB had calculated as due on the truck, running
from the date of the wreck, which at that time came to more than $5,184.
According to Hinds, the caller responded, “I’m not paying nothing,” explaining
this refusal to pay the fees on the grounds that Hinds owned the vehicle. A total
loss adjuster employed by National Casualty contacted Hinds on the same day, and
Hinds gave that person the same figure.
The parties had no other contact related to the truck from March 2006 until
February 2008, when National Casualty sued CHPB in justice court, seeking the
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value of the salvage. CHPB countersued for towing and storage fees under Chapter
2303 of the Texas Occupations Code. That case was dismissed, 1 and CHPB sued
National Casualty in the county court at law in January 2010, again seeking towing
and storage fees. Before trial, CHPB abandoned its cause of action for towing fees.
In October 2012, the case finally proceeded to a bench trial. CHPB sought to
recover more than $52,000, representing storage fees since March 7, 2006 at a rate
of $20 per day and applicable taxes, plus attorney’s fees. For its part, National
Casualty sought $3,261.37—the monetary value of the salvage—plus attorney’s
fees. After a one-day bench trial, the trial court entered judgment for CHPB,
awarding it $26,400.00 “as damages for storage fees,” $4,200.00 in attorney’s fees,
post-judgment interest, and costs of court. National Casualty filed a motion for
new trial, which was denied by operation of law. National Casualty timely
appealed to this court.
On appeal, National Casualty presents four issues: (1) no facts exist to
support the trial court’s application of Chapter 2303, because the owner of the
truck consented to its storage; (2) Chapter 2303 is also inapplicable because CHPB
failed to provide the written notice required by that chapter that fees were accruing;
1
The parties disagree as to why this happened, and the record is unclear.
According to National Casualty, the justice court action was dismissed
because CHPB’s counterclaims exceeded the jurisdictional limits of the
justice court, while CHPB claims that the case was dismissed for want of
prosecution.
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(3) no facts support the award of damages or the amount thereof; and (4) the trial
court erred in awarding attorney’s fees to CHPB.
Analysis
When this court reviews the legal sufficiency of evidence supporting a
judgment, we consider only the evidence and inferences that tend to support the
judgment, and we disregard all evidence and inferences to the contrary. Merrell
Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). When we review
the factual sufficiency of the evidence, we consider and weigh all of the evidence
and will set aside the verdict only if it is so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986). The fact-finder is the sole judge of the credibility of
the witnesses and the weight to be given their testimony. Id. This court cannot
substitute its judgment or opinion for that of the factfinder. Id. When the trial is to
the bench, but the trial court did not issue findings of fact, we must imply all
findings of fact necessary to support the judgment. Black v. Dallas Cnty. Child
Welfare Unit, 835 S.W.2d 626, 630 n.10 (Tex. 1992) (citing Carter v. William
Sommerville & Son, Inc., 584 S.W.2d 274, 276 (Tex. 1979)).
I. Preservation of error
CHPB argues that National Casualty failed to preserve any complaints for
appeal because the motion for new trial only challenged certain findings as against
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the great weight and preponderance of the evidence. Each of National Casualty’s
arguments on appeal, however, challenges some aspect of the trial court’s
judgment because there were “no facts to support” it. These are, by definition,
complaints regarding the sufficiency of the evidence. Merrell Dow Pharms., 953
S.W.2d at 711; Cain, 709 S.W.2d at 176. “In a nonjury case, a complaint regarding
the legal or factual insufficiency of the evidence—including a complaint that the
damages found by the court are excessive or inadequate, as distinguished from a
complaint that the trial court erred in refusing to amend a fact finding or to make
an additional finding of fact—may be made for the first time on appeal in the
complaining party’s brief.” TEX. R. APP. P. 33.1(d); see also Office of Atty. Gen. of
Tex. v. Burton, 369 S.W.3d 173, 175 (Tex. 2012). National Casualty was not
required to preserve its points of error, and they are properly before this court.
II. Consent of the vehicle’s owner
In its first issue, National Casualty argues that the trial court erred in
applying Texas Occupations Code chapter 2303, which forms the basis for
CHPB’s claim and recovery. That statute, commonly known as the Vehicle Storage
Facility Act, regulates the storage of towed vehicles at “vehicle storage facilities.”
TEX. OCC. CODE ANN. § 2303.001 (West 2012). A “vehicle storage facility” is “a
garage, parking lot, or other facility that is: (A) owned by a person other than a
governmental entity; and (B) used to store or park at least 10 vehicles each year.”
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Id. § 2303.002(8). In relevant part, the Occupations Code authorizes “[t]he
operator of a vehicle storage facility” to “charge the owner of a vehicle stored or
parked at the facility . . . a daily storage fee of . . . not less than $5 and not more
than $20 for each day or part of a day the vehicle is stored at the facility.” Id.
§ 2303.155(b). The Occupations Code also imposes liability for fees under Chapter
2303 on “[a]n insurance company that pays a claim of total loss on a vehicle in a
vehicle storage facility . . . regardless of whether an amount accrued before the
insurance company paid the claim.” Id. § 2303.156(b).
Critically to this case, however, Chapter 2303 “does not apply to a vehicle
stored or parked at a vehicle storage facility with the consent of the owner of the
vehicle.” Id. § 2303.003. “As such, a defendant may raise the issue of consent as a
defense to actions brought under section 2303.156(b).” Canal Ins. Co. v. Hopkins,
238 S.W.3d 549, 556 (Tex. App.—Tyler 2007, pet. denied). For purposes of
Chapter 2303, “owner of a vehicle” is defined in relevant part to mean “a person
named as the purchaser or transferee in the certificate of title issued for the vehicle
under Chapter 501, Transportation Code.” TEX. OCC. CODE ANN.
§ 2303.002(5)(A). The essential question in this case, then, is whether the truck
was ever stored at CHPB’s lot without the consent of the truck’s owner. Id.
§ 2303.003. That question, in turn, requires an examination of the truck’s
ownership history during the relevant period.
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It is undisputed that CHPB owned the vehicle at the time of the accident, and
that CHPB’s own employee voluntarily towed the vehicle to CHPB’s own facility.2
There was no evidence at trial that CHPB protested, objected to, or otherwise
withheld consent to storage of the vehicle at its facility at that time. Rather, the
evidence was conclusive that CHPB voluntarily towed the vehicle there and
actually requested that the vehicle remain on CHPB’s lot even after National
Casualty paid the insurance claim, so that Hinds would have additional time to
remove equipment from it. Because CHPB consented to the storage of its own
vehicle on its own lot from the time of the wreck until the time that CHPB mailed
the vehicle’s title to National Casualty, Chapter 2303 did not apply to the vehicle
during that period. Id. § 2303.003. Indeed, CHPB did not seek damages for that
time period.
2
While Hinds testified that the tow was a “nonconsent tow,” that term refers
to the manner in which the statute authorizes towing, not the manner in
which the vehicle’s owner consents to storage. The term “nonconsent tow”
is defined by Chapter 2308 of the Occupations Code, which governs towing
and has no relevance to fees charged by a vehicle storage facility. TEX. OCC.
CODE ANN. § 2308.002(6) (“‘Nonconsent tow’ means any tow of a motor
vehicle that is not a consent tow, including (A) an incident management
tow . . . .”); see also id. § 2308.002(3) (“‘Consent tow’ means any tow of a
motor vehicle in which the tow truck is summoned by the owner or operator
of the vehicle or by a person who has possession, custody, or control of the
vehicle. The term does not include an incident management tow . . . .”). We
do not need to decide whether Hinds is correct in his classification of the
tow as a “nonconsent tow,” as that classification has no bearing on the issues
before us.
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The question remaining is whether Chapter 2303 ever applied to the vehicle,
such that CHPB became entitled to any storage fees thereunder. The evidence was
conclusive that CHPB delivered the title to the vehicle to National Casualty in
March 2006. The parties have not briefed whether this act was sufficient to make
National Casualty the “owner of the vehicle” under Section 2303.002(5) of the
Occupations Code, and no statutory or case law addresses this issue. But as we
have already discussed, the record is clear that CHPB consented to storage of the
vehicle on its own lot while it was the owner of the vehicle. Because the trial court
did not issue findings of fact and could not have applied Chapter 2303 to the period
in which CHPB owned the vehicle, we must imply that by rendering judgment in
favor of CHPB, it necessarily found that National Casualty at some point became
the owner of the vehicle. Black, 835 S.W.2d at 630 n.10.
The record is devoid of evidence that National Casualty ever objected to
CHPB’s storage of the vehicle. Rather, National Casualty only objected to the
amount of fees that CHPB sought to recover. The only communications between
CHPB and National Casualty from the time that the insurance claim was paid until
the initiation of litigation nearly two years later were about whether CHPB was
entitled to the storage fees. National Casualty never sent a tow truck to retrieve the
wrecked vehicle, nor did it ever make a written or oral demand that CHPB
surrender the vehicle. Hinds himself testified that he has repeatedly informed
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National Casualty that it could “come pick up the vehicle,” but National Casualty
made no attempt to do so. On the contrary, National Casualty allowed CHPB to
retain the truck after this time, so that Hinds could remove equipment from it.
Further, other than informing National Casualty that it could claim the vehicle,
CHPB took no steps to force National Casualty to retrieve the vehicle, nor did
CHPB treat it as an abandoned vehicle under the Occupations Code. TEX. OCC.
CODE ANN. § 2303.154(a-1) (“If a vehicle is not claimed by a person permitted to
claim the vehicle before the 10th day after the date notice is mailed or published
under Section 2303.151 or 2303.152, the operator of the vehicle storage facility
shall consider the vehicle to be abandoned . . . .”).
In short, the evidence at trial was conclusive that National Casualty
consented to the vehicle remaining on CHPB’s lot, even after it paid CHPB’s
insurance claim. There is no evidence in the record to support a finding that the
vehicle was ever stored or parked at CHPB’s vehicle storage facility without its
owner’s consent. Chapter 2303 of the Occupations Code thus never applied to the
vehicle, and CHPB was not entitled to recovery under any theory based on that
chapter. Id. § 2303.003(a). We therefore hold that the evidence was legally and
factually insufficient to support the trial court’s judgment.
We sustain National Casualty’s first issue. Our resolution of this issue makes
it unnecessary for us to reach National Casualty’s second and third issues.
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National Casualty’s fourth argument is that the trial court erred in awarding
attorney’s fees to CHPB. Chapter 2303 of the Occupations Code does not allow for
an award of attorney’s fees to a private litigant who does not prevail in a suit to
recover storage fees, and the parties identify no other possible basis for such an
award. We therefore sustain National Casualty’s fourth issue and reverse the
judgment as to attorney’s fees.
Conclusion
Because we sustain National Casualty’s first and fourth issues, we reverse
the judgment of the trial court and render judgment that CHPB take nothing on its
claims.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
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