Linda Douglas v. Taylor Sims and Dallas Performance, LLC. ( 2018 )

ACCEPTED
05-17-01187-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
6/1/2018 9:53 PM
LISA MATZ
CLERK
NO. 05-17-01187-CV
FILED IN
5th COURT OF APPEALS
IN THE COURT OF APPEALS DALLAS, TEXAS
FOR THE FIFTH JUDICIAL DISTRICT6/1/2018 9:53:31 PM
LISA MATZ
DALLAS, TEXAS Clerk
LINDA DOUGLAS
v.
TAYLOR SIMS AND
DALLAS PERFORMANCE, LLC
BRIEF OF APPELLEES
ON APPEAL FROM CAUSE NO. CC-16-03688-E
IN THE COUNTY COURT AT LAW NUMBER FIVE
DALLAS COUNTY, TEXAS
HON. MARK GREENBERG, JUDGE PRESIDING
JULIE GOEN PANGER
The Kiechler Law Firm
Filed June 1, 2018 619 Broadway Street
Lubbock, Texas 79401
(806) 712-2889
(808) 712-2529 (f)
State Bar Number 24069793
julie@thelubbocklawyer.com
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant: Linda Douglas
Trial Counsel: James Ellis
6440 North Central Expressway, Suite 750
Dallas, Texas 75206
Debran O’Neil
Carrington Coleman Sloman & Blumenthal, LLP
901 Main Street, Suite 5500
Dallas, Texas 75202
Appellate Counsel: Anthony Arguijo
Scott Douglass & McConnico, LLP
303 Colorado Street, Suite 2400
Austin, Texas 78701
Appellees: Taylor Sims and
Dallas Performance, LLC
Trial Counsel: Justin Kiechler
The Kiechler Law Firm, PLLC
619 Broadway Street
Lubbock, Texas 79401
Appellate Counsel: Julie Goen Panger
The Kiechler Law Firm, PLLC
619 Broadway Street
Lubbock, Texas 79401
BRIEF OF APPELLEES i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................... i
TABLE OF CONTENTS ........................................................................... ii
INDEX OF AUTHORITIES ...................................................................... v
STATEMENT OF THE CASE ............................................................... viii
STATEMENT OF FACTS ......................................................................... 1
A. Linda initially authorized DP to perform certain
repairs and modifications to her car’s camshaft. ................... 1
B. DP gave Linda notice of its storage fee policy. ....................... 2
C. Linda later authorized DP to perform more
modifications and repairs to her car, including work on
the motor. ............................................................................... 3
D. Linda failed to pay the total amount owed to DP for
work she requested, so DP has the car in its possession. ...... 6
SUMMARY OF THE ARGUMENT ........................................................ 10
ARGUMENT ........................................................................................... 11
Issue One ...................................................................................... 13
DP rightfully possesses Linda’s car, because she failed to pay
for the work she requested.
A. DP rightfully retained possession of the car pursuant
to a possessory lien. ............................................................... 14
1. Linda authorized DP to perform repairs and
modifications to her car. .............................................. 14
BRIEF OF APPELLEES ii
2. DP completed the work requested by Linda. .............. 15
3. Linda failed to pay for the work DP performed on
the car. .......................................................................... 15
B. Linda did not prove each element of conversion or
wrongful detainer. ................................................................. 16
1. Linda did not prove that she was entitled to
possession of the car. . .................................................. 17
Issue Two ...................................................................................... 18
Linda agreed to DP’s storage-fee policy, of which she was
made aware before DP began working on her car.
A. DP and Linda agreed to the storage-fee policy..................... 19
1. DP offered to store Linda’s car for a fee.. .................... 19
2. Linda accepted DP’s offer to store the car for a
fee, had a meeting of the minds with DP, and
consented to the terms of the policy. ........................... 21
3. The storage-fee agreement was supported by
consideration. ............................................................... 24
Issue Three ................................................................................... 26
Linda accepted the additional services DP performed on the
car when Brent signed the estimate authorizing DP to
proceed with the work, which entitled DP to an award in
quantum meruit.
A. DP’s additional work on Linda’s car supported an
award in quantum meruit..................................................... 26
1. DP provided valuable services for Linda. .................... 26
BRIEF OF APPELLEES iii
2. Linda accepted the services, and she was
reasonably notified that she would be charged for
DP’s work. ................................................................... 26
Issue Four ..................................................................................... 29
The trial court’s award of attorney’s fees to DP should be
affirmed, because Linda prevailed on the above claims.
PRAYER .................................................................................................. 30
CERTIFICATE OF SERVICE................................................................. 31
CERTIFICATE OF COMPLIANCE ........................................................ 31
BRIEF OF APPELLEES iv
INDEX OF AUTHORITIES
CASES
2900 Smith, Ltd. v. Constellation New Energy, Inc.,
301 S.W.3d 741 (Tex. App.—Houston [14th Dist.] 2009, no pet.)...... 13
Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812 (Tex. 1997) ................................................................ 29
Associated Indem. Corp. v. CAT Contracting, Inc.,
964 S.W.2d 276 (Tex. 1998) ................................................................ 11
Autozone, Inc. v. Reyes,
272 S.W.3d 588 (Tex. 2008) (per curiam) ........................................... 11
Cain v. Bain,
708 S.W.2d 175 (Tex. 1986) (per curiam) ..................................... 12, 13
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) .......................................................... 11, 12
Collision Center Paint & Body, Inc. v. Campbell,
773 S.W.2d 354 (Tex. App.—Dallas 1998, no writ) ...................... 15, 16
Cont’l Coffee Prods. Co. v. Cazarez,
937 S.W.2d 444 (Tex. 1996) ................................................................ 12
Domingo v. Mitchell,
257 S.W.3d 34 (Tex. App.—Amarillo 2008, pet. denied) .................... 20
Gentry v. Squires Constr., Inc.,
188 S.W.3d 396 (Tex. App.—Dallas 2006, no pet.) ............................ 29
Green Int’l, Inc. v. Solis,
951 S.W.2d 384 (Tex. 1997) ................................................................ 29
BRIEF OF APPELLEES v
Kroger Tex. Ltd. P’ship v. Suberu,
216 S.W.3d 788 (Tex. 2006) ................................................................ 11
Lone Star Beer, Inc. v. Republic Nat’l Bank of Dallas,
508 S.W.2d 686 (Tex. Civ. App.—Dallas 1974, no writ) .............. 16, 17
Morey v. Page,
802 S.W.2d 779 (Tex. App.—Dallas 1990, no writ) ............................ 16
Principal Life Ins. Co. v. Revalen Dev., LLC,
358 S.W.3d 451 (Tex. App.—Dallas 2012, pet. denied)...................... 23
Ragsdale v. Progressive Voters League,
810 S.W.2d 880 (Tex. 1990) ................................................................ 30
Robert L. Crill, Inc. v. Bond,
76 S.W.3d 411 (Tex. App.—Dallas 2001, pet. denied)........................ 24
Ryan v. Abdel-Salam,
39 S.W.3d 332 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) ... 15
Solomon v. Greenblatt,
812 S.W.2d 7 (Tex. App.—Dallas 1991, no writ) ................................ 24
Stewart Title Guar. Co. v. Sterling,
822 S.W.2d 1 (Tex. 1991) .................................................................... 29
Tex. Diamond Int’l, Inc. v. Tiffany & Co.,
47 S.W.3d 589 (Tex. App.—San Antonio 2001, pet. denied) .............. 17
Thompson v. Apollo Paint & Body Shop,
768 S.W.2d 373 (Tex. App.—Houston [14th Dist.] 1989)............. 14, 16
Volume Millwork, Inc. v. W. Houston Airport Corp.,
218 S.W.3d 722 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) . 30
BRIEF OF APPELLEES vi
Vortt Exploration Co. v. Chevron U.S.A., Inc.,
787 S.W.2d 942 (Tex. 1990) .......................................................... 26, 28
Waisath v. Lack’s Stores, Inc.,
474 S.W.2d 444 (Tex. 1971) ................................................................ 16
STATUTORY PROVISIONS
Tex. Civ. Prac. & Rem. Code § 38.001 .................................................... 29
Tex. Const. art. 16 § 37 ........................................................................... 14
Tex. Prop. Code § 70.001 ....................................................... 13, 14, 15, 17
Tex. Prop. Code § 70.008 ......................................................................... 29
BRIEF OF APPELLEES vii
STATEMENT OF THE CASE
This is an appeal from a case revolving around work performed by
Dallas Performance, LLP (DP) on a vehicle owned by Linda Douglas
(Linda). The Honorable Mark Greenberg presided over the jury trial. 2
R.R. 1. After the parties concluded their presentations of evidence, they
filed competing requests for a directed verdict, which the trial court
denied. 3 R.R. 152-183.
The jury found in favor of DP and Taylor Sims (Sims) on each of
Linda’s claims – conversion, wrongful detention of the vehicle,
violations of the Deceptive Trade Practices Act, making of a fraudulent
lien, and usury. C.R. 37-63. It awarded DP and Sims $9,000.00 for
Linda’s breach of contract regarding storage fees, $3,200.00 in quantum
meruit for the work DP performed on the vehicle motor, $8,750.00 in
attorney’s fees, and $1,247.02 in costs. C.R. 37-63.
Linda filed a motion asking the trial court to disregard the jury
verdict and a request for findings on elements omitted from the jury
charge, both of which the court denied after a hearing. C.R. 66-104, 110;
5 R.R. 1-25. The trial court entered its judgment in accordance with
DP’s and Sims’ motion for entry of a judgment. C.R. 105-113.
BRIEF OF APPELLEES viii
TO THE HONORABLE FIFTH COURT OF APPEALS:
STATEMENT OF FACTS
DP is a garage specializing in high-performance car repairs and
modifications. 3 R.R. 15. Sims is a managing member of DP. 2 R.R. 134.
A. Linda initially authorized DP to perform certain repairs and
modifications to her car’s camshaft.
On September 16, 2013, Linda paid for her 2004 Chevrolet
Corvette to be towed on a flatbed trailer from her house to DP’s garage
for repairs and modifications to the car’s camshaft. 2 R.R. 10, 14-19; 3
R.R. 71-72, 74, 80-81, 102-103; see C.R. 15-16. These modifications were
requested to resolve issues Linda and her boyfriend, Brent, were having
with the car, to the extent that they suggested DP not start the car for
fear that it might harm the motor. 3 R.R. 36; see 6 R.R. 7, P.X. 3.
Brent had already visited the garage and discussed the work to be
performed on the car. 2 R.R. 14-17; 3 R.R. 72, 75, 77-78, 105-106; see 6
R.R. 7, P.X. 3. Brent and DP agreed on an estimate of $3,979.68, as
evidenced by an invoice DP provided to Linda and Brent. 2 R.R. 17; 3
R.R. 78-79; 6 R.R. 5-6, P.X. 2. At the bottom of the page, the invoice
stated that “[a]n express mechanic’s lien is hereby acknowledged on
BRIEF OF APPELLEES 1
above car, truck or vehicle to secure the amount of repairs thereto.” 2
R.R. 87-88; see 6 R.R. 5, P.X. 2.
To afford a down payment of $1,500.00, Brent sold the couple’s
other vehicle. 2 R.R. 15, 17; 3 R.R. 88-89.
According to Linda, she and Chris Tolbert, a DP employee,
discussed how she would make payments on the balance she owed,
rather than paying it all off at one time. 2 R.R. 26, 90. Brent testified
that he and DP worked out a payment plan where he and Linda would
pay $300.00 per month “or something like that” for the work on the car.
3 R.R. 88. He immediately amended that statement to say that he had
no agreement with DP about an amount; rather, he and Linda were told
they could bring whatever amount they had to DP, because they did not
have much money. 3 R.R. 88. Chris had no expectation it would take
Linda and Brent an extended period of time to pay off the balance. 3
R.R. 123.
B. DP gave Linda notice of its storage fee policy.
On the back of the invoice DP provided Brent and Linda, DP
included language about its storage fee policy. 2 R.R. 88-89; 3 R.R. 12-
13, 42-43, 51; 6 R.R. 6, P.X. 2. Specifically, the invoice said that cars
BRIEF OF APPELLEES 2
remaining at the garage more than three days after the customer had
been notified work was completed on them would begin accruing storage
fees at the rate of $40.00 per day. 3 R.R. 12, 20, 44; 6 R.R. 6, P.X. 2. A
sign announcing this storage fee policy has been posted on the wall in
DP’s customer lobby since 2012. 3 R.R. 12-13, 109-111; see 6 R.R. 135-
137, D.X. 20. The policy was created because customers had failed to
promptly pay for work performed on their cars. 3 R.R. 12-13, 45, 107.
After DP was able to assess the car more thoroughly, it noted that
the motor needed certain repairs to correct a fuel pump and valve train
problem. 3 R.R. 36, 51, 103-106, 116-117; see 6 R.R. 7, P.X. 3. By email
dated September 24, 2013, DP notified Linda that the repairs were
needed. 2 R.R. 18-19; 3 R.R. 111-112; 6 R.R. 7, P.X. 3. Although a motor
rebuild was suggested, Linda agreed for DP to install new pistons and
rings. 2 R.R. 20.
DP performed the work Linda requested on the car. 3 R.R. 19, 47.
C. Linda later authorized DP to perform more modifications and
repairs to her car, including work on the motor.
On October 17, 2013, Brent visited the garage to inspect the work
he and Linda requested, and he authorized DP to perform more
modifications and repairs to Linda’s car. 3 R.R. 41, 43, 46, 121; 6 R.R.
BRIEF OF APPELLEES 3
42, P.X. 16. During that visit, Brent signed an invoice reflecting the
additional work to be performed, which increased the amount Linda
owed to DP.1 2 R.R. 109-111; 3 R.R. 43, 46-47, 81-82, 121-122; 6 R.R. 42,
P.X. 16; C.R. 13. This invoice, like the first, included DP’s storage fee
policy. 3 R.R. 43-44, 50-51. At trial, Brent testified that he signed the
document, because “[i]t might be in [DP’s] company policy or
something.” 3 R.R. 82-83.
Brent visited the garage multiple times while DP was performing
the repairs and modifications. 3 R.R. 119-120.
In December 2013, DP emailed Linda to request a payment of at
least $1,000.00 toward the balance she owed for the additional work she
requested. 2 R.R. 21-22; 3 R.R. 124-125; 6 R.R. 10, P.X. 5. The email
specifically addressed the motor work DP was performing on Linda’s
car. 6 R.R. 96, D.X. 9.
On January 30, 2014, Linda visited the garage, saw her car, and
paid $1,000.00. 2 R.R. 23-25.
1 Linda does not assert that Brent did not have the authority to act on her behalf
with regard to decisions about her car. During trial, Linda and Brent acknowledged
that Brent had the authority to make decisions for her about the car. 2 R.R. 99-100;
3 R.R. 68, 90.
BRIEF OF APPELLEES 4
By email dated February 17, 2014, DP notified Linda that it had
completed the work on her car, which increased the value of the car. 2
R.R. 27; 113-114; 3 R.R. 20, 30-32, 35-36, 40, 125-126, 150-151; 6 R.R.
13, P.X. 7. DP gave Linda two options: (1) pay the remaining balance
owed or (2) allow DP to store the car while she made payments, during
which time she would owe storage fees. 2 R.R. 27; 6 R.R. 97, D.X. 10.
Rather than charge Linda the standard policy amount of $40.00 per day
for storage fees, DP reduced the fee to $50.00 per week. 3 R.R. 20; 6
R.R. 97, D.X. 10.
Linda responded to the email by saying, “No problem. Could you
email me a statement showing charges and payments. Thanks.” 6 R.R.
97, D.X. 10. DP complied and sent Linda the two invoices. 6 R.R. 97,
D.X. 10. Sims acknowledged that the invoices are confusing, because
they changed as the work progressed on the car. 3 R.R. 17.
At trial, Linda testified that when she received the email, she
“was just thinking, I can’t believe they’re going to charge me storage. I
thought we were – had an agreement where I would pay it out, but it is
their policy to charge the storages.” 2 R.R. 29.
BRIEF OF APPELLEES 5
After he was notified that the work was complete, Brent visited
the garage, at which time one of DP’s employees turned on the car to
show him the work had been completed. 3 R.R. 85.
D. Linda failed to pay the total amount owed to DP for work she
requested, so DP has the car in its possession.
It is DP’s policy to keep a car in its possession until the customer
pays for the work performed on the car. 3 R.R. 29, 44-45. Linda could
not pay the balance owed to DP when the work was finished, so DP did
not release the car to her. 2 R.R. 28, 151-155.
On March 26, 2014, Linda made a payment of $500.00 during a
visit to the garage. 2 R.R. 30-31. On April 23, 2014, Linda again visited
the garage and made a payment of $1,000.00. 2 R.R. 31-32. At this
point, Linda believed that if she paid off the balance she owed DP, then
perhaps DP would waive the storage fees. 2 R.R. 33.
In August 2014, DP emailed Linda, because she had made no
payments in months. 2 R.R. 36; 3 R.R. 128-129. DP asked whether
Linda was still able to make monthly payments and reminded her that
the vehicle was accruing storage fees at a rate of $50.00 per week. 6
R.R. 23, P.X. 10. Linda responded to the email by asking for the total
she owed to see if she could pay it off that week. 6 R.R. 22, P.X. 10. She
BRIEF OF APPELLEES 6
also acknowledged the storage fees and asked if DP would be willing to
“do anything about” the fees if she paid off her balance in the next week
and a half. 6 R.R. 22, P.X. 10. DP noted that Linda had paid $4,000.00
toward her balance. 3 R.R. 128-130; 6 R.R. 21, P.X. 10. Chris, who was
emailing on behalf of DP, told Linda, “I’ll see if I can do anything with
the storage fees, but I may not be able to do anything at all with that.” 6
R.R. 21, P.X. 10.
Linda responded, “I told Brent the total bill with you guys was
almost 12 he said no way, We may need to go over it one more time.” 2
R.R. 40-41; 3 R.R. 129-130; 6 R.R. 20, P.X. 10. Chris attached the two
invoices reflecting the balance Linda owed, and specifically referenced
the motor work and repairs and modifications made to the car. 2 R.R.
41-42; 6 R.R. 19-20, P.X. 10; 25, P.X. 11. Linda emailed Chris and said,
“Iam sure the no way statement was just for me Iam sure its right.I will
let you know Friday/Monday at the lastest on pay off thanks”. 2 R.R. 44;
3 R.R. 130; 6 R.R. 19, P.X. 19.
At trial, Linda acknowledged that she was not confused about the
storage fees referenced in DP’s email – she “almost knew he was going
to charge me something” but did not know how much. 2 R.R. 39; 117-
BRIEF OF APPELLEES 7
118. Brent did not expect DP to erase the storage fees from their bill,
but he hoped Sims would work with them on the amount of storage fees
owed. 3 R.R. 87. Specifically, Brent hoped Sims would “cut [them] some
slack” on the storage fees. 3 R.R. 87.
According to Linda, she visited the garage multiple times over the
next few months trying to speak with Sims, but she was unable to do so.
2 R.R. 46-49. Without notifying DP, in February 2015, Linda filed for
Chapter 13 bankruptcy to keep DP from disposing of her car. 2 R.R. 56-
58; 113-116; 3 R.R. 15-16, 92.
In April 2015, a year after her last payment, Linda visited the
garage and paid $300.00. 2 R.R. 59-60. The next month, Linda made a
payment of $260.00. 3 R.R. 130-131; 6 R.R. 32, P.X. 13. Linda requested
the car back, but DP refused her request, because Linda had not paid
the total balance she owed. 3 R.R. 21-22. Brent acknowledged at trial
that he did not expect DP to give the car back to him and Linda if they
had not paid the balance they owed. 3 R.R. 93-95.
Brent and Linda visited the garage in February 2016 to get the
car back, but an employee told them it was at an auction outside of
Texas, which was not true. 2 R.R. 63-64, 172-173; 3 R.R. 27-28. At the
BRIEF OF APPELLEES 8
same time, DP unsuccessfully tried to obtain a mechanic’s lien on the
car. 2 R.R. 67-70, 94-97, 156-171; 3 R.R. 16-17, 23-27, 38.
In May 2016, in a meeting set up through DP’s attorney, Linda
and Brent visited the garage to view the car. 2 R.R. 70-71, 143, 146. An
argument erupted between Brent and a DP employee, and Linda
remained in the garage by herself. 2 R.R. 72-74, 144. She took her car’s
ignition key with her when she and Brent left the garage. 2 R.R. 116-
117, 125. The next day, Sims emailed Linda to ask for the ignition key
back, and she returned the key. 2 R.R. 117, 126, 142, 145-146, 149; 6
R.R. 85, P.X. 23.
In August 2016, Linda sued DP over the car, because she “didn’t
want to just stand by and let [DP] take it from [her].” 2 R.R. 79. The
trial court entered a final judgment consistent with the jury’s findings
and in favor of DP and Sims. C.R. 115-116. It awarded DP $9,000.00 for
Linda’s breach of the agreement for storage fees, $8,750.00 in attorney’s
fees, and court costs. C.R. 115-116.
BRIEF OF APPELLEES 9
SUMMARY OF THE ARGUMENT
DP rightfully possesses Linda’s car by virtue of a possessory lien,
because Linda failed to pay the balance owed to DP for work it
performed on her car at Linda’s request.
Linda was made aware of DP’s storage-fee policy before DP began
work on the vehicle, when she was provided the cost-estimate invoice
that included the storage-fee policy. The policy was also posted on a sign
in DP’s lobby. Linda’s boyfriend, Brent, signed a second cost-estimate
invoice, which included the storage-fee policy, authorizing DP to
proceed with additional work. Linda agreed to the storage-fee policy,
and specifically, to the $50.00 per week charge for storage of her car, in
an email response to DP.
Brent’s signature on the second cost-estimate invoice constituted
authorization for DP to make repairs and perform additional
modifications to the car. This signature represented Linda’s acceptance
of the additional work performed by DP, which entitled DP to an award
in quantum meruit.
DP is entitled to attorney’s fees, because Linda breached her
agreement with DP as to work on the car and storage fees.
BRIEF OF APPELLEES 10
ARGUMENT
In a legal-sufficiency review, a reviewing court considers the
evidence in the light most favorable to the verdict, indulging every
reasonable inference in favor of the verdict. Autozone, Inc. v. Reyes, 272
S.W.3d 588, 592 (Tex. 2008) (per curiam); Associated Indem. Corp. v.
CAT Contracting, Inc., 964 S.W.2d 276, 286 (Tex. 1998). To determine
whether legally-sufficient evidence supports a challenged finding of fact,
the reviewing court should credit evidence that supports the finding if
reasonable jurors could, and disregard contrary evidence unless
reasonable jurors could not. See Kroger Tex. Ltd. P’ship v. Suberu, 216
S.W.3d 788, 793 (Tex. 2006); see City of Keller v. Wilson, 168 S.W.3d
802, 822 (Tex. 2005). The factfinder is the sole judge of the credibility of
the witnesses and the weight to be assigned to their testimony. See City
of Keller, 168 S.W.3d at 819. The factfinder is free to believe one witness
and disbelieve another, and reviewing courts may not impose their own
opinions to the contrary. Id. As such, reviewing courts must assume
that the factfinder decided all credibility questions in favor of the
findings and chose what testimony to disregard in a way that was in
favor of the findings, if a reasonable person could do so. Id. at 819-820.
BRIEF OF APPELLEES 11
Additionally, it is within the factfinder’s province to resolve
conflicts in the evidence. Id. at 820. Consequently, the reviewing court
must assume that, where reasonable, the factfinder resolved all
conflicts in the evidence in a manner consistent with the findings. Id.
Where conflicting inferences can be drawn from the evidence, it is
within the province of the factfinder to choose which inference to draw,
so long as more than one inference can reasonably be drawn. Id. at 821.
Thus, this Court must assume that the factfinder made all inferences in
favor of the findings if a reasonable person could do so. Id.
As stated in City of Keller, the final test for legal sufficiency must
always be “whether the evidence at trial would entitle reasonable and
fair-minded people to reach the verdict under review.” Id. at 827.
Anything more than a scintilla of evidence is legally sufficient to
support the finding. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d
444, 450 (Tex. 1996).
In a factual-sufficiency challenge, a reviewing court must consider
and weigh all of the evidence. Cain v. Bain, 708 S.W.2d 175, 176 (Tex.
1986) (per curiam). The verdict should be set aside only if it is so
contrary to the overwhelming weight of the evidence as to be clearly
BRIEF OF APPELLEES 12
wrong and unjust. Id. The reviewing court may not pass upon the
witnesses’ credibility or substitute its judgment for that of the
factfinder, even if the evidence would support a different result. 2900
Smith, Ltd. v. Constellation New Energy, Inc., 301 S.W.3d 741, 746
(Tex. App.—Houston [14th Dist.] 2009, no pet.). If the reviewing court
determines the evidence is factually insufficient, the court must detail
the evidence relevant to the issue and state in what regard the contrary
evidence greatly outweighs the evidence supporting the trial court’s
judgment; this is not necessary when affirming the judgment. Id.
Issue One: DP rightfully possesses Linda’s car, because she
failed to pay for the work she requested.
After DP performed the car repairs and modifications requested
by Linda, she failed to pay for the services. DP retained possession of
the car consistent with the provisions of Texas Property Code § 70.001,
which grants mechanics the ability to keep possession of a car pursuant
to a possessory lien. To date, Linda has not fully paid for DP’s services,
so DP rightfully possesses the car by virtue of the possessory lien.
Because DP has a possessory lien on the car, it did not convert or
wrongfully detain the car.
BRIEF OF APPELLEES 13
A. DP rightfully retained possession of the car pursuant to a
possessory lien.
Section 70.001(a) of the Texas Property Code states that “[a]
worker in this state who by labor repairs an article, including a vehicle
… may retain possession of the article until: (1) the amount due under
the contract for the repairs is paid; or (2) if no amount is specified by
contract, the reasonable and usual compensation is paid.” Tex. Prop.
Code § 70.001(a). “The statutory possessory lien granted under section
70.001 originated in common law to protect one who, by skill, effort and
materials, created value in the property of another.” Thompson v.
Apollo Paint & Body Shop, 768 S.W.2d 373, 376 (Tex. App.—Houston
[14th Dist.] 1989, writ denied) (citing Tex. Const. art. 16 § 37).
1. Linda authorized DP to perform repairs and modifications to
her car.
In September 2013, Linda delivered her car to DP for repairs and
modifications.2 2 R.R. 14-19. After evaluating the car, DP recognized
what repairs were necessary, so it notified Linda about what should be
done to the car. 3 R.R. 36, 51, 103-106, 111-112, 116-117. Linda initially
2 Although Linda argues on appeal that no repairs were completed on her vehicle,
thus somehow preventing DP from asserting a possessory lien, Linda’s Third
Amended Original Petition, filed March 15, 2017, expressly alleged that she
delivered the car to DP for repairs and modifications. See C.R. 15-16.
BRIEF OF APPELLEES 14
agreed only to further modifications, but Brent later signed a cost-
estimate invoice authorizing DP to perform repairs and modifications
that required an engine rebuild. 2 R.R. 20; 3 R.R. 41, 43, 46-47, 81-82,
121-122. Linda made payments to DP even after it sent an email to
Linda detailing the motor work it was performing. 6 R.R. 96, D.X. 9.
2. DP completed the work requested by Linda.
DP performed the work that Linda initially requested on the car. 3
R.R. 19, 47. After the repairs and further modifications were authorized
by Brent, DP notified Linda that the work was completed on February
17, 2014. 3 R.R. 20, 40, 125-126.
3. Linda failed to pay for the work DP performed on the car.
Although Linda sporadically made payments toward the balance
she owed DP, she failed and refused to pay DP for the entirety of work.
Because Linda failed to pay DP for its work on the car, DP refused to
return the car to Linda, pursuant to § 70.001 of the Texas Property
Code. See Ryan v. Abdel-Salam, 39 S.W.3d 332, 337 (Tex. App.—
Houston [1st Dist.] 2001, pet. denied) (“In the case before us today,
appellant never tendered payment in full, and so appellee’s right to a
possessory lien was never relinquished.”); see also Collision Center
BRIEF OF APPELLEES 15
Paint & Body, Inc. v. Campbell, 773 S.W.2d 354 (Tex. App.—Dallas
1989, no writ) (“As a general rule, a tender of payment must include
everything to which the creditor is entitled; any less sum is
ineffectual.”).
DP’s continued possession of the car was not only allowed under
the statute, it was necessary to establish and maintain the possessory
lien. Thompson, 768 S.W.2d at 376. And, Brent acknowledged at trial
that he did not expect DP to give the car back to him and Linda if they
had not paid the balance they owed. 3 R.R. 93-95.
B. Linda did not prove each element of conversion or wrongful
detainer.
By contrast to DP’s possession of the car pursuant to a possessory
lien, conversion occurs when one person makes an unauthorized,
wrongful assumption and exercises dominion and control over the
personal property of another to the exclusion of or inconsistent with the
owner’s rights. Morey v. Page, 802 S.W.2d 779, 786 (Tex. App.—Dallas
1990, no writ) (citing Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447
(Tex. 1971)). Conversion is, essentially, a wrongful deprivation of
property. Lone Star Beer, Inc. v. Republic Nat’l Bank of Dallas, 508
S.W.2d 686, 687 (Tex. Civ. App.—Dallas 1974, no writ). To prove that a
BRIEF OF APPELLEES 16
conversion took place, a plaintiff must prove that at the time of the
conversion, he was the owner of the property and had legal possession
of it or was entitled to possession. Id. If the defendant proves that he
has superior title or that he is entitled to the property pursuant to an
agreement, the plaintiff cannot maintain an action for conversion. See
Tex. Diamond Int’l, Inc. v. Tiffany & Co., 47 S.W.3d 589, 591 (Tex.
App.—San Antonio 2001, pet. denied).
1. Linda did not prove that she was entitled to possession of the
car.
As Linda asserts in her brief, the only element at issue for the
conversion claim is whether DP retained the car wrongfully. See
Appellant’s Brief, pp. 7, 9-10. Linda failed to prove that she was entitled
to possession of the car, because DP did not convert or wrongfully
detain the car. The jury agreed.
In DP’s Original Counterpetition seeking damages from Linda for
her failure to pay for the work performed by DP, DP specifically set
forth that it refused to release the vehicle to Linda because she did not
pay the total amount owed to DP. See C.R. 8. This is DP’s statutory
right – to retain possession of Linda’s car, because she failed to pay the
amount agreed for DP’s work. See Tex. Prop. Code § 70.001.
BRIEF OF APPELLEES 17
As set forth above, Linda initially requested that DP perform
certain repairs and modifications to her car, but she later, through
Brent, authorized additional work. Linda failed to pay the amount owed
for the entire amount of work performed by DP on her car. In turn, DP
retained possession of the car to properly establish its possessory lien.
In response to Question 15, the jury found that neither DP nor Sims
converted Linda’s car. See C.R. 51. In response to Question 22, the jury
found that neither DP nor Sims was wrongfully detaining Linda’s car.
See C.R. 51.
Because Linda failed to prove that DP or Sims wrongfully
detained or converted her car, and the jury expressly answered those
questions in DP’s and Sims’ favor, this Court should affirm the trial
court’s judgment in DP’s favor on the claim for conversion/wrongful
detainer of the car.
Issue Two: Linda agreed to DP’s storage-fee policy, of which she
was made aware before DP began working on her car.
Linda’s argument that no evidence supported the jury’s finding of
an agreement between Linda and DP as to storage fees disregards the
evidence presented at trial. Not only was Linda made aware of the
storage-fee policy on multiple occasions, but she agreed to the policy.
BRIEF OF APPELLEES 18
A. DP and Linda agreed to the storage-fee policy.
Linda’s assertion that the storage fees were punitive and not
contractual is without merit. DP gave notice to Linda of the policy on
multiple occasions, which she did not dispute, and her actions meet the
requirements for an agreement as to the fees.
1. DP offered to store Linda’s car for a fee.
Linda was made aware of DP’s storage-fee policy before DP began
work on the vehicle. On the back of the invoice DP provided Brent and
Linda, DP included language about its storage fee policy. 2 R.R. 88-89; 3
R.R. 12-13, 42-43, 51; 6 R.R. 6, P.X. 2. Specifically, the invoice said that
cars remaining at the garage more than three days after the customer
had been notified work was completed on them would begin accruing
storage fees at the rate of $40.00 per day. 3 R.R. 12, 20, 44; 6 R.R. 6,
P.X. 2. A sign announcing DP’s storage fee policy has also been posted
on the wall in DP’s customer lobby since 2012. 3 R.R. 12-13, 109-111;
see 6 R.R. 135-137, D.X. 20.
During a visit in October 2013, Brent signed an invoice reflecting
additional work to be performed on the car. 2 R.R. 109-111; 3 R.R. 43,
BRIEF OF APPELLEES 19
46-47, 81-82, 121-122; 6 R.R. 42, P.X. 16; C.R. 13. This invoice, like the
first, included DP’s storage fee policy. 3 R.R. 43-44, 50-51.
By email dated February 17, 2014, DP notified Linda that it had
completed the work on her car. 2 R.R. 27; 113-114; 3 R.R. 20, 30-32, 35-
36, 40, 125-126, 150-151; 6 R.R. 13, P.X. 7. In the email, DP gave Linda
two options: (1) pay the remaining balance owed and take back
possession of the car, or (2) allow DP to store the car while she made
payments, during which time she would owe storage fees. 2 R.R. 27; 6
R.R. 97, D.X. 10. Rather than charge Linda the standard policy amount
of $40.00 per day for storage fees, DP reduced the fee to $50.00 per
week. 3 R.R. 20; 6 R.R. 97, D.X. 10.
This email constituted an offer – either pay the balance owed and
take your car or pay storage fees while your car takes up space in the
garage. DP gave Linda two choices. The choices were clear, and the
essential elements of the offer were communicated to Linda. See
Domingo v. Mitchell, 257 S.W.3d 34, 39 (Tex. App.—Amarillo 2008, pet.
denied). Linda argues that this was a directive on DP’s part – Linda
had no ability to accept or reject the decision, because DP was going to
charge the fees regardless. See Appellant’s Brief, p. 14. This is not the
BRIEF OF APPELLEES 20
case. Had Linda paid the balance she owed to DP, no storage fees would
have accrued.
2. Linda accepted DP’s offer to store the car for a fee, had a
meeting of the minds with DP, and consented to the terms of
the policy.
Linda responded to DP’s email by saying, “No problem. Could you
email me a statement showing charges and payments. Thanks.” 6 R.R.
97, D.X. 10. DP complied and sent Linda the two invoices. 6 R.R. 97,
D.X. 10. At trial, Linda testified that when she received the email, she
“was just thinking, I can’t believe they’re going to charge me storage. I
thought we were – had an agreement where I would pay it out, but it is
their policy to charge the storages.” 2 R.R. 29.
On April 23, 2014, Linda made a payment of $1,000.00. 2 R.R. 31-
32. At this point, Linda believed that if she paid off the balance she
owed DP, then perhaps DP would waive the storage fees. 2 R.R. 33. But,
she still recognized that the storage fees would be charged, as DP made
her aware.
In August 2014, DP emailed Linda, because she had made no
payments in months. 2 R.R. 36; 3 R.R. 128-129. DP asked whether
Linda was still able to make monthly payments and reminded her that
BRIEF OF APPELLEES 21
the vehicle had been accruing storage fees at a rate of $50.00 per week.
6 R.R. 23, P.X. 10. Linda responded to the email by asking for the total
she owed to see if she could pay it off that week. 6 R.R. 22, P.X. 10. She
also acknowledged the storage fees she owed and asked if DP would be
willing to “do anything about” the fees if she paid off her balance in the
next week and a half. 6 R.R. 22, P.X. 10. DP noted that Linda had paid
$4,000.00 toward her balance. 3 R.R. 128-130; 6 R.R. 21, P.X. 10. Chris,
who was emailing on behalf of DP, told Linda, “I’ll see if I can do
anything with the storage fees, but I may not be able to do anything at
all with that.” 6 R.R. 21, P.X. 10.
Linda responded, “I told Brent the total bill with you guys was
almost 12 he said no way, We may need to go over it one more time.” 2
R.R. 40-41; 3 R.R. 129-130; 6 R.R. 20, P.X. 10. Chris attached the two
invoices reflecting the balance Linda owed, and specifically referenced
the motor work and repairs and modifications made to the car. 2 R.R.
41-42; 6 R.R. 19-20, P.X. 10; 25, P.X. 11. Linda emailed Chris and said,
“Iam sure the no way statement was just for me Iam sure its right.I will
let you know Friday/Monday at the lastest on pay off thanks”. 2 R.R. 44;
3 R.R. 130; 6 R.R. 19, P.X. 19.
BRIEF OF APPELLEES 22
At trial, Linda acknowledged that she was not confused about the
storage fees referenced in DP’s email – she “almost knew he was going
to charge me something” but did not know how much. 2 R.R. 39; 117-
118. Linda did not dispute the storage fees to DP. She expressly told DP
she was sure the invoices were correct. Brent testified that he did not
expect DP to erase the storage fees from their bill, but he hoped Sims
would work with them on the amount of storage fees owed. 3 R.R. 87.
Specifically, Brent hoped Sims would “cut [them] some slack” on the
storage fees. 3 R.R. 87.
Linda’s responses and statements directly contradict the
argument that she “never consented to the storage fees and instead
repeatedly indicated her disapproval of them.” See Appellant’s Brief, p.
16. Instead, her actions show an acceptance and meeting of the minds.
See Principal Life Ins. Co. v. Revalen Dev., LLC, 358 S.W.3d 451, 455
(Tex. App.—Dallas 2012, pet. denied) (A “meeting of the minds refers to
the parties’ mutual understanding and assent to the expression of their
agreement.”).
BRIEF OF APPELLEES 23
3. The storage-fee agreement was supported by consideration.
Consideration can be either “a benefit to the promisor or a
detriment to the promisee.” Robert L. Crill, Inc. v. Bond, 76 S.W.3d 411,
418 (Tex. App.—Dallas 2001, pet. denied). It may consist of “some right,
interest, profit, or benefit that accrues to one party, or, alternatively, of
some forbearance, loss, or responsibility that is undertaken or incurred
by the other party.” Solomon v. Greenblatt, 812 S.W.2d 7, 15 (Tex.
App.—Dallas 1991, no writ).
Linda’s brief alleges that DP “did not undertake any
responsibility, forbear any opportunity, or suffer any loss as a result of
holding Linda’s car.” See Appellant’s Brief, p. 17. This directly
contradicts the evidence presented to the jury. Sims testified that
having to store Linda’s car at the garage while she refused to pay for its
work was a burden. 2 R.R. 152-154. The car took up storage space and
resulted in out-of-pocket costs for DP, because it had to be stored in
other places to allow DP more room to work on other vehicles. 2 R.R.
152. The space Linda’s car took up in DP’s garage meant one less
vehicle on which DP could work. Or, when DP was forced to move the
car to another location so that it had room to work on another car, it
BRIEF OF APPELLEES 24
had to pay hard costs to do so. It only would have benefited DP for
Linda to pay for the work she requested so that DP could give
possession of the car back to Linda.
Moreover, while it was inconvenient for Linda not to have her car,
DP’s willingness to store the car and keep it safe provided a benefit to
Linda while she failed to pay for work performed on the car. Again, the
argument made in Linda’s brief that she received no benefit from DP’s
storage of the car contradicts the evidence. See Appellant’s Brief, p. 17.
Linda told the jury that she cancelled her insurance on the car when
she learned that DP had “way more insurance that I could ever afford.”
2 R.R. 117. She “felt that [the car] was probably pretty safe” in DP’s
garage. 2 R.R. 117.
Linda and DP had a valid agreement for storage fees, and Linda
still has not paid the balance owed to DP. Because the jury found that
this agreement existed, and that Linda failed to comply with the
agreement, this Court should affirm the jury’s finding that Linda failed
to pay DP $9,000.00 in storage fees. See C.R. 58.
BRIEF OF APPELLEES 25
Issue Three: Linda accepted the additional services DP
performed on the car when Brent signed the estimate
authorizing DP to proceed with the work, which entitled DP to
an award in quantum meruit.
The additional work DP performed on Linda’s car supported an
award in quantum meruit, because Brent’s signature on the second
cost-estimate invoice constituted authorization for the work, and it
represented Linda’s acceptance.
A. DP’s additional work on Linda’s car supported an award in
quantum meruit.
DP meets the elements required to recover under quantum
meruit. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d
942, 944 (Tex. 1990).
1. DP provided valuable services for Linda.
In her brief, Linda does not dispute that DP provided valuable
services for Linda when it provided repairs and modifications to the car.
See Appellant’s Brief, p. 19-20.
2. Linda accepted the services, and she was reasonably notified
that she would be charged for DP’s work.
On October 17, 2013, Brent visited the garage to inspect the work
he and Linda requested, and he authorized DP to perform more
modifications and repairs to Linda’s car. 3 R.R. 41, 43, 46, 121; 6 R.R.
BRIEF OF APPELLEES 26
42, P.X. 16. During that visit, Brent signed an invoice reflecting the
additional work to be performed, which increased the amount Linda
owed to DP. 2 R.R. 109-111; 3 R.R. 43, 46-47, 81-82, 121-122; 6 R.R. 42,
P.X. 16; C.R. 13. Brent visited the garage multiple times while DP was
performing the repairs and modifications. 3 R.R. 119-120.
In December 2013, DP emailed Linda to request a payment of at
least $1,000.00 toward the balance she owed for the additional work she
requested. 2 R.R. 21-22; 3 R.R. 124-125; 6 R.R. 10, P.X. 5. The email
specifically addressed the motor work DP was performing on Linda’s
car. 6 R.R. 96, D.X. 9. Linda paid $1,000.00 to DP on January 30, 2014,
well after Brent authorized and DP began the additional work on the
car. 2 R.R. 23-25.
By email dated February 17, 2014, DP notified Linda that it had
completed the work on her car. 2 R.R. 27; 113-114; 3 R.R. 20, 30-32, 35-
36, 40, 125-126, 150-151; 6 R.R. 13, P.X. 7. Linda responded to the email
by saying, “No problem. Could you email me a statement showing
charges and payments. Thanks.” 6 R.R. 97, D.X. 10. DP complied and
sent Linda the two invoices. 6 R.R. 97, D.X. 10.
BRIEF OF APPELLEES 27
DP was authorized to perform the additional work on Linda’s car,
and Linda was made fully aware that she was being charged for the
work. Had DP returned the car to Linda, as she wanted, it would have
relinquished its possessory lien and lost the ability to collect on what it
was owed. By keeping the car, Linda alleges that DP converted the car
after performing work she did not authorize. DP was damned if they did
and damned if they didn’t. Linda’s expectations of DP after it completed
the work requested on the car are the definition of unjust enrichment.
See Vortt, 787 S.W.2d at 944 (“Recovery in quantum meruit will be had
when non-payment for the services rendered would result in an unjust
enrichment to the party benefited by the work.”)(citations omitted).
The assertion that “[t]here is nothing to suggest that additional
motor work was performed or that Linda would be charged for it” is
false. See Appellant’s Brief, p. 22. As set forth above, DP not only had
authorization from Brent to proceed with the work, but while the work
was ongoing, DP sent an email to Linda discussing the motor work, and
she made a payment in response to the email.
Because Brent authorized the work that DP performed on Linda’s
car, which Linda accepted, this Court should affirm the jury’s finding
BRIEF OF APPELLEES 28
that DP performed compensable work for Linda for which it was not
compensated, and such work was valued at $3,200.00. See C.R. 60.
Issue Four: The trial court’s award of attorney fees to DP should
be affirmed, because DP prevailed on the above claims.
A party may recover reasonable attorney’s fees if he prevails and
recovers damages on a cause of action for which attorney’s fees are
recoverable. See Tex. Civ. Prac. & Rem. Code § 38.001; Green Int’l, Inc.
v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Section 70.008 of the Texas
Property Code gives a trial court the discretion to award reasonable
attorney’s fees to the prevailing party in a “suit concerning possession of
a motor vehicle …” See Tex. Prop. Code § 70.008. Likewise, a party
prevailing on a claim for quantum meruit is entitled to attorney’s fees.
Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 406 (Tex. App.—Dallas
2006, no pet.).
An award of attorney's fees must be supported by evidence that
the fees were both reasonable and necessary. See Stewart Title Guar.
Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). A trial court determines
the reasonableness of an attorney's fee award by considering the factors
enumerated in Arthur Andersen & Co. v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997). The reasonableness of an attorney's fee
BRIEF OF APPELLEES 29
award generally presents a question of fact. See Ragsdale v. Progressive
Voters League, 810 S.W.2d 880, 882 (Tex. 1990). Ordinarily, the
allowance of attorney's fees rests with the sound discretion of the trial
court and will not be reversed without a showing of abuse of that
discretion. Volume Millwork, Inc. v. W. Houston Airport Corp., 218
S.W.3d 722, 735 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
Here, Linda does not dispute the reasonableness of DP’s attorney’s
fee award. Rather, Linda disputes that any attorney’s fees should have
been awarded, because Linda should have prevailed on her claims.
However, as set forth above, DP and Linda agreed to a storage-fee
charge, which Linda breached. Linda also failed and refused to pay for
the work Brent requested that DP perform on the car. As a result, the
trial court’s award of attorney’s fees is supported by evidence and
should be affirmed.
PRAYER
For the reasons set forth above, Dallas Performance, LLC and
Taylor Sims request that this Court affirm the trial court’s judgment,
and grant Dallas Performance, LLC and Taylor Sims any further relief
to which they may be entitled.
BRIEF OF APPELLEES 30
Respectfully submitted,
The Kiechler Law Firm, PLLC
619 Broadway Street
Lubbock, Texas 79401
(806) 712-2889
(806) 712-2529 (f)
/s/ Julie Goen Panger
Julie Goen Panger
State Bar Number 24069793
julie@thelubbocklawyer.com
Counsel for Appellees
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this document was served
upon Anthony Arguijo, attorney for Linda Douglas, by electronic service
to aarguijo@scottdoug.com on June 1, 2018.
/s/ Julie Goen Panger
Julie Goen Panger
CERTIFICATE OF COMPLIANCE
In accordance with Texas Rule of Appellate Procedure 9.4(i), I
certify that this document contains 6,526 words, excluding those words
identified as not being counted in TEX. R. APP. P. 9.4(i)(1), and was
prepared on Microsoft Word 2016®.
/s/ Julie Goen Panger
Julie Goen Panger
BRIEF OF APPELLEES 31