John DeLoach Enterprises, Inc. D/B/A Bexar Towing and Ouachita Enterprises, Inc. D/B/A Bexar Auto Storage v. Telhio Credit Union, Inc.

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-17-00820-CV
JOHN DELOACH ENTERPRISES, INC. d/b/a Bexar Towing and Ouachita Enterprises, Inc.
d/b/a Bexar Auto Storage,
Appellants
v.
TELHIO CREDIT UNION, INC.,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 2017CV00279
Honorable Jason Wolff, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Luz Elena D. Chapa, Justice
Irene Rios, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: March 13, 2019
REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART;
DISMISSED IN PART
This is an appeal from a judgment in favor of Telhio Credit Union, Inc. in a suit for
conversion. We hold the evidence is legally sufficient to support the trial court’s finding of liability
for conversion against appellant Ouachita Enterprises, Inc. d/b/a Bexar Storage. We further hold
the evidence is legally insufficient to support the amount of damages awarded; however, because
some evidence supported an award of damages, we reverse the judgment against Bexar Storage
and remand the case for a new trial on the conversion claim. We reverse and render a take nothing
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judgment on the claim for attorney’s fees because Telhio did not establish a legal basis for a fee
award. In addition, we dismiss the appeal of John DeLoach Enterprises, Inc. d/b/a Bexar Towing
because no judgment was rendered against it and it has not shown any justiciable interest in
appealing the judgment.
BACKGROUND
On January 20, 2016, John DeLoach Enterprises, Inc. d/b/a Bexar Towing (“Bexar
Towing”) towed a 2009 Nissan Versa from the parking lot of an apartment complex at the request
of the complex’s management. The car was towed to Ouachita Enterprises Inc. d/b/a Bexar
Storage’s (“Bexar Storage”) vehicle storage facility. The Nissan had Texas license plates and a
Texas registration sticker. Bexar Storage requested and received information from the Texas
Department of Motor Vehicles Titles and Registration Division (“TDMV”) that the car had been
registered in Bexar County on August 19, 2014 “for registration purposes only” and that the
registered owner of the car was Samuel Johnson. No information was provided as to whether there
was a lienholder. Bexar Storage sent certified letters to Samuel Johnson on January 22, 2018 and
February 9, 2018, notifying him the car had been towed and details on how it could be recovered.
Bexar Storage was never contacted by Mr. Johnson or by anyone on his behalf.
Telhio Credit Union, Inc. held a lien on the Nissan. Telhio hired a recovery firm, which
located the Nissan at Bexar Storage. Telhio contacted Bexar Storage in May 2016, seeking
immediate release of the vehicle. Bexar Storage demanded payment for towing and accrued
storage fees of approximately $2,500. Telhio advised it would only pay storage fees reflecting a
period of five days, contending that the Texas Vehicle Storage Facility Act prohibited Bexar
Storage from charging more because it had not provided notice of the impoundment to Telhio as
the primary lienholder. Telhio made several attempts to obtain release of the car from Bexar
Storage, including a demand letter dated May 16, 2016, in which it tendered payment of the towing
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charges and fees for five days of storage and demanded release of the vehicle. Bexar Storage did
not respond to the letter or release the vehicle.
Telhio sued Bexar Towing and Bexar Storage in justice court, alleging violations of the
Texas Occupations Code, negligence per se, and conversion. The justice court rendered judgment
for Telhio, and the defendants appealed to the county court at law. After a de novo bench trial, the
trial court rendered judgment against Bexar Storage for conversion. The court awarded Telhio
damages in the amount of $4,622.30 (after applying offsets and credits for authorized fees in the
amount of $352.70) and attorney’s fees in the amount of $15,744.50, together with interest and
costs. The court rendered a take nothing judgment in favor of Bexar Towing. The court
subsequently signed findings of fact and conclusions of law. The defendants’ motion for new trial
was overruled by operation of law.
Both Bexar Towing and Bexar Storage appeal the judgment. In four issues, they challenge
the legal sufficiency of the evidence to support the finding of liability for conversion and the
damage award and challenge the legal basis for an award of attorney’s fees.
BEXAR TOWING’S STANDING TO APPEAL
We initially address Telhio’s contention that Bexar Towing has no standing to appeal the
judgment and should be dismissed from the appeal. “[A]n appealing party may not complain of
errors that do not injuriously affect it or that merely affect the rights of others.” Torrington Co. v.
Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). “While a party of record is generally entitled to
appellate review, the right of appeal rests only in an aggrieved party to a lawsuit.” Jay Kay Bear
Ltd. v. Martin, No. 04-14-00579-CV, 2015 WL 6736776, at *5 (Tex. App.—San Antonio Nov. 4,
2015, pet. denied).
A party is not “aggrieved” unless it has a justiciable interest in the judgment and is
injuriously affected or prejudiced by it. Id.; see also Torrington, 46 S.W.3d at 844. The trial court
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rendered a take-nothing judgment in Bexar Towing’s favor. Bexar Towing has not asserted or
shown that any error in the judgment against Bexar Storage has injuriously affected Bexar Towing
or prejudiced it. And Bexar Towing did not otherwise respond to Telhio’s argument that Bexar
Towing lacked standing to appeal the judgment. We hold John DeLoach Enterprises, Inc. d/b/a
Bexar Towing has no justiciable interest in this appeal and we dismiss its appeal.
CONVERSION
To establish liability for conversion a plaintiff must prove it has a sufficient interest in the
property, the defendant exercised dominion and control over the property in an unlawful and
unauthorized manner, to the exclusion of and inconsistent with the plaintiff’s rights, and the
defendant refused plaintiff’s demand for the return of the property. See Akin v. Santa Clara Land
Co., 34 S.W.3d 334, 344 (Tex. App.—San Antonio 2000, pet. denied). A successful plaintiff may
recover the fair market value of the property at the time and place of the conversion. See Imperial
Sugar Co v. Torrans, 604 S.W.2d 73, 74 (Tex. 1980) (per curiam). Bexar Storage challenges the
trial court’s judgment for conversion in three issues:
1. Telhio [] could not have prevailed on its conversion claim because there is no
evidence to show that it was entitled to possession of the vehicle at issue in this
litigation.
2. Telhio [] could not have prevailed on its conversion claim because it failed to
introduce any competent evidence that [Bexar Storage] exercised dominion over
the vehicle in an unlawful and unauthorized manner.
3. There is legally insufficient evidence to support the compensatory damages
awarded in the judgment.
When the trial court has made findings of fact and a reporter’s record has been filed, we
review the findings for legal and factual insufficiency of the evidence using the same standards we
apply to jury findings. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.
2002). A party who “attacks the legal sufficiency of an adverse finding on an issue on which it
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did not have the burden of proof . . . must demonstrate on appeal that no evidence supports the
adverse finding.” Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per
curiam). If there is more than a scintilla of evidence to support the trial court’s finding, the no-
evidence challenge fails and must be overruled. Id. In reviewing a finding for legal sufficiency,
we consider the evidence in the light most favorable to the finding, crediting favorable evidence if
a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder
could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “The final test for legal
sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review.” Id.
We review the trial court’s legal conclusions, including its construction of statutes, de
novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). When we interpret
a statute, our principal task is to ascertain the legislature’s intent. Id. We first look to the statute’s
plain language, and if the statute’s language is unambiguous, we interpret it according to its plain
meaning. Id.
Telhio’s interest in the vehicle
Bexar Storage first argues there is no evidence to support the trial court’s finding Telhio
was the primary lienholder on the 2009 Nissan and no evidence Telhio had a legal right to possess
the car.
There is evidence in the record that the 2009 Nissan was continuously titled in Ohio from
2009 through 2016; that Samuel Johnson registered the car in Ohio as the owner in January 2012;
and that the Ohio Bureau of Motor Vehicles’ title information identifies Telhio Credit Union as
the first lienholder on the Nissan. There is also evidence that Telhio was attempting to repossess
the Nissan in March 2016 and hired a company to locate it. This evidence is more than a scintilla
in support of the trial court’s finding that Telhio was the primary lienholder on the Nissan.
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Bexar Storage argues that even if Telhio was shown to be the lienholder, Telhio may not
prevail on a conversion claim because Telhio did not introduce the finance contract or any evidence
Johnson had defaulted, and it thus did not present any evidence it was entitled to repossess the car.
However, a first lienholder generally has sufficient interest in the property to sue a third party for
conversion even if the lienholder does not have a greater right to possession than the owner. See
Elite Towing, Inc. v. LSI Fin. Group, 985 S.W.2d 635, 644-45 (Tex. App.—Austin 1999, no pet.);
Hart v. Meadows, 302 S.W.2d 448, 457 (Tex. Civ. App.—Texarkana 1957, writ ref’d n.r.e.).
Telhio therefore was not required to prove that Johnson had breached the financing agreement or
that Telhio had a right to immediate possession of the Nissan under that financing agreement in
order to sue Bexar Storage for conversion. See Moore v. Carey Bros. Oil Co., 269 S.W. 75, 78
(Tex. 1925) (“”It is well settled that a lienholder may sue for a conversion of the property on which
the lien exists.”). We therefore overrule Bexar Storage’s first issue.
Unlawful and unauthorized exercise of dominion
In its second issue, Bexar Storage argues there is no evidence that it exercised dominion
over the car in an unlawful and unauthorized manner. The trial court found Bexar Storage
exercised dominion over the Nissan in an unlawful and unauthorized manner by demanding Telhio
pay unlawful and unauthorized storage fees before it would release the car. Bexar Storage argues
the trial court misconstrued the law and contends the fees it charged were authorized by law.
The Texas Vehicle Storage Facility Act, chapter 2303 of the Occupations Code, regulates
the storage of vehicles towed without the consent of the owner at “vehicle storage facilities.” TEX.
OCC. CODE §§ 2303.001, 2303.003(a). In relevant part, Chapter 2303 authorizes the facility
operator to charge the owner specified fees, including a daily storage fee of between $5 and $20
for each day the vehicle is stored at the facility. See id. § 2303.155(b)(3)(A). However, for
vehicles registered in Texas, the storage facility operator may not charge a daily storage fee for
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more than five days before it gives the statutorily required notice. Id. § 2303.155(e)(1). After the
required notice is given, the storage facility operator may charge the daily storage fee for “each
day the vehicle is in storage . . . until the vehicle is removed and all accrued charges are paid.”
2303.155(e)(3). A lienholder who repossesses the vehicle is liable for the amount of authorized
fees owed to the vehicle storage facility, regardless of whether the fees accrued before or after the
vehicle was repossessed. Id. § 2303.156(a).
The dispute in this case is whether the notice Bexar Storage sent to the owner satisfied the
requirements of Chapter 2303. Section 2303.151(a) provides:
The operator of a vehicle storage facility who receives a vehicle that is registered
in this state and that is towed to the facility for storage shall send a written notice
to the registered owner and the primary lienholder of the vehicle not later than the
fifth day after the date but not earlier than 24 hours after the date the operator
receives the vehicle.
Id. § 2303.151(a). The vehicle storage facility may provide the statutory notice to the registered
owner and the primary lienholder by publication in a newspaper of general circulation in the county
where the vehicle is stored if:
(1) the vehicle does not display a license plate or a vehicle inspection certificate
indicating the state of registration;
(2) the identity of the registered owner cannot reasonably be determined by the
operator of the storage facility; or
(3) the operator of the storage facility cannot reasonably determine the identity and
address of each lienholder.
Id. § 2303.152(e).
The evidence at trial established that the Nissan had Texas license plates and an expired
Texas registration sticker. On the day the car was towed, Bexar Storage submitted a search request
to the TDMV for information on the registered owners and lienholders of the car. Bexar Storage
received a response that identified the vehicle and stated it had been registered in Bexar County
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on August 19, 2014 “for registration purposes only.” The response identified Samuel Johnson,
with a San Antonio address, as the owner of the Nissan and stated the previous owner was Samuel
Johnson of Columbus Ohio. The response did not contain any information about who held title,
in what state the car was titled, or whether there was a lienholder. Bexar Storage sent certified
letters to Samuel Johnson on January 22, 2018 and February 9, 2018, notifying him the car had
been towed and providing the information required by statute. See id. § 2303.153. Bexar Storage
did not send notices to anyone else or give notice by publication, and it did nothing more to
ascertain whether there was a lienholder.
In Texas, registration of a vehicle “for registration purposes only” is available so that the
owner of a vehicle titled in another state may register the vehicle in Texas without applying for a
negotiable Texas title. Texas Department of Motor Vehicles Motor Vehicle Title Manual ¶ 6.5.
The owner of a vehicle last registered or titled in another state may apply for this type of
registration without obtaining a Texas title if the owner cannot or does not wish to relinquish the
negotiable out-of-state title. Id.; 43 TEX. ADMIN. CODE § 217.24; see TEX. TRANSP. CODE
§ 502.043(c). The owner must present proof of ownership, such as the previous out-of-state
registration receipt, and complete a form. 43 TEX. ADMIN. CODE § 217.24. The form requires
disclosure of lienholders only if the lienholder is disclosed on the out-of-state evidence of
ownership. Id. § 217.24(b)(2); see Motor Vehicle Title Manual ¶ 6.5, “Out of State Evidence of
Ownership.” Presentation of the application and proof of ownership authorizes the issuance of a
registration receipt “for registration purposes only,” “but does not authorize the department to issue
a title.” TEX. TRANSP. CODE § 502.043(c-1). “The receipt issued … may serve as proof of
registration and evidences title to a motor vehicle for registration purposes only, but may not be
used to transfer any interest or ownership in a motor vehicle or to establish a lien.” 43 TEX ADMIN.
CODE § 217.24(b)(1). At trial, John DeLoach, the owner of Bexar Storage, acknowledged he
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understood the purpose of a registration “for registration purposes only” and that a person would
use this type of registration if the vehicle were titled in another state and the person registering the
vehicle did not have title.
The evidence introduced at trial included a complete title history from the TDMV and a
report generated by the Ohio Bureau of Motor Vehicles in response to a vehicle title inquiry. The
TDMV records reflect Samuel Johnson applied for registration for “registration purposes only” in
August 2014. Johnson’s application was supported by a copy of State of Ohio certificate of
registration issued in January 2012. The Ohio certificate does not contain any information about
lienholders. The records disclose Johnson previously lived in Ohio and the car was previously
registered in Ohio, but nothing in the Texas title record disclosed where the car was titled or
whether there were any lienholders. The Ohio Bureau of Motor Vehicles title report reflects the
Nissan had been titled in Ohio since 2009 and the holder of the first lien was Telhio Credit Union.
The trial court concluded the language of section 2303.151, stating that the “operator of a
vehicle storage facility who receives a vehicle that is registered in this state and that is towed to
the facility for storage shall send written notice to the registered owner and the primary lienholder”
imposed a mandatory duty on Bexar Storage to provide written notice to Telhio, the primary
lienholder. See TEX. OCC. CODE § 2303.151(a) (emphasis added). Under the Code, if Bexar
Storage was unable to “reasonably determine the identity and address of each lienholder,” it could
have satisfied its mandatory duty by giving notice by publication. See id. § 2303.152. The court
found that because Bexar Storage failed to do either, section 2303.151(e) authorized Bexar Storage
to charge only five days’ storage fees. The court concluded that Bexar Storage’s refusal to release
the Nissan to the lienholder on tender of the authorized amount of fees was a wrongful and
unauthorized exercise of dominion over the vehicle.
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Bexar Storage contends it was entitled to rely on the information it received from the
TDMV. It argues that the trial court’s construction requires a vehicle storage facility to presume
there is always a lienholder, and effectively means that reliance on the TDMV’s records is not
reasonable. This, it contends, will unreasonably increase the cost and the regulatory burden on
vehicle storage facilities because it will require them to conduct a fifty-state title search during the
statutory five-day period or to give notice of publication in every case.
We disagree with Bexar Storage’s characterization of the meaning and effect of the trial
court’s rulings. A vehicle storage facility is entitled to rely on registration and title information
provided by the TDMV. When the result of an inquiry with the TDMV shows the vehicle is titled
in Texas and there is no lienholder, a vehicle storage facility may generally assume the title is clear
and there is no lienholder. However, in this case the TDMV did not report that the vehicle was
titled in Texas and did not report that there was no lienholder. Instead, the TDMV reported the
registration was “for registration purposes only,” and it provided no information as to whether
there was a lienholder. Under Texas law, a registration “for registration purposes only” means the
vehicle is not titled in Texas and the owner is not required to produce information about lienholders
in order to obtain such registration. See 43 TEX. ADMIN. CODE § 217.24; Motor Vehicle Title
Manual ¶ 6.5, “Out of State Evidence of Ownership.” When the TDMV response to a title and
registration inquiry discloses the registration is for registration purposes only and no information
about lienholders is disclosed, a vehicle storage facility has received no information about the
identity or address of any lienholder, and thus has no basis for assuming there is not a lienholder.
In sum, the vehicle storage facility is not required to presume there is always a lienholder; however,
under the circumstances of this case, the vehicle storage facility could not presume there was not
a lienholder.
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Our construction of the obligations imposed on the vehicle storage facility by Chapter 2303
does not unreasonably increase the regulatory burden on such facilities. The statute requires
vehicle storage facility operators to take reasonable steps to determine the identity and address of
lienholders and requires it to provide notice to the lienholder. In cases where the Texas registration
is for registration purposes only and provides no information about lienholders, the vehicle storage
facility may be required to do more than make one governmental record request in order to satisfy
its obligations. After receiving the report from TDMV, Bexar Storage did not know whether there
was a lienholder. The information it received left it unable to determine the identity and address
of a lienholder. Bexar Storage could have tried to obtain information about lienholders by
submitting a request to the National Motor Vehicle Title Information System to determine where
the vehicle was titled and then made a record request to that state. Or it could have requested a
title record from Ohio, where the TDMV report showed the Nissan had last been registered. And
Bexar Storage could have given notice to lienholders by publication in a newspaper of general
circulation in the county where the vehicle was stored. We do not believe that additional inquiry
or giving notice by publication in cases such as this is so burdensome that it outweighs the interest
of lienholders in being notified that the vehicles have been towed, where they are being stored,
and that charges are accruing.
We hold that chapter 2303 of the Occupations Code required Bexar Storage to either
identify and locate the lienholder and send it notice of the impoundment or give notice to the
lienholder by publication, neither of which Bexar Storage did. We agree with the trial court’s
conclusion that because Bexar Storage did not comply with the statutory notice requirement,
Chapter 2303 authorized Bexar Storage to charge for only five days of storage. Its refusal to
release the Nissan after tender of the amount that could lawfully be charged was a wrongful
exercise of dominion over the vehicle. The evidence is therefore legally sufficient to support the
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trial court’s finding that Bexar Storage exercised dominion over the vehicle in an unlawful and
unauthorized manner. We overrule Bexar Storage’s second issue.
Damages
In its third issue, Bexar Storage argues there is no evidence to support the damage award
because there is no evidence of the Nissan’s value at the time of conversion.
“Generally, the measure of damages for conversion is the fair market value of the property
at the time and place of the conversion.” Wise v. SR Dallas, LLC, 436 S.W.3d 402, 412 (Tex.
App.—Dallas 2014, no pet.). “Fair market value has been defined as the price that the property
would bring when it is offered for sale by one who desires, but is not obligated to sell, and is
bought by one who is under no necessity of buying it.” Id.
The evidence established the Nissan was towed from an apartment complex at the request
of the manager. The address of the complex is the same as that listed by Mr. Johnson in his August
2014 application to register the Nissan in Texas. However, there was no evidence about why the
car was towed or whether Mr. Johnson still lived at the complex when the car was towed. DeLoach
testified the car had been sitting at the storage facility for a year and a half since it was towed. He
testified he did not have a key for the car and had not tried to start it. He testified that at the time
of trial, the car had dents and scratches all over it and had four flat tires. DeLoach testified he
expected the Nissan could be sold at a public auction for between $350 and $500.
Telhio presented evidence from its expert property damage appraiser, Dana Follis. Follis
testified he was hired to establish a value for the Nissan; however, he did not see or inspect the
car. For purposes of his testimony, he assumed the car started, had four good tires, and was in
average running condition. He conceded he did not know if the car was operable when it was
towed, but he assumed it was.
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Follis used the last known mileage of the Nissan from the August 2014 registration to
calculate an estimate of the average miles driven per month, and projected that mileage to January
2016. He then looked up the NADA used car values for the Nissan and researched the asking price
for 2009 Nissan Versas for sale in the area. Using these “comparables,” he calculated a market
value as of January 20, 2016, of $5,643. Follis’s report, which was admitted into evidence,
includes copies of the NADA values for the 2009 Nissan as of the date the car was towed and the
date of trial. They list trade-in values for a car in “rough,” “average,” and “clean” condition and
retail sale values for a car in “clean” condition. The record does not contain any definition of these
terms.
The trial court ruled that Telhio was entitled to recover the market value of the car on the
date of the conversion, May 16, 2016. However, because Telhio only presented evidence of values
on the date of the tow and the date of trial, the court held it would award the lower – date of trial
– value. The court found the vehicle’s value to be $4,975, which is shown on Follis’s NADA
printout as the “clean retail” value, as of the date of trial, of a 2009 Nissan with the mileage Follis
had estimated.
Bexar Storage argues that no evidence supports the trial court’s finding that the car had a
value of $4,975. It argues the “clean retail” values listed in the NADA report and Follis’s
testimony as to value are not competent evidence because all of those values are based upon the
unsupported assumption that the vehicle was in operating condition when it was converted. It
further argues the “comparables” do not provide support for the trial court’s finding because there
was no evidence the cars offered for sale were in fact comparable and no evidence of how much
the cars actually sold for. See Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443
S.W.3d 820, 831 (Tex. 2014) (stating that “original list price is some evidence of what a willing
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seller will accept, but it is not evidence of what a willing buyer will pay” and does not, alone, “tend
to establish the property’s market value at the time of listing.”)
Telhio contends the trial court could reasonably infer from the fact that the car was towed
from a residence that the owner “had been using the car for transportation until shortly before it
was towed,” thus supporting Follis’s assumption that the car was in operating condition when it
was towed. We disagree. A factfinder “may not reasonably infer an ultimate fact from meager
circumstantial evidence which could give rise to any number of inferences, none more probable
than another.” Graham Cent. Station, 442 S.W.3d at 265. The circumstantial evidence in this case
was that the car was towed from an apartment complex at the request of the manager and without
the consent of the owner, the owner of the vehicle had listed the complex as his address a year and
one-half earlier, and the vehicle’s registration had expired. There was no evidence the owner of
the car lived in the complex when the car was towed, no evidence of how long it had been since it
had been driven, and no evidence about why it was towed. From this meager evidence, it is equally
inferable that the vehicle was inoperable and had been abandoned by the owner.
The trial court’s damage award was based upon testimony and other evidence that assumed
the vehicle was in operating condition when it was converted in May 2016, and there was no
probative evidence to support that assumption. We therefore agree with Bexar Storage that no
evidence supports the trial court’s finding the Nissan had a value of $4,975 when it was converted.
See Houston Unlimited, 443 S.W.3d at 833 (“if the record contains no evidence supporting an
expert’s material factual assumptions, . . . opinion testimony founded on those assumptions is not
competent evidence”). However, the record contains probative evidence that the Nissan did have
some monetary value, and thus that Telhio suffered some damage as a result of Bexar Storage’s
conversion. DeLoach testified that a buyer would pay between $350 and $500 for the Nissan in
its condition at the time of trial. A finder of fact could reasonably infer that the car was in the
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same or better condition in May 2016, when the car was converted than it was at the time of trial.
We therefore hold some evidence supported the award of damages for conversion, but not at the
level awarded by the trial court. See Rancho la Valencia, Inc. v. Aquaplex, Inc., 297 S.W.3d 768,
777 (Tex. 2009) (per curiam); Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors,
Inc., 960 S.W.2d 41, 51 (Tex. 1998). “Because there is no legally sufficient evidence to support
the entire amount of damages, but there is some evidence of the correct measure of damages,” we
sustain Bexar Storage’s third issue, reverse the judgment, and remand for a new trial. See Rancho
la Valencia, Inc. v. Aquaplex, Inc., 383 S.W.3d 150, 152 (Tex. 2012); Formosa Plastics, 960
S.W.2d at 51; see also TEX. R. APP. P. 44.1(b) (when liability is contested, court of appeals may
not reverse for new trial on damages alone).
ATTORNEY’S FEES
In its final issue, Bexar Storage argues there is no legal basis for the trial court’s award of
attorney’s fees, arguing that fees are not recoverable for conversion and fees are not authorized by
contract or any statute. Telhio contends Bexar Storage failed to preserve its argument for appeal.
We find that Bexar Storage preserved its argument in its motion for new trial in which it
specifically asserted “there is no basis for the attorney fee award.”
Attorney’s fees may be recovered from an opposing party only as authorized by statute or
by contract between the parties. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 817 (Tex.
2006). Fees are generally not available for conversion claims. Wiese v. Pro Am Servs., Inc., 317
S.W.3d 857, 861 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The judgment states the fees
were awarded “pursuant to Chapters 2308 and 2303” of the Texas Occupations Code. “The
availability of attorney’s fees under a particular statute is a question of law for the court.” Holland
v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam).
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Chapter 2303, the Vehicle Storage Facility Act, does not provide for an award of attorney’s
fees to private litigants. See Underwriters at Lloyds of London v. Harris, 319 S.W.3d 863, 865-
66 (Tex. App.—Eastland 2010, no pet.).
In its trial and appellate pleadings, Telhio has cited to sections 2308.205(c), 2308.404, and
2308.458 of chapter 2308, the Texas Towing and Booting Act, as authority for an award of
attorney’s fees. Section 2308.205 provides that storage and notification fees imposed in
connection with a vehicle towed to a storage facility are governed by Chapter 2303, and except as
provided by Chapter 2303, Chapter 2308, and section 18.23 of the Texas Code of Criminal
Procedure, a fee may not be charged or collected without the prior written consent of the vehicle
owner or operator. TEX. OCC. CODE § 2308.205(b), (c). There is no statutory provision for
enforcement of section 2308.205 by a lienholder against a vehicle storage facility and no provision
for an award of attorney’s fees.
Section 2308.404 provides that a towing company, booting company, or parking facility
owner may be civilly liable to a vehicle owner if it violates Chapter 2308. See id. § 2308.404. It
does not establish any civil liability for a vehicle storage facility and does not provide for an award
of attorney’s fees against a vehicle storage facility. See id.
Section 2308.458 concerns hearings in which the issues are whether there was probable
cause to tow or boot a vehicle and whether the towing or boot removal charges were authorized
by Chapter 2308. Id. § 2308.458. The section authorizes an award of attorney’s fees to the
prevailing party at the hearing. Id. The parties in this case did not dispute the legality of the tow
or whether the towing charges were authorized. Section 2308.458 has no application to this case.
We therefore agree with Bexar Storage that there was no legal basis for the award of
attorney’s fees, and we sustain its fourth issue.
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04-17-00820-CV
CONCLUSION
The evidence is legally sufficient to support the trial court’s findings that Telhio was the
primary lienholder of the 2009 Nissan that was towed to Bexar Storage, that Bexar Storage failed
to give Telhio the statutorily required notice, and that Bexar Storage refused to release the car on
demand and tender of the charges legally owed. However, the evidence is legally insufficient to
support the amount of damages awarded. We therefore reverse the trial court’s judgment for
conversion. Because some evidence supported the award of damages, but not at the level awarded
by the trial court, we remand the case to the trial court for a new trial. Lastly, we reverse the award
of attorney’s fees and render judgment that Telhio take nothing on its claim for fees.
Luz Elena D. Chapa, Justice
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