Reversed and Remanded and Opinion Filed January 28, 2015
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01285-CV
CREST INFINITI II, LP, Appellant V. TEXAS RV OUTLET AND TURN KEY RECOVERY, Appellees
On Appeal from the County Court at Law No. 1 Collin County, Texas Trial Court Cause No. 1-860-2012
MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Francis Crest Infiniti II, LP appeals the trial court’s take-nothing judgment in favor of Texas RV
Outlet and Turn Key Recovery. In two issues, Crest claims the evidence established as a matter
of law Crest was entitled to judgment on its tortious interference with a contract and conversion
claims, or alternatively, the trial court’s conclusion to the contrary is against the great weight and
preponderance of the evidence. Crest also contends it was entitled to attorney’s fees. Appellees
did not file a brief. We reverse the trial court’s judgment and remand for further proceedings
consistent with this opinion.
Billy Whitaker bought an Infiniti M45 from Texas RV Outlet, financing the purchase
through Texas RV Outlet’s finance company. In November 2011, Whitaker took his car to Crest
for maintenance and repair work. After receiving an estimate of the cost, Whitaker approved the work. Although a Crest employee contacted Whitaker when the work was completed, Whitaker
did not pay for the work or pick up his car. Nearly three weeks later, at the request of Texas RV
Outlet, Turn Key Recovery repossessed Whitaker’s car for nonpayment, removed it from the
Crest lot, and towed it to Texas RV Outlet. When Texas RV Outlet refused to return the vehicle,
and ultimately sold it, Crest sued for tortious interference with a contract and conversion and
sought attorney’s fees. The trial court ordered Crest take nothing and filed findings of fact and
conclusions of law, including that appellees did not convert property owned by Crest, Crest did
not have a lien on the car, and Crest did not sustain any actual damages.
In its first issue, Crest contends the trial court’s judgment was contrary to the law and
manifestly wrong and unjust because the undisputed evidence shows Crest had a lien under
section 70.001 of the property code, Crest’s lien had priority over that held by Texas RV Outlet,
Crest had possession of the car and appellees converted the car when they towed it from Crest’s
car lot without permission.
We review a trial court’s findings of fact under the same legal and factual sufficiency of
the evidence standards used when determining if sufficient evidence exists to support an answer
to a jury question. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When the appellate
record contains a reporter’s record, as it does in this case, findings of fact are not conclusive on
appeal if the contrary is established as a matter of law or if there is no evidence to support the
findings. Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.―Dallas 2008, pet. denied). A
party challenging the sufficiency of the evidence supporting an adverse finding on which the
appealing party had the burden of proof must show the matter was established as a matter of law,
or the trial court’s failure to make the finding was against the great weight and preponderance of
the evidence. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).
–2– Conversion is the unauthorized and wrongful assumption and exercise of dominion and
control over the owner’s or possessor’s property to the exclusion of, or inconsistent with, the
owner/possessor’s rights. See Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971);
see French v. Moore, 169 S.W.3d 1, 14 (Tex. App.―Houston [1st Dist.] 2004, no pet.)
(conversion not restricted to owners of property but may also be brought by aggrieved party
possessing or having right of immediate possession of property). Conversion is designed to
protect against interference with a person’s possessory interest in personal property. Zapata v.
Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981); see also Killian v. Trans Union
Leasing Corp., 657 S.W.2d 189, 192 (Tex. App.―San Antonio 1983, writ ref’d n.r.e.)
(conversion “is concerned with possession, not title”). To establish a claim for conversion of
personal property, a plaintiff must prove: (1) it owned or had legal possession of the property or
entitlement to possession; (2) the defendant unlawfully and without authorization assumed and
exercised dominion and control over the property to the exclusion of, or inconsistent with, the
plaintiff’s rights; (3) the plaintiff demanded return of the property; and (4) the defendant refused
to return the property. Khorshid, Inc. v. Christian, 257 S.W.3d 748, 758−59 (Tex. App.―Dallas
2008, no pet.).
Chapter 70 of the Texas Property Code provides that a worker “who by labor repairs a
vehicle” has a lien on the vehicle and may retain possession of the vehicle pending payment of
the amount due under a contract for the repairs. TEX. PROP. CODE ANN. § 70.001 (West 2014).
A possessory mechanic’s lien has priority over a seller’s perfected security interest in an
automobile. Gulf Coast State Bank v. Nelms, 525 S.W.2d 866, 869−70 (Tex. 1975).
At trial, Chance Simpson, a Crest service advisor, said Whitaker brought his car in for
service, and Simpson completed a work order detailing the problems Whitaker was experiencing.
Whitaker also presented a warranty to cover the work, but Simpson said it was an “after market”
–3– warranty (not issued by Crest or the factory) and did not cover the repairs. James Saliva, the
service manager at Crest, spoke with Whitaker before the repairs were made and offered him a
10% discount; he also offered to trade in the Infiniti on a newer model. Whitaker approved the
work order, and on December 2, Crest completed the work, which totaled $5,925.81. When
Crest offered the exhibit with the work estimate and the actual repair amount, appellees did not
object. Simpson said they called Whitaker, but he did not pay for the repairs nor did he claim his
vehicle.
On December 21, 2011, a Crest technician called Saliva and told him a tow company was
taking Whitaker’s car. Saliva went to the area on Crest’s property where all the completed cars
are placed awaiting customer pick up and saw the Turn Key Recovery tow truck with Whitaker’s
car leaving the property. Saliva got in his car and tried to chase the truck but due to traffic was
unable to stop it; he also “tried calling them with my cellphone as I was driving.” When he
returned to Crest, he called Turn Key Recovery and Texas RV Outlet and demanded the return of
the car; however, neither company returned the car or paid for the repairs.
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Reversed and Remanded and Opinion Filed January 28, 2015
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01285-CV
CREST INFINITI II, LP, Appellant V. TEXAS RV OUTLET AND TURN KEY RECOVERY, Appellees
On Appeal from the County Court at Law No. 1 Collin County, Texas Trial Court Cause No. 1-860-2012
MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Francis Crest Infiniti II, LP appeals the trial court’s take-nothing judgment in favor of Texas RV
Outlet and Turn Key Recovery. In two issues, Crest claims the evidence established as a matter
of law Crest was entitled to judgment on its tortious interference with a contract and conversion
claims, or alternatively, the trial court’s conclusion to the contrary is against the great weight and
preponderance of the evidence. Crest also contends it was entitled to attorney’s fees. Appellees
did not file a brief. We reverse the trial court’s judgment and remand for further proceedings
consistent with this opinion.
Billy Whitaker bought an Infiniti M45 from Texas RV Outlet, financing the purchase
through Texas RV Outlet’s finance company. In November 2011, Whitaker took his car to Crest
for maintenance and repair work. After receiving an estimate of the cost, Whitaker approved the work. Although a Crest employee contacted Whitaker when the work was completed, Whitaker
did not pay for the work or pick up his car. Nearly three weeks later, at the request of Texas RV
Outlet, Turn Key Recovery repossessed Whitaker’s car for nonpayment, removed it from the
Crest lot, and towed it to Texas RV Outlet. When Texas RV Outlet refused to return the vehicle,
and ultimately sold it, Crest sued for tortious interference with a contract and conversion and
sought attorney’s fees. The trial court ordered Crest take nothing and filed findings of fact and
conclusions of law, including that appellees did not convert property owned by Crest, Crest did
not have a lien on the car, and Crest did not sustain any actual damages.
In its first issue, Crest contends the trial court’s judgment was contrary to the law and
manifestly wrong and unjust because the undisputed evidence shows Crest had a lien under
section 70.001 of the property code, Crest’s lien had priority over that held by Texas RV Outlet,
Crest had possession of the car and appellees converted the car when they towed it from Crest’s
car lot without permission.
We review a trial court’s findings of fact under the same legal and factual sufficiency of
the evidence standards used when determining if sufficient evidence exists to support an answer
to a jury question. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When the appellate
record contains a reporter’s record, as it does in this case, findings of fact are not conclusive on
appeal if the contrary is established as a matter of law or if there is no evidence to support the
findings. Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.―Dallas 2008, pet. denied). A
party challenging the sufficiency of the evidence supporting an adverse finding on which the
appealing party had the burden of proof must show the matter was established as a matter of law,
or the trial court’s failure to make the finding was against the great weight and preponderance of
the evidence. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).
–2– Conversion is the unauthorized and wrongful assumption and exercise of dominion and
control over the owner’s or possessor’s property to the exclusion of, or inconsistent with, the
owner/possessor’s rights. See Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971);
see French v. Moore, 169 S.W.3d 1, 14 (Tex. App.―Houston [1st Dist.] 2004, no pet.)
(conversion not restricted to owners of property but may also be brought by aggrieved party
possessing or having right of immediate possession of property). Conversion is designed to
protect against interference with a person’s possessory interest in personal property. Zapata v.
Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981); see also Killian v. Trans Union
Leasing Corp., 657 S.W.2d 189, 192 (Tex. App.―San Antonio 1983, writ ref’d n.r.e.)
(conversion “is concerned with possession, not title”). To establish a claim for conversion of
personal property, a plaintiff must prove: (1) it owned or had legal possession of the property or
entitlement to possession; (2) the defendant unlawfully and without authorization assumed and
exercised dominion and control over the property to the exclusion of, or inconsistent with, the
plaintiff’s rights; (3) the plaintiff demanded return of the property; and (4) the defendant refused
to return the property. Khorshid, Inc. v. Christian, 257 S.W.3d 748, 758−59 (Tex. App.―Dallas
2008, no pet.).
Chapter 70 of the Texas Property Code provides that a worker “who by labor repairs a
vehicle” has a lien on the vehicle and may retain possession of the vehicle pending payment of
the amount due under a contract for the repairs. TEX. PROP. CODE ANN. § 70.001 (West 2014).
A possessory mechanic’s lien has priority over a seller’s perfected security interest in an
automobile. Gulf Coast State Bank v. Nelms, 525 S.W.2d 866, 869−70 (Tex. 1975).
At trial, Chance Simpson, a Crest service advisor, said Whitaker brought his car in for
service, and Simpson completed a work order detailing the problems Whitaker was experiencing.
Whitaker also presented a warranty to cover the work, but Simpson said it was an “after market”
–3– warranty (not issued by Crest or the factory) and did not cover the repairs. James Saliva, the
service manager at Crest, spoke with Whitaker before the repairs were made and offered him a
10% discount; he also offered to trade in the Infiniti on a newer model. Whitaker approved the
work order, and on December 2, Crest completed the work, which totaled $5,925.81. When
Crest offered the exhibit with the work estimate and the actual repair amount, appellees did not
object. Simpson said they called Whitaker, but he did not pay for the repairs nor did he claim his
vehicle.
On December 21, 2011, a Crest technician called Saliva and told him a tow company was
taking Whitaker’s car. Saliva went to the area on Crest’s property where all the completed cars
are placed awaiting customer pick up and saw the Turn Key Recovery tow truck with Whitaker’s
car leaving the property. Saliva got in his car and tried to chase the truck but due to traffic was
unable to stop it; he also “tried calling them with my cellphone as I was driving.” When he
returned to Crest, he called Turn Key Recovery and Texas RV Outlet and demanded the return of
the car; however, neither company returned the car or paid for the repairs.
Saliva described the Crest lot where Whitaker’s car was as the staging area holding “all
of the completed cars for customers to pick up.” The lot is not public property but is Crest
private property. Saliva stated that the lot was not locked during hours of operation in order to
allow customers to easily retrieve their cars and to comply with fire code regulations. But “the
whole property is locked down and guarded by security after hours.” Saliva also said the
property had “No Trespass” signs posted on the wall that were visible to all.
Lenny Zak, the owner of Texas RV Outlet, said Whitaker bought the car and, after
making only one payment, defaulted on the remainder of the payments. Turn Key Recovery
repossessed Whitaker’s car at Zak’s request. Zak said he did not believe they had broken the law
because Texas RV Outlet had the lien on the car title. He conceded Turn Key Recovery was
–4– acting as Texas RV Outlet’s agent. When asked if he knew about mechanic’s liens and the right
of a dealership or auto shop to retain possession of a vehicle until payment for work is made, he
replied, “I don’t know about that.”
This evidence shows Crest performed $5,925.81 worth of repairs and maintenance on
Whitaker’s car at Whitaker’s request and authorization; as a result, Crest had a possessory
mechanic’s lien in that amount for the work performed on the car; Turn Key Recovery, acting as
Texas RV Outlet’s agent, took control over the car to the exclusion of Crest without Crest’s
permission or authorization; Crest demanded return of the property; and Texas RV Outlet
refused and sold the car. Given this undisputed evidence, the trial court erred by concluding
Crest did not have a lien on the car, appellees did not convert the car which Crest possessed at
the time, and Crest did not sustain $5,925.81 in actual damages. See Gulf Coast State Bank, 525
S.W.2d at 869.
Appellees spent considerable time at trial discussing Crest’s security, including why the
lot remained unlocked during regular business hours, and even suggested addition measures
Crest could have taken to protect its property from appellees. In short, Crest was faulted for
failing to prevent appellee Turn Key Recovery from entering its lot and “peaceably” towing the
car. While a possessory lien held by a mechanic or repairman may be lost upon the voluntary
delivery of the vehicle to the owner, we conclude it was not lost when appellees trespassed and
took the car from Crest’s private lot without permission or authority. We sustain Crest’s first
issue.
In its second issue, Crest contends it was entitled to attorney’s fees under Chapter 70 of
the property code and asks this Court to award the same. Section 70.008 of the property code
provides, in relevant part, “The court in a suit concerning possession of a motor vehicle . . . and a
debt due on it may award reasonable attorney’s fees to the prevailing party.” TEX. PROP. CODE
–5– ANN. § 70.008 (West 2014). The statute does not restrict the award of attorney’s fees to one
suing on a debt who wishes to retain possession of a vehicle. Elite Towing v. LSI Fin. Grp., 985
S.W.2d 635, 645 (Tex. App.―Austin 1999, no pet.); Kollision King, Inc. v. Calderon, 968
S.W.2d 20, 24 (Tex. App.―Corpus Christi 1998, no pet.).
Crest’s right of possession of the vehicle and the debt secured by the possessory lien were
at issue in this case. And because Crest established as a matter of law that Texas RV Outlet and
Turn Key Recovery, as its agent, converted the vehicle, Crest is the prevailing party. We sustain
Crest’s second issue to the extent it seeks a determination of whether attorney’s fees may be
awarded to Crest in this case. See Elite Towing, 985 S.W.2d at 645 (prevailing party entitled to
attorney’s fees); Kollision King, Inc., 968 S.W.2d at 24 (same); Seureau v. Mudd, 515 S.W.2d
746, 749 (Tex. Civ. App.—Houston [14th Dist.] 1974, writ ref’d, n.r.e.) (within trial court’s
discretion to award attorney’s fees to prevailing party).
We reverse the trial court’s judgment that Crest take nothing and remand this case to the
trial court to (1) render judgment in favor of Crest in the amount of $5,925.81 on its claim for
conversion and (2) determine the amount of attorney’s fees, if any, to be awarded to Crest as the
prevailing party.
131285F.P05 /Molly Francis/ MOLLY FRANCIS JUSTICE
–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CREST INFINITI II, LP, Appellant On Appeal from the County Court at Law No. 1, Collin County, Texas No. 05-13-01285-CV V. Trial Court Cause No. 1-860-2012. Opinion delivered by Justice Francis, TEXAS RV OUTLET AND TURN KEY Justices Evans and Stoddart participating. RECOVERY, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court to (1) render judgment in favor of Crest in the amount of $5925.81 on its claim for conversion and (2) determine the amount of attorney's fees, if any, to be awarded to Crest as the prevailing party.
It is ORDERED that appellant CREST INFINITI II, LP recover its costs of this appeal from appellees TEXAS RV OUTLET AND TURN KEY RECOVERY.
Judgment entered January 28, 2015.
–7–