Lee F. Burrows v. John Allen Daring, Jr D/B/A Bingle Auto Storge and North Towing & Parking Maintenance., James Melvin, and James W. Melvin, Jr.

• Court: Court of Appeals of Texas
• Decided: August 5, 2008
• Docket: 14-06-00473-CV
• Status: Published

Opinion

Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed August 5, 2008

Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed August 5, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00473-CV

LEE F. BURROWS, Appellant

V.

JOHN ALLEN DARING, JR. D/B/A BINGLE AUTO STORAGE; NORTH TOWING & PARKING MAINTENANCE, INC.; JAMES MELVIN; AND JAMES W. MELVIN, JR., Appellees

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 2005-03140

M E M O R A N D U M   O P I N I O N

This is an appeal from the granting of a summary judgment in favor of the appellees in a conversion and improper-towing case.  We affirm in part and reverse and remand in part.

.

Factual and procedural background

Appellant, Lee F. Burrows, was a resident of the Jade Forest Apartments.  On January 18, 2003, appellee James Melvin,^[1] as the owner and operator of North Towing & Parking Maintenance, Inc. (collectively AMelvin@), had a contract with the Jade Forest Apartments to tow unauthorized vehicles from the apartment complex.  On or about January 18, 2003, Eve Jordan, the manager of the apartment complex, authorized Melvin to tow appellant=s 1969 AMC Rebel vehicle from the complex. According to Melvin and Jordan, Melvin towed appellant=s vehicle because its state-inspection sticker had expired and it was not in working condition.

After removing appellant=s vehicle from the apartment complex, Melvin towed it to the vehicle storage facility operated by John Allen Daring, Jr. d/b/a Bingle Auto Storage (ADaring@) for storage and collection of the towing and storage fees.  Daring sent appellant notice his vehicle had been towed, informed appellant the AMC Rebel was stored at his storage facility, and also informed appellant of the fees he had to pay to retrieve the AMC Rebel.

Rather than paying Daring the accumulated fees, appellant made written demand for the return of his vehicle.  When appellees refused to release the vehicle until the fees had been paid, appellant filed suit asserting causes of action for conversion, violation of section 684.084 of the Texas Transportation Code, and breach of an alleged vehicle rental contract.^[2]  Appellees answered the suit and Daring filed a counterclaim seeking the outstanding fees allegedly owed by appellant for the towing and storage of his vehicle.  In addition to a general denial, appellees asserted the affirmative defense of preemption.

Appellees eventually filed a hybrid motion for partial no-evidence summary judgment and partial traditional summary judgment arguing they were entitled to summary judgment on each of appellant=s causes of action.  Initially, appellees moved for no-evidence summary judgment on appellant=s breach-of-rental-contract cause of action.  Asserting multiple grounds, appellees also moved for traditional summary judgment on appellant=s breach-of-rental-contract claim, the Transportation Code section 684.084 claim, and the conversion claim.^[3]  The trial court, without specifying the grounds, granted appellees= motion.  Daring then non-suited his counterclaim, which disposed of all matters in controversy between the parties.  Appellant filed a motion for new trial, which the trial court denied.  This appeal followed.

Discussion

I.        Exactly What Has Appellant Appealed?

Before addressing the merits of appellant=s appeal, we must first determine what summary-judgment grounds asserted by appellees have been challenged by appellant in this appeal. The trial court granted appellees= hybrid motion for partial no-evidence and traditional motion for summary judgment without specifying the specific grounds on which it was granting the motion.  In this appeal, appellant raises three issues for appellate review.  First, appellant contends the trial court erred when it determined appellant=s conversion and section 684.084 causes of action were preempted by federal law.  Second, appellant asserts the trial court erred when it granted appellees= motion for summary judgment because there was a genuine issue of material fact whether appellees were providing a service as defined in the preempting federal statute.  Finally, appellant argues the trial court erred when it denied appellant=s motion for new trial contending appellant=s conversion and section 684.084 causes of action were not preempted.

Appellant does not challenge on appeal the trial court=s granting of appellee=s no-evidence and traditional motion for summary judgment on appellant=s breach-of-rental-contract action against appellees.  Accordingly, appellant has waived any potential error, and that portion of appellees= no-evidence and traditional motion for summary judgment is affirmed.  Jacobs v. Satterwhite, 65 S.W.3d 653, 656B57 (Tex. 2001).

Federal preemption was only one of the grounds asserted by appellees in support of their combined motion for summary judgment.  When there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was granted, the appellant must negate all grounds on appeal.  Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  If an appellant fails to negate each independent ground upon which the summary judgment may have been granted, the appellate court must uphold the summary judgment.  Id.

Appellant has not raised any issue on appeal challenging appellees= summary-judgment argument asserting section 684.084 of the Transportation Code does not apply to Daring because he operated a vehicle-storage facility, he did not tow appellant=s vehicle, and he was not an operator of a parking facility.  See Tex. Transp. Code Ann. ' 684.084 (Vernon 1999) (providing a towing company or parking-facility owner is liable to the owner of a vehicle towed in violation of the provisions of chapter 684).  Because appellant has only challenged on appeal the preemption ground asserted by appellees in their hybrid motion and has not challenged appellees= independent summary-judgment ground that section 684.084 does not apply to Daring, we affirm that portion of the trial court=s summary judgment.  Lewis, 979 S.W.2d at 833.  Therefore, in answer to our initial question, what has appellant appealed, we hold the only remaining issues before us are whether the trial court properly found that federal law has preempted appellant=s causes of action (1) for conversion against Daring and Melvin and (2) for violations of section 684.084 of the Transportation Code against Melvin.

II.       The Standard of Review

The movant for a traditional summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law.^[4]  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and the reviewing court makes all reasonable inferences and resolves all doubts in the non-movant=s favor.  Id. at 548B49.  We review a trial court=s summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  A defendant is entitled to a summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense.  Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).  To accomplish this, the defendant must present summary-judgment evidence that establishes each element of the affirmative defense as a matter of law.  Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).  However, when reviewing a summary judgment, we cannot read between the lines, infer or glean from the pleadings or proof any grounds for summary judgment other than those expressly set forth before the trial court in the motion itself.  Johnson v. Felts, 140 S.W.3d 702, 706 (Tex. App.CHouston [14th Dist.] 2004, pet. denied).  Only when the defendant establishes its right to summary judgment does the burden shift to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact.  Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

III.      Did the Trial Court Err When it Determined Appellant=s Causes of Action Were Preempted?

Preemption is an affirmative defense.  Harrill v. A. J.=s Wrecker Serv., Inc., 27 S.W.3d 191, 194 (Tex. App.CDallas 2000, pet. denied).  Under their preemption defense, appellees argue section 14501(c) of the Interstate Commerce Commission Termination Act of 1995 preempts appellant=s conversion and section 684.084 causes of action.^[5]  See 49 U.S.C. ' 14501(c) (2000).  Under section 14501(c), a state or local law is preempted if: (1) the law is related to the price, route, or service of any motor carrier with respect to the transportation of property,^[6] and (2) the law does not fall under one of the statute=s regulatory exceptions.  Tillison v. Gregoire, 424 F.3d 1093, 1098 (9th Cir. 2005). One of the regulatory exceptions to preemption is a broad safety-regulation exception found in section 14501(c)(2)(A).^[7]  VRC LLC v. City of Dallas, 460 F.3d 607, 612 (5th Cir. 2006).  Accordingly, appellees had the burden to prove as a matter of law, both elements of the affirmative defense of preemption.  See Rhone-Poulenc, Inc., 997 S.W.2d at 223; A. J.=s Wrecker Serv. of Dallas, Inc. v. Salazar, 165 S.W.3d 444, 446 (Tex. App.CDallas 2005, pet. denied) (appellant wrecker service argued on appeal the plaintiff=s conversion claims were preempted by 49 U.S.C. 14501(c) and the conversion claim did not fall within the safety exception to preemption).  Assuming without deciding appellant=s conversion and section 684.084 causes of action would be preempted by the general rule found in 49 U.S.C. 14501(c), appellees completely failed to address, much less present summary-judgment evidence proving, as a matter of law, the safety exception to preemption did not apply to either appellant=s conversion cause of action or his section 684.084 cause of action against Melvin.  Because appellees did not conclusively prove as a matter of law all elements of their affirmative defense of preemption, they failed to carry their summary-judgment burden and the trial court erred when it granted appellees= hybrid motion for summary judgment with regard to appellant=s conversion cause of action and appellant=s section 684.084 cause of action against Melvin.  Therefore, we sustain appellant=s first issue on appeal to that extent.

In appellant=s two remaining issues, he contends the trial court erred when it (1) granted appellees= hybrid motion for partial summary judgment based on preemption because there was a genuine issue of fact on whether appellees were rendering a service when appellant=s vehicle was towed and (2) denied his motion for new trial on appellees= preemption defense.  Because we have (1) determined there were unchallenged, independent grounds not related to preemption for the trial court=s summary judgment on appellant=s breach-of-rental-contract cause of action and section 684.084 cause of action against Daring, and (2) reversed the summary judgment on appellant=s remaining causes of action for conversion against Daring and Melvin, and violations of section 684.086 by Melvin, we need not address appellant=s remaining issues on appeal.  Tex. R. App. P. 47.1.

Conclusion

We affirm the trial court=s summary judgment on appellant=s breach-of-rental-contract cause of action and section 684.084 cause of action against Daring.  We reverse the trial court=s judgment granting appellees= summary judgment motion as to appellant=s causes of action for conversion against Daring and Melvin and for violations of section 684.084 of the Transportation Code by Melvin and remand the case to the trial court for further proceedings consistent with this opinion.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed August 5, 2008.

Panel consists of Justices Yates, Anderson, and Brown.

---

^[1]  Appellant sued both James Melvin and James W. Melvin, Jr.  Appellees state in their brief James Melvin and James W. Melvin, Jr., are the same person.  Appellees do not cite to any part of the record on appeal establishing this allegation.  However, because it does not impact the resolution of this appeal, we accept, without deciding, that appellees= contention is correct and will not separately name James W. Melvin, Jr. throughout this opinion.

^[2]  Appellant initially filed two lawsuits.  The first suit was filed against Daring in the 334th District Court.  Appellant also filed suit against Melvin in Harris County Court at Law No. 2.  The suit against Melvin was eventually transferred to the 334th District Court and consolidated with the suit against Daring.

^[3]  In their hybrid motion for partial summary judgment, appellees asserted section 684.084 of the Texas Transportation Code did not apply to Daring because he operated a vehicle storage facility, he did not tow appellant=s vehicle, and he did not own the apartment parking lot where appellant=s car was towed.  In addition, appellees argued appellant=s conversion and section 684.084 causes of action were preempted by federal law.

^[4]  While appellees filed a hybrid no-evidence and traditional motion for partial summary judgment, as discussed above, the only issues remaining relate to grounds asserted by appellees in their  traditional motion for summary judgment. 

^[5]  Section 103 of the Interstate Commerce Commission Termination Act of 1995 amended the Federal Aviation Administration Authorization Act of 1994 and was codified at 49 U.S.C. ' 14501B14505.  Tillison v. Gregoire, 424 F.3d 1093, 1096 n.1 (9th Cir. 2005).

^[6]  The relevant preemption portion of the statute provides:

(c)        Motor carriers of property.--

(1)        General rule.-- Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor carrier, broker, or freight forwarder with respect to the transportation of property.

49 U.S.C. ' 14501(c).

^[7]  The safety exception provides in pertinent part:

(2)        Matters not covered.--Paragraph (1)--

(A)       shall not restrict the safety regulatory authority of a State with respect to motor vehicles.

49 U.S.C. ' 14501(c)(2)(A).