Ruth Torres v. the Continental Apartments, All Cities Towing Inc., City Vehicle Storage Inc.

• Court: Court of Appeals of Texas
• Decided: May 21, 2019
• Docket: 05-18-00215-CV
• Status: Published

Opinion

AFFIRMED; Opinion Filed May 21, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00215-CV

RUTH TORRES, Appellant V. THE CONTINENTAL APARTMENTS, ALL CITIES TOWING INC., AND CITY VEHICLE STORAGE INC., Appellees

On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-17-03695-D

MEMORANDUM OPINION Before Justices Whitehill, Partida-Kipness, and Pedersen, III Opinion by Justice Partida-Kipness

Appellant Ruth Torres appeals pro se from the trial court’s final ruling entered in appellees’

favor. We affirm. Because the issues are settled in law, we issue this memorandum opinion. See

TEX. R. APP. P. 47.4.

BACKGROUND

On June 4, 2017, appellant Ruth Torres’s car was towed when she parked in front of the

loading dock of appellee The Continental Apartments. The car was towed by appellee All Cities

Towing, Inc. and stored at appellee City Vehicle Storage, Inc. Torres filed a Request for Tow

Hearing which included the following allegations: (1) she was charged more for her tow than what

is legally authorized; (2) property management failed to provide reasonable parking options due to safety reasons; (3) property management failed to provide communication to address a change

in common parking practice at the dock; and (4) property management failed to provide notice or

warning that she could be towed when she only planned to be there a few minutes. A hearing was

held pursuant to Chapter 2308 of the Texas Occupations Code before the Justice of the Peace Court

(JP court) and the court entered findings that: (1) probable cause existed for the removal and

placement of the vehicle in the storage lot; (2) the towing charge and storage fee was authorized

and just; (3) Torres’s payment of the tow fee was just and owing; and (4) Torres was responsible

for court costs. Torres appealed the JP court’s decision to the County Court of Law No. 4.

In county court, Torres filed a motion to protect and compel discovery and appearance.

Torres asked the court to compel appellees to produce documents, video recordings, and witnesses.

In response, the county court entered an order which narrowed the scope of the discovery and

limited the number of trial subpoenas. Torres then filed a motion to amend and sought to add

claims alleging violations of section 2308.401 and 2308.402 of the Texas Occupations Code

against Continental and All Cities Towing. The county court denied Torres’s motion to amend.

Torres also filed a motion for contempt which alleged that appellees failed to respond to her

discovery requests. Torres then filed a motion for sanctions due to spoliation which alleged that

Continental failed to preserve the recording of the tow. Prior to conducting the administrative tow

hearing, the county court heard Torres’s motion for spoliation and the county court denied the

motion.

Following the hearing, the county court concluded in its Final Ruling/Findings of Fact and

Conclusions of Law that the tow was not illegal. In addition, the county court found as follows:

(1) there was signage all over the loading dock area informing drivers that towing was enforced

and the length of time that Torres intended to park there was irrelevant; (2) there was probable

cause for Torres’s car to be towed; (3) reasonable parking options existed and there were no

–2– legitimate safety concerns that warranted parking in front of the dumpsters; (4) towing at the

Continental was enforced for years; (5) Torres’s payment of the tow, impoundment and storage

fees was justified; (6) All Cities Towing and City Vehicle Storage are properly licensed; (7) there

is no evidence that Torres was charged towing or storage fees greater than what is authorized; and

(8) Torres was liable to defendants for their attorney’s fees and court costs. Torres then filed this

appeal.

ANALYSIS

In fives issues, Torres appears to argue as follows: (1) the county court erred by not finding

that the violations of the Texas Occupations Code made the tow illegal: (2) the county court erred

in finding probable cause for the towing under the Texas Occupations Code; (3) the county court

erred in failing to find violations of the Texas Property Code; and (4) the county court abused its

discretion in denying the motion to amend, limiting discovery, preventing testimony and awarding

attorney’s fees.1

A. Standard of Review

Our review of the trial court’s conclusions of law is de novo. See Burlington N. and Santa

Fe. Ry. Co. v. City of Houston, 171 S.W.3d 240, 245 (Tex. App.—Houston [14th Dist.] 2005, no

pet.).

The standard of review of denial of leave to amend is abuse of discretion. See Austin v.

Countrywide Homes Loans, 261 S.W.3d 68, 75 (Tex. App.—Houston [1st Dist.] 2008, pet.

1 Although we construe pro se pleadings and briefs liberally, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with the applicable laws and rules of procedure. In re N.E.B., 251 S.W.3d 211, 211–12 (Tex. App.—Dallas 2008, no pet.); see also Gonzalez v. VATR Const. LLC, 418 S.W.3d 777, 784 (Tex. App.—Dallas 2013, no pet.) (“Appellate courts must construe briefing requirements reasonably and liberally, but a party asserting error on appeal still must put forth some specific argument and analysis showing that the record and the law support his contention.”). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. In re N.E.B., 251 S.W.3d at 212.

–3– denied). A trial court abuses its discretion when it reaches a result so arbitrary and unreasonable

that it amounts to a clear and prejudicial error of law. Id.

The abuse of discretion standard also applies to the trial court’s decisions regarding

discovery and attorney’s fees. See Bituminous Cas. Corp. v. Cleveland, 223 S.W.3d 485, 490

(Tex. App.—Amarillo 2006, no pet.) (“[T]he abuse of discretion standard applies in reviewing the

ruling of the trial court regarding a discovery question.”); RSL Funding, LLC v. Aegon Structured

Settlements, Inc., 384 S.W.3d 405, 409 (Tex. App.—Eastland 2012, pet. denied) (“The standard

of review of a trial court’s award of attorney’s fees is abuse of discretion.”).

B. Texas Occupations Code Sections 2308.401 and 2308.402

In her first issue, Torres appears to argue that Continental and All Cities Towing violated

sections 2308.401 and 2308.402 of the Texas Occupations Code when Continental allegedly

received a fifty dollar gift card from All Cities Towing. See TEX. OCC. CODE §§ 2308.401–.402.

Section 2308.401 provides that a “parking facility owner may not directly or indirectly accept

anything of value from a towing company in connection with the removal of a vehicle from a

parking facility[.]” See OCC. § 2308.401(a)(1). Section 2308.402 provides that a “towing

company or booting company may not directly or indirectly give anything of value to a parking

facility owner in connection with the removal of a vehicle from a parking facility[.]” See OCC. §

2308.402(a)(1). These allegations were not included in Torres’s initial claims against appellees in

the JP Court. On November 15, 2017, Torres filed a motion to amend and sought to add these

claims against Continental and All Cities Towing in the county court. The county court denied

Torres’s motion to amend and, accordingly, did not address this claim. Further, we note that the

scope of the hearing held pursuant to Chapter 2308 of the Texas Occupations Code is limited to

the following issues: (1) whether probable cause existed for the removal and placement of the

vehicle; and (2) whether a towing charge imposed or collection was greater than the amount

–4– statutorily authorized. See OCC. § 2308.458(c); Black Bull Towing, LLC v. Ybarra, No. 02-14-

00227-CV, 2015 WL 3637933, at *2 (Tex. App.—Fort Worth June 11, 2015, pet. denied) (mem.

op.); Badaiki v. Miller, No. 14-17-00450-CV, 2019 WL 922289, at *3 (Tex. App.—Houston Feb.

26, 2019, no pet.) (mem. op.). As these allegations were not proper claims to be addressed during

the tow hearing, the county court would have lacked jurisdiction to address them. For all these

reasons, we overrule Torres’s first issue.2

A. Texas Property Code Claims

In her third issue, Torres argues that the county court erred in failing to find violations of

Texas Property Code sections 92.013 and 92.0131. See TEX. PROP. CODE §§ 92.013, 92.0131.

Section 92.013 provides that a landlord shall give tenants in a multiunit complex “a copy of any

applicable vehicle towing or parking rules or policies of the landlord[.]” See PROP. § 92.013(a).

Torres also alleges that Continental failed to comply with the notice requirements set forth in

section 92.0131. See PROP. § 92.0131(d), (e). Section 92.0131(d) states that if “a landlord changes

the vehicle towing or parking rules or policies during the term of the lease agreement, the landlord

shall provide written notice of the change to the tenant before the tenant is required to comply with

the rule or policy change.” See PROP. § 92.0131(d). Section 92.0131(e) states that if a rule or

policy change is made during the term of the lease agreement that the change must apply to all of

the tenants and be “based on necessity, safety or security of tenants, reasonable requirements for

construction on the premises, or respect for other tenants’ parking rights[.]” PROP. § 92.0131(e).

As noted above, the only issues to be addressed in a tow hearing are whether probable

cause existed for the removal of the vehicle and whether the towing charge imposed was statutorily

authorized. See OCC. § 2308.458(c); Black Bull Towing, LLC, 2015 WL 3637933, at *2; Badaiki,

2 To the extent that Torres is arguing that the county court abused its discretion in denying the motion to amend, that argument is addressed separately in Section C(1). –5– 2019 WL 922289, at *3. As Torres’s allegations relating to violations of the property code were

not proper claims to be considered during the tow hearing, the county court lacked jurisdiction to

consider these claims. For this reason, we overrule Torres’s third issue that the county court erred

in failing to find violations of Texas Property Code sections 92.013 and 92.0131.

B. Probable Cause

In her second and fourth issues, Torres argues that the county court erred in finding

probable cause for the towing. The Occupations Code provides that “[a] parking facility owner

may, without the consent of the owner or operator of an unauthorized vehicle, cause the vehicle

and any property on or in the vehicle to be removed and stored at a vehicle storage facility at the

vehicle owner’s or operator’s expense if: (1) signs that comply with Subchapter G prohibiting

unauthorized vehicles are located on the parking facility at the time of towing and for the preceding

24 hours and remain installed at the time of the towing[.]” See OCC. § 2308.252(a)(1) (Supp.).

The Occupations Code further provides that the “owner or operator of a vehicle may not leave

unattended on a parking facility a vehicle that: (2) obstructs pedestrian or vehicular access to an

area that is used for the placement of a garbage or refuse receptacle used in common by residents

of the apartment complex[.]” See OCC. § 2308.253(b)(2) (Supp.). Torres concedes that (1) she

parked at the dock and (2) signage existed at the dock which restricted parking. Victor Morado,

the foreman at All Cities Towing, testified that signage was present on the date of the tow. In this

case, there was probable cause for the tow because Torres was obstructing access to a dumpster in

a restricted parking area. Torres even conceded in her testimony that “she parked right in front of

[a] dumpster because that’s the closest to get up the stairs.”

Torres argues that Continental failed to provide notice pursuant to section 2308.253(e) of

the Texas Occupations Code because the “towing company was directed to tow vehicles which

lacked registration insignia.” To clarify, section 2308.253(e) provides as follows:

–6– A contract provision providing for the towing from a parking facility of a vehicle that does not display an unexpired license plate or registration insignia is valid only if the provision requires the owner or operator of the vehicle to be given at least 10 days’ written notice that the vehicle will be towed from the parking facility at the vehicle owner’s or operator’s expense if it is not removed from the parking facility.

See OCC. § 2308.253(e) (Supp.). Based upon Torres’s citations, it appears that she misinterprets

“registration insignia” to reference a resident sticker and placard issued by Continental. However,

the “registration insignia” in this code section refers to state registration requirements under

chapter 502 of the Texas Transportation Code. See TEX. TRANSP. CODE §§ 502.001–.492.

Accordingly, Torres’s argument that there was no probable cause for the towing based upon the

lack of notice fails.

Torres also argues that it is reasonable to “consider that common practice, and inconsistent

towing enforcement justifiably undermines the position that generic signage alone satisfies the

requirement of adequate notice to residents that parking at the loading dock, even for a few

minutes, would be reasonable grounds to expect to be towed.” In her brief, Torres refers to certain

hearing testimony by Lindsay Diaz, the resident services coordinator at Continental, in which Diaz

states that there was a mechanism for residents to park at the dock if they reserved it with

Continental and Continental informed the towing company that they could tow anyone who was

illegally parked after 6:00 p.m. Diaz also testified that it was common for people to park at the

dock and that they were not always towed. At the hearing, no evidence was presented that Torres

had reserved the dock with Continental. Because she was parked at the dock without permission

and has conceded the existence of the towing signs, we cannot conclude that Torres’s car was

towed without probable cause even if the towing happened sporadically or without consistency.

For all the reasons described above, we overrule Torres’s second and fourth issues.

–7– C. Denial of Motion to Amend, Limiting Discovery and Testimony and Awarding Attorney’s Fee

In her fifth issue, Torres argues that the trial court abused its discretion by denying her

motion to amend her claims, limiting the discovery, and awarding attorney’s fees to appellees. We

disagree.

1) Motion to Amend

As stated above, Torres sought to amend her claims to add allegations that Continental

violated sections 2308.401 and 2308.402 of the Texas Occupations Code when it allegedly

received a fifty dollar gift card from All Cities Towing. As stated above, the tow hearing

encompasses a narrow scope of issues. See OCC. § 2308.458(c). As these allegations do not impact

whether there was probable cause for the tow or if the tow charge was correct, the county court

did not abuse its discretion in denying Torres’s motion to amend her claims.

2) Discovery

In this case, the county court allowed each party to send ten interrogatories, five requests

for production, and a request for disclosure to all other parties. Torres was allowed two trial

subpoenas per defendant and defendants were allowed two trial subpoenas. On appeal, Torres

complains that the trial court denied her request for (1) appellees’ proof of licensure and insurance

and (2) discovery on appellees’ alleged violations of sections 2308.401 and 2308.402 of the Texas

Occupations Code. As stated above, however, the tow hearing only encompasses whether there

was probable cause for the tow and if the tow charge was correct. As Torres’s additional discovery

requests were irrelevant to assist in determining these issues, the county court did not abuse its

discretion in denying Torres’s requests for additional discovery.

Torres also appears to assert that the trial court erred in denying her request for the video

of the towing and her motion for sanctions based upon the alleged spoliation of this evidence.

Torres asserted that Continental had a duty to preserve the video of the recording of the tow. Torres –8– argues that the video would show that the “tow truck pulled up to tow the vehicle the minute

Appellant entered the door to the building.” Torres’s assertion, however, is irrelevant to whether

there was probable cause for the tow. We cannot conclude that the county court abused its

discretion in denying Torres this additional discovery as the video is irrelevant to whether there

was probable cause for the tow.

3) Attorney’s Fees

The Texas Towing and Booting Act enables the court to award attorney’s fees to the

prevailing party. See OCC. § 2308.458(e)(1). Here, Torres argues that the county court awarded

unreasonable attorney’s fees. Torres specifically objects to the fees sought by Jack Norman, the

attorney for All Cities Towing and City Vehicle Storage. At the hearing, Norman testified as to

the time involved, the nature of services rendered, and the reasonableness of the fees. Norman

sought fees totaling $7,000 and testified that his fees were reasonable and necessary in light of

Torres’s excessive motion practice. The county court ordered Torres to pay All Cities Towing and

City Vehicle’s Storage’s attorney’s fees in the amount of $5,000.

As stated above, 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. Radsdale v.

Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990). Here, we cannot conclude that the

trial court abused its discretion in awarding attorney’s fees to All Cities Towing and City Vehicle’s

Storage’s as Norman’s evidence was uncontroverted and the amount awarded was less than was

sought by appellee.

For these reasons, we overrule Torres’s fifth issue.

–9– CONCLUSION

On the record of this case, we affirm the trial court’s judgment.

/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE

180215F.P05

–10– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

RUTH TORRES, Appellant On Appeal from the County Court at Law No. 4, Dallas County, Texas No. 05-18-00215-CV V. Trial Court Cause No. CC-17-03695-D. Opinion delivered by Justice Partida- THE CONTINENTAL APARTMENTS, Kipness. Justices Whitehill and Pedersen, ALL CITIES TOWING INC., AND CITY III participating. VEHICLE STORAGE INC., Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees THE CONTINENTAL APARTMENTS, ALL CITIES TOWING INC., AND CITY VEHICLE STORAGE INC. recover their costs of this appeal from appellant RUTH TORRES.

Judgment entered this 21st day of May 2019.

–11–