Monday, March 11, 2019

Texas Thicc Tip 20 - New Towing Case Out of Houston's Creative Fourteenth District Expands "Probable Cause"​ for Vehicle Owners

Cross-posted here.

My previous post had a useful section on how Fidelis and Black Bull Towing v. Ybarra (a Fort Worth opinion) together should be read to guide litigants in arguing that any violation of the Act destroys probable cause to tow.

I just found a recent case from late February out of Houston's Fourteenth District COA, the same Court which issued Fidelis a decade ago. This time, the Court has expanded the avenues of attack a vehicle owner has available to fight unjust tows.

The new case is Badaiki v. Miller, No. 14-17-00450-CV (Tex. App.--Houston [14th Dist.] Feb. 26, 2019); it has a rehearing deadline of March 17, so things may change, but for now, this is your Thicc Tip. The case can be found here.

Very funny factoid - Mr. Badaiki is the same litigant as the one in Fidelis; in 2009, his case was logged as Badaiki Fidelis but in 2019 it is logged at Fidelis Badaiki. This guy has had it with tow companies.

The takeaway
This opinion adds more ammo the litigant's bandolier: "Badaiki . . . disputed that there was probable cause for the tow—on the grounds that he was not required to have a permit under his lease agreement, did in fact have a permit anyway, and was not given advance notice of the tow. . . . [N]othing prevented Badaiki from arguing, as he did, that no probable cause existed to have his vehicle towed from the apartment complex’s parking lot because doing so violated the terms of his lease agreement." Badaiki, at *6.

In two sentences, the Court now lets lessees assert that a tow of their vehicle broke the law if it broke the lease!

The story
Badaiki's car is towed. He sues, saying his car should not have been towed because it was validly parked under the lease. Badaiki lost in JP court, as usual, and appealed for de novo retrial under Section 2308.459, which provides that appeals are governed under the justice court Texas Rules of Civil Procedure. The storied Harris County CCL3 (ex-judge Linda Storey at the time) heard the de novo retrial, and apparently bought into an insane subject-matter jurisdiction argument from Jonathan E. Bruce, attorney for the tow company, which went along the lines of this: "Because the Act only concerns unauthorized vehicles, then by Badaiki's own admission, this case cannot be heard because he insists his car was authorized."

Holy SHIT. What a villainous argument to make:

"Hey, my car's been towed."
"Well, was it authorized to be here?"
"Can't help you. Now, if you had been breaking the rules to park here, then we coulda helped you (and used your admission of being unauthorized against you lol)."

The law
What's fascinating about this argument is that it's simply untrue. Sections 2308.451-.460 (Subchapter J) do not concern unauthorized vehicles; in fact, the last time you see the word "unauthorized" in the Act is in Section 230.403 (a provision limiting liability for towing vehicles if towed in compliance with the Act). Subchapter J only makes reference to a "towed vehicle" or a "booted vehicle." Obviously, under most circumstances, a vehicle is towed without consent of the owner but that does not make the vehicle per se unauthorized; an "unauthorized vehicle" under the Act is one parked without the consent of a parking facility owner.

The Court of Appeals reads the statute and decides this is all botched. It finds that under the plain language of the Act, Badaiki was entitled to his JP hearing and to his de novo appeal. It orders a de novo retrial, reversing and remanding the CCL's abstention. Part of its decision focused on the same argument in the preceding paragraph - that the Act does not contemplate a "probable cause hearing" only if the vehicle is unauthorized, although it notes that authorization is an issue a probable cause hearing could rightfully resolve. "Whether a vehicle was authorized to park in the location from where it was towed is indeed a proper issue for resolution in a tow hearing." Badaiki, at *7.

If you have been towed, and have a lease agreement with the area where your vehicle got towed, bring in breach of contract claims to help you out. Because guests lack privity (and are most at risk for tows since their parking is extremely restricted in a facility to favor the residents), I doubt they can avail themselves of this holding, but to the extent the complex has some kind of guest parking provision in its lease, a guest should rely on such provisions if at all helpful.

Get these bastards, folks.

Wednesday, February 27, 2019

Towed in Texas? The Nitty Gritty Primer on Nonconsent Private Property Tows Under Chapter 2308 - Part 1

(Cross-linked above)

A year before he was sentenced to forty years in prison for grievously injuring Austin drivers by means of hurtling large stones through their vehicles from I-35 overpasses, Pat Johnson, a Texas towing rights advocate, was sentenced to prison for sexual abuse of a child after police entrapped him.
Johnson is a towing rights hero. He created Texas Towing Compliance, a self-styled watchdog group that observed, reported and informed the public about the misdeeds of various towing companies. The website for the group, available here, is still up and running, although its output appears to have been nil (for instance, there is no attorney list on the site). A bit unwieldy to use, I recommend it as a rough, introductory resource to anyone investigating their towing rights in Texas, and as a reference guide to some of the various tow-warning signs you will see littering the landscape of local parking lots. There is also a blog here - I'm not sure I agree with the first result you see, but thieves are thieves and this is Texas, baby.
The fact is - nobody gives a shit about towing rights. It took a sick felon to pipe up so actively and vocally for the public. No one has replaced him. There's no money in it.
Towing rights require navigating a relatively twisted pastiche of regulations from the federal level down to the city level, full of incomprehensible and unworkable legal concepts, that structure the basic business scheme of the towing industry. Any business needs a customer base, and guess who that is?
You. The idiot who parked his car at a Dairy Queen to grab a Torchy's order to go. The guy visiting his girlfriend for the night who didn't park in a spot marked "Guest Parking Only" in faded scratches of paint invisible in the dead of night. The mom who forgot to use some mobile app to register her child's vehicle for the day because you just plumb forgot.
You pay the towing companies for the privilege of a) stealing your vehicle and b) hiding that vehicle in a fortified compound. It is a beautiful business. There is even some merit to the argument that there is a public safety or commercial need for the scheme - cars are dangerous and subject to looting and shouldn't be abandoned on highways or in neighborhoods, and private property owners should have some kind of means of removing heavy chunks of steel blocking their rights of way or depriving their tenants of access to their homes.
I was towed once by an entity that had had its right to do business in Texas revoked due to failure to pay their franchise taxes. They also towed under signage I found deficient at law. I looked them up. I know they tow in many complexes in Austin, and they have only been licensed to tow under the revoked charter since 2017. Charter or no, the people who run this tow company wave the license around as all the justification they need to tow vehicles, and when you ask them about the franchise forfeiture and loss of right to do business per the Texas Tax Code, they chortle.
Pat Johnson said he used to run towing outfits in his day before he began advocating for vehicle owners' rights.
This is the same Pat Johnson who molested a kid and caused one man brain damage and blinded another from his rock-throwing.
In short, tow people are not good people; their livelihoods are made on just this side of completely illegal.
So I write this piece as a companion to the resources you can find on Texas Towing Compliance. Perhaps one day I'll blow this up into something more web-friendly. But for now, just read if you want to learn about some of your towing rights.
Über Alles - you have certain fundamental property rights that protect them from government deprivation. The government has concocted a get-around scheme for this: if private companies are the ones doing the deprivation (subject to various laws and regulations), then the due process concerns are not implicated. A license to steal may be purchased.
Beneath this general delegation is the criminal law - criminal laws prohibit individuals from stealing the property of others. See, e.g., Tex. Pen. Code § 31.01 et seq. One of the quintessential examples of theft is acquiring someone else's property and refusing to turn it over unless some kind of reward is turned over. That means the law says to the public, "You may not steal someone's car in the dead of night, hide it somewhere, and then return them their vehicle only if they give you money." Again, a get-around scheme is needed, or else these tow men would not dare touch your car. (For a good reason why not in Texas, see the "exceptions to murder" provisions in Texas Penal Code § 9.41- § 9.42, justifying the use of lethal force under certain conditions to protect movable property from being carried off in the dead of night.)
And so Texas has hatched up a little animal called the Texas Towing and Booting Act, currently codified in Chapter 2308 of the Texas Occupations Code (formerly instantiated in Section 684 of the Texas Transportation Code). These statutes, together with their companion regulations in Chapter 86 of Title 16 of the Texas Administrative Code, describe the details of the get-around. Together, I will refer to these provisions as the Act and the Rules.
A towing company and towing operator who adhere to these laws can tow or boot your vehicle and charge you for this helpful service rendered unto the property owner.
This post will not focus on anything except private property, nonconsent tows made under the purported authority of lawful signage.
A nonconsent, private property tow are terms of art described in the Act and the Rules and are, for the most part, the category of tows the public cares about. Their legal definition is commonsense - tows without the permission of a vehicle owner from private property belonging to someone else, including an apartment complex.
There are other categories of tows, including from universities, highways, etc. And there is a category of tow called "consent tows" where the vehicle owner or operator gives a towing company permission to tow the vehicle somewhere. But I won't get into these. They are important subjects but not for now.
And "lawful signage" is a generic way of referring to the kind of lawful nonconsent tow which can only occur under the authority of a lawful sign, which is commonly done due to expense and delay in enforcing the other kinds of notice (which forms I will briefly describe herein). Basically, tow companies put up signs on private property that warn of towing risks; if the signs comply, then the tow is good; if the signs do not comply, then the vehicle owner should argue like hell that the tow was bad.
The thing is - most signs are SO DAMN BAD.
The other thing is - NOBODY CARES.
Unless you do. It's your job to make the judge care. The judge does not care. The judge wants to get to the probation hearing or the credit card hearing. They do not want to get to Joe Blow walking in saying that his car was towed and it shouldn't have when the nice tow company man will come in and say, "Why, Your Honor, of course he was properly towed, and I've been doing lawful tows for 17 years, some even before you, and you've never found me in violation!"
Good luck. This piece is a primer on fighting this common kind of tow.
Some key terms before getting into this piece.
A towing company is a person (including a business entity) who oversees a tow truck's operations.
A towing operator is the person who drives the truck.
A parking facility is many things, but in general, it is the area where you can park that is subject to restricted parking by the parking facility owner (a "PFO").
A vehicle owner or operator (or "VO") are exactly what they sound like.
More technical definitions can be found in § 2308.002 of the Act and § 86.10 of the Rules.
The Act and the Rules
The Act provides that a lawful tow may occur under one of four types of notice. I call these signage notice, actual notice, attached and mailed notice, and requested notice. § 2308.252(a)(1)-(4).
Signage notice: A nonconsent tow is authorized by only by those "signs that comply with Subchapter G [of the Act] prohibiting unauthorized vehicles [and which] are located on the parking facility at the time of towing and for the preceding 24 hours and remain installed. Id. at § 2308.252(a)(1).  
Actual notice: Nonconsent tows are also authorized if the parking facility owner ("PFO") gave the vehicle's owner or operator ("VO") "actual notice" that the vehicle will be towed at the VO's expense "if it is in or is not removed from an unauthorized space." Id. at § 2308.252(a)(2). 
Attached and mailed notice: Nonconsent tows are also authorized if the PFO gives notice to the VO under Section 2308.252(b). Id. at § 2308.252(a)(3). This is not "actual notice," but is a kind of posted notice instead: the PFO has effectively provided this third type of notice to a VO when the PFO places "a conspicuous notice . . . attached to the vehicle's front windshield" or to some other conspicuous part if there is no windshield stating various disclosures, including a warning that it the vehicle is an unauthorized spot and describing the other unauthorized areas (thereby implying where authorized parking is allowed). See id. at § 2308.252(b)(1). Moreover, a copy of this notice must also be "mailed . . . to the owner . . . by certified mail, return receipt requested, to the last address shown for the owner" per the DMV's records (or per the records of whichever out-of-state agency maintains such data). Id. at § 2308.252(b)(2). The mailed notice must give the owner a 15-day period to move his car "after the postmark date" or risk seeing the car get towed. Id. at § 2308.252(c)(3). There is one caveat: if the VO "leaves the vehicle in another location where parking is unauthorized" as specified in the attached notice, then the PFO need not send out the mailed notice (i.e. the VO may not "leapfrog" the PFO by parking in one spot, ignoring the warning to not park in another spot, and then moves his car to that other spot). Id. at § 2308.252(d).
Requested notice: If the VO asks the PFO to provide "information on the name of the towing company and vehicle storage facility ("VSF") that will be used to remove and store the vehicle" and then leaves the vehicle "in violation of Section 2308.251 or 2308.253" or parks the vehicle in such a way as to obstruct a portion of a "paved driveway or abutting public roadway used for entering or exiting the facility." Id. at § 2308.252(a)(4)(A)-(B).
So, some kind of notice is required before your car can be towed.
The most typical form of notice relied upon by the tow company is signage notice. Before turning to those provisions, a few more prerequisites to lawful tows:
A request from the PFO to tow (by standing agreement or as to a specific vehicle): A towing company is forbidden from towing and storing any vehicle, even if all four of the alternatives are provided, unless the PFO specifically "requests that the towing company tow and store the specific vehicle" or the PFO "has a standing written agreement with the towing company to enforce parking restrictions in the parking facility." Id. at §2308.255(d). 
Therefore, there must be evidence that the PFO requested the towing company to tow a vehicle in particular or evidence that there is some written agreement between the PFO and the towing company to enforce the PFO’s parking restrictions. 
An example of a VO losing this "agreement" fight at summary judgment - Black Bull Towing, LLC v. Ybarra, No. 02-14-00227-CV, 14 (Tex. App.--Fort Worth Jun. 11, 2015, pet. denied) ("Section 2308.255(c) provides that, unless a parking facility owner specifically requests the tow of a specific vehicle, a towing company may tow a vehicle only if the company and parking facility owner have 'a standing written agreement . . . to enforce parking restrictions in the parking facility.' Tex. Occ. Code Ann. § 2308.255(d). Appellants attached to their summary judgment response a copy of the tow agreement between them allowing Black Bull to tow any 'unauthorized vehicles' from the parking lot. At the bottom of the page, several options of types of vehicles are marked, including 'Resident Stickers.' The statute defines unauthorized vehicle as 'a vehicle parked, stored, or located on a parking facility without the consent of the parking facility owner.' Id. § 2308.002(13). At the very least, this contract provision raises a fact issue as to whether the parties had a standing written agreement for Black Bull to tow any vehicles without proper visitor permits on them. Accordingly, we hold that Ybarra failed to conclusively prove a violation of this part of the statute.") This case illustrates that a tow company can survive a summary judgment challenge as to this prerequisite if there is some reference to the power to tow "unauthorized vehicles," a term well-defined and detailed in the Act; perhaps other terms would fail the summary judgment test.
A PFO must provide written verification to the towing company that it has installed all requisite signs under Section 2308.252(a)(1): A towing company is authorized to tow "unauthorized vehicles" without VO consent, at the VO's expense, if “the towing company has received written verification from the parking facility owner that . . . the parking facility owner has installed the signs required by Section 2308.252(a)(1)” or if the owner or operator of the vehicle has received actual notice that the particular vehicle will be towed. Id § 2308.255(a).
An example of a VO losing this "agreement" fight at summary judgment - Black Bull Towing, LLC v. Ybarra, No. 02-14-00227-CV, 13 (Tex. App.--Fort Worth Jun. 11, 2015, pet. denied) ("It is undisputed that Ybarra did not get prior, actual notice of the towing of the vehicle. Ybarra contends that because he sent a request for production of 'any document regarding the tow signs provided' and appellants did not provide 'any documentation evidencing the required written verification,' he conclusively proved an absence of such notice. That appellants failed to respond to Ybarra’s request for production with a document proving such notice is not evidence that such notice does not exist. Further, appellants at least raised a fact question as to whether the parties’ signed agreement was evidence of such notice.") Take note - the absence of documented "written verification" is not evidence that no such notice exists; testimony and documentary evidence may supply fact disputes on this to preclude summary judgment on the matter, as it did in this case.
Liability insurance for property damage incurred in towing: These towing companies must also be "insured against liability for property damage incurred in towing a vehicle." Id. at § 2308.255(c).
There must also be evidence that the towing company carries proper liability insurance to cover any resulting damage to the vehicles it tows.
An example of a VO losing this insurance fight - Fidelis v. Smith, No. 14-08-00224-CV, 5 (Tex. App.--Houston [14th Dist.] Sept. 24, 2009, no pet.) (mem. op.) (slip op.) ("Appellant testified that when he phoned the towing company, the company informed him that it did not have insurance. The owner of the towing company directly contradicted appellant’s contention by testifying that he [the company? ]carried liability insurance. Appellant’s only evidence to contradict the owner’s testimony was his own testimony of the phone call. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The trier of fact may choose to believe one witness and disbelieve another and this court cannot impose its own opinion to the contrary. Therefore, the trial court did not err in choosing to believe the towing company’s owner on the issue of insurance.") Note the court's own bracketed remark - that could be a fun contention for a VO in a future fight - who has insurance, exactly?
Probable cause
This is the most frustrating aspect of the Act. The Act provides a means of challenging tows, but burdens the VO with establishing that "probable cause" to tow did not exist - whether probable cause to tow exists is independent of a separate query a VO may initiate: whether the fees charged for the tow were lawful.
A concept that plagues criminal lawyers to this day and forms the basis of overturning criminal convictions under the guarantees of the Due Process Clause of no less than the U.S. Constitution, probable cause has absolutely no business in a civil towing statute. Its meaning in the Act is wholly undefined, and a sensible jurisprudence of its use in this statutory scheme cannot be artfully adapted from its development in the criminal law. It is a bugbear. It is garbage. Why does it exist?
A cynic would say it exists because the Act is nothing more or less than an extremely loosey-goosey mechanism meant to empower tow companies to steal with impunity, sit back while they rub their bodies with your cash and taunt you to prove they did not have "probable cause" to take your vehicle. Tow companies will argue anything under the sun - that de minimis violations of the statute do not obviate "probable cause;" that egregious violations do not obviate "probable cause;" that, in fact, as long as there is some evidence showing the VO "knew or should have known better," even if every single technical requisite of the Act is ignored, there is always "probable cause" to tow. Because "probable cause" to tow is a separate inquiry from their per se liability for violating the Act, tow companies can happily, stupidly (and far, far too successfully) argue to the ignorant courts with no guidance from the Legislature or the higher Courts that per se violations can never rise to the level of a probable cause violation.
Thank YHWH that the two opinions cited above, two years and eight years after enactment of Chapter 2308, have provided some structure as to how to conceptualize the term probable cause in the tow hearing context. I have found no opinions, reported or otherwise, citing to these cases. They are anomalies (and indeed, they do not cleanly fit with each other, but a clever VO should be able to argue for a cohesive syllogism.)
As briefly indicated above, a VO has two basic rights under the Act - a request to find that there was no probable cause to tow his vehicle, and a request to find that even if there was probable cause to tow, the fees assessed exceeded those allowed by law. The Act has some confusing wording that also suggests any proven violation of the Act requires the Court to find the violator in criminal violation and to assess a criminal penalty, as well. Some courts refuse to read probable cause violations as proof-positive of these per se violations,generally requiring bifurcated hearings (which means two sets of filing fees, sucker). Compare Tex. Occ. Code § 2308.404 with id. at § 2308.458.
Signage and probable cause
Signage is exacting. It has been held in Fidelis v. Smith that the failure of a VO to produce legally sufficient proof of an alleged signage violation meant he had failed in his duty to rebut the "probable cause" to tow his vehicle. At issue in Fidelis was whether a sign was "permanently mounted on a pole, post, permanent wall, or permanent barrier." Fidelis, No. 14-08-00224-CV, 5 (citing Tex. Occ. Code § 2308.301(a)(3)). This is a requirement of any lawful sign. The Court found that the evidence established the sign was "posted on iron gates at the entrance of the parking lot" and such signs "were posted at every entrance to the apartment complex parking lot" (another requirement). The Court then stated: "Under the Occupations Code, as the person challenging probable cause, appellant bore the burden of proving that the signs did not comply with the code. We find no evidence that challenges the evidence presented by the towing company."
For Fidelis, there is thus an equality -
**compliant sign = probable cause**
and the resulting inequality -
**a noncompliant sign ≠ probable cause**
which forms the corresponding equality -
**noncompliant signs = no probable cause**
It is that simple. Even a technical requirement like whether there is evidence the sign is attached to some kind of permanent barrier is grounds to deprive the tow company of "probable cause" to have towed the vehicle (and of course the deprivation of probable cause necessarily means any fees charged are unlawful, and any noncompliance resulting in deprivation constitutes a crime).
For Black Bull, the matter is a little less clean; for one, the case did not involve a "458" probable cause action, but a "404" per se action; nonetheless, the summary judgment posture and the Court's remarks establish a resonant logic to that in Fidelis - evidence of a violation will establish the violation.
The Black Bull court did dig into the interesting "exclusion" under the Act - barring minor variations of sign lettering or height minimums as qualifying "violations." The evidence in Black Bull established that the sign at issue involved "three stacked signs"; the topmost was written in one inch lettering, cluttered with excessive verbiage, and the bottom sign was broken in half, apparently adding extra rules for guests, and was less than five feet off the ground. The Court found that both defects in lettering height and the bottommost sign height violated the Act - even if the topmost sign complied with all the requisites of the Code, because the bottom sign was part of the same "notice" at law, it needed to also comply with the law's height requisites. Black Bull does not stand for the proposition that I think it should, which is that while there must be at least "one" sign satisfying various notice requisites under Section 2308.301(a), every other sign must satisfy all formatting, dimensions, and layout requisites of Section 2308.301(b) and Section 2308.302.
Signage requisites
It seems a VO should always cite to Fidelis and its implications. The posting requirement (and the all-entrance requirement) are but two of probably two dozen requisites, which I now list below. Cherry pick them for your case, baby.
The Code describes the requisites of “each sign prohibiting unauthorized vehicles.” Tex. Occ. Code § 2308.301(a).
Each such sign must be “at least . . . 24 inches tall.” Id. at §2308.301(b)(2). 
They must each contain “the international towing symbol for towing vehicles.” Id. at §2308.301(b)(3).
They must “contain[] a statement describing who may park in the parking facility and prohibiting all others.” Id. at §2308.301(b)(4). 
They must contain one of three phrases describing what becomes of “unauthorized vehicles,” including whether they are “towed or booted at owner’s or operator’s expense,” or merely “towed” or "booted" at same expense Id. at §2308.301(b)(5)(A)-(C). [I 100% disagree with any argument that the posted phrases must include the quotation marks, as argued by Mr. Johnson and Attorney Norred, because I don't think the statute's use of the term "words" means "quotation marks" as well; the reference video in the link with Norred is nonexistent.]
They must “contain[] a statement of the days and hours of towing and booting enforcement.” Id. at §2308.301(b)(6).
They must “contain[] a number, including the area code, of a telephone that is answered 24 hours a day to enable an owner or operator of a vehicle to locate a towed vehicle.” Id. at §2308.301(b)(7). 
Moreover, there must be “a sign prohibiting unauthorized vehicles” that also is “facing and conspicuously visible to the driver of a vehicle that enters the facility.” Id. at §2308.301(a)(1). 
This same sign must be “located on the right or left side of each driveway or curb-cut through which a vehicle can enter the facility,” including any alleyway entries “abutting the facility.” Id. at §2308.301(a)(2).
This same sign sign must be “permanently mounted on a pole, post, permanent wall, or permanent barrier.” Id. at §2308.301(a)(3).
This same sign must be “installed on the parking facility.” Id. at §2308.301(a)(4). 
This same sign must be “installed so that the bottom edge of the sign is lower than five feet and no higher than eight feet above ground level.” Id. at §2308.301(a)(5). [I have some grave misgivings at to the possibility of complying with the Act by posting on a gated facility any sign not on the side of the gate where the parking is actually located, because it seems impossible to be both "on" a parking facility and on either side of a driveway "through which a vehicle can enter the facility" and also facing a driver who "enters" the facility. If the sign is on the "public" side of the facility, then it's not "on" the facility subject to the regulation; it would be "on" the facility and facing the drivers and so on if it is immediately behind such a gate. I don't think this problem exists where the restricted facility is just a parking lot you pull into. I also do not think this is absurd. It's not my fault the lobbyists can't draft.]
Moreover, “each sign” that is required by Section 2308 must also “comply with the color, layout and lettering height requirements” of Section 2308.302. Id. at § 2308.302(a). [This provision suggests that while there may be "a" sign complying with the Section 2308.301(a) and Section 2308.302, any additional signs expanding on what is an "unauthorized vehicle" must comply with Section 2308.301(b) and Section 2308.302. This is an extremely important argument in the "sign stacking" context, not touched upon in Black Bull, in error, I believe.]
The color, layout and lettering height requirements have one exception: any extra signs a parking facility may add to reserve private spaces under §2308.305. See id. 
The international tow symbol described in Section 2308.301(b)(3) must be both “bright red” and “at least four inches in height” and on the “uppermost portion of a sign or on a separate sign placed immediately above the sign.” Id. at §2308.302(b). 
Right below this towing symbol must be a phrase “at least two inches in height” and consisting of “white letters on a bright red background”: “Towing and Booting Enforced” or “Towing Enforced” or "Booting Enforced." Id. at §2308.302(c)(1)(A)-(C), (2). 
Right below this phrasing must be all information described in Section 2308.301(b) (except the phone number) in “bright red letters at least one inch in height on a white background.” Id. at §2308.302(d). 
And right below this penultimate phrasing portion, at “the bottommost portion of the sign” must be the telephone number described in Section 2308.301(b), and only if “the facility owner chooses or if an applicable municipal ordinance requires, . . . the name and addressof the storage facility to which an unauthorized vehicle will be towed.” Id. at §2308.302(e). These letters must be white, on a bright red background, at least one inch high. Id.
There is an "exclusion" towing companies will glom onto any chance they get. It is the "minor variance" exclusion - there is no Act violation (and thus, under Fidelis, no showing of a lack of probable cause to tow) for signage violations that are "minor variations" from the sign height and lettering height requirements. Id. § 2308.407. This provision clearly does not apply to the towing symbol height; so if the towing symbol is less than four inches, even a centimeter, the savvy VO must argue it (and indeed, if denied relief by the JP must make it the basis for his de novo appeal or retrial motion.)
The fees
The Rules I cited above, 16 Tex. Admin. Code § 86.1 et seq., contain provisions regarding how a towing company may assess a fee for towing your vehicle. Some of these towing people have told me I'm full of it but the law seems pretty clear. I invite correction, of course.
The Rules you must focus on regarding the fees exist here - 16 Tex. Admin. Code § 86.705(h)-(j):
(h) A towing company or towing operator may not charge a fee for a nonconsent tow that is greater than the fee listed in the schedule most recently submitted to the department.
(i) A towing company or towing operator may not charge a fee related to a nonconsent tow that is not listed in the schedule most recently submitted to the department.
(j) A towing company may not charge a fee for a nonconsent tow that is greater than the statewide fee or nonconsent tow fee authorized by Texas Occupations Code, §2308.2065.
Okay, so if there is no fee listed in a schedule on file with the Department, then no fee may be charged you. (A fee must be listed in a schedule submitted to the Department.)
So develop that evidence. These people do not seem to think they need to do this for some reason. I do not know why. I have scoured the regulations. There is a very bizarrephenomenon on the Department's website for some towing companies that says, when you try to view the fee schedule, that they are not required to post it. Someone I called at the Department said as much; they said a tow company must only send it to the vehicle storage facility they contract with to drop cars. Have they not read this law? I called Brad Bowman, the Department's general counsel, but he didn't return my call.
There IS indeed a requirement that a schedule be shared with the vehicle storage facility (the pound lot your car ends up at) - 16 Tex. Admin. Code § 86.706(a)-(b), but these provisions require that there also be one on file with the Department:
(a) A towing company must provide its nonconsent towing fees schedule to all VSF's to which the towing company delivers vehicles for storage.
(b) The nonconsent towing fees schedule provided to the VSF and made available to the public at the VSF must match the nonconsent towing fees schedule on file with the department.
So even if a VSF has a copy, if there is no evidence the Department has the fee, FIGHT THEM.
Remember - the fee question is separate from the probable cause question; so if you don't want to fight the right to tow (assuming a perfect sign, fight the fee question - if you cannot find a scheduled fee on file (and you MUST do your best to wriggle this out of the deader-than-a-doornail phone line at the Department, or go down to Austin and hammer on their doors to talk to someone in records or compliance about it, because godDAMN do they do not answer their phones at this agency), then make that your main argument.
Argue everything. JPs will try to steamroll you because they're bored and they hate you and themselves. In my most recent hearing, the JP literally prevented the VO from testifying by setting a one-hour clock on the hearing; she took testimony only from the defendants, which was a mishmash of some basic Cover Your Ass arguments to show they had "a sign" up (but certainly insufficient to overcome the patent deviations from the requisites of the Code). If the JP steamrolls you and enters an adverse ruling, appeal it de novo or fight it with a new trial / vacatur motion. JPs, for whatever reason, do not believe that the technical exceptions justifying the theft of property is important, or demanding of plodding scrutiny. MAKE them think otherwise (as politely as possible).
Make the tow companies work. Don't be afraid to ask for help.
You must not be afraid of technical arguments, since this is all technical bullshit. You may feel in your guts "well, gee, yeah, the sign's screwed up but I know the rules, I know I'm not supposed to be there..." NO NO NO NO NO NO. Nobody should STEAL your car, and if there is a LAW allowing theft, you MUST ensure they comply with it. You are (or know) the same kinds of people who quibble over how much to leave a Denny's waitress. You KNOW how to nitpick about absolute garbage, like if the tea was good or not or if the $40.00 entree came out cold so now the single mom shouldn't get $4.00 or whatever. How can you just roll over when a thief steals your CAR?
These towing companies will argue night is day to get their way. They want their money. They know the risks of being found out by courts -- CRIMINAL penalties (including fines, and if the appropriate mens rea is established, jail time, and ADMINISTRATIVE penalties (including the loss of the Department's license to steal). You should make them WORK for the license to steal!

Thursday, November 15, 2018

Texas Thicc Tip Series 14: Rule 91a and the Prevailing Party Rule

I'm on a roll. I've read dozens of these cases; I've probably read every important 91a decision and even all the unimportant ones. I am the 91a Scholar. I inhabit the very words of the Rule and can pronounce judgment on all erroneous interpretations of the Rule. I have become familiar with its cousins in Rules 45, 46, 47, 59, 91 and the entire corpus of insanely contradictory plea to the jurisdiction law. I have reached into the heart of justice and seized only shards of a darkened mirror.

So I continue my quest to elucidate and educate.

Blah blah blah Rule 91a is a tool used to attack baseless causes of action. It's a poorly worded Rule and it's led to a zillion opinions all contradicting each other. The Supreme Court barely remarks on its own shitty Rule and when it does it just foments more disagreement.

I will consider some simple cases today: Koenig v. Blaylock, Cypress Creek EMS v. Dolcefino, In re Odebrecht Construction, Thuesen v. Amerisure Insurance, and AC Interests.

The first four are intermediate appellate opinions each of which deal with a separate, but interrelated matter concerning the "prevailing party" rule, and the latter is a recent 2018 Texas Supreme Court "remark" on Rule 91a that added nothing to the conversation.

Rule 91a is a "loser pays" Rule; if you lose the Rule 91a motion, whether as movant or nonmovant, the trial court has a ministerial duty to award "reasonable attorneys' fees." What is reasonable has long been held to be within "the sound discretion of the trial court," meaning that almost no one will disturb an award of fees unless the award is an abuse of discretion, which generally requires the court to go off on its own in determining a reasonable fee; no sane attorney would ask a court to do that because the Supreme Court has done so much work in clarifying how to justify the reasonableness of a fee, so almost all attorneys remove the discretion from the court to a certain extent by describing why their fee is perfectly reasonable. Thus, an attorney defending a motion may ask for $150.00 an hour for 50 hours in defending a protracted 91a motion, and a movant's attorney may ask for $500.00 an hour for 15 hours in prosecuting the motion; either way you split the baby, it's $7,500.00 and the law is such a shitshow on "reasonableness" that disparate rates are considered totally reasonable from case to case on almost the same fact patterns before the same court. The law grift is awesome.

It is therefore very cool to win a 91a motion because there's no worming around the fact a fee must come down. This is the "prevailing party rule."

Prevailing under 91a

Rule 91a.7 says this: "Except in an action by or against a governmental entity or a public official acting in his or her official capacity or under color of law, the court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court. The court must consider evidence regarding costs and fees in determining the award."

Okay so for most civil cases the key phrase is must award reasonable and necessary attorney fees incurred with respect to the challenge cause of action in the trial court. Gee, what could that mean. Oh, guess it means fees on appeal because the drafters didn't know where to put the prepositional phrase "in the trial court." Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 188 (Tex. App.--Houston [14th Dist.] 2015) (stating because "in the trial court" didn't follow "incurred" appellate fees could be awarded). It also means the award is mandatory. Drake v. Chase Bank, No. 02-13-00340-CV, 5-6 (Tex. App.--Fort Worth Nov. 20, 2014, no pet.) (mem. op.) (slip. op.) (mandatory to award prevailing party fee even if loser indigent); accord Marshall v. Enter. Bank, No. 10-16-00379-CV (Tex. App.--Waco Sept. 5, 2018, no pet. h.) (mem. op.) (slip op.) (fee mandatory if you win 91a motion). The fee is mandatory even if you win and then the court vacates the order. Cypress Creek EMS v. Dolcefino, 548 S.W.3d 673 (Tex. App.--Houston [1st Dist.] 2018) (maybe--the vacatur wasn't challenged as a "ruling" on the motion lol).

The intermediate holdings of note to me

Koenig v. Blaylock, 497 S.W.3d 595 (Tex. App.--Austin 2016)

In this case, the appellate court wrestled with a problem involving a clause in Rule 91a that says the 91a motion "must be granted or denied within 45 days after the motion is filed." Tex. R. Civ. P. 91a.3(c). It sure sounds mandatory. Turns out it's not, at least in Austin.

Two lovebirds got a house together before they married. Then they married, moved in, realized they hated each other, and the wife took off. I looked her up on Facebook. Everyone looks happier after divorce except the guy but it looks like he found a new woman, too. Hell yeah.

Divorce court told hubbie to pay wifey $61,500.00 in lieu of property sale. Wifey couldn't collect, so she filed a suit to force a sale of the home hubbie had stayed in. Wifey worked as the Budget Officer for Wilco, and Hubbie was nervous about having his case heard by any Wilco judges. Smart move! Another judge was assigned to hear the case from out of county. Hubbie moved to dismiss the suit under 91a.

For whatever reason, the court was unable to hear the case within 45 days of the 91a motion's filing date. On the hearing date, the court denied the motion, and later on at end of trial said it was because it was past 45 days. Hell yeah! Justice. Literally the thing Rule 91a is meant to avoid: trial.

The appeals court decided that since "the Rule does not provide any consequence if a court takes no action on the motion within the prescribed period." Blaylock, 497 S.W.3d at 598. Rule 91a is a "directory" rule, not a "mandatory" rule, accordingly. Id. at 598-99. The Court adds a common-sense observation: "Koenig has not identified how a plaintiff in her position would be prejudiced by a court's ruling on a motion to dismiss after the 45-day period, nor can we imagine any such prejudice. In fact, a plaintiff would have more time to formulate a response to a dismissal argument, more time to amend a petition to add facts or adjust legal theories, and more time to consider whether to non-suit her case." Id. at 599.

Callback to my Texas Thicc Tip Series 13: the Court said that because the wifey added exhibits to her RESPONSE to the 91a motion, the court could consider it as a proper Rule 59 exhibit. Id. at 599-600.

On top of this all, the court reversed and rendered for hubbie: the partition suit was overkill with no basis in law, so it should have been dismissed and fees awarded. Id. at 600-01. Partition actions are proper only where the petitioner has interest and present possessory interest; the divorce decree divested her of title by reducing her interest in the residence to a money judgment.

So, a court may not grant or deny the Rule 91a motion within 45 days but the best practice is to urge the court to set it for hearing (whether by submission or oral), for which two weeks' notice is required. Tex. R. Civ. P. 91a.6.

Cypress Creek EMS v. Dolcefino, 548 S.W.3d 673 (Tex. App.--Houston [1st Dist.] 2018)

This one is sad as shit. An EMS company sued a poor fellow for conversion, alleging they had "accidentally mailed certain confidential documents". The poor fellow denied receipt, moved to dismiss under 91a (along with motion for summary judgment). The court granted the 91a motion, but later vacated the grant, ostensibly because the "granting of the motion had been untimely." I looked up the motion to vacate on Harris District Clerk (Cause No. 2015-23275); the docket shows the first notice of submission hearing filed by the movant was on August 10, 2015, and the 91a motion filed May 21, 2015; therefore, more than 45 days had lapsed between the first attempt to get a hearing and the filing. I'm not sure this is the rule (i.e. I'm not sure the Rule requires the movant move, but I sure wouldn't give an opening to the other side to argue this). It is certainly clear that the Rule dictates the timing deadlines similar to the summary judgment rule; the hearing date controls response, amendment and nonsuit deadlines. (Note, at no time prior to the 91a hearing did the plaintiff's attorneys argue about this, but they filed a response and a sur-reply. Guess they scratched their heads to figure out how they could ask for $23,897.50 to bring a conversion claim for public records and figured they'd move to vacate! Ha ha!)

The appeals court observed that the 91a movant "does not contest CCEMS's claim that it was a prevailing party on his Rule 91a motion to dismiss because the trial court ultimately ruled on Dolcefino's Rule 91a motion in an untimely manner and subsequently granted summary judgment in favor of Dolcefino." Damn; well now there's precedent to do exactly this - Blaylock.

There's a good ending: the evil EMS company only got $850.00 out of their fee request.

So read Blaylock and Dolcefino together: a 91a movant should not be foreclosed from relief simply because the motion is untimely heard, but a diligent 91a movant should make sure it at least attempts to request a setting within the 45 day deadline.

Thuesen v. Amerisure Ins. Co. 487 S.W.3d 291 (Tex. App.--Houston [14th Dist.] 2016)


This case is simple. It holds that a movant is not a prevailing party under Rule 91a where the party “timely nonsuits” its claim before the 91a hearing. In fact, if the sole cause of action challenged by Rule 91a is nonsuited in a timely fashion, there’s no discretion to the court to conduct the hearing by the plain language of the Rule. Simple! There is simply no prevailing party because there can never be a ruling. You use Rule 91a as a game of chicken; if the other side chickens out, you win. Id. at 301.


In re Odebrecht Construction, 548 S.W.3d 739 (Tex. App.--Corpus Christi 2018, no pet.) (mem. op. on reh'g)


This case sucks. The 91a movant, a construction firm, sought to use 91a to dismiss a former employee's action for wrongful termination on the basis that "Mora failed to allege any facts to show that he 'testified' or was 'about to testify' in a workers' compensation proceeding" under the Texas Labor Code § 451.001(4), apparently an element of the claim. The appeals court decided that the "allegations, taken as true, have a basis in law" and therefore denied the petition for writ of mandamus to force the trial court to grant the motion to dismiss and vacate the order denying the motion. Section 451.001(4) of the Labor Code says that the usual “employment-at-will doctrine” cannot shield an employer from a wrongful termination claim where the discharge is “because the employee has testified or is about to testify in a proceeding” under another Labor Code section. Tex. Lab. Code § 451.001(4). The “retaliation claim” may be based on this, and apparently it was based on this. So, the movant simply sought to dismiss because of the failure to plead facts showing this element was met. It would have been as simple as this, if true: “Plaintiff testified or was about to testify in a proceeding” under blah blah blah “and was discharged.” Right?


The Court got it right the first time: it decided the petition’s failure to allege these facts showing an exception to the at-will doctrine formed a “clear legal bar” to the claim, and 91a relief was mandatory. However, apparently, due to “carefully examining Mora’s motion for rehearing, the response, and intervening case law issued by the Texas Supreme Court regarding Rule 91a dismissals” the Court now decided that “two developing tenets regarding the proper application of Rule 91a” compelled a different ruling.


These “two developing tenets” are 1) that the court’s “review is narrowly focused on the plaintiff’s pleading of the cause of action” under Rule 91a.6. For support, they cited to dicta from the Supreme Court in ConocoPhillips Company v. Koopmann (issued March 23, 2018), where the Court refused to find the 91a movant was a prevailing party when he won on summary judgment (a similar topic was briefly raised in Dolcefino, supra but not discussed at all). This is a taffy stretch of the language in Koopmann, and I’m not interested here in going over that language. The Court focused on the Supreme Court’s language that the evidence-based victory of the 91a movant after losing the 91a motion does not make him a victor on an evidence-free 91a motion, but the Court also took issue with the total failure to have appealed the 91a denial and instead wait until after the grant of summary judgment: “We reject Burlington’s argument that it is entitled to recover attorney’s fees as the prevailing party on the motion under Rule 91a when Burlington received an adverse ruling on that motion, did not challenge the ruling at that time, and later prevailed on its motion for summary judgment, which became final when it was not appealed to this Court.” In re ConocoPhillips, No. 16-0662, 34-35 (Tex. Mar. 23, 2018) (slip op. corr. June 22, 2018). This is fucking important and goes to the mandamus discussion in my Texas Thicc Tip Series 13. The Supreme Court appears to be flagging that a 91a movant who loses may indeed be the prevailing party if a challenge is made and some showing can be made subsequently that the decision should have been in favor of the movant (perhaps even if the challenge is denied) – the Court seems concerned with playing a “wait and see” game and coming back and asking for fees when victory is assessed on some grounds not based on the defects in the pleadings.


The second tenet is another over-reach of the Texas Supreme Court’s language in a Rule 91a case, AC Interests, L.P. v. Tex. Comm’n on Envtl. Quality, No. 16-0260 (issued the same day as ConocoPhillips). The Court interpreted the language in AC Interests as essentially cabining Rule 91a from looking “beyond the pleadings” to determine statutory compliance as a ground for dismissal; according to the AC Interests holding, that’s a no-no. From this very tiny remark, the Court decided that “The supreme court thus limited the scope of Rule 91a dismissals to the grounds presented by the rule and indicated that these motions should not be utilized as a substitute for general motions to dismiss or motions that seek to resolve cases on their merits.” Synthesizing all of this, the Court decided that the Mora petition “under the relevant law [contained] . . . nothing in the pleading itself [that] triggers a clear legal bar to his claim. . . . To ascertain whether Mora’s claim has no basis in law, we would need to look beyond Mora’s pleading, and this expanded scope of review is prohibited by Rule 91a.”


Holy shit. Egads. The Court read a petition that absolutely did not plead a fact showing the plaintiff met an exception from the at-will doctrine as perfectly fine so long as that could be a basis for the petition. They reached this bizarre conclusion by over-stretching the taffy in AC Interests. It seems like an untenable stretch to hold that the failure to plead a fact showing an exception to the rule of law such that the plaintiff would have standing to bring the claim was not a pleading or jurisdictional defect, but rather an issue that needed to be either specially excepted or challenged on an evidentiary ground. What else should be freely inferred if that’s the case? Can a person in Corpus Christi never use 91a to dismiss a plaintiff’s action for, say, an FDCPA violation where the person is in fact not a debt collector covered by the FDCPA and such is never pleaded affirmatively? Corpus Christi’s rule in this case is that, indeed, an FDCPA defendant who is a wrongfully sued person should never be allowed to use Rule 91a to do this, and must instead do a usual motion to dismiss (and in order to recoup the “fee” also move for sanctions, or “creatively” bring a declaratory counterclaim for the fees under that statute).


There’s ample room to require a plaintiff plead the elements of a claim. See County of Cameron v. Brown, 80 S.W.3d 549, 555-59 (Tex. 2002) (pre-91a case going over each element of a premises liability claim when challenged by a plea to the jurisdiction and determining whether each element satisfied the pleading sufficiency or jurisdictional existence standards for a plea to the jurisdiction, and finding that absence of facts meting an element simply needed to be given a chance to amend to satisfy the plea to the jurisdiction).


Why else is this decision wrong?

Well, because the Supreme Court also has said Rule 91a motions are fundamentally “pleas to the jurisdiction.” City of Dallas v. Sanchez, 494 S.W.3d 722, 725 (Tex. 2016) (“To determine whether dismissal under Rule 91a is required in this case, we thus consider whether the pleadings, liberally construed, allege sufficient facts to invoke a waiver of governmental immunity under the Tort Claims Act.”) Wow, so it sounds like a Rule 91a motion “reaches” out into the available law to determine if a pleading conforms with the law at hand. Perhaps AC Interests is a modification of City of Dallas. Perhaps not. That language was too broad for Corpus Christi. “[W]e are wary of turning analogy into actuality. . . . we also note that whereas rule 91a was designed to allow for the dismissal of baseless claims, the purpose of a plea to the jurisdiction is to defeat a cause of action without regard to whether the claims asserted have merit. The most critical and relevant distinction between a 91a motion and a plea to the jurisdiction is that a ruling on a 91a motion must not be based on extrinsic evidence if necessary to resolve a plea to the jurisdiction. . . . [To otherwise blend Rule 91a with pleas to the jurisdiction] would distort the bounds of procedure for summary judgment and rule 91a, and it would foreclose a vital aspect of plea to the jurisdiction practice: the introduction of evidence.” Reaves v. City of Corpus Christi, 518 S.W.3d 594, 605 (Tex. App.–Corpus Christi 2017). 


Fair enough. The City of Dallas case did not go out and say ALL 91a MOTIONS ARE BASICALLY PLEAS TO THE JURISDICTION. It just cited with approval the exact holding from Wooley v. Schaffer that essentially said that. Too far a bridge for Corpus.




AC Interests, LP v. Tex. Comm'n on Envtl. Quality, 543 S.W.3d 703, 706 (Tex. 2018)     


The Texas Supreme Court spent very little time on Rule 91a in this opinion, although the little time it did spend was important but unfortunately so broadly worded as to blow up the interpetive capacities of the lower courts. In this case, the 91a movant (the TCEQ) simply challenged “a statutory requirement–the timely service of citation.” The TCEQ totally failed to “address the pleadings or the deficiency of any cause of action.” The court chided, “that was not the proper motion to file.” A 91a motion challenging a statutory requirement “is premised on matters of statutory construction rather than on any matter subject to Rule 91a.” Accordingly, the Court treated the 91a motion as a “general motion to dismiss or dilatory plea premised on the TCEQ’s interpretation of the statute.”


Rock and roll. So the Court simply spent time adding dicta to express its disapproval of using Rule 91a to achieve goals not contemplated by the plain language. Rule 91a does not once mention citation, and over and over says the attack must be on the causes of action in the pleadings. Holding that Rule 91a could not be used to challenge service is a no-brainer. Saying that Rule 91a could not be used as a tool of “statutory construction,” alas, says much too much, especially since the Court already interpreted Rule 91a challenges in the context of the Texas Tort Claims Act in City of Dallas, goddammit. Surely, service of papers gives parties a cause of action; e.g., abuse of process claims. There’s no way AC Interests is saying that service of process could never be subject to a Rule 91a claim when process underlies the claim; all AC Interests is saying is that to the extent service is unrelated to the substantive claims, Rule 91a is not the tool to challenge service of process, and by extension, any similar statutory requirement that may precede the continuance of an action.


You know what is not a “statutory requirement” prior to continuing an action? Whether one testified or was about to testify in a covered hearing prior to being fired by their boss. That is, in fact, the precondition to standing to sue under the wrongful discharge statute, rather like a jurisdictional fact than anything else.


That’s it today.