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 .
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.
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!
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 , 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)."
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.