                              Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION

                                        No. 04-17-00820-CV

JOHN DELOACH ENTERPRISES, INC. d/b/a Bexar Towing and Ouachita Enterprises, Inc.
                      d/b/a Bexar Auto Storage,
                             Appellants

                                                  v.

                                TELHIO CREDIT UNION, INC.,
                                         Appellee

                     From the County Court at Law No. 3, Bexar County, Texas
                                 Trial Court No. 2017CV00279
                              Honorable Jason Wolff, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Luz Elena D. Chapa, Justice
                  Irene Rios, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: March 13, 2019

REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART;
DISMISSED IN PART

           This is an appeal from a judgment in favor of Telhio Credit Union, Inc. in a suit for

conversion. We hold the evidence is legally sufficient to support the trial court’s finding of liability

for conversion against appellant Ouachita Enterprises, Inc. d/b/a Bexar Storage. We further hold

the evidence is legally insufficient to support the amount of damages awarded; however, because

some evidence supported an award of damages, we reverse the judgment against Bexar Storage

and remand the case for a new trial on the conversion claim. We reverse and render a take nothing
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judgment on the claim for attorney’s fees because Telhio did not establish a legal basis for a fee

award. In addition, we dismiss the appeal of John DeLoach Enterprises, Inc. d/b/a Bexar Towing

because no judgment was rendered against it and it has not shown any justiciable interest in

appealing the judgment.

                                         BACKGROUND

       On January 20, 2016, John DeLoach Enterprises, Inc. d/b/a Bexar Towing (“Bexar

Towing”) towed a 2009 Nissan Versa from the parking lot of an apartment complex at the request

of the complex’s management. The car was towed to Ouachita Enterprises Inc. d/b/a Bexar

Storage’s (“Bexar Storage”) vehicle storage facility. The Nissan had Texas license plates and a

Texas registration sticker. Bexar Storage requested and received information from the Texas

Department of Motor Vehicles Titles and Registration Division (“TDMV”) that the car had been

registered in Bexar County on August 19, 2014 “for registration purposes only” and that the

registered owner of the car was Samuel Johnson. No information was provided as to whether there

was a lienholder. Bexar Storage sent certified letters to Samuel Johnson on January 22, 2018 and

February 9, 2018, notifying him the car had been towed and details on how it could be recovered.

Bexar Storage was never contacted by Mr. Johnson or by anyone on his behalf.

       Telhio Credit Union, Inc. held a lien on the Nissan. Telhio hired a recovery firm, which

located the Nissan at Bexar Storage. Telhio contacted Bexar Storage in May 2016, seeking

immediate release of the vehicle. Bexar Storage demanded payment for towing and accrued

storage fees of approximately $2,500. Telhio advised it would only pay storage fees reflecting a

period of five days, contending that the Texas Vehicle Storage Facility Act prohibited Bexar

Storage from charging more because it had not provided notice of the impoundment to Telhio as

the primary lienholder. Telhio made several attempts to obtain release of the car from Bexar

Storage, including a demand letter dated May 16, 2016, in which it tendered payment of the towing


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charges and fees for five days of storage and demanded release of the vehicle. Bexar Storage did

not respond to the letter or release the vehicle.

       Telhio sued Bexar Towing and Bexar Storage in justice court, alleging violations of the

Texas Occupations Code, negligence per se, and conversion. The justice court rendered judgment

for Telhio, and the defendants appealed to the county court at law. After a de novo bench trial, the

trial court rendered judgment against Bexar Storage for conversion. The court awarded Telhio

damages in the amount of $4,622.30 (after applying offsets and credits for authorized fees in the

amount of $352.70) and attorney’s fees in the amount of $15,744.50, together with interest and

costs. The court rendered a take nothing judgment in favor of Bexar Towing. The court

subsequently signed findings of fact and conclusions of law. The defendants’ motion for new trial

was overruled by operation of law.

       Both Bexar Towing and Bexar Storage appeal the judgment. In four issues, they challenge

the legal sufficiency of the evidence to support the finding of liability for conversion and the

damage award and challenge the legal basis for an award of attorney’s fees.

                             BEXAR TOWING’S STANDING TO APPEAL

       We initially address Telhio’s contention that Bexar Towing has no standing to appeal the

judgment and should be dismissed from the appeal. “[A]n appealing party may not complain of

errors that do not injuriously affect it or that merely affect the rights of others.” Torrington Co. v.

Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). “While a party of record is generally entitled to

appellate review, the right of appeal rests only in an aggrieved party to a lawsuit.” Jay Kay Bear

Ltd. v. Martin, No. 04-14-00579-CV, 2015 WL 6736776, at *5 (Tex. App.—San Antonio Nov. 4,

2015, pet. denied).

       A party is not “aggrieved” unless it has a justiciable interest in the judgment and is

injuriously affected or prejudiced by it. Id.; see also Torrington, 46 S.W.3d at 844. The trial court


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rendered a take-nothing judgment in Bexar Towing’s favor. Bexar Towing has not asserted or

shown that any error in the judgment against Bexar Storage has injuriously affected Bexar Towing

or prejudiced it. And Bexar Towing did not otherwise respond to Telhio’s argument that Bexar

Towing lacked standing to appeal the judgment. We hold John DeLoach Enterprises, Inc. d/b/a

Bexar Towing has no justiciable interest in this appeal and we dismiss its appeal.

                                           CONVERSION

       To establish liability for conversion a plaintiff must prove it has a sufficient interest in the

property, the defendant exercised dominion and control over the property in an unlawful and

unauthorized manner, to the exclusion of and inconsistent with the plaintiff’s rights, and the

defendant refused plaintiff’s demand for the return of the property. See Akin v. Santa Clara Land

Co., 34 S.W.3d 334, 344 (Tex. App.—San Antonio 2000, pet. denied). A successful plaintiff may

recover the fair market value of the property at the time and place of the conversion. See Imperial

Sugar Co v. Torrans, 604 S.W.2d 73, 74 (Tex. 1980) (per curiam). Bexar Storage challenges the

trial court’s judgment for conversion in three issues:

       1. Telhio [] could not have prevailed on its conversion claim because there is no
       evidence to show that it was entitled to possession of the vehicle at issue in this
       litigation.

       2. Telhio [] could not have prevailed on its conversion claim because it failed to
       introduce any competent evidence that [Bexar Storage] exercised dominion over
       the vehicle in an unlawful and unauthorized manner.

       3. There is legally insufficient evidence to support the compensatory damages
       awarded in the judgment.

       When the trial court has made findings of fact and a reporter’s record has been filed, we

review the findings for legal and factual insufficiency of the evidence using the same standards we

apply to jury findings. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.

2002). A party who “attacks the legal sufficiency of an adverse finding on an issue on which it



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did not have the burden of proof . . . must demonstrate on appeal that no evidence supports the

adverse finding.” Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per

curiam). If there is more than a scintilla of evidence to support the trial court’s finding, the no-

evidence challenge fails and must be overruled. Id. In reviewing a finding for legal sufficiency,

we consider the evidence in the light most favorable to the finding, crediting favorable evidence if

a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder

could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “The final test for legal

sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded

people to reach the verdict under review.” Id.

           We review the trial court’s legal conclusions, including its construction of statutes, de

novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). When we interpret

a statute, our principal task is to ascertain the legislature’s intent. Id. We first look to the statute’s

plain language, and if the statute’s language is unambiguous, we interpret it according to its plain

meaning. Id.

Telhio’s interest in the vehicle

           Bexar Storage first argues there is no evidence to support the trial court’s finding Telhio

was the primary lienholder on the 2009 Nissan and no evidence Telhio had a legal right to possess

the car.

           There is evidence in the record that the 2009 Nissan was continuously titled in Ohio from

2009 through 2016; that Samuel Johnson registered the car in Ohio as the owner in January 2012;

and that the Ohio Bureau of Motor Vehicles’ title information identifies Telhio Credit Union as

the first lienholder on the Nissan. There is also evidence that Telhio was attempting to repossess

the Nissan in March 2016 and hired a company to locate it. This evidence is more than a scintilla

in support of the trial court’s finding that Telhio was the primary lienholder on the Nissan.


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       Bexar Storage argues that even if Telhio was shown to be the lienholder, Telhio may not

prevail on a conversion claim because Telhio did not introduce the finance contract or any evidence

Johnson had defaulted, and it thus did not present any evidence it was entitled to repossess the car.

However, a first lienholder generally has sufficient interest in the property to sue a third party for

conversion even if the lienholder does not have a greater right to possession than the owner. See

Elite Towing, Inc. v. LSI Fin. Group, 985 S.W.2d 635, 644-45 (Tex. App.—Austin 1999, no pet.);

Hart v. Meadows, 302 S.W.2d 448, 457 (Tex. Civ. App.—Texarkana 1957, writ ref’d n.r.e.).

Telhio therefore was not required to prove that Johnson had breached the financing agreement or

that Telhio had a right to immediate possession of the Nissan under that financing agreement in

order to sue Bexar Storage for conversion. See Moore v. Carey Bros. Oil Co., 269 S.W. 75, 78

(Tex. 1925) (“”It is well settled that a lienholder may sue for a conversion of the property on which

the lien exists.”). We therefore overrule Bexar Storage’s first issue.

Unlawful and unauthorized exercise of dominion

       In its second issue, Bexar Storage argues there is no evidence that it exercised dominion

over the car in an unlawful and unauthorized manner. The trial court found Bexar Storage

exercised dominion over the Nissan in an unlawful and unauthorized manner by demanding Telhio

pay unlawful and unauthorized storage fees before it would release the car. Bexar Storage argues

the trial court misconstrued the law and contends the fees it charged were authorized by law.

       The Texas Vehicle Storage Facility Act, chapter 2303 of the Occupations Code, regulates

the storage of vehicles towed without the consent of the owner at “vehicle storage facilities.” TEX.

OCC. CODE §§ 2303.001, 2303.003(a). In relevant part, Chapter 2303 authorizes the facility

operator to charge the owner specified fees, including a daily storage fee of between $5 and $20

for each day the vehicle is stored at the facility. See id. § 2303.155(b)(3)(A). However, for

vehicles registered in Texas, the storage facility operator may not charge a daily storage fee for


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more than five days before it gives the statutorily required notice. Id. § 2303.155(e)(1). After the

required notice is given, the storage facility operator may charge the daily storage fee for “each

day the vehicle is in storage . . . until the vehicle is removed and all accrued charges are paid.”

2303.155(e)(3). A lienholder who repossesses the vehicle is liable for the amount of authorized

fees owed to the vehicle storage facility, regardless of whether the fees accrued before or after the

vehicle was repossessed. Id. § 2303.156(a).

       The dispute in this case is whether the notice Bexar Storage sent to the owner satisfied the

requirements of Chapter 2303. Section 2303.151(a) provides:

       The operator of a vehicle storage facility who receives a vehicle that is registered
       in this state and that is towed to the facility for storage shall send a written notice
       to the registered owner and the primary lienholder of the vehicle not later than the
       fifth day after the date but not earlier than 24 hours after the date the operator
       receives the vehicle.

Id. § 2303.151(a). The vehicle storage facility may provide the statutory notice to the registered

owner and the primary lienholder by publication in a newspaper of general circulation in the county

where the vehicle is stored if:

       (1) the vehicle does not display a license plate or a vehicle inspection certificate
       indicating the state of registration;

       (2) the identity of the registered owner cannot reasonably be determined by the
       operator of the storage facility; or

       (3) the operator of the storage facility cannot reasonably determine the identity and
       address of each lienholder.

Id. § 2303.152(e).

       The evidence at trial established that the Nissan had Texas license plates and an expired

Texas registration sticker. On the day the car was towed, Bexar Storage submitted a search request

to the TDMV for information on the registered owners and lienholders of the car. Bexar Storage

received a response that identified the vehicle and stated it had been registered in Bexar County



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on August 19, 2014 “for registration purposes only.” The response identified Samuel Johnson,

with a San Antonio address, as the owner of the Nissan and stated the previous owner was Samuel

Johnson of Columbus Ohio. The response did not contain any information about who held title,

in what state the car was titled, or whether there was a lienholder. Bexar Storage sent certified

letters to Samuel Johnson on January 22, 2018 and February 9, 2018, notifying him the car had

been towed and providing the information required by statute. See id. § 2303.153. Bexar Storage

did not send notices to anyone else or give notice by publication, and it did nothing more to

ascertain whether there was a lienholder.

       In Texas, registration of a vehicle “for registration purposes only” is available so that the

owner of a vehicle titled in another state may register the vehicle in Texas without applying for a

negotiable Texas title. Texas Department of Motor Vehicles Motor Vehicle Title Manual ¶ 6.5.

The owner of a vehicle last registered or titled in another state may apply for this type of

registration without obtaining a Texas title if the owner cannot or does not wish to relinquish the

negotiable out-of-state title. Id.; 43 TEX. ADMIN. CODE § 217.24; see TEX. TRANSP. CODE

§ 502.043(c). The owner must present proof of ownership, such as the previous out-of-state

registration receipt, and complete a form. 43 TEX. ADMIN. CODE § 217.24. The form requires

disclosure of lienholders only if the lienholder is disclosed on the out-of-state evidence of

ownership. Id. § 217.24(b)(2); see Motor Vehicle Title Manual ¶ 6.5, “Out of State Evidence of

Ownership.” Presentation of the application and proof of ownership authorizes the issuance of a

registration receipt “for registration purposes only,” “but does not authorize the department to issue

a title.” TEX. TRANSP. CODE § 502.043(c-1). “The receipt issued … may serve as proof of

registration and evidences title to a motor vehicle for registration purposes only, but may not be

used to transfer any interest or ownership in a motor vehicle or to establish a lien.” 43 TEX ADMIN.

CODE § 217.24(b)(1). At trial, John DeLoach, the owner of Bexar Storage, acknowledged he


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understood the purpose of a registration “for registration purposes only” and that a person would

use this type of registration if the vehicle were titled in another state and the person registering the

vehicle did not have title.

       The evidence introduced at trial included a complete title history from the TDMV and a

report generated by the Ohio Bureau of Motor Vehicles in response to a vehicle title inquiry. The

TDMV records reflect Samuel Johnson applied for registration for “registration purposes only” in

August 2014. Johnson’s application was supported by a copy of State of Ohio certificate of

registration issued in January 2012. The Ohio certificate does not contain any information about

lienholders. The records disclose Johnson previously lived in Ohio and the car was previously

registered in Ohio, but nothing in the Texas title record disclosed where the car was titled or

whether there were any lienholders. The Ohio Bureau of Motor Vehicles title report reflects the

Nissan had been titled in Ohio since 2009 and the holder of the first lien was Telhio Credit Union.

       The trial court concluded the language of section 2303.151, stating that the “operator of a

vehicle storage facility who receives a vehicle that is registered in this state and that is towed to

the facility for storage shall send written notice to the registered owner and the primary lienholder”

imposed a mandatory duty on Bexar Storage to provide written notice to Telhio, the primary

lienholder. See TEX. OCC. CODE § 2303.151(a) (emphasis added). Under the Code, if Bexar

Storage was unable to “reasonably determine the identity and address of each lienholder,” it could

have satisfied its mandatory duty by giving notice by publication. See id. § 2303.152. The court

found that because Bexar Storage failed to do either, section 2303.151(e) authorized Bexar Storage

to charge only five days’ storage fees. The court concluded that Bexar Storage’s refusal to release

the Nissan to the lienholder on tender of the authorized amount of fees was a wrongful and

unauthorized exercise of dominion over the vehicle.




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       Bexar Storage contends it was entitled to rely on the information it received from the

TDMV. It argues that the trial court’s construction requires a vehicle storage facility to presume

there is always a lienholder, and effectively means that reliance on the TDMV’s records is not

reasonable. This, it contends, will unreasonably increase the cost and the regulatory burden on

vehicle storage facilities because it will require them to conduct a fifty-state title search during the

statutory five-day period or to give notice of publication in every case.

       We disagree with Bexar Storage’s characterization of the meaning and effect of the trial

court’s rulings. A vehicle storage facility is entitled to rely on registration and title information

provided by the TDMV. When the result of an inquiry with the TDMV shows the vehicle is titled

in Texas and there is no lienholder, a vehicle storage facility may generally assume the title is clear

and there is no lienholder. However, in this case the TDMV did not report that the vehicle was

titled in Texas and did not report that there was no lienholder. Instead, the TDMV reported the

registration was “for registration purposes only,” and it provided no information as to whether

there was a lienholder. Under Texas law, a registration “for registration purposes only” means the

vehicle is not titled in Texas and the owner is not required to produce information about lienholders

in order to obtain such registration. See 43 TEX. ADMIN. CODE § 217.24; Motor Vehicle Title

Manual ¶ 6.5, “Out of State Evidence of Ownership.” When the TDMV response to a title and

registration inquiry discloses the registration is for registration purposes only and no information

about lienholders is disclosed, a vehicle storage facility has received no information about the

identity or address of any lienholder, and thus has no basis for assuming there is not a lienholder.

In sum, the vehicle storage facility is not required to presume there is always a lienholder; however,

under the circumstances of this case, the vehicle storage facility could not presume there was not

a lienholder.




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       Our construction of the obligations imposed on the vehicle storage facility by Chapter 2303

does not unreasonably increase the regulatory burden on such facilities. The statute requires

vehicle storage facility operators to take reasonable steps to determine the identity and address of

lienholders and requires it to provide notice to the lienholder. In cases where the Texas registration

is for registration purposes only and provides no information about lienholders, the vehicle storage

facility may be required to do more than make one governmental record request in order to satisfy

its obligations. After receiving the report from TDMV, Bexar Storage did not know whether there

was a lienholder. The information it received left it unable to determine the identity and address

of a lienholder. Bexar Storage could have tried to obtain information about lienholders by

submitting a request to the National Motor Vehicle Title Information System to determine where

the vehicle was titled and then made a record request to that state. Or it could have requested a

title record from Ohio, where the TDMV report showed the Nissan had last been registered. And

Bexar Storage could have given notice to lienholders by publication in a newspaper of general

circulation in the county where the vehicle was stored. We do not believe that additional inquiry

or giving notice by publication in cases such as this is so burdensome that it outweighs the interest

of lienholders in being notified that the vehicles have been towed, where they are being stored,

and that charges are accruing.

       We hold that chapter 2303 of the Occupations Code required Bexar Storage to either

identify and locate the lienholder and send it notice of the impoundment or give notice to the

lienholder by publication, neither of which Bexar Storage did. We agree with the trial court’s

conclusion that because Bexar Storage did not comply with the statutory notice requirement,

Chapter 2303 authorized Bexar Storage to charge for only five days of storage. Its refusal to

release the Nissan after tender of the amount that could lawfully be charged was a wrongful

exercise of dominion over the vehicle. The evidence is therefore legally sufficient to support the


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trial court’s finding that Bexar Storage exercised dominion over the vehicle in an unlawful and

unauthorized manner. We overrule Bexar Storage’s second issue.

Damages

       In its third issue, Bexar Storage argues there is no evidence to support the damage award

because there is no evidence of the Nissan’s value at the time of conversion.

       “Generally, the measure of damages for conversion is the fair market value of the property

at the time and place of the conversion.” Wise v. SR Dallas, LLC, 436 S.W.3d 402, 412 (Tex.

App.—Dallas 2014, no pet.). “Fair market value has been defined as the price that the property

would bring when it is offered for sale by one who desires, but is not obligated to sell, and is

bought by one who is under no necessity of buying it.” Id.

       The evidence established the Nissan was towed from an apartment complex at the request

of the manager. The address of the complex is the same as that listed by Mr. Johnson in his August

2014 application to register the Nissan in Texas. However, there was no evidence about why the

car was towed or whether Mr. Johnson still lived at the complex when the car was towed. DeLoach

testified the car had been sitting at the storage facility for a year and a half since it was towed. He

testified he did not have a key for the car and had not tried to start it. He testified that at the time

of trial, the car had dents and scratches all over it and had four flat tires. DeLoach testified he

expected the Nissan could be sold at a public auction for between $350 and $500.

       Telhio presented evidence from its expert property damage appraiser, Dana Follis. Follis

testified he was hired to establish a value for the Nissan; however, he did not see or inspect the

car. For purposes of his testimony, he assumed the car started, had four good tires, and was in

average running condition. He conceded he did not know if the car was operable when it was

towed, but he assumed it was.




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         Follis used the last known mileage of the Nissan from the August 2014 registration to

calculate an estimate of the average miles driven per month, and projected that mileage to January

2016. He then looked up the NADA used car values for the Nissan and researched the asking price

for 2009 Nissan Versas for sale in the area. Using these “comparables,” he calculated a market

value as of January 20, 2016, of $5,643. Follis’s report, which was admitted into evidence,

includes copies of the NADA values for the 2009 Nissan as of the date the car was towed and the

date of trial. They list trade-in values for a car in “rough,” “average,” and “clean” condition and

retail sale values for a car in “clean” condition. The record does not contain any definition of these

terms.

         The trial court ruled that Telhio was entitled to recover the market value of the car on the

date of the conversion, May 16, 2016. However, because Telhio only presented evidence of values

on the date of the tow and the date of trial, the court held it would award the lower – date of trial

– value. The court found the vehicle’s value to be $4,975, which is shown on Follis’s NADA

printout as the “clean retail” value, as of the date of trial, of a 2009 Nissan with the mileage Follis

had estimated.

         Bexar Storage argues that no evidence supports the trial court’s finding that the car had a

value of $4,975. It argues the “clean retail” values listed in the NADA report and Follis’s

testimony as to value are not competent evidence because all of those values are based upon the

unsupported assumption that the vehicle was in operating condition when it was converted. It

further argues the “comparables” do not provide support for the trial court’s finding because there

was no evidence the cars offered for sale were in fact comparable and no evidence of how much

the cars actually sold for. See Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443

S.W.3d 820, 831 (Tex. 2014) (stating that “original list price is some evidence of what a willing




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seller will accept, but it is not evidence of what a willing buyer will pay” and does not, alone, “tend

to establish the property’s market value at the time of listing.”)

       Telhio contends the trial court could reasonably infer from the fact that the car was towed

from a residence that the owner “had been using the car for transportation until shortly before it

was towed,” thus supporting Follis’s assumption that the car was in operating condition when it

was towed. We disagree. A factfinder “may not reasonably infer an ultimate fact from meager

circumstantial evidence which could give rise to any number of inferences, none more probable

than another.” Graham Cent. Station, 442 S.W.3d at 265. The circumstantial evidence in this case

was that the car was towed from an apartment complex at the request of the manager and without

the consent of the owner, the owner of the vehicle had listed the complex as his address a year and

one-half earlier, and the vehicle’s registration had expired. There was no evidence the owner of

the car lived in the complex when the car was towed, no evidence of how long it had been since it

had been driven, and no evidence about why it was towed. From this meager evidence, it is equally

inferable that the vehicle was inoperable and had been abandoned by the owner.

       The trial court’s damage award was based upon testimony and other evidence that assumed

the vehicle was in operating condition when it was converted in May 2016, and there was no

probative evidence to support that assumption. We therefore agree with Bexar Storage that no

evidence supports the trial court’s finding the Nissan had a value of $4,975 when it was converted.

See Houston Unlimited, 443 S.W.3d at 833 (“if the record contains no evidence supporting an

expert’s material factual assumptions, . . . opinion testimony founded on those assumptions is not

competent evidence”). However, the record contains probative evidence that the Nissan did have

some monetary value, and thus that Telhio suffered some damage as a result of Bexar Storage’s

conversion. DeLoach testified that a buyer would pay between $350 and $500 for the Nissan in

its condition at the time of trial. A finder of fact could reasonably infer that the car was in the


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same or better condition in May 2016, when the car was converted than it was at the time of trial.

We therefore hold some evidence supported the award of damages for conversion, but not at the

level awarded by the trial court. See Rancho la Valencia, Inc. v. Aquaplex, Inc., 297 S.W.3d 768,

777 (Tex. 2009) (per curiam); Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors,

Inc., 960 S.W.2d 41, 51 (Tex. 1998). “Because there is no legally sufficient evidence to support

the entire amount of damages, but there is some evidence of the correct measure of damages,” we

sustain Bexar Storage’s third issue, reverse the judgment, and remand for a new trial. See Rancho

la Valencia, Inc. v. Aquaplex, Inc., 383 S.W.3d 150, 152 (Tex. 2012); Formosa Plastics, 960

S.W.2d at 51; see also TEX. R. APP. P. 44.1(b) (when liability is contested, court of appeals may

not reverse for new trial on damages alone).

                                         ATTORNEY’S FEES

       In its final issue, Bexar Storage argues there is no legal basis for the trial court’s award of

attorney’s fees, arguing that fees are not recoverable for conversion and fees are not authorized by

contract or any statute. Telhio contends Bexar Storage failed to preserve its argument for appeal.

We find that Bexar Storage preserved its argument in its motion for new trial in which it

specifically asserted “there is no basis for the attorney fee award.”

       Attorney’s fees may be recovered from an opposing party only as authorized by statute or

by contract between the parties. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 817 (Tex.

2006). Fees are generally not available for conversion claims. Wiese v. Pro Am Servs., Inc., 317

S.W.3d 857, 861 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The judgment states the fees

were awarded “pursuant to Chapters 2308 and 2303” of the Texas Occupations Code. “The

availability of attorney’s fees under a particular statute is a question of law for the court.” Holland

v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam).




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       Chapter 2303, the Vehicle Storage Facility Act, does not provide for an award of attorney’s

fees to private litigants. See Underwriters at Lloyds of London v. Harris, 319 S.W.3d 863, 865-

66 (Tex. App.—Eastland 2010, no pet.).

       In its trial and appellate pleadings, Telhio has cited to sections 2308.205(c), 2308.404, and

2308.458 of chapter 2308, the Texas Towing and Booting Act, as authority for an award of

attorney’s fees.   Section 2308.205 provides that storage and notification fees imposed in

connection with a vehicle towed to a storage facility are governed by Chapter 2303, and except as

provided by Chapter 2303, Chapter 2308, and section 18.23 of the Texas Code of Criminal

Procedure, a fee may not be charged or collected without the prior written consent of the vehicle

owner or operator. TEX. OCC. CODE § 2308.205(b), (c). There is no statutory provision for

enforcement of section 2308.205 by a lienholder against a vehicle storage facility and no provision

for an award of attorney’s fees.

       Section 2308.404 provides that a towing company, booting company, or parking facility

owner may be civilly liable to a vehicle owner if it violates Chapter 2308. See id. § 2308.404. It

does not establish any civil liability for a vehicle storage facility and does not provide for an award

of attorney’s fees against a vehicle storage facility. See id.

       Section 2308.458 concerns hearings in which the issues are whether there was probable

cause to tow or boot a vehicle and whether the towing or boot removal charges were authorized

by Chapter 2308. Id. § 2308.458. The section authorizes an award of attorney’s fees to the

prevailing party at the hearing. Id. The parties in this case did not dispute the legality of the tow

or whether the towing charges were authorized. Section 2308.458 has no application to this case.

       We therefore agree with Bexar Storage that there was no legal basis for the award of

attorney’s fees, and we sustain its fourth issue.




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                                                                                       04-17-00820-CV


                                            CONCLUSION

       The evidence is legally sufficient to support the trial court’s findings that Telhio was the

primary lienholder of the 2009 Nissan that was towed to Bexar Storage, that Bexar Storage failed

to give Telhio the statutorily required notice, and that Bexar Storage refused to release the car on

demand and tender of the charges legally owed. However, the evidence is legally insufficient to

support the amount of damages awarded. We therefore reverse the trial court’s judgment for

conversion. Because some evidence supported the award of damages, but not at the level awarded

by the trial court, we remand the case to the trial court for a new trial. Lastly, we reverse the award

of attorney’s fees and render judgment that Telhio take nothing on its claim for fees.

                                                    Luz Elena D. Chapa, Justice




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