Reversed and Remanded and Opinion Filed January 28, 2015




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-01285-CV

                        CREST INFINITI II, LP, Appellant
                                     V.
              TEXAS RV OUTLET AND TURN KEY RECOVERY, Appellees

                        On Appeal from the County Court at Law No. 1
                                    Collin County, Texas
                             Trial Court Cause No. 1-860-2012

                                MEMORANDUM OPINION
                           Before Justices Francis, Evans, and Stoddart
                                   Opinion by Justice Francis
       Crest Infiniti II, LP appeals the trial court’s take-nothing judgment in favor of Texas RV

Outlet and Turn Key Recovery. In two issues, Crest claims the evidence established as a matter

of law Crest was entitled to judgment on its tortious interference with a contract and conversion

claims, or alternatively, the trial court’s conclusion to the contrary is against the great weight and

preponderance of the evidence. Crest also contends it was entitled to attorney’s fees. Appellees

did not file a brief. We reverse the trial court’s judgment and remand for further proceedings

consistent with this opinion.

       Billy Whitaker bought an Infiniti M45 from Texas RV Outlet, financing the purchase

through Texas RV Outlet’s finance company. In November 2011, Whitaker took his car to Crest

for maintenance and repair work. After receiving an estimate of the cost, Whitaker approved the
work. Although a Crest employee contacted Whitaker when the work was completed, Whitaker

did not pay for the work or pick up his car. Nearly three weeks later, at the request of Texas RV

Outlet, Turn Key Recovery repossessed Whitaker’s car for nonpayment, removed it from the

Crest lot, and towed it to Texas RV Outlet. When Texas RV Outlet refused to return the vehicle,

and ultimately sold it, Crest sued for tortious interference with a contract and conversion and

sought attorney’s fees. The trial court ordered Crest take nothing and filed findings of fact and

conclusions of law, including that appellees did not convert property owned by Crest, Crest did

not have a lien on the car, and Crest did not sustain any actual damages.

       In its first issue, Crest contends the trial court’s judgment was contrary to the law and

manifestly wrong and unjust because the undisputed evidence shows Crest had a lien under

section 70.001 of the property code, Crest’s lien had priority over that held by Texas RV Outlet,

Crest had possession of the car and appellees converted the car when they towed it from Crest’s

car lot without permission.

       We review a trial court’s findings of fact under the same legal and factual sufficiency of

the evidence standards used when determining if sufficient evidence exists to support an answer

to a jury question. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When the appellate

record contains a reporter’s record, as it does in this case, findings of fact are not conclusive on

appeal if the contrary is established as a matter of law or if there is no evidence to support the

findings. Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.―Dallas 2008, pet. denied). A

party challenging the sufficiency of the evidence supporting an adverse finding on which the

appealing party had the burden of proof must show the matter was established as a matter of law,

or the trial court’s failure to make the finding was against the great weight and preponderance of

the evidence. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).




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       Conversion is the unauthorized and wrongful assumption and exercise of dominion and

control over the owner’s or possessor’s property to the exclusion of, or inconsistent with, the

owner/possessor’s rights. See Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971);

see French v. Moore, 169 S.W.3d 1, 14 (Tex. App.―Houston [1st Dist.] 2004, no pet.)

(conversion not restricted to owners of property but may also be brought by aggrieved party

possessing or having right of immediate possession of property). Conversion is designed to

protect against interference with a person’s possessory interest in personal property. Zapata v.

Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981); see also Killian v. Trans Union

Leasing Corp., 657 S.W.2d 189, 192 (Tex. App.―San Antonio 1983, writ ref’d n.r.e.)

(conversion “is concerned with possession, not title”). To establish a claim for conversion of

personal property, a plaintiff must prove: (1) it owned or had legal possession of the property or

entitlement to possession; (2) the defendant unlawfully and without authorization assumed and

exercised dominion and control over the property to the exclusion of, or inconsistent with, the

plaintiff’s rights; (3) the plaintiff demanded return of the property; and (4) the defendant refused

to return the property. Khorshid, Inc. v. Christian, 257 S.W.3d 748, 758−59 (Tex. App.―Dallas

2008, no pet.).

       Chapter 70 of the Texas Property Code provides that a worker “who by labor repairs a

vehicle” has a lien on the vehicle and may retain possession of the vehicle pending payment of

the amount due under a contract for the repairs. TEX. PROP. CODE ANN. § 70.001 (West 2014).

A possessory mechanic’s lien has priority over a seller’s perfected security interest in an

automobile. Gulf Coast State Bank v. Nelms, 525 S.W.2d 866, 869−70 (Tex. 1975).

       At trial, Chance Simpson, a Crest service advisor, said Whitaker brought his car in for

service, and Simpson completed a work order detailing the problems Whitaker was experiencing.

Whitaker also presented a warranty to cover the work, but Simpson said it was an “after market”

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warranty (not issued by Crest or the factory) and did not cover the repairs. James Saliva, the

service manager at Crest, spoke with Whitaker before the repairs were made and offered him a

10% discount; he also offered to trade in the Infiniti on a newer model. Whitaker approved the

work order, and on December 2, Crest completed the work, which totaled $5,925.81. When

Crest offered the exhibit with the work estimate and the actual repair amount, appellees did not

object. Simpson said they called Whitaker, but he did not pay for the repairs nor did he claim his

vehicle.

       On December 21, 2011, a Crest technician called Saliva and told him a tow company was

taking Whitaker’s car. Saliva went to the area on Crest’s property where all the completed cars

are placed awaiting customer pick up and saw the Turn Key Recovery tow truck with Whitaker’s

car leaving the property. Saliva got in his car and tried to chase the truck but due to traffic was

unable to stop it; he also “tried calling them with my cellphone as I was driving.” When he

returned to Crest, he called Turn Key Recovery and Texas RV Outlet and demanded the return of

the car; however, neither company returned the car or paid for the repairs.

       Saliva described the Crest lot where Whitaker’s car was as the staging area holding “all

of the completed cars for customers to pick up.” The lot is not public property but is Crest

private property. Saliva stated that the lot was not locked during hours of operation in order to

allow customers to easily retrieve their cars and to comply with fire code regulations. But “the

whole property is locked down and guarded by security after hours.” Saliva also said the

property had “No Trespass” signs posted on the wall that were visible to all.

       Lenny Zak, the owner of Texas RV Outlet, said Whitaker bought the car and, after

making only one payment, defaulted on the remainder of the payments. Turn Key Recovery

repossessed Whitaker’s car at Zak’s request. Zak said he did not believe they had broken the law

because Texas RV Outlet had the lien on the car title. He conceded Turn Key Recovery was

                                               –4–
acting as Texas RV Outlet’s agent. When asked if he knew about mechanic’s liens and the right

of a dealership or auto shop to retain possession of a vehicle until payment for work is made, he

replied, “I don’t know about that.”

         This evidence shows Crest performed $5,925.81 worth of repairs and maintenance on

Whitaker’s car at Whitaker’s request and authorization; as a result, Crest had a possessory

mechanic’s lien in that amount for the work performed on the car; Turn Key Recovery, acting as

Texas RV Outlet’s agent, took control over the car to the exclusion of Crest without Crest’s

permission or authorization; Crest demanded return of the property; and Texas RV Outlet

refused and sold the car. Given this undisputed evidence, the trial court erred by concluding

Crest did not have a lien on the car, appellees did not convert the car which Crest possessed at

the time, and Crest did not sustain $5,925.81 in actual damages. See Gulf Coast State Bank, 525

S.W.2d at 869.

         Appellees spent considerable time at trial discussing Crest’s security, including why the

lot remained unlocked during regular business hours, and even suggested addition measures

Crest could have taken to protect its property from appellees. In short, Crest was faulted for

failing to prevent appellee Turn Key Recovery from entering its lot and “peaceably” towing the

car. While a possessory lien held by a mechanic or repairman may be lost upon the voluntary

delivery of the vehicle to the owner, we conclude it was not lost when appellees trespassed and

took the car from Crest’s private lot without permission or authority. We sustain Crest’s first

issue.

         In its second issue, Crest contends it was entitled to attorney’s fees under Chapter 70 of

the property code and asks this Court to award the same. Section 70.008 of the property code

provides, in relevant part, “The court in a suit concerning possession of a motor vehicle . . . and a

debt due on it may award reasonable attorney’s fees to the prevailing party.” TEX. PROP. CODE

                                                –5–
ANN. § 70.008 (West 2014). The statute does not restrict the award of attorney’s fees to one

suing on a debt who wishes to retain possession of a vehicle. Elite Towing v. LSI Fin. Grp., 985

S.W.2d 635, 645 (Tex. App.―Austin 1999, no pet.); Kollision King, Inc. v. Calderon, 968

S.W.2d 20, 24 (Tex. App.―Corpus Christi 1998, no pet.).

       Crest’s right of possession of the vehicle and the debt secured by the possessory lien were

at issue in this case. And because Crest established as a matter of law that Texas RV Outlet and

Turn Key Recovery, as its agent, converted the vehicle, Crest is the prevailing party. We sustain

Crest’s second issue to the extent it seeks a determination of whether attorney’s fees may be

awarded to Crest in this case. See Elite Towing, 985 S.W.2d at 645 (prevailing party entitled to

attorney’s fees); Kollision King, Inc., 968 S.W.2d at 24 (same); Seureau v. Mudd, 515 S.W.2d

746, 749 (Tex. Civ. App.—Houston [14th Dist.] 1974, writ ref’d, n.r.e.) (within trial court’s

discretion to award attorney’s fees to prevailing party).

       We reverse the trial court’s judgment that Crest take nothing and remand this case to the

trial court to (1) render judgment in favor of Crest in the amount of $5,925.81 on its claim for

conversion and (2) determine the amount of attorney’s fees, if any, to be awarded to Crest as the

prevailing party.




131285F.P05
                                                      /Molly Francis/
                                                      MOLLY FRANCIS
                                                      JUSTICE




                                                –6–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

CREST INFINITI II, LP, Appellant                    On Appeal from the County Court at Law
                                                    No. 1, Collin County, Texas
No. 05-13-01285-CV         V.                       Trial Court Cause No. 1-860-2012.
                                                    Opinion delivered by Justice Francis,
TEXAS RV OUTLET AND TURN KEY                        Justices Evans and Stoddart participating.
RECOVERY, Appellees

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court to (1) render judgment in favor of
Crest in the amount of $5925.81 on its claim for conversion and (2) determine the amount of
attorney's fees, if any, to be awarded to Crest as the prevailing party.

       It is ORDERED that appellant CREST INFINITI II, LP recover its costs of this appeal
from appellees TEXAS RV OUTLET AND TURN KEY RECOVERY.


Judgment entered January 28, 2015.




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