Opinion filed February 26, 2009




                                                              In The


   Eleventh Court of Appeals
                                                         ___________

                                                 No. 11-07-00268-CV
                                                     __________

    ALLSTAR REFINISHING & COLLISION CENTER, INC., Appellant

                                                                 V.

                                            PAULA ROSAS, Appellee



                                    On Appeal from the County Court at Law

                                                  Midland County, Texas

                                           Trial Court Cause No. CC12954


                                      MEMORANDUM OPINION

        This appeal arises from a suit for conversion. Paula Rosas contracted with Allstar
Refinishing & Collision Center, Inc.1 (Allstar) to repair her vehicle after it sustained damage in a
collision. Rosas alleged in the suit that Allstar failed to return the vehicle to her after she tendered




        1
            Despite Allen Frazier’s name on the notice of appeal, he was never a party to the proceedings in the trial court.
payment to Allstar for the full cost of repair. The trial court granted Rosas’s motion for summary
judgment. Allstar attacks the summary judgment in two issues. We affirm.
                                          Background Facts
        Rosas alleged as follows in an affidavit attached to her motion for summary judgment:
                I took my 2000 Honda Accord to Allstar Refinishing & Collision Center, Inc.
        for repairs. The agreed upon fee for such repair was $2,836.76. Allstar Refinishing
        & Collision Center, Inc. received a check in the amount of $2,336.76 from my
        insurance company and it was negotiated. That left a balance of $500. On
        September 29, 2005, my husband and myself took a money order in the amount of
        $500 to Allstar Refinishing & Collision Center, Inc. with the hopes of my vehicle
        being released. However, Allstar Refinishing & Collision Center, Inc. didn’t release
        the vehicle to us. In fact, we didn’t obtain our vehicle until December 2, 2005.

In response to the motion for summary judgment, Allstar alleged that Rosas rented a car from Allstar
to drive while her vehicle was being repaired and that the rented vehicle sustained damages while
being rented by Rosas. Allstar applied Rosas’s payment of $500 to the costs it alleged was owed for
the rental vehicle.
        Allstar asserts that it had a right to retain possession of the vehicle under TEX . PROP . CODE
ANN . § 70.001 (Vernon 2007) until Rosas paid all amounts that she owed Allstar, including the
expenses for the rental vehicle that Allstar claimed. Allstar additionally contends that a fact question
exists with respect to Allstar’s act of crediting Rosas’s $500 payment to the rental car bill rather than
to the repair bill for Rosas’s car. The trial court disagreed with Allstar’s contentions by granting
summary judgment in favor of Rosas in the amount of $4,075.
                                         Standard of Review
        A trial court must grant a traditional motion for summary judgment if the moving party
establishes that no genuine issue of material fact exists and that the movant is entitled to judgment
as a matter of law. TEX . R. CIV . P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.
1991). Once the movant establishes a right to summary judgment, the nonmovant must come forward
with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678-79 (Tex. 1979). When reviewing a traditional summary judgment, the appellate
court considers all the evidence and takes as true evidence favorable to the nonmovant. Am. Tobacco
Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). The appellate court “must consider whether


                                                   2
reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence
presented” and may not ignore “undisputed evidence in the record that cannot be disregarded.”
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex. 2007).
                                               Analysis
         The facts in this appeal are not in dispute. Conversion is the unauthorized and wrongful
assumption and exercise of dominion and control over the personal property of another to the
exclusion of, or inconsistent with, the owner’s rights. Waisath v. Lack’s Stores, Inc., 474 S.W.2d
444, 447 (Tex. 1971). Allstar alleges in its second issue that Section 70.001 permitted it to retain
Rosas’s vehicle until she paid both the repair bill for her vehicle and the expenses assessed for the
rental car in full. In this regard, Allstar asks us to construe the statute. Statutory construction is a
legal question we review de novo. See State ex rel. State Dep’t of Highways & Pub. Transp. v.
Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). In construing statutes, we ascertain and give effect to
the legislature’s intent as expressed by the language of the statute. See State v. Shumake, 199 S.W.3d
279, 284 (Tex. 2006). When a statute’s language is clear and unambiguous, it is inappropriate to
resort to rules of construction or extrinsic aids to construe the language. See Saint Luke’s Episcopal
Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997); Ex parte Roloff, 510 S.W.2d 913, 915 (Tex.
1974).
         Section 70.001 provides a worker who repairs a vehicle with a possessory lien to secure
payment. Jones v. Boswell, 250 S.W.3d 140, 143 (Tex. App.—Eastland 2008, no pet.). The statute
provides in relevant part as follows:
               (a) A worker in this state who by labor repairs an article, including a vehicle,
         motorboat, vessel, or outboard motor, may retain possession of the article until:

                        (1) the amount due under the contract for the repairs is paid;
                or

                       (2) if no amount is specified by contract, the reasonable and
                usual compensation is paid.

Subsection (a)(1) is the applicable provision of the statute because Allstar specified the amount due
for the repairs to be made to Rosas’s vehicle. This provision states that the worker may retain
possession of the article “until the amount due under the contract for the repairs is paid” (emphasis


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added). The expenses claimed by Allstar for the costs of the rental vehicle, including costs for
damages allegedly occurring to the rental vehicle, do not constitute costs “for the repairs” of the
vehicle that is the subject of the statutory lien. Accordingly, we disagree with Allstar’s construction
of the statute. Allstar’s second issue is overruled.
        In its first issue, Allstar contends that a fact question exists regarding the manner in which
it credited Rosas’s payment of $500. Allstar asserts that the payment was properly attributable to
the rental car bill because Allstar’s representative made a notation to that effect on the receipt it
provided to Rosas for the payment. We disagree. Allstar premises its contention on the assumption
that it possessed the unilateral right to credit Rosas’s payment to the rental car bill rather than to the
repair bill for Rosas’s vehicle. This is not correct. “It is the settled rule of law in this state that a
debtor may direct the application of any payment made by him to any one or more of plural debts
owing by him, and the creditor has no option but to make application of the payment as directed.”
Gourley v. Iverson Tool Co., 186 S.W.2d 726, 731 (Tex. Civ. App.—Fort Worth 1945, writ ref’d
w.o.m.). Rosas possessed the right to determine the particular debt she owed to Allstar that would
be credited with the $500 payment. Thus, Allstar’s contrary application of the payment to the rental
car expense is of no effect.
        Allstar additionally asserts that a fact issue exists regarding Rosas’s duty to mitigate her
damages. The mitigation-of-damages doctrine is an affirmative defense that requires an injured
party, following a breach, to exercise reasonable care to minimize his damages if it can be done with
slight expense and reasonable effort. Great Am. Ins. Co. v. N. Austin Mun. Util. Dist. No. 1, 908
S.W.2d 415, 426 (Tex. 1995). While Allstar alleged a failure to mitigate damages in its response
to the motion for summary judgment, it did not submit any summary judgment evidence in support
of the defense.2 If the party opposing a summary judgment relies on an affirmative defense, he must
come forward with summary judgment proof sufficient to raise an issue of fact on each element of
the defense to avoid summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).
In the absence of summary judgment evidence on mitigation, Allstar did not raise a fact question on
the issue. Allstar’s first issue is overruled.



        2
            We additionally note that Allstar did not plead mitigation of damages as an affirmative defense in its pleadings.

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                                       This Court’s Ruling
       The judgment of the trial court is affirmed.




                                                             TERRY McCALL
                                                             JUSTICE


February 26, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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