Opinion issued May 5, 2020




                                   In The

                             Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                             NO. 01-18-00981-CV
                         ———————————
          SARAH YEATER AND JOHNSON BOHANNON, Appellants
                                     V.
 H-TOWN TOWING LLC, BAYSTONE APARTMENTS, AND HOUSTON
          CENTRAL AUTO STORAGE INC., Appellees


             On Appeal from the County Civil Court at Law No. 3
                           Harris County, Texas
                       Trial Court Case No. 1115230


                                OPINION

     Sarah Yeater and Johnson Bohannon challenge the county court’s final

judgment in an appeal from claims alleging improper towing. We reverse and

remand.
                                    Background

      Sarah Yeater and her husband, John Bohannon, were tenants at Baystone

Apartments (“Baystone”) since March 2017. Yeater and Bohannon owned a 2005

Jeep Liberty. On June 8, 2018, H-Town Towing LLC (“H-Town”) placed an orange

sticker on Yeater and Bohannon’s vehicle stating, “Contact Office Immediately!!!

WITHIN 24 HOURS or the vehicle would be towed in 48 hours.” The orange sticker

displayed H-Town’s name, contact information, and a handwritten check mark next

to “Expired Registration.”1 Neither Yeater nor Bohannon had seen this sticker. Four

days later, H-Town towed the vehicle.

      Bohannon noticed that their vehicle was missing from where it had been

parked in the parking lot next to their building. Bohannon contacted the property

manager who had told him that the vehicle was towed by H-Town due to an expired

registration sticker. Yeater paid $580.18 in tow fees and costs and retrieved the

vehicle from Houston Central Auto Storage Inc. (“Houston Central”). Bohannon

inspected the vehicle and took a picture of the orange sticker. Bohannon also took

pictures of the parking signage at Baystone.




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      Bohannon admitted that the vehicle registration was expired.

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       Yeater and Bohannon filed a request for tow hearing in the justice court.2

Yeater and Bohannon alleged that there was no probable cause to tow their vehicle.

They sought damages, court costs, and attorney’s fees. Attached to their pleading

was a copy of the receipt, a notification of rights, and photographs of the restricted

parking signs and the orange sticker.

       The justice court set the matter for hearing and sent a notice of towing hearing

to the parties. Bohannon and his counsel appeared, but neither H-Town, Baystone,

nor Houston Central appeared. After the hearing, the justice court issued its findings

of fact and conclusions of law, concluded that the removal and storage of Yeater and

Bohannon’s vehicle was made without probable cause, and ordered Baystone to pay

$580.18 for damages, $500.00 for attorney’s fees, and $44.00 for court costs. The

justice court sent a notice of its findings of fact and conclusions of law and award to

the parties.

       H-Town appealed the justice court’s ruling to the Harris County Civil Court

at Law No. 3. Bohannon and M. Ruiz, the manager at H-Town, testified at the bench




2
       Under Chapter 2308 of the Texas Occupations Code, a party is entitled to a hearing
       to challenge the towing of a vehicle and the amounts charged as long as the party
       makes a proper request for such a hearing. The hearing takes place in justice court
       and addresses whether probable cause existed for the removal of the vehicle and
       whether the towing charge imposed was statutorily authorized. See TEX. OCC. CODE
       §§ 2308.453(1), 2308.458(c).



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trial. Yeater, Baystone, and Houston Central did not appear. After the bench trial,

the county court issued its findings of fact and conclusions of law, concluded that

probable cause existed to remove and store Yeater and Bohannon’s vehicle, and

entered a take-nothing judgment in favor of H-Town, Baystone, and Houston

Central. This appeal followed.

      Yeater and Bohannon raise three issues on appeal. First, they argue that the

county court erred in finding probable cause to tow their vehicle because H-Town

violated the Towing and Booting Act by failing to comply with statutory notice

requirements. Second, they argue that the county court erred in finding probable

cause to tow their vehicle because the international towing symbol on Baystone’s

tow warning sign was too small and did not specify who was authorized to park (or

prohibited from parking) in the parking lot. Finally, they argue that the county court

erred by denying them the right to a fair and impartial trial as guaranteed by the

United States Constitution3 and the Texas Constitution4 based on the county court

judge’s comments and conduct throughout the bench trial.

      Although H-Town, Baystone, and Houston Center did not file appellate briefs,

we nevertheless review the merits of the appellate issues to determine whether


3
      See U.S. CONST. amend. XIV, § 1.
4
      See TEX. CONST. art. I, § 15; Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 708
      (Tex. 1989) (“In Texas, the right to a fair and impartial trial is guaranteed by the
      Constitution and by statute.”).
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reversal of the county court’s ruling is warranted. See Sullivan v. Booker, 877

S.W.2d 370, 373 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (“Appellee’s

failure to respond to appellants does not entitle appellants to a reversal.”); Schied v.

Merritt, No. 01–05–00466–CV, 2016 WL 3751619, at *6 (Tex. App.–Houston [1st

Dist.] July 12, 2016, no pet.) (mem. op.) (reasoning that an appellant does not prevail

on appeal just because the appellee does not file a brief).

                           The Towing and Booting Act

       In their first issue, Yeater and Bohannon argue that the county court’s

conclusion of law was erroneous because no probable cause existed to tow their

vehicle considering that H-Town and Baystone failed to comply with the 10-day

statutory notice requirement because they towed the vehicle just four days after

stickering it.

A.     Standard of review

       We review de novo a county court’s conclusions of law and statutory

interpretation. Burlington N. & Santa Fe Ry. Co. v. City of Hous., 171 S.W.3d 240,

245 (Tex. App.—Houston [14th Dist.] 2005, no pet.). A trial court has no discretion

when evaluating a question of law. City of Hous. v. Hildebrandt, 265 S.W.3d 22, 25

(Tex. App.—Houston [1st Dist.] 2008, pet. denied) (citing Walker v. Packer, 827

S.W.2d 833, 840 (Tex. 1992)). “Consequently, a trial court’s erroneous legal

conclusion, even in an unsettled area of law, is an abuse of discretion.” Huie v.


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DeShazo, 922 S.W.2d 920, 927–28 (Tex. 1996). Accordingly, we give no particular

deference to the trial court’s findings. See Walker, 827 S.W.2d at 840. Instead, we

conduct an independent review and evaluate the statute to determine its meaning.

See Lozano v. Lozano, 975 S.W.2d 63, 66 (Tex. App.—Houston [14th Dist.] 1998,

pet. denied).

B.    Statutory notice

      Yeater and Bohannon’s first argument is that they were entitled to, and did

not receive, 10 days’ notice before towing as required by Texas law. See TEX. OCC.

CODE § 2308.253(e), (g). The Towing and Booting Act provides as follows:

      A contract provision providing for the towing from a parking facility of
      a vehicle that does not display an unexpired license plate or registration
      insignia is valid only if the provision requires the owner or operator of
      the vehicle to be given at least 10 days’ written notice that the vehicle
      will be towed from the parking facility at the vehicle owner’s or
      operator’s expense if it is not removed from the parking facility.

See TEX. OCC. CODE § 2308.253(e).

      To comply with the Towing and Booting Act, the notice must state that the

vehicle displays an expired registration insignia,5 that the vehicle will be towed at

the owner’s expense if the vehicle displays an expired registration insignia, and a




5
      “Registration insignia” refers to state registration requirements under chapter 502
      of the Texas Transportation Code. See TEX. TRANSP. CODE §§ 502.001–.492;
      Torres v. Cont’l Apartments, All Cities Towing Inc., No. 05-18-00215-CV, 2019
      WL 2211478, at *4 (Tex. App.—Dallas May 21, 2019, pet. denied) (mem. op.).

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24-hour telephone number to enable the vehicle’s owner to locate the vehicle. See

TEX. OCC. CODE § 2308.253(e)(1). On top of these statutory requirements, the notice

must be delivered in person to the vehicle’s owner, sent by certified mail, return

receipt requested, to that owner, or attached to the vehicle’s front windshield, to the

vehicle’s driver’s side window, or if the vehicle has no front windshield or driver’s

side window, to a conspicuous part of the vehicle. See id. § 2308.253(e)(2).

      At trial, Bohannon admitted that the vehicle registration was expired. The

photograph of the orange sticker placed on the vehicle’s window was introduced into

evidence. The sticker included a written check mark next to “Expired Registration,”

a warning that the car will be towed, and H-Town’s telephone number. Thus, H-

Town’s orange sticker complied with the notice requirements under this statute. Our

analysis does not end here. We must now determine whether H-Town and Baytown

violated the Towing and Booting Act for towing the vehicle four days after providing

notice to Yeater and Bohannon.

      Yeater and Bohannon point to conflicting language between the Baytown’s

lease agreement and its parking and towing policy addendum. Yeater and Bohannon

assert that, while the terms of the lease agreement comply with the Tow and Booting

Act, the terms of the parking and towing addendum violate the law because the

addendum disregards the 10-day notice requirement. For instance, paragraph 21(l)

of the lease agreement provides for 10 days’ notice before towing:


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      We may have any unauthorized or illegally parked vehicles towed or
      booted according to state law at the owner or operator’s expense at any
      time if the vehicle has no current license or registration, and we have
      given you at least 10 days’ notice that the vehicle will be towed if not
      removed.

But the parking and towing policy addendum states that vehicles may be towed

without any notice:

      Inoperable Vehicle, Flat Tires, up on Jacks, Wrecked, Broken
      Windows, For Sale sign, Expired Tags and so on is strictly prohibited
      anywhere on the property. I understand that failure to comply will result
      in management towing the vehicle without notice and at the vehicle
      owner’s expense.

Thus, Yeater and Bohannon contend that the contradictory language renders the

parking and towing addendum void and unenforceable.

      A provision of an apartment lease entered into or renewed on or after January

1, 2004, is void and may not be enforced if it “is in conflict or inconsistent” with

Section 2308.253.6 See TEX. OCC. CODE § 2308.253(g). The plain text of the statute

is clear. “Language in a statute is presumed to be selected and used with care, and

every word or phrase in a statute is presumed to be intentionally used with a meaning

and purpose.” Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767,

776 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (citing Chastain v.

Koonce, 700 S.W.2d 579, 582 (Tex. 1985)). The 10-day notice requirement in the



6
      Yeater and Bohannon executed the parking and towing addendum in March 2017,
      and therefore, section 2308.253(e) and (g) apply.
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Towing and Booting Act balances equities between property managers, towing

companies, and tenants. The statute provides tenants a reasonable chance to resolve

any defects with their vehicles and comply with the lease or parking policies within

a 10-day period before the vehicle can be towed.

        We therefore conclude that the parking and towing addendum is void and may

not be enforced because the plain language of section 2308.253(e) requires “at least

10 days’ written notice” before the vehicle is towed. See TEX. OCC. CODE §

2308.253(e), (g). Because H-Town towed Yeater and Bohannon’s vehicle before the

required notice period had elapsed, the county court erroneously concluded that

probable cause existed to tow Yeater and Bohannon’s vehicle. We sustain Yeater

and Bohannon’s first issue.

        Because our resolution of Yeater and Bohannon’s first issue is dispositive of

their appeal, we need not address their remaining arguments. See TEX. R. APP. P.

47.1.

                                     Conclusion

        Having concluded that no probable cause existed to tow Yeater and

Bohannon’s vehicle for violating the Towing and Booting Act’s 10-day notice

requirement, we reverse and remand for additional proceedings consistent with this

opinion.




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                                            Sarah Beth Landau
                                            Justice

Panel consists of Justices Landau, Goodman, and Countiss.




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