                                                                           ACCEPTED
                                                                       05-17-01187-CV
                                                             FIFTH COURT OF APPEALS
                                                                      DALLAS, TEXAS
                                                                      6/1/2018 9:53 PM
                                                                            LISA MATZ
                                                                                CLERK

                         NO. 05-17-01187-CV

                                                      FILED IN
                                               5th COURT OF APPEALS
                   IN THE COURT OF APPEALS         DALLAS, TEXAS

                FOR THE FIFTH JUDICIAL DISTRICT6/1/2018 9:53:31 PM
                                                     LISA MATZ
                        DALLAS, TEXAS                  Clerk




                  LINDA DOUGLAS
                        v.
                 TAYLOR SIMS AND
             DALLAS PERFORMANCE, LLC


                     BRIEF OF APPELLEES


             ON APPEAL FROM CAUSE NO. CC-16-03688-E
             IN THE COUNTY COURT AT LAW NUMBER FIVE
                      DALLAS COUNTY, TEXAS
              HON. MARK GREENBERG, JUDGE PRESIDING


                                    JULIE GOEN PANGER
                                    The Kiechler Law Firm
Filed June 1, 2018                  619 Broadway Street
                                    Lubbock, Texas 79401
                                    (806) 712-2889
                                    (808) 712-2529 (f)
                                    State Bar Number 24069793
                                    julie@thelubbocklawyer.com


                      ORAL ARGUMENT REQUESTED
                 IDENTITY OF PARTIES AND COUNSEL

Appellant:           Linda Douglas

Trial Counsel:       James Ellis
                     6440 North Central Expressway, Suite 750
                     Dallas, Texas 75206

                     Debran O’Neil
                     Carrington Coleman Sloman & Blumenthal, LLP
                     901 Main Street, Suite 5500
                     Dallas, Texas 75202

Appellate Counsel:   Anthony Arguijo
                     Scott Douglass & McConnico, LLP
                     303 Colorado Street, Suite 2400
                     Austin, Texas 78701


Appellees:           Taylor Sims and
                     Dallas Performance, LLC

Trial Counsel:       Justin Kiechler
                     The Kiechler Law Firm, PLLC
                     619 Broadway Street
                     Lubbock, Texas 79401

Appellate Counsel:   Julie Goen Panger
                     The Kiechler Law Firm, PLLC
                     619 Broadway Street
                     Lubbock, Texas 79401




BRIEF OF APPELLEES                                                 i
                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................... i

TABLE OF CONTENTS ........................................................................... ii

INDEX OF AUTHORITIES ...................................................................... v

STATEMENT OF THE CASE ............................................................... viii

STATEMENT OF FACTS ......................................................................... 1

       A.      Linda initially authorized DP to perform certain
               repairs and modifications to her car’s camshaft. ................... 1

       B.      DP gave Linda notice of its storage fee policy. ....................... 2

       C.      Linda later authorized DP to perform more
               modifications and repairs to her car, including work on
               the motor. ............................................................................... 3

       D.      Linda failed to pay the total amount owed to DP for
               work she requested, so DP has the car in its possession. ...... 6

SUMMARY OF THE ARGUMENT ........................................................ 10

ARGUMENT ........................................................................................... 11

       Issue One ...................................................................................... 13
       DP rightfully possesses Linda’s car, because she failed to pay
       for the work she requested.

       A.      DP rightfully retained possession of the car pursuant
               to a possessory lien. ............................................................... 14

               1.      Linda authorized DP to perform repairs and
                       modifications to her car. .............................................. 14


BRIEF OF APPELLEES                                                                                       ii
             2.      DP completed the work requested by Linda. .............. 15

             3.      Linda failed to pay for the work DP performed on
                     the car. .......................................................................... 15

     B.      Linda did not prove each element of conversion or
             wrongful detainer. ................................................................. 16

             1.      Linda did not prove that she was entitled to
                     possession of the car. . .................................................. 17

     Issue Two ...................................................................................... 18
     Linda agreed to DP’s storage-fee policy, of which she was
     made aware before DP began working on her car.

     A.      DP and Linda agreed to the storage-fee policy..................... 19

             1.      DP offered to store Linda’s car for a fee.. .................... 19

             2.      Linda accepted DP’s offer to store the car for a
                     fee, had a meeting of the minds with DP, and
                     consented to the terms of the policy. ........................... 21

             3.      The storage-fee agreement was supported by
                     consideration. ............................................................... 24

     Issue Three ................................................................................... 26
     Linda accepted the additional services DP performed on the
     car when Brent signed the estimate authorizing DP to
     proceed with the work, which entitled DP to an award in
     quantum meruit.

     A.      DP’s additional work on Linda’s car supported an
             award in quantum meruit..................................................... 26

             1.      DP provided valuable services for Linda. .................... 26



BRIEF OF APPELLEES                                                                                      iii
                2.      Linda accepted the services, and she was
                        reasonably notified that she would be charged for
                        DP’s work. ................................................................... 26

        Issue Four ..................................................................................... 29
        The trial court’s award of attorney’s fees to DP should be
        affirmed, because Linda prevailed on the above claims.

PRAYER .................................................................................................. 30

CERTIFICATE OF SERVICE................................................................. 31

CERTIFICATE OF COMPLIANCE ........................................................ 31




BRIEF OF APPELLEES                                                                                       iv
                              INDEX OF AUTHORITIES

CASES
2900 Smith, Ltd. v. Constellation New Energy, Inc.,
  301 S.W.3d 741 (Tex. App.—Houston [14th Dist.] 2009, no pet.)...... 13

Arthur Andersen & Co. v. Perry Equip. Corp.,
  945 S.W.2d 812 (Tex. 1997) ................................................................ 29

Associated Indem. Corp. v. CAT Contracting, Inc.,
  964 S.W.2d 276 (Tex. 1998) ................................................................ 11

Autozone, Inc. v. Reyes,
  272 S.W.3d 588 (Tex. 2008) (per curiam) ........................................... 11

Cain v. Bain,
  708 S.W.2d 175 (Tex. 1986) (per curiam) ..................................... 12, 13

City of Keller v. Wilson,
   168 S.W.3d 802 (Tex. 2005) .......................................................... 11, 12

Collision Center Paint & Body, Inc. v. Campbell,
  773 S.W.2d 354 (Tex. App.—Dallas 1998, no writ) ...................... 15, 16

Cont’l Coffee Prods. Co. v. Cazarez,
  937 S.W.2d 444 (Tex. 1996) ................................................................ 12

Domingo v. Mitchell,
  257 S.W.3d 34 (Tex. App.—Amarillo 2008, pet. denied) .................... 20

Gentry v. Squires Constr., Inc.,
  188 S.W.3d 396 (Tex. App.—Dallas 2006, no pet.) ............................ 29

Green Int’l, Inc. v. Solis,
  951 S.W.2d 384 (Tex. 1997) ................................................................ 29




BRIEF OF APPELLEES                                                                            v
Kroger Tex. Ltd. P’ship v. Suberu,
  216 S.W.3d 788 (Tex. 2006) ................................................................ 11

Lone Star Beer, Inc. v. Republic Nat’l Bank of Dallas,
  508 S.W.2d 686 (Tex. Civ. App.—Dallas 1974, no writ) .............. 16, 17

Morey v. Page,
  802 S.W.2d 779 (Tex. App.—Dallas 1990, no writ) ............................ 16

Principal Life Ins. Co. v. Revalen Dev., LLC,
   358 S.W.3d 451 (Tex. App.—Dallas 2012, pet. denied)...................... 23

Ragsdale v. Progressive Voters League,
  810 S.W.2d 880 (Tex. 1990) ................................................................ 30

Robert L. Crill, Inc. v. Bond,
  76 S.W.3d 411 (Tex. App.—Dallas 2001, pet. denied)........................ 24

Ryan v. Abdel-Salam,
  39 S.W.3d 332 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) ... 15

Solomon v. Greenblatt,
  812 S.W.2d 7 (Tex. App.—Dallas 1991, no writ) ................................ 24

Stewart Title Guar. Co. v. Sterling,
   822 S.W.2d 1 (Tex. 1991) .................................................................... 29

Tex. Diamond Int’l, Inc. v. Tiffany & Co.,
  47 S.W.3d 589 (Tex. App.—San Antonio 2001, pet. denied) .............. 17

Thompson v. Apollo Paint & Body Shop,
  768 S.W.2d 373 (Tex. App.—Houston [14th Dist.] 1989)............. 14, 16

Volume Millwork, Inc. v. W. Houston Airport Corp.,
  218 S.W.3d 722 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) . 30




BRIEF OF APPELLEES                                                                              vi
Vortt Exploration Co. v. Chevron U.S.A., Inc.,
  787 S.W.2d 942 (Tex. 1990) .......................................................... 26, 28

Waisath v. Lack’s Stores, Inc.,
  474 S.W.2d 444 (Tex. 1971) ................................................................ 16


STATUTORY PROVISIONS
Tex. Civ. Prac. & Rem. Code § 38.001 .................................................... 29
Tex. Const. art. 16 § 37 ........................................................................... 14
Tex. Prop. Code § 70.001 ....................................................... 13, 14, 15, 17
Tex. Prop. Code § 70.008 ......................................................................... 29




BRIEF OF APPELLEES                                                                                 vii
                       STATEMENT OF THE CASE

     This is an appeal from a case revolving around work performed by

Dallas Performance, LLP (DP) on a vehicle owned by Linda Douglas

(Linda). The Honorable Mark Greenberg presided over the jury trial. 2

R.R. 1. After the parties concluded their presentations of evidence, they

filed competing requests for a directed verdict, which the trial court

denied. 3 R.R. 152-183.

     The jury found in favor of DP and Taylor Sims (Sims) on each of

Linda’s claims – conversion, wrongful detention of the vehicle,

violations of the Deceptive Trade Practices Act, making of a fraudulent

lien, and usury. C.R. 37-63. It awarded DP and Sims $9,000.00 for

Linda’s breach of contract regarding storage fees, $3,200.00 in quantum

meruit for the work DP performed on the vehicle motor, $8,750.00 in

attorney’s fees, and $1,247.02 in costs. C.R. 37-63.

     Linda filed a motion asking the trial court to disregard the jury

verdict and a request for findings on elements omitted from the jury

charge, both of which the court denied after a hearing. C.R. 66-104, 110;

5 R.R. 1-25. The trial court entered its judgment in accordance with

DP’s and Sims’ motion for entry of a judgment. C.R. 105-113.



BRIEF OF APPELLEES                                                    viii
TO THE HONORABLE FIFTH COURT OF APPEALS:

                        STATEMENT OF FACTS

     DP is a garage specializing in high-performance car repairs and

modifications. 3 R.R. 15. Sims is a managing member of DP. 2 R.R. 134.

A.   Linda initially authorized DP to perform certain repairs and
     modifications to her car’s camshaft.

     On September 16, 2013, Linda paid for her 2004 Chevrolet

Corvette to be towed on a flatbed trailer from her house to DP’s garage

for repairs and modifications to the car’s camshaft. 2 R.R. 10, 14-19; 3

R.R. 71-72, 74, 80-81, 102-103; see C.R. 15-16. These modifications were

requested to resolve issues Linda and her boyfriend, Brent, were having

with the car, to the extent that they suggested DP not start the car for

fear that it might harm the motor. 3 R.R. 36; see 6 R.R. 7, P.X. 3.

     Brent had already visited the garage and discussed the work to be

performed on the car. 2 R.R. 14-17; 3 R.R. 72, 75, 77-78, 105-106; see 6

R.R. 7, P.X. 3. Brent and DP agreed on an estimate of $3,979.68, as

evidenced by an invoice DP provided to Linda and Brent. 2 R.R. 17; 3

R.R. 78-79; 6 R.R. 5-6, P.X. 2. At the bottom of the page, the invoice

stated that “[a]n express mechanic’s lien is hereby acknowledged on




BRIEF OF APPELLEES                                                    1
above car, truck or vehicle to secure the amount of repairs thereto.” 2

R.R. 87-88; see 6 R.R. 5, P.X. 2.

     To afford a down payment of $1,500.00, Brent sold the couple’s

other vehicle. 2 R.R. 15, 17; 3 R.R. 88-89.

     According to Linda, she and Chris Tolbert, a DP employee,

discussed how she would make payments on the balance she owed,

rather than paying it all off at one time. 2 R.R. 26, 90. Brent testified

that he and DP worked out a payment plan where he and Linda would

pay $300.00 per month “or something like that” for the work on the car.

3 R.R. 88. He immediately amended that statement to say that he had

no agreement with DP about an amount; rather, he and Linda were told

they could bring whatever amount they had to DP, because they did not

have much money. 3 R.R. 88. Chris had no expectation it would take

Linda and Brent an extended period of time to pay off the balance. 3

R.R. 123.

B.   DP gave Linda notice of its storage fee policy.

     On the back of the invoice DP provided Brent and Linda, DP

included language about its storage fee policy. 2 R.R. 88-89; 3 R.R. 12-

13, 42-43, 51; 6 R.R. 6, P.X. 2. Specifically, the invoice said that cars



BRIEF OF APPELLEES                                                     2
remaining at the garage more than three days after the customer had

been notified work was completed on them would begin accruing storage

fees at the rate of $40.00 per day. 3 R.R. 12, 20, 44; 6 R.R. 6, P.X. 2. A

sign announcing this storage fee policy has been posted on the wall in

DP’s customer lobby since 2012. 3 R.R. 12-13, 109-111; see 6 R.R. 135-

137, D.X. 20. The policy was created because customers had failed to

promptly pay for work performed on their cars. 3 R.R. 12-13, 45, 107.

     After DP was able to assess the car more thoroughly, it noted that

the motor needed certain repairs to correct a fuel pump and valve train

problem. 3 R.R. 36, 51, 103-106, 116-117; see 6 R.R. 7, P.X. 3. By email

dated September 24, 2013, DP notified Linda that the repairs were

needed. 2 R.R. 18-19; 3 R.R. 111-112; 6 R.R. 7, P.X. 3. Although a motor

rebuild was suggested, Linda agreed for DP to install new pistons and

rings. 2 R.R. 20.

     DP performed the work Linda requested on the car. 3 R.R. 19, 47.

C.   Linda later authorized DP to perform more modifications and
     repairs to her car, including work on the motor.

     On October 17, 2013, Brent visited the garage to inspect the work

he and Linda requested, and he authorized DP to perform more

modifications and repairs to Linda’s car. 3 R.R. 41, 43, 46, 121; 6 R.R.


BRIEF OF APPELLEES                                                      3
42, P.X. 16. During that visit, Brent signed an invoice reflecting the

additional work to be performed, which increased the amount Linda

owed to DP.1 2 R.R. 109-111; 3 R.R. 43, 46-47, 81-82, 121-122; 6 R.R. 42,

P.X. 16; C.R. 13. This invoice, like the first, included DP’s storage fee

policy. 3 R.R. 43-44, 50-51. At trial, Brent testified that he signed the

document, because “[i]t might be in [DP’s] company policy or

something.” 3 R.R. 82-83.

      Brent visited the garage multiple times while DP was performing

the repairs and modifications. 3 R.R. 119-120.

      In December 2013, DP emailed Linda to request a payment of at

least $1,000.00 toward the balance she owed for the additional work she

requested. 2 R.R. 21-22; 3 R.R. 124-125; 6 R.R. 10, P.X. 5. The email

specifically addressed the motor work DP was performing on Linda’s

car. 6 R.R. 96, D.X. 9.

      On January 30, 2014, Linda visited the garage, saw her car, and

paid $1,000.00. 2 R.R. 23-25.




1 Linda does not assert that Brent did not have the authority to act on her behalf
with regard to decisions about her car. During trial, Linda and Brent acknowledged
that Brent had the authority to make decisions for her about the car. 2 R.R. 99-100;
3 R.R. 68, 90.


BRIEF OF APPELLEES                                                                4
     By email dated February 17, 2014, DP notified Linda that it had

completed the work on her car, which increased the value of the car. 2

R.R. 27; 113-114; 3 R.R. 20, 30-32, 35-36, 40, 125-126, 150-151; 6 R.R.

13, P.X. 7. DP gave Linda two options: (1) pay the remaining balance

owed or (2) allow DP to store the car while she made payments, during

which time she would owe storage fees. 2 R.R. 27; 6 R.R. 97, D.X. 10.

Rather than charge Linda the standard policy amount of $40.00 per day

for storage fees, DP reduced the fee to $50.00 per week. 3 R.R. 20; 6

R.R. 97, D.X. 10.

     Linda responded to the email by saying, “No problem. Could you

email me a statement showing charges and payments. Thanks.” 6 R.R.

97, D.X. 10. DP complied and sent Linda the two invoices. 6 R.R. 97,

D.X. 10. Sims acknowledged that the invoices are confusing, because

they changed as the work progressed on the car. 3 R.R. 17.

     At trial, Linda testified that when she received the email, she

“was just thinking, I can’t believe they’re going to charge me storage. I

thought we were – had an agreement where I would pay it out, but it is

their policy to charge the storages.” 2 R.R. 29.




BRIEF OF APPELLEES                                                     5
     After he was notified that the work was complete, Brent visited

the garage, at which time one of DP’s employees turned on the car to

show him the work had been completed. 3 R.R. 85.

D.   Linda failed to pay the total amount owed to DP for work she
     requested, so DP has the car in its possession.

     It is DP’s policy to keep a car in its possession until the customer

pays for the work performed on the car. 3 R.R. 29, 44-45. Linda could

not pay the balance owed to DP when the work was finished, so DP did

not release the car to her. 2 R.R. 28, 151-155.

     On March 26, 2014, Linda made a payment of $500.00 during a

visit to the garage. 2 R.R. 30-31. On April 23, 2014, Linda again visited

the garage and made a payment of $1,000.00. 2 R.R. 31-32. At this

point, Linda believed that if she paid off the balance she owed DP, then

perhaps DP would waive the storage fees. 2 R.R. 33.

     In August 2014, DP emailed Linda, because she had made no

payments in months. 2 R.R. 36; 3 R.R. 128-129. DP asked whether

Linda was still able to make monthly payments and reminded her that

the vehicle was accruing storage fees at a rate of $50.00 per week. 6

R.R. 23, P.X. 10. Linda responded to the email by asking for the total

she owed to see if she could pay it off that week. 6 R.R. 22, P.X. 10. She


BRIEF OF APPELLEES                                                       6
also acknowledged the storage fees and asked if DP would be willing to

“do anything about” the fees if she paid off her balance in the next week

and a half. 6 R.R. 22, P.X. 10. DP noted that Linda had paid $4,000.00

toward her balance. 3 R.R. 128-130; 6 R.R. 21, P.X. 10. Chris, who was

emailing on behalf of DP, told Linda, “I’ll see if I can do anything with

the storage fees, but I may not be able to do anything at all with that.” 6

R.R. 21, P.X. 10.

     Linda responded, “I told Brent the total bill with you guys was

almost 12 he said no way, We may need to go over it one more time.” 2

R.R. 40-41; 3 R.R. 129-130; 6 R.R. 20, P.X. 10. Chris attached the two

invoices reflecting the balance Linda owed, and specifically referenced

the motor work and repairs and modifications made to the car. 2 R.R.

41-42; 6 R.R. 19-20, P.X. 10; 25, P.X. 11. Linda emailed Chris and said,

“Iam sure the no way statement was just for me Iam sure its right.I will

let you know Friday/Monday at the lastest on pay off thanks”. 2 R.R. 44;

3 R.R. 130; 6 R.R. 19, P.X. 19.

     At trial, Linda acknowledged that she was not confused about the

storage fees referenced in DP’s email – she “almost knew he was going

to charge me something” but did not know how much. 2 R.R. 39; 117-



BRIEF OF APPELLEES                                                       7
118. Brent did not expect DP to erase the storage fees from their bill,

but he hoped Sims would work with them on the amount of storage fees

owed. 3 R.R. 87. Specifically, Brent hoped Sims would “cut [them] some

slack” on the storage fees. 3 R.R. 87.

     According to Linda, she visited the garage multiple times over the

next few months trying to speak with Sims, but she was unable to do so.

2 R.R. 46-49. Without notifying DP, in February 2015, Linda filed for

Chapter 13 bankruptcy to keep DP from disposing of her car. 2 R.R. 56-

58; 113-116; 3 R.R. 15-16, 92.

     In April 2015, a year after her last payment, Linda visited the

garage and paid $300.00. 2 R.R. 59-60. The next month, Linda made a

payment of $260.00. 3 R.R. 130-131; 6 R.R. 32, P.X. 13. Linda requested

the car back, but DP refused her request, because Linda had not paid

the total balance she owed. 3 R.R. 21-22. Brent acknowledged at trial

that he did not expect DP to give the car back to him and Linda if they

had not paid the balance they owed. 3 R.R. 93-95.

     Brent and Linda visited the garage in February 2016 to get the

car back, but an employee told them it was at an auction outside of

Texas, which was not true. 2 R.R. 63-64, 172-173; 3 R.R. 27-28. At the



BRIEF OF APPELLEES                                                    8
same time, DP unsuccessfully tried to obtain a mechanic’s lien on the

car. 2 R.R. 67-70, 94-97, 156-171; 3 R.R. 16-17, 23-27, 38.

     In May 2016, in a meeting set up through DP’s attorney, Linda

and Brent visited the garage to view the car. 2 R.R. 70-71, 143, 146. An

argument erupted between Brent and a DP employee, and Linda

remained in the garage by herself. 2 R.R. 72-74, 144. She took her car’s

ignition key with her when she and Brent left the garage. 2 R.R. 116-

117, 125. The next day, Sims emailed Linda to ask for the ignition key

back, and she returned the key. 2 R.R. 117, 126, 142, 145-146, 149; 6

R.R. 85, P.X. 23.

     In August 2016, Linda sued DP over the car, because she “didn’t

want to just stand by and let [DP] take it from [her].” 2 R.R. 79. The

trial court entered a final judgment consistent with the jury’s findings

and in favor of DP and Sims. C.R. 115-116. It awarded DP $9,000.00 for

Linda’s breach of the agreement for storage fees, $8,750.00 in attorney’s

fees, and court costs. C.R. 115-116.




BRIEF OF APPELLEES                                                     9
                     SUMMARY OF THE ARGUMENT

     DP rightfully possesses Linda’s car by virtue of a possessory lien,

because Linda failed to pay the balance owed to DP for work it

performed on her car at Linda’s request.

     Linda was made aware of DP’s storage-fee policy before DP began

work on the vehicle, when she was provided the cost-estimate invoice

that included the storage-fee policy. The policy was also posted on a sign

in DP’s lobby. Linda’s boyfriend, Brent, signed a second cost-estimate

invoice, which included the storage-fee policy, authorizing DP to

proceed with additional work. Linda agreed to the storage-fee policy,

and specifically, to the $50.00 per week charge for storage of her car, in

an email response to DP.

     Brent’s signature on the second cost-estimate invoice constituted

authorization for DP to make repairs and perform additional

modifications to the car. This signature represented Linda’s acceptance

of the additional work performed by DP, which entitled DP to an award

in quantum meruit.

     DP is entitled to attorney’s fees, because Linda breached her

agreement with DP as to work on the car and storage fees.



BRIEF OF APPELLEES                                                     10
                               ARGUMENT

     In a legal-sufficiency review, a reviewing court considers the

evidence in the light most favorable to the verdict, indulging every

reasonable inference in favor of the verdict. Autozone, Inc. v. Reyes, 272

S.W.3d 588, 592 (Tex. 2008) (per curiam); Associated Indem. Corp. v.

CAT Contracting, Inc., 964 S.W.2d 276, 286 (Tex. 1998). To determine

whether legally-sufficient evidence supports a challenged finding of fact,

the reviewing court should credit evidence that supports the finding if

reasonable jurors could, and disregard contrary evidence unless

reasonable jurors could not. See Kroger Tex. Ltd. P’ship v. Suberu, 216

S.W.3d 788, 793 (Tex. 2006); see City of Keller v. Wilson, 168 S.W.3d

802, 822 (Tex. 2005). The factfinder is the sole judge of the credibility of

the witnesses and the weight to be assigned to their testimony. See City

of Keller, 168 S.W.3d at 819. The factfinder is free to believe one witness

and disbelieve another, and reviewing courts may not impose their own

opinions to the contrary. Id. As such, reviewing courts must assume

that the factfinder decided all credibility questions in favor of the

findings and chose what testimony to disregard in a way that was in

favor of the findings, if a reasonable person could do so. Id. at 819-820.



BRIEF OF APPELLEES                                                       11
     Additionally, it is within the factfinder’s province to resolve

conflicts in the evidence. Id. at 820. Consequently, the reviewing court

must assume that, where reasonable, the factfinder resolved all

conflicts in the evidence in a manner consistent with the findings. Id.

Where conflicting inferences can be drawn from the evidence, it is

within the province of the factfinder to choose which inference to draw,

so long as more than one inference can reasonably be drawn. Id. at 821.

Thus, this Court must assume that the factfinder made all inferences in

favor of the findings if a reasonable person could do so. Id.

     As stated in City of Keller, the final test for legal sufficiency must

always be “whether the evidence at trial would entitle reasonable and

fair-minded people to reach the verdict under review.” Id. at 827.

Anything more than a scintilla of evidence is legally sufficient to

support the finding. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d

444, 450 (Tex. 1996).

     In a factual-sufficiency challenge, a reviewing court must consider

and weigh all of the evidence. Cain v. Bain, 708 S.W.2d 175, 176 (Tex.

1986) (per curiam). The verdict should be set aside only if it is so

contrary to the overwhelming weight of the evidence as to be clearly



BRIEF OF APPELLEES                                                      12
wrong and unjust. Id. The reviewing court may not pass upon the

witnesses’ credibility or substitute its judgment for that of the

factfinder, even if the evidence would support a different result. 2900

Smith, Ltd. v. Constellation New Energy, Inc., 301 S.W.3d 741, 746

(Tex. App.—Houston [14th Dist.] 2009, no pet.). If the reviewing court

determines the evidence is factually insufficient, the court must detail

the evidence relevant to the issue and state in what regard the contrary

evidence greatly outweighs the evidence supporting the trial court’s

judgment; this is not necessary when affirming the judgment. Id.

Issue One: DP rightfully possesses Linda’s car, because she
failed to pay for the work she requested.

     After DP performed the car repairs and modifications requested

by Linda, she failed to pay for the services. DP retained possession of

the car consistent with the provisions of Texas Property Code § 70.001,

which grants mechanics the ability to keep possession of a car pursuant

to a possessory lien. To date, Linda has not fully paid for DP’s services,

so DP rightfully possesses the car by virtue of the possessory lien.

Because DP has a possessory lien on the car, it did not convert or

wrongfully detain the car.




BRIEF OF APPELLEES                                                     13
A.    DP rightfully retained possession of the car pursuant to a
      possessory lien.

      Section 70.001(a) of the Texas Property Code states that “[a]

worker in this state who by labor repairs an article, including a vehicle

… 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.” Tex. Prop.

Code § 70.001(a). “The statutory possessory lien granted under section

70.001 originated in common law to protect one who, by skill, effort and

materials, created value in the property of another.” Thompson v.

Apollo Paint & Body Shop, 768 S.W.2d 373, 376 (Tex. App.—Houston

[14th Dist.] 1989, writ denied) (citing Tex. Const. art. 16 § 37).

      1.    Linda authorized DP to perform repairs and modifications to
            her car.

      In September 2013, Linda delivered her car to DP for repairs and

modifications.2 2 R.R. 14-19. After evaluating the car, DP recognized

what repairs were necessary, so it notified Linda about what should be

done to the car. 3 R.R. 36, 51, 103-106, 111-112, 116-117. Linda initially


2 Although Linda argues on appeal that no repairs were completed on her vehicle,
thus somehow preventing DP from asserting a possessory lien, Linda’s Third
Amended Original Petition, filed March 15, 2017, expressly alleged that she
delivered the car to DP for repairs and modifications. See C.R. 15-16.


BRIEF OF APPELLEES                                                           14
agreed only to further modifications, but Brent later signed a cost-

estimate invoice authorizing DP to perform repairs and modifications

that required an engine rebuild. 2 R.R. 20; 3 R.R. 41, 43, 46-47, 81-82,

121-122. Linda made payments to DP even after it sent an email to

Linda detailing the motor work it was performing. 6 R.R. 96, D.X. 9.

     2.    DP completed the work requested by Linda.

     DP performed the work that Linda initially requested on the car. 3

R.R. 19, 47. After the repairs and further modifications were authorized

by Brent, DP notified Linda that the work was completed on February

17, 2014. 3 R.R. 20, 40, 125-126.

     3.    Linda failed to pay for the work DP performed on the car.

     Although Linda sporadically made payments toward the balance

she owed DP, she failed and refused to pay DP for the entirety of work.

Because Linda failed to pay DP for its work on the car, DP refused to

return the car to Linda, pursuant to § 70.001 of the Texas Property

Code. See Ryan v. Abdel-Salam, 39 S.W.3d 332, 337 (Tex. App.—

Houston [1st Dist.] 2001, pet. denied) (“In the case before us today,

appellant never tendered payment in full, and so appellee’s right to a

possessory lien was never relinquished.”); see also Collision Center



BRIEF OF APPELLEES                                                     15
Paint & Body, Inc. v. Campbell, 773 S.W.2d 354 (Tex. App.—Dallas

1989, no writ) (“As a general rule, a tender of payment must include

everything to which the creditor is entitled; any less sum is

ineffectual.”).

      DP’s continued possession of the car was not only allowed under

the statute, it was necessary to establish and maintain the possessory

lien. Thompson, 768 S.W.2d at 376. And, Brent acknowledged at trial

that he did not expect DP to give the car back to him and Linda if they

had not paid the balance they owed. 3 R.R. 93-95.

B.    Linda did not prove each element of conversion or wrongful
      detainer.

      By contrast to DP’s possession of the car pursuant to a possessory

lien, conversion occurs when one person makes an unauthorized,

wrongful assumption and exercises dominion and control over the

personal property of another to the exclusion of or inconsistent with the

owner’s rights. Morey v. Page, 802 S.W.2d 779, 786 (Tex. App.—Dallas

1990, no writ) (citing Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447

(Tex. 1971)). Conversion is, essentially, a wrongful deprivation of

property. Lone Star Beer, Inc. v. Republic Nat’l Bank of Dallas, 508

S.W.2d 686, 687 (Tex. Civ. App.—Dallas 1974, no writ). To prove that a


BRIEF OF APPELLEES                                                     16
conversion took place, a plaintiff must prove that at the time of the

conversion, he was the owner of the property and had legal possession

of it or was entitled to possession. Id. If the defendant proves that he

has superior title or that he is entitled to the property pursuant to an

agreement, the plaintiff cannot maintain an action for conversion. See

Tex. Diamond Int’l, Inc. v. Tiffany & Co., 47 S.W.3d 589, 591 (Tex.

App.—San Antonio 2001, pet. denied).

     1.    Linda did not prove that she was entitled to possession of the
           car.

     As Linda asserts in her brief, the only element at issue for the

conversion claim is whether DP retained the car wrongfully. See

Appellant’s Brief, pp. 7, 9-10. Linda failed to prove that she was entitled

to possession of the car, because DP did not convert or wrongfully

detain the car. The jury agreed.

     In DP’s Original Counterpetition seeking damages from Linda for

her failure to pay for the work performed by DP, DP specifically set

forth that it refused to release the vehicle to Linda because she did not

pay the total amount owed to DP. See C.R. 8. This is DP’s statutory

right – to retain possession of Linda’s car, because she failed to pay the

amount agreed for DP’s work. See Tex. Prop. Code § 70.001.


BRIEF OF APPELLEES                                                      17
     As set forth above, Linda initially requested that DP perform

certain repairs and modifications to her car, but she later, through

Brent, authorized additional work. Linda failed to pay the amount owed

for the entire amount of work performed by DP on her car. In turn, DP

retained possession of the car to properly establish its possessory lien.

In response to Question 15, the jury found that neither DP nor Sims

converted Linda’s car. See C.R. 51. In response to Question 22, the jury

found that neither DP nor Sims was wrongfully detaining Linda’s car.

See C.R. 51.

     Because Linda failed to prove that DP or Sims wrongfully

detained or converted her car, and the jury expressly answered those

questions in DP’s and Sims’ favor, this Court should affirm the trial

court’s judgment in DP’s favor on the claim for conversion/wrongful

detainer of the car.

Issue Two: Linda agreed to DP’s storage-fee policy, of which she
was made aware before DP began working on her car.

     Linda’s argument that no evidence supported the jury’s finding of

an agreement between Linda and DP as to storage fees disregards the

evidence presented at trial. Not only was Linda made aware of the

storage-fee policy on multiple occasions, but she agreed to the policy.


BRIEF OF APPELLEES                                                        18
A.   DP and Linda agreed to the storage-fee policy.

     Linda’s assertion that the storage fees were punitive and not

contractual is without merit. DP gave notice to Linda of the policy on

multiple occasions, which she did not dispute, and her actions meet the

requirements for an agreement as to the fees.

     1.    DP offered to store Linda’s car for a fee.

     Linda was made aware of DP’s storage-fee policy before DP began

work on the vehicle. On the back of the invoice DP provided Brent and

Linda, DP included language about its storage fee policy. 2 R.R. 88-89; 3

R.R. 12-13, 42-43, 51; 6 R.R. 6, P.X. 2. Specifically, the invoice said that

cars remaining at the garage more than three days after the customer

had been notified work was completed on them would begin accruing

storage fees at the rate of $40.00 per day. 3 R.R. 12, 20, 44; 6 R.R. 6,

P.X. 2. A sign announcing DP’s storage fee policy has also been posted

on the wall in DP’s customer lobby since 2012. 3 R.R. 12-13, 109-111;

see 6 R.R. 135-137, D.X. 20.

     During a visit in October 2013, Brent signed an invoice reflecting

additional work to be performed on the car. 2 R.R. 109-111; 3 R.R. 43,




BRIEF OF APPELLEES                                                       19
46-47, 81-82, 121-122; 6 R.R. 42, P.X. 16; C.R. 13. This invoice, like the

first, included DP’s storage fee policy. 3 R.R. 43-44, 50-51.

     By email dated February 17, 2014, DP notified Linda that it had

completed the work on her car. 2 R.R. 27; 113-114; 3 R.R. 20, 30-32, 35-

36, 40, 125-126, 150-151; 6 R.R. 13, P.X. 7. In the email, DP gave Linda

two options: (1) pay the remaining balance owed and take back

possession of the car, or (2) allow DP to store the car while she made

payments, during which time she would owe storage fees. 2 R.R. 27; 6

R.R. 97, D.X. 10. Rather than charge Linda the standard policy amount

of $40.00 per day for storage fees, DP reduced the fee to $50.00 per

week. 3 R.R. 20; 6 R.R. 97, D.X. 10.

     This email constituted an offer – either pay the balance owed and

take your car or pay storage fees while your car takes up space in the

garage. DP gave Linda two choices. The choices were clear, and the

essential elements of the offer were communicated to Linda. See

Domingo v. Mitchell, 257 S.W.3d 34, 39 (Tex. App.—Amarillo 2008, pet.

denied). Linda argues that this was a directive on DP’s part – Linda

had no ability to accept or reject the decision, because DP was going to

charge the fees regardless. See Appellant’s Brief, p. 14. This is not the



BRIEF OF APPELLEES                                                     20
case. Had Linda paid the balance she owed to DP, no storage fees would

have accrued.

     2.      Linda accepted DP’s offer to store the car for a fee, had a
             meeting of the minds with DP, and consented to the terms of
             the policy.

     Linda responded to DP’s email by saying, “No problem. Could you

email me a statement showing charges and payments. Thanks.” 6 R.R.

97, D.X. 10. DP complied and sent Linda the two invoices. 6 R.R. 97,

D.X. 10. At trial, Linda testified that when she received the email, she

“was just thinking, I can’t believe they’re going to charge me storage. I

thought we were – had an agreement where I would pay it out, but it is

their policy to charge the storages.” 2 R.R. 29.

     On April 23, 2014, Linda made a payment of $1,000.00. 2 R.R. 31-

32. At this point, Linda believed that if she paid off the balance she

owed DP, then perhaps DP would waive the storage fees. 2 R.R. 33. But,

she still recognized that the storage fees would be charged, as DP made

her aware.

     In August 2014, DP emailed Linda, because she had made no

payments in months. 2 R.R. 36; 3 R.R. 128-129. DP asked whether

Linda was still able to make monthly payments and reminded her that



BRIEF OF APPELLEES                                                    21
the vehicle had been accruing storage fees at a rate of $50.00 per week.

6 R.R. 23, P.X. 10. Linda responded to the email by asking for the total

she owed to see if she could pay it off that week. 6 R.R. 22, P.X. 10. She

also acknowledged the storage fees she owed and asked if DP would be

willing to “do anything about” the fees if she paid off her balance in the

next week and a half. 6 R.R. 22, P.X. 10. DP noted that Linda had paid

$4,000.00 toward her balance. 3 R.R. 128-130; 6 R.R. 21, P.X. 10. Chris,

who was emailing on behalf of DP, told Linda, “I’ll see if I can do

anything with the storage fees, but I may not be able to do anything at

all with that.” 6 R.R. 21, P.X. 10.

     Linda responded, “I told Brent the total bill with you guys was

almost 12 he said no way, We may need to go over it one more time.” 2

R.R. 40-41; 3 R.R. 129-130; 6 R.R. 20, P.X. 10. Chris attached the two

invoices reflecting the balance Linda owed, and specifically referenced

the motor work and repairs and modifications made to the car. 2 R.R.

41-42; 6 R.R. 19-20, P.X. 10; 25, P.X. 11. Linda emailed Chris and said,

“Iam sure the no way statement was just for me Iam sure its right.I will

let you know Friday/Monday at the lastest on pay off thanks”. 2 R.R. 44;

3 R.R. 130; 6 R.R. 19, P.X. 19.



BRIEF OF APPELLEES                                                     22
     At trial, Linda acknowledged that she was not confused about the

storage fees referenced in DP’s email – she “almost knew he was going

to charge me something” but did not know how much. 2 R.R. 39; 117-

118. Linda did not dispute the storage fees to DP. She expressly told DP

she was sure the invoices were correct. Brent testified that he did not

expect DP to erase the storage fees from their bill, but he hoped Sims

would work with them on the amount of storage fees owed. 3 R.R. 87.

Specifically, Brent hoped Sims would “cut [them] some slack” on the

storage fees. 3 R.R. 87.

     Linda’s    responses   and   statements   directly   contradict   the

argument that she “never consented to the storage fees and instead

repeatedly indicated her disapproval of them.” See Appellant’s Brief, p.

16. Instead, her actions show an acceptance and meeting of the minds.

See Principal Life Ins. Co. v. Revalen Dev., LLC, 358 S.W.3d 451, 455

(Tex. App.—Dallas 2012, pet. denied) (A “meeting of the minds refers to

the parties’ mutual understanding and assent to the expression of their

agreement.”).




BRIEF OF APPELLEES                                                      23
     3.    The storage-fee agreement was supported by consideration.

     Consideration can be either “a benefit to the promisor or a

detriment to the promisee.” Robert L. Crill, Inc. v. Bond, 76 S.W.3d 411,

418 (Tex. App.—Dallas 2001, pet. denied). It may consist of “some right,

interest, profit, or benefit that accrues to one party, or, alternatively, of

some forbearance, loss, or responsibility that is undertaken or incurred

by the other party.” Solomon v. Greenblatt, 812 S.W.2d 7, 15 (Tex.

App.—Dallas 1991, no writ).

     Linda’s    brief   alleges   that   DP   “did   not   undertake     any

responsibility, forbear any opportunity, or suffer any loss as a result of

holding Linda’s car.” See Appellant’s Brief, p. 17. This directly

contradicts the evidence presented to the jury. Sims testified that

having to store Linda’s car at the garage while she refused to pay for its

work was a burden. 2 R.R. 152-154. The car took up storage space and

resulted in out-of-pocket costs for DP, because it had to be stored in

other places to allow DP more room to work on other vehicles. 2 R.R.

152. The space Linda’s car took up in DP’s garage meant one less

vehicle on which DP could work. Or, when DP was forced to move the

car to another location so that it had room to work on another car, it



BRIEF OF APPELLEES                                                        24
had to pay hard costs to do so. It only would have benefited DP for

Linda to pay for the work she requested so that DP could give

possession of the car back to Linda.

     Moreover, while it was inconvenient for Linda not to have her car,

DP’s willingness to store the car and keep it safe provided a benefit to

Linda while she failed to pay for work performed on the car. Again, the

argument made in Linda’s brief that she received no benefit from DP’s

storage of the car contradicts the evidence. See Appellant’s Brief, p. 17.

Linda told the jury that she cancelled her insurance on the car when

she learned that DP had “way more insurance that I could ever afford.”

2 R.R. 117. She “felt that [the car] was probably pretty safe” in DP’s

garage. 2 R.R. 117.

     Linda and DP had a valid agreement for storage fees, and Linda

still has not paid the balance owed to DP. Because the jury found that

this agreement existed, and that Linda failed to comply with the

agreement, this Court should affirm the jury’s finding that Linda failed

to pay DP $9,000.00 in storage fees. See C.R. 58.




BRIEF OF APPELLEES                                                     25
Issue Three: Linda accepted the additional services DP
performed on the car when Brent signed the estimate
authorizing DP to proceed with the work, which entitled DP to
an award in quantum meruit.

     The additional work DP performed on Linda’s car supported an

award in quantum meruit, because Brent’s signature on the second

cost-estimate invoice constituted authorization for the work, and it

represented Linda’s acceptance.

A.   DP’s additional work on Linda’s car supported an award in
     quantum meruit.

     DP meets the elements required to recover under quantum

meruit. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d

942, 944 (Tex. 1990).

     1.    DP provided valuable services for Linda.

     In her brief, Linda does not dispute that DP provided valuable

services for Linda when it provided repairs and modifications to the car.

See Appellant’s Brief, p. 19-20.

     2.    Linda accepted the services, and she was reasonably notified
           that she would be charged for DP’s work.

     On October 17, 2013, Brent visited the garage to inspect the work

he and Linda requested, and he authorized DP to perform more

modifications and repairs to Linda’s car. 3 R.R. 41, 43, 46, 121; 6 R.R.


BRIEF OF APPELLEES                                                    26
42, P.X. 16. During that visit, Brent signed an invoice reflecting the

additional work to be performed, which increased the amount Linda

owed to DP. 2 R.R. 109-111; 3 R.R. 43, 46-47, 81-82, 121-122; 6 R.R. 42,

P.X. 16; C.R. 13. Brent visited the garage multiple times while DP was

performing the repairs and modifications. 3 R.R. 119-120.

     In December 2013, DP emailed Linda to request a payment of at

least $1,000.00 toward the balance she owed for the additional work she

requested. 2 R.R. 21-22; 3 R.R. 124-125; 6 R.R. 10, P.X. 5. The email

specifically addressed the motor work DP was performing on Linda’s

car. 6 R.R. 96, D.X. 9. Linda paid $1,000.00 to DP on January 30, 2014,

well after Brent authorized and DP began the additional work on the

car. 2 R.R. 23-25.

     By email dated February 17, 2014, DP notified Linda that it had

completed the work on her car. 2 R.R. 27; 113-114; 3 R.R. 20, 30-32, 35-

36, 40, 125-126, 150-151; 6 R.R. 13, P.X. 7. Linda responded to the email

by saying, “No problem. Could you email me a statement showing

charges and payments. Thanks.” 6 R.R. 97, D.X. 10. DP complied and

sent Linda the two invoices. 6 R.R. 97, D.X. 10.




BRIEF OF APPELLEES                                                    27
     DP was authorized to perform the additional work on Linda’s car,

and Linda was made fully aware that she was being charged for the

work. Had DP returned the car to Linda, as she wanted, it would have

relinquished its possessory lien and lost the ability to collect on what it

was owed. By keeping the car, Linda alleges that DP converted the car

after performing work she did not authorize. DP was damned if they did

and damned if they didn’t. Linda’s expectations of DP after it completed

the work requested on the car are the definition of unjust enrichment.

See Vortt, 787 S.W.2d at 944 (“Recovery in quantum meruit will be had

when non-payment for the services rendered would result in an unjust

enrichment to the party benefited by the work.”)(citations omitted).

     The assertion that “[t]here is nothing to suggest that additional

motor work was performed or that Linda would be charged for it” is

false. See Appellant’s Brief, p. 22. As set forth above, DP not only had

authorization from Brent to proceed with the work, but while the work

was ongoing, DP sent an email to Linda discussing the motor work, and

she made a payment in response to the email.

     Because Brent authorized the work that DP performed on Linda’s

car, which Linda accepted, this Court should affirm the jury’s finding



BRIEF OF APPELLEES                                                      28
that DP performed compensable work for Linda for which it was not

compensated, and such work was valued at $3,200.00. See C.R. 60.

Issue Four: The trial court’s award of attorney fees to DP should
be affirmed, because DP prevailed on the above claims.

     A party may recover reasonable attorney’s fees if he prevails and

recovers damages on a cause of action for which attorney’s fees are

recoverable. See Tex. Civ. Prac. & Rem. Code § 38.001; Green Int’l, Inc.

v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Section 70.008 of the Texas

Property Code gives a trial court the discretion to award reasonable

attorney’s fees to the prevailing party in a “suit concerning possession of

a motor vehicle …” See Tex. Prop. Code § 70.008. Likewise, a party

prevailing on a claim for quantum meruit is entitled to attorney’s fees.

Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 406 (Tex. App.—Dallas

2006, no pet.).

     An award of attorney's fees must be supported by evidence that

the fees were both reasonable and necessary. See Stewart Title Guar.

Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). A trial court determines

the reasonableness of an attorney's fee award by considering the factors

enumerated in Arthur Andersen & Co. v. Perry Equip. Corp., 945

S.W.2d 812, 818 (Tex. 1997). The reasonableness of an attorney's fee


BRIEF OF APPELLEES                                                      29
award generally presents a question of fact. See Ragsdale v. Progressive

Voters League, 810 S.W.2d 880, 882 (Tex. 1990). Ordinarily, the

allowance of attorney's fees rests with the sound discretion of the trial

court and will not be reversed without a showing of abuse of that

discretion. Volume Millwork, Inc. v. W. Houston Airport Corp., 218

S.W.3d 722, 735 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

     Here, Linda does not dispute the reasonableness of DP’s attorney’s

fee award. Rather, Linda disputes that any attorney’s fees should have

been awarded, because Linda should have prevailed on her claims.

However, as set forth above, DP and Linda agreed to a storage-fee

charge, which Linda breached. Linda also failed and refused to pay for

the work Brent requested that DP perform on the car. As a result, the

trial court’s award of attorney’s fees is supported by evidence and

should be affirmed.

                                 PRAYER

     For the reasons set forth above, Dallas Performance, LLC and

Taylor Sims request that this Court affirm the trial court’s judgment,

and grant Dallas Performance, LLC and Taylor Sims any further relief

to which they may be entitled.



BRIEF OF APPELLEES                                                    30
                                      Respectfully submitted,

                                      The Kiechler Law Firm, PLLC
                                      619 Broadway Street
                                      Lubbock, Texas 79401
                                      (806) 712-2889
                                      (806) 712-2529 (f)

                                       /s/ Julie Goen Panger
                                      Julie Goen Panger
                                      State Bar Number 24069793
                                      julie@thelubbocklawyer.com

                                      Counsel for Appellees


                      CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this document was served
upon Anthony Arguijo, attorney for Linda Douglas, by electronic service
to aarguijo@scottdoug.com on June 1, 2018.

                                       /s/ Julie Goen Panger
                                      Julie Goen Panger


                     CERTIFICATE OF COMPLIANCE
      In accordance with Texas Rule of Appellate Procedure 9.4(i), I
certify that this document contains 6,526 words, excluding those words
identified as not being counted in TEX. R. APP. P. 9.4(i)(1), and was
prepared on Microsoft Word 2016®.
                                       /s/ Julie Goen Panger
                                      Julie Goen Panger




BRIEF OF APPELLEES                                                   31
