H & H Wrecker v. Crystal Koctar and Brazoria Auto & Recovery Appeal from County Court at Law No 1 of Jefferson County (memorandum opinion )
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Rehearing Denied and Supplemental Opinion filed December 6, 2016. In The Fourteenth Court of Appeals NO. 14-15-00311-CV H & H WRECKER, Appellant V. CRYSTAL KOCTAR AND BRAZORIA AUTO & RECOVERY, Appellee On Appeal from the County Court at Law No. 1 Jefferson County, Texas Trial Court Cause No. 124195 SUPPLEMENTAL MEMORANDUM ON REHEARING OPINION In its motion for rehearing, appellant H & H Wrecker argues for the first time that we should reverse the judgments of the justice and county courts and dismiss this case for lack of subject-matter jurisdiction. H & H contends that (1) the justice court lacked subject-matter jurisdiction over the appellee lienholders’ request for a tow hearing because the owner gave consent for the truck to be towed and the lienholders raised issues outside the proper scope of such a hearing, and (2) the county court lacked jurisdiction over the lienholders’ claim for statutory damages against H & H for violating the Texas Towing and Booting Act (Chapter 2308 of the Occupations Code). We disagree. Under the Act, “[t]he owner or operator of a vehicle that has been removed and placed in a vehicle storage facility or booted without the consent of the owner or operator of the vehicle is entitled to a hearing on whether probable cause existed for the removal and placement or booting.” Tex. Occ. Code Ann. § 2308.452 (West 2012). The Act defines the term “vehicle owner” to include a lienholder. Id. § 2308.002(15). Here, it is undisputed that although the owner requested the tow, the lienholders did not consent. Moreover, H & H did not treat the tow as consensual because it sought to collect storage charges from the lienholders under Chapter 2303, which does not apply to a consent tow. Id. § 2303.003. Therefore, the lienholders were entitled to seek a hearing under section 2308.452. Such a hearing occurs in justice court, id. § 2308.453, and sections 2308.451 and 2308.458 define the scope of the hearing. H & H’s argument that the lienholders raised issues outside that scope at the tow hearing is a challenge to the relief sought in the justice court on the merits, not a challenge that implicates the justice court’s jurisdiction. See, e.g., Dubai Petrol. Co. v. Kazi, 12 S.W.3d 71, 76– 77 (Tex. 2000) (explaining distinction between right of plaintiff to relief and jurisdiction of court to afford it). Moreover, H & H does not identify any action taken by the justice court that exceeded its authority under the statutes that define its jurisdiction. We therefore do not consider H & H’s argument, which it raised for the first time on rehearing in this Court. See Tex. R. App. P. 33.1(a). H & H also argues that the lienholders’ filing of a petition in county court raising a claim for statutory damages did not confer jurisdiction because that claim exceeded the scope of the county court’s appellate jurisdiction over the justice 2 court’s judgment. But the Act makes a towing company that intentionally, knowingly, or recklessly violates its provisions liable to the vehicle owner for a $1,000 statutory penalty, and a county court has original jurisdiction to hear a claim for such a penalty. See Tex. Occ. Code § 2308.404(c); Black Bull Towing, LLC v. Ybarra, No. 02–14–00227–CV, 2015 WL 3637933, at *1–3 (Tex. App.— Fort Worth June 11, 2015, pet. denied) (mem. op.). H & H’s argument that the county court erred in trying matters involving its original and appellate jurisdiction together does not establish a defect in the county court’s jurisdiction, and thus it too may not be raised for the first time on appeal. See Tex. R. App. P. 33.1(a); Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 439–40 (Tex. App.—Houston [1st Dist.] 2007, no pet.). For these reasons, we deny H & H’s motion for rehearing. /s/ J. Brett Busby Justice Panel consists of Justices Christopher, McCally, and Busby. 3
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