GREAT WEST CASUALTY COMPANY v. ROBERT GARZA, ET AL.--Appeal from 93rd District Court of Hidalgo County

NUMBER 13-04-00611-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

GREAT WEST CASUALTY CO., Appellant,

 
v.

ROBERT GARZA, RAFAEL GARZA,

REYNALDO GARZA, AND

EL RANCHO TOWING & RECOVERY , Appellees.

On appeal from the 93rd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Hinojosa

Appellant, Great West Casualty Company, sued appellees, Robert Garza, Rafael Garza, Reynaldo Garza, and El Rancho Towing & Recovery, for negligence, negligence per se, and conversion. Appellees filed two motions for summary judgment, and the trial court granted both motions. See Tex. R. Civ. P. 166a(c), (i). In four issues, appellant contends the trial court erred in granting the motions. We affirm in part and reverse and remand in part.

A. Factual & Procedural Background

On November 5, 2001, Aaron Olabarrieta, a former employee of Spirit Truck Lines, stole a trailer from Spirit's facility in San Juan, Texas. The trailer, which was licensed in Oklahoma, contained 2,058 cases of beer valued at approximately $20,000. The beer was a perishable commodity and could not be sold after February 24, 2002. Spirit promptly reported the trailer stolen to its insurer, Great West Casualty Company, and the San Juan Police Department.

After midnight on November 6, 2001, Olabarrieta drove the truck to appellees' vehicle towing and storage facility in San Juan, approximately five miles from Spirit's facility. Olabarrieta told appellees that he was having mechanical difficulties with the truck tractor and asked to leave the trailer at their storage facility for a few days. Appellees allowed Olabarrieta to leave the trailer there as a favor, and no contract was made regarding this storage. Olabarrieta never returned for the trailer, and after four days, appellees checked the trailer's registration and learned that it was registered to Spirit. Appellees contacted the McAllen Police Department and the Hidalgo County Auto Theft Task Force and were told that the trailer had not been reported stolen. Appellees never contacted the San Juan Police Department.

On March 7, 2002, four months after receiving the trailer, appellees mailed Spirit a bill for "towing and storing" the trailer. By that time, the beer had been unsaleable for several weeks, and appellant had already compensated the owner for the loss of the cargo. Appellant sued appellees for (1) negligence in the operation of a motor vehicle storage facility, (2) negligence per se for violating the abandoned vehicle reporting requirements of the Texas Transportation Code, (3) negligence per se as a vehicle storage facility under the Texas Occupations Code, and (4) conversion of the trailer. (1) Appellees filed two motions for summary judgment.

In their first motion, a no-evidence motion for summary judgment, appellees asserted there was no evidence that the trailer was abandoned as required by the Texas Transportation Code. See Tex. R. Civ. P. 166a(i). The trial court granted appellees' first motion on May 10, 2004.

In their second motion, a traditional motion for summary judgment, appellees asserted that (1) the Texas Occupations Code did not apply in this case, and (2) regarding appellant's claim for conversion, that (a) appellant lacked standing, (b) the trailer was not acquired unlawfully, and (c) appellees never refused appellant's demand to return the trailer. See Tex. R. Civ. P. 166a(c). The trial court granted appellees' second motion on September 27, 2004 and dismissed all of appellant's claims. This appeal ensued.

B. Common Law Negligence

Appellant sued appellees for negligence in operating a motor vehicle storage facility. In its first issue, appellant contends the trial court erred in granting a summary judgment against it on its common law negligence claim.

To prove a negligence claim, a plaintiff must show that (1) the defendant owed him a duty, (2) the defendant breached that duty, and (3) the breach of that duty proximately caused the plaintiff's injuries. Firestone Steel Prod. Co. v. Barajas, 927 S.W.2d 608, 613 (Tex. 1996). Duty is the threshold inquiry; a plaintiff must prove the existence and violation of a duty owed to him by the defendant to establish liability in tort. Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex. 1976). The existence of a duty is ultimately a question of law for the trial court to decide from the facts surrounding the occurrence in question. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

A court may not grant more relief than is requested by the movant in a motion for summary judgment. See Tex. R. Civ. P. 166a; Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). Although the trial court's summary judgment order purports to dispose of all claims, the record reflects that appellees never moved for summary judgment on appellant's common law negligence claim. Therefore, we conclude the trial court erred in granting summary judgment on appellant's common law negligence claim. Appellant's first issue is sustained.

C. No-Evidence Motion for Summary Judgment

Appellants sued appellees for negligence per se under the Texas Transportation Code. Appellees moved for summary judgment on the ground that there was no evidence the trailer was abandoned.

1. Standard of Review

Because appellees filed a no-evidence motion for summary judgment, we consider all evidence in the light most favorable to appellant and disregard all evidence and inferences to the contrary. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no-evidence summary judgment is essentially a pre-trial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. King Ranch v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2005). A no-evidence motion for summary judgment must be granted if (1) the movant asserts that there is no evidence of one or more specified elements of a claim or defense on which the respondent would have the burden of proof at trial, and (2) the respondent produces no evidence raising a genuine issue of material fact on those elements. ABB Kraftwerke Aktiengesellschaft v. Brownsville Barge & Crane, Inc., 115 S.W.3d 287, 290-91 (Tex. App.-Corpus Christi 2003, pet. denied); see Tex. R. Civ. P. 166a(i). If, as here, a motion for summary judgment is granted generally, without specifying the reason, the summary judgment will be upheld if any ground in the motion can be sustained. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

A no-evidence motion for summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Wal-Mart, 92 S.W.3d at 506. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., 953 S.W.2d at 711.

2. Negligence per se - Texas Transportation Code

In its second issue, appellant asserts that under chapter 683 of the Texas Transportation Code, appellees owed it a duty to notify the proper law enforcement agency that the trailer had been abandoned. The violation of a statutory duty constitutes negligence per se so long as the statute was intended to prevent injury to the class of individuals to which the plaintiff belongs. Wal-Mart Stores v. Tamez, 960 S.W.2d 125, 128 (Tex. App.-Corpus Christi 1997, no pet.). The transportation code imposes a duty upon the owner or operator of a vehicle storage facility to report abandoned motor vehicles to a law enforcement agency. Tex. Trans. Code Ann. 683.031(c) (Vernon 2006). A vehicle is considered abandoned:

if the vehicle is left in a storage facility operated for commercial purposes after the tenth day after the date on which . . . the vehicle was left in the facility, if the vehicle was left by a person other than the registered owner or a person authorized to have possession of the vehicle under a contract of use, service, storage, or repair.

 

683.031(a)(3). The interpretation of this clause of section 683.031 is at issue here.

When we interpret a statute, we look to the legislative intent and construe the statute to give effect to that intent. Lee-Hickman's Invs. v. Alpha Invesco Corp., 139 S.W.3d 698, 700 (Tex. App.-Corpus Christi 2004, no pet.). When possible, we will discern the legislative intent from the plain words of the statute. Id.

Appellees contend that section 683.031(a)(3) must be read to mean that the vehicle must have been left at the facility "under a contract of use, service, storage, or repair" for it to be considered abandoned. Tex. Trans. Code Ann. 683.031(a)(3). However, appellees' interpretation of section 683.031(a)(3) is not the natural reading of the statute. The words "under a contract of use, service, storage, or repair" clearly modify the immediately preceding words "a person authorized to have possession of the vehicle," not the earlier clause "the vehicle was left in the facility." In fact, the phrase "the vehicle was left in the facility" precedes a comma which separates the phrase from the rest of the sentence. Thus, we apply section 683.031(a)(3) in this manner.

Appellant filed a response to appellees' no-evidence motion for summary judgment and attached copies of: (1) a license issued by the State of Texas to appellees, authorizing them to operate a vehicle storage facility; (2) the deposition testimony of Roberto Garza; and (3) appellees' answers to appellant's interrogatories. This summary judgment evidence provided more than a scintilla of evidence that appellees operate their storage facility for commercial purposes, and Olabarrieta was not the vehicle's registered owner, nor was he "a person authorized to have possession of the vehicle under a contract of use, service, storage, or repair." Id. 683.031(a)(3). Therefore, appellees should have considered the trailer abandoned on November 16, 2001, the tenth day after it was left at their facility, and appellees owed a duty to report the trailer as abandoned to a law enforcement agency. Id. 683.031(c).

Law enforcement officials owe a duty to a vehicle's registered owner to notify the owner regarding any abandoned motor vehicle reported by a vehicle storage facility. Tex. Trans. Code. Ann. 683.012(a)(1) (Vernon 2006). Thus, chapter 683 of the Texas Transportation Code imposes a duty on a vehicle storage facility owner to report abandoned vehicles to a law enforcement agency for the benefit of the vehicle's owner. See Tamez, 960 S.W.2d at 128.

Because the trailer was abandoned, appellees owed Spirit a statutory duty to report the vehicle to a law enforcement agency on the tenth day after Olabarrieta left it at their facility. Accordingly, we conclude the trial court erred in granting summary judgment on appellant's negligence per se claim under the Texas Transportation Code. Appellant's second issue is sustained.

D. Traditional Motion for Summary Judgment

Appellant sued appellees for negligence per se under the Texas Occupations Code and for conversion of the trailer. Appellees filed a traditional motion for summary judgment asserting (1) that the Texas Occupations Code did not apply in this case and (2) as to the conversion claim, that (a) appellant lacked standing, (b) the trailer was not acquired unlawfully, and (c) appellees never refused appellant's demand to return the trailer.

1. Standard of Review

We review de novo a trial court's grant or denial of a traditional motion for summary judgment. Tex. R. Civ. P. 166a(c); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.-Corpus Christi 2003, no pet.) (op. on reh'g). The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Ortega, 97 S.W.3d at 771. In deciding whether there is a genuine issue of material fact, we take evidence favorable to the non-movant as true. Ortega, 97 S.W.3d at 771. We make all reasonable inferences and resolve all doubts in favor of the non-movant. Id. Summary judgment for a defendant is proper if the defendant disproves at least one element of each of the plaintiff's claims or affirmatively establishes each element of an affirmative defense to each claim. Id. The non-movant has no burden to respond to a traditional motion for summary judgment unless the movant conclusively (1) establishes each element of its cause of action or defense, or (2) negates at least one element of the non-movant's cause of action or defense. Id.

 
2. Negligence per se - Texas Occupations Code

In its third issue, appellant contends that appellees owed it a duty under chapter 2303 of the Texas Occupations Code, otherwise known as the Vehicle Storage Facility Act ("the Act"), to notify Spirit that the trailer had been abandoned.

The provisions of the Act do not apply to vehicles stored by a vehicle storage facility with the owner's consent. 43 Tex. Admin. Code 18.81(b) (2006). An individual who is in possession of the vehicle is not necessarily the owner. 43 Tex. Admin. Code 18.82(13) (2006). Although Olabarrieta was in possession of the trailer on November 6, 2001, his consent to the storage was irrelevant. Because Spirit did not consent to the storage of the trailer, the provisions of the Act apply.

An operator of a vehicle storage facility who receives a vehicle that is registered in another state is required to send notification to the registered owner of that vehicle no later than fourteen days after the date it is stored. Tex. Occ. Code Ann. 2303.151(b) (Vernon 2006). Because the stolen trailer was registered in Oklahoma, we conclude that appellees had a statutory duty to notify Spirit no later than fourteen days after Olabarrieta left the trailer at their storage facility.

We conclude the trial court erred in granting summary judgment on appellant's negligence per se claim under the Texas Occupations Code. Appellant's third issue is sustained.

3. Conversion of Trailer

In its fourth issue, appellant contends the trial court erred in granting appellees' motion for summary judgment on its conversion claim.

Conversion is the unauthorized and wrongful assumption and exercise of control over the 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, 445 (Tex. 1971). Conversion is established by proving that (1) the plaintiff owned, had legal possession of, or was entitled to possession of the property, (2) the defendant assumed and exercised dominion and control over the property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the plaintiff's rights, and (3) the defendant refused the plaintiff's demand for the return of the property. Huffmeyer v. Mann, 49 S.W.3d 554, 558 (Tex. App.-Corpus Christi 2001, no pet.) (citing Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 344 (Tex. App.-San Antonio 2000, pet. denied)).

Although a demand for return and refusal must ordinarily be made for a conversion to occur, there are some exceptions to this general rule, such as when a demand would have been useless, or the possessor's acts are a clear repudiation of the lawful owner's rights. Emil v. Bures, 806 S.W.2d 935, 938 (Tex. App.-Corpus Christi 1991, no writ). For example, when the possessor resells the property, a demand for return of the property is unnecessary to establish conversion, because such a demand would be useless and the act of resale is clearly inconsistent with the lawful owner's rights. Shaw's D.B. & L., Inc. v. Fletcher, 580 S.W.2d 91, 95 (Tex. Civ. App.-Houston [1st Dist.] 1979, no writ).

Appellees conclusively established that Spirit did not demand the return of its trailer until March 2002, and that no exception to the requirement that appellant demand the return of the trailer exists here. Appellant failed to rebut this showing by raising a genuine issue of material fact in response. Allowing the trailer to sit on appellees' lot was not inconsistent with Spirit's ownership, and a demand by Spirit for the trailer's return would certainly not have been useless, given appellees' willingness to return the trailer to Spirit in March. We conclude the trial court did not err in granting appellees' motion for summary judgment on appellant's conversion claim. Appellant's fourth issue is overruled.

E. Conclusion

We affirm the trial court's order granting appellees' motion for summary judgment on appellant's claim for conversion. We reverse the trial court's order granting summary judgment on appellant's negligence claims and remand the case to the trial court for further proceedings on appellant's (1) common law negligence claim, (2) negligence per se claim under the Texas Transportation Code, and (3) negligence per se claim under the Texas Occupations Code.

 

FEDERICO G. HINOJOSA

Justice

 

Memorandum Opinion delivered and filed

this the 28th day of August, 2006.

1. As Spirit's insurer, appellant is subrogated to all of Spirit's legal claims against all third parties responsible for its injury. See Medina v. Herrera, 927 S.W.2d 527, 603-04 (Tex. 1996). Appellant, therefore, has standing to bring all of these claims.