                                                                                           ACCEPTED
                                                                                       05-15-00131-CV
                                                                            FIFTH COURT OF APPEALS
                                                                                       DALLAS, TEXAS
                                                                                   7/6/2015 9:21:20 PM
                                                                                            LISA MATZ
                                                                                                CLERK

                   CAUSE NO. 05-15-00131-CV

                                                        FILED IN
                                                 5th COURT OF APPEALS
                  IN THE COURT OF APPEALS            DALLAS, TEXAS
        FOR   THE FIFTH JUDICIAL DISTRICT OF TEXAS
                                                 7/6/2015 9:21:20 PM
                       DALLAS, TEXAS                   LISA MATZ
                                                         Clerk




               Sisaat Sisavath, Oythib Phouangsavath,
                              Appellants

                                V.

                  Donald Oates, Sutton Place HOA,
                             Appellees



      From the County Court of Law No. 2, Dallas County, Texas
                 The Honorable King Fifer presiding




BRIEF OF APPELLEES DONALD OATES AND SUTTON PLACE HOA


                                  Law Office of Timothy E. Baker

                                  Timothy E. Baker
                                  State Bar Number: 24050247
                                  1205 S. Greenville Ave.
                                  Allen, TX 75002
                                  P. 214.727.4956
                                  F. 214.506.6015
                                  Attorney for Appellees Donald Oates and
                                  Sutton Place HOA


               ORAL ARGUMENT REQUESTED
I.     Identity of Parties and Counsel

       Appellees Donald Oates and Sutton Place HOA agree with the identification of
       Appellants and Appellants counsel.

       The attorney representing Appellees Donald Oates and Sutton Place HOA is:

               Timothy E. Baker
               Law Office of Timothy E. Baker
               State Bar Number 24050247
               1205 S. Greenville Ave
               Allen, TX 75002
               Phone: 214-727-4956
               Fax: 214-506-6015
               tbaker@timbakerlaw.com

       This adds in Mr. Baker’s State Bar number and corrects the fax number identified
       in Appellants’ brief.

       Appellees/Defendants Don Oates and Sutton Place HOA would like to

supplement and correct Appellants’ identification of Defendant Cencir, Inc.

       Defendant Cencir, Inc. was a defendant at the Justice of the Peace trial for this

matter. Cencir, Inc. did not appeal that judgment. However, when the matter was

originally called for trial at the County Court level (based on the appeal to the County

Court by Defendants Donald Oates and Sutton Place HOA), the County Court had

Cencir, Inc. noticed to appear at a new trial setting. Cencir, Inc. did not appear for this

new trial date, but trial proceeded and judgment was granted against Appellants/Plaintiffs

Sisaat Sisavath and Oythib Phouangsavath and in favor of Defendants Cencir, Inc.,

Donald Oates, and Sutton Place HOA.

       This brief is on behalf of Appellees/Defendants Donald Oates and Sutton Place

HOA only. Counsel for Donald Oates and Sutton Place HOA does not represent Cencir,

Inc.

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                 Page 1 of 12
       To the knowledge of counsel for Appellees/Defendants Donald Oates and Sutton
Place HOA, contact information for Cencir, Inc. is:

Mary Davis
Cencir, Inc.
P.O. Box 170028
Dallas, TX 75217
P. 214-319-9001


To the knowledge of the counsel for Appellees/Defendants Donald Oates and Sutton
Place HOA, Appellee/Defendant Cencir, Inc. has never been represented by a licensed
attorney in this matter and Mary Davis is not a licensed attorney.




05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                          Page 2 of 12
II.   Table of Contents

      I.      Identity of Parties and Counsel        1
      II.     Table of Contents                      3
      III.    Index of Authorities                   4
      IV.     Statement of the Case                  5
      V.      Statement Regarding Oral Argument      5
      VI.     Issues Presented                       5
      VII.    Statement of Facts                     6
      VIII.   Summary of Arguments                   6
      IX.     Arguments                              7
      X.      Prayer                                 12




05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                              Page 3 of 12
III.   Index of Authorities

Statutes

TEX. OCC. CODE §2308.......................... 10
TEX. OCC. CODE § 2305.255.................. 10
TEX. OCC. CODE §2308.404....................6, 7, 8, 10, 11
TEX. OCC. CODE §2308.404(c)................6, 7
TEX. OCC. CODE §2308.405.................... 9
TEX. OCC. CODE §2308.406...................... 9
TEX. OCC. CODE §2308, Subchapter K..... 9
TEX. Prop. CODE § 202.001....................... 8

Texas Attorney General Opinions

DM-330 ……………………………...... 9
JC-0554 ……………………………….. 9




05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                              Page 4 of 12
IV.    STATEMENT OF THE CASE

       Appellants sued Appellees in Justice of the Peace Court seeking damages for

violations of the Texas Towing and Booting Act. Appellants prevailed at the Justice of

the Peace level, but Appellees appealed to the County Court of Law level for a trial de

novo. On May 17, 2012, the case came for trial in the County Court of Law #2, Dallas

County, Texas and the Court found that Appellants were barred from seeking damages in

the matter and were not entitled to recover judgment against Appellees. (CR 1:961). On

September 4, 2012, the trial court issues findings of fact and conclusions of law. (CR1:7-

8). The 5th Court of Appeals, having the trial court’s judgment, but not the trial court’s

findings of fact and conclusions of law as part of the record, reversed the trial court’s

ruling and judgment as to the impact of res judicata in the case and remanded the case

back to the trial court for further proceedings consistent with the Court of Appeals

Opinion. (CR 1:11-18). Upon remand, the trial court held a status conference and set a

date for submission for dispositive motions. (CR1:638). After the status conference, but

before the submission date, Appellants filed an Amended Motion for Summary

Judgment. (CR1:639). Appellees filed a response to the Amended Motion for Summary

Judgment (CR1:938) and a Motion for Entry of Judgment (CR 1:943). On December

25th, 2014, the trial court rendered the judgment that is subject to this appeal finding that

Appellants take nothing (CR 1:961-962).

V.     STATEMENT REGARDING ORAL ARGUMENT

       The Court should grant oral argument as oral argument would give the Court a

more complete understanding of the facts and how they relate to the law in this case.

VI.    ISSUE PRESENTED

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                 Page 5 of 12
        The trial court did not err as a matter of law in finding that Appellants take

nothing.

VII.    STATEMENT OF FACTS

        At some point during or prior to August 2010, Sutton Place HOA, through its

President, Donald Oates, contracted to have Cencir, Inc. patrol for parking violations

within the bounds of the HOA and to tow in certain circumstances (RR 3:75, 78, 87). On

September 18, 2010, cars belong to Appellants were towed by Cencir (RR 3:88-89).

Appellants sued, claiming that Appellants violated the Texas Towing and Booting Act in

a way or ways that justified remedies under §2308.404 of the Texas Occupational Code.

VIII. SUMMARY OF ARGUMENT

        §2308.404(c) of the Texas Occupational Code states that “A towing company,

booting company, or parking facility owner who intentionally, knowingly, or recklessly

violates this chapter is liable to the owner or operator of the vehicle that is subject of the

violation for $1,000 plus three times the fees assessed in the vehicle’s removal, towing,

storage, or booting.” Three phrases need to be understood to properly apply this statute

in this case.

        First is the phrase “parking facility owner.” Under the relevant definition in the

Occupational Code, Appellant Don Oates is not a “parking facility owner” and thus

should not be a party that can be liable under §2308.404.

        Second is the phrase “vehicle that is a subject of the violation.” Several of the

alleged violations relied on by Appellants to justify the §2308.404 remedies do not have a

particular vehicle that is subject to the violation and are regulated by fines rather than

§2308.404 remedies. Of the alleged violations where Appellants’ vehicles could be

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                  Page 6 of 12
reasonably classified as vehicles that are a subject of the violation” the record indicates

that the violation may not have occurred if the trial judge gave credit to evidence

favorable to Appellees’ on those items.

        Additionally, these items where the vehicles could be seen as subject to the

violation, the third phrase, “intentionally, knowingly, or recklessly” needs to be

considered. There is evidence in the record that indicates that neither Don Oates nor

Sutton Place HOA acted intentionally, knowingly, or reckless in regards to these items.

IX.     ARGUMENT

        §2308.404(c) of the Texas Occupational Code states that “A towing company,

booting company, or parking facility owner who intentionally, knowingly, or recklessly

violates this chapter is liable to the owner or operator of the vehicle that is subject of the

violation for $1,000 plus three times the fees assessed in the vehicle’s removal, towing,

storage, or booting.” Three phrases need to be understood to properly apply this statute

in this case.

        First is the phrase “parking facility owner.” Under the relevant definition in the

Occupational Code, Appellant Don Oates is not a “parking facility owner” and thus

should not be a party that can be liable under §2308.404.

        The civil liability statute at issue in this case, TEX.OCC.CODE §2308.404 states

that “A towing company, booting company, or parking facility owner who violate this

statute is liable . . . .” Don Oates is President of Sutton Place HOA. He is not a towing

company, booting company, or parking facility owner. In the section outlining the

definitions under the towing act, “Parking Facility Owner” is defined as (A) an

individual, corporation, partnership, limited liability company, association, trust or other

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                  Page 7 of 12
legal entity owning or operating a parking facility; (B) a property owners’ association

having control under a dedicatory instrument, as that term is defined in section 202.001,

Property Code, over assigned or unassigned parking areas; or (C) a property owner

having an exclusive right under a dedicatory instrument, as that term is defined in Section

202.001, Property Code, to use a parking space.”       Second is the phrase “vehicle that is

a subject of the violation.” Several of the alleged violations relied on by Appellants to

justify the §2308.404 remedies do not have a particular vehicle that is subject to the

violation and are regulated by fines rather than §2308.404 remedies. Of the alleged

violations where Appellants’ vehicles could be reasonably classified as vehicles that are a

subject of the violation” the record indicates that the violation may not have occurred if

the trial judge gave credit to evidence favorable to Appellees’ on those items.

       Don Oates falls into none of these categories and no cause of action other than

TEX.OCC.CODE §2308.404 was alleged against him. Thus, he should not be found

liable for any damages in the suit.

       The second phrase at issues is “vehicle that is a subject of the violation.” Several

of the alleged violations relied on by Appellants to justify the §2308.404 remedies do not

have a particular vehicle that is subject to the violation and are regulated by fines rather

than §2308.404 remedies. Of the alleged violations where Appellants’ vehicles could be

reasonably classified as vehicles that are a subject of the violation” the record indicates

that the violation may not have occurred if the trial judge gave credit to evidence

favorable to Appellees’ on those items.

       In particular, the Appellants’ claims in the following argument sections of their

brief fall under this category: A. iii. (signage was improper and insufficient), A. iv.

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                  Page 8 of 12
(Appellees did not provide written verification to the tow company), and A. v. (Appellees

accepted signage and painting at no cost).

          For the signage and painting at no cost, the Appellees have referred to a couple of

Attorney General opinions that were appended to the Motion for Summary Judgment (CR

926-934). These opinions were dealing with the predecessors of the Occupational Code

provisions in effect at the time the tows in this case were made. Two points need to be

made about these opinions.

          The first deals with the relationship between the statute provision and its relation

to particular removals from a parking facility. In footnote one of Opinion No. DM-330,

Attorney General Dan Morales noted that “It has been suggested that the gift or loan of

such a sign may not be ‘in connection with the removal of a vehicle from a particular

facility.’ We decline to read this phrase to refer to particular removals. In our view,

it refers to the whole contract between the facility owner and the towing company and the

incidents thereto.” (CR1:929 – emphasis added). This phrase is quoted in the other

Attorney General’s opinion by John Cornyn provided by Appellants, JC-0554 (CR

1:932).

          The Cornyn opinion goes on to make the second point relevant here –

enforcement. It quotes the Transportation Code criminal penalty and describes how a

prosecution would work (CR 1:932-933). The criminal penalty is still in the statute as

TEX.OCC.CODE §2308.405. Other enforcement provisions are located at

TEX.OCC.CODE §2308.406 and Subchapter K of TEX.OCC.CODE §2308.




05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                  Page 9 of 12
       The point is that alleged violations of TEX.OCC.CODE §2308 need to be looked

in the context of is they are related to a particular tow in order for the remedies in

TEX.OCC.CODE §2308.404 to be applicable.

       The written verification to the tow company that the signs are in place seems

pretty remote from a particular tow and more appropriate to be addressed through

prosecution and action by regulators rather than be private litigation. Additionally,

Section 2308.255 of the Texas Occupations Code speaks to win a towing company may

tow, so it would be the towing company’s violation, not the parking facility owner’s

(Sutton Place HOA) violation.

       Improper and insufficient signage, especially in regards to whether a sign

mounted on a pole is considered permanently mounted seems a prosecutorial and

regulatory function rather than something that would make a tow subject to Section

2308.404 remedies if the sign was otherwise in compliance and in place at the time of the

tow.

       Even if and when there are alleged violations where it could be construed that the

vehicles could be seen as subject to the violation, the third phrase, “intentionally,

knowingly, or recklessly” needs to be considered. There is evidence in the record that

indicates that neither Don Oates nor Sutton Place HOA acted intentionally, knowingly, or

reckless in regards to these items.

       First, it appears that the Appellants’ brief applies the phrase “intentionally,

knowingly, and recklessly” to the act of towing (see Appellants’ Br. at paragraphs 82 and

83, pp. 23-24). The statute itself contemplates an intentional, knowing, or reckless

violation of the statute. Don Oates and the HOA (through Don Oates acting as its agent)

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                                Page 10 of 12
did not reach this standard as Don Oates asked that the tow company to not tow the cars

and did not revoke that request (RR 2:132:7-23).

       As this applies to Appellants’ claim in subsection A. i. of their Argument, there is

disputed evidence on whether there were signs present on the night of the tow. Don

Oates testified that the sign was there at least a couple of days prior to the tow (RR

2:134:3-16). Appellants as Plaintiffs provided photos showing no signs two days after

the tow. Neither side conclusively demonstrated whether the sign was there on the night

of the tow and the burden was with the Appellants. The trial court could have given

credit to Don Oates testimony that the sign was there at one point shortly before the tow

and that the towing company may have been reluctant to tow if there was no sign.

       As to Appellants’ claim in subsection A. ii. of their Argument that the tow was

subject to Section 2308.404 remedies because the fire lanes did not meet the statutory

standards, there is testimony that the tows were not fire lane tows. Don Oates testified

that he was informed the cars were parked on the grass (RR 2:132:7-15). The sign in

question referenced parking on the grass as a violation (RR3:95). It can also be argued

that the fire lane regulation are global requirements not related to a particular tow and are

enforceable by local prosecutors rather than the civil penalty regime the Appellants are

relying on.

       As to Appellants claims in subsection A.iii. of their Argument that signage was

improper and insufficient (either not there or not properly mounted), if the trial court

found that the Appellants did not meet there burden of establishing the sign was not there

on the night in question, then the sign appeared other adequate except for questions of

mounting which the trial court could have found was permanent enough to meet the

05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                               Page 11 of 12
statute’s requirements.

X.     PRAYER

Appellees pay that this Court upholds the trial court’s ruling and judgment in full.

                                              Respectfully submitted,

                                              Law Office of Timothy E. Baker

                                              By: /s/Timothy E. Baker
                                              TX Bar Number 24050247
                                              1205 S. Greenville Ave
                                              Allen, TX 75002
                                              P. 214.727.4956
                                              F. 214-506-6015
                                              Attorney for Appellees Donald Oates and
                                              Sutton Place HOA

                                  Certificate of Service

       I certify that a true copy of the foregoing was served in accordance with the Texas
Rules of Appellate Procedure to Warren V. Norred, attorney for Appellants on July 6,
2015.

                                              /s/ Timothy E. Baker
                                              Timothy E. Baker
                                              Attorney for Appellees Donald Oates and
                                              Sutton Place HOA




05-15-00131-CV, Appellees Donald Oates and Sutton Place HOA

                                                                              Page 12 of 12
