### IN THE

TENTH COURT OF APPEALS

No. 10

- 19

- 00251

- CV

BRAZOS VALLEY ROADRUNNERS, LP

, Appellant

v.

NARI LEE

, Appellee

From the County Court at Law No

. 2

Brazos County, Texas

Trial Court No. 6124

- B

MEMORANDUM OPINION

Appellant Brazos Valley Roadrunners, LP (“Roadrunners”) appeals the trial

court’s ruling that it was not authorized to tow appellee N ari Lee’s vehicle from the

Coyote Parking Lot owned and operated by Dixie Chicken, Inc. (“D C I”)

. In five issues,

Roadrunners challenges the trial court’s judgment under the Texas Towing and BootingBrazos Valley Roadrunners, LP v. Lee Page 2

Act (the “Act”)

. See T EX

. O CC

. C ODE A NN . §§ 2308.001

– .595. Because we overrule all of

Roadrunners’ s issues on appeal, we affirm.

I. B ACKGROUND

Lee parked her car in a numbered space in the Coyote Parking Lot owned by D C I

.

Lee approached the Coyote Parking Lot pay box and then walked across the s treet

without paying. Lee testified at trial that she left the parking lot to get help to better

understand the parking procedure, returned within a minute of crossing the street

, and

paid the parking fee before Roadrunner s removed her vehicle. When she returned to the

l ot after attending an event, Lee learned that Roadrunners had towed her vehicle

. Lee

paid $297.70 to retrieve her vehicle from the Roadrunners storage lot.

Pursuant to the Act

, Lee sued Roadrunners for the removal of her vehicle without

p robable cause. As provided for in the Act, Lee requested a hearing in the Justice of the

Peace Court (“JP Court”). The JP Court conducted the hearing, and after the hearing, it

entered a default judgment in her favor

. Roadrunners filed a motion for new trial, which

was denied.

Roadrunners then appealed to the County Court at Law No

. 2 (“County Court” or

“Court”). The County Court entered a judgment in favor of Lee. Roadrunners filed a

motion for new trial, which was granted

.

On retrial, Lee testified that, because she was unfamiliar with the payment method

used at the Coyote Parking Lot, she left the l ot and went to an event across the street toBrazos Valley Roadrunners, LP v. Lee Page 3

ask someone for help. Her testimony was that an unidentified student returned to the

payment box with her and placed $5 in the slot that corresponded with her parking space

number. Lee stated that she checked her parking number again when she paid and that

her car was still there at that time.

Lee also presented testimony from Suil Kang, who was with Lee when she

returned to the l ot and discovered that Roadrunners towed her vehicle

. Kang testified

that she saw Lee arguing with the parking lot attendant who showed them the security

footage on an iPad. Kang recounted that the footage showed Lee return ing to pay the

fee, but that the attendant said the only thing that mattered was that she left the l ot

without paying. The portion of the parking lot video showing Lee walking away was

admitted into evidence, but, according to Roadrunners, the portion of the video showing

that she paid was no longer available.

Sandra Portzer, the owner of Roadrunners, testified that the video system used to

monitor the Coyote Parking Lot is only able to store recordings for a limited period of

time. When that storage is full, the system saves new recordings over the oldest

recordings. Portzer stated that when she saved the recording shown at trial, she did not

have reason to know that there was a claim of subsequent payment , and that she was

unable to save the video of L ee allegedly paying.

The County Court determined that, while Lee parked in violation of the facility

owner’s rules, a de minimis violation did not authorize Roadrunners to remove herBrazos Valley Roadrunners, LP v. Lee Page 4

vehicle. As a result, the County Court entered a judgment in favor of Le e as to

Roadrunners for $297.70 and $41.00 for court costs. The Court also entered numerous

findings of fact and conclusions of law.

II. S TANDARD OF R EVIEW

When a trial court issues findings of fact and conclusions of law following a bench

trial, its findings are reviewable for legal and factual sufficiency of the evidence by the

same standards as applied in a review of the legal and factual sufficiency of the evidence

to supp ort a jury’s finding. See Catalina v. Blasdel

, 881 S.W.2d 295, 297 (Tex. 1994); see also

Anderson v. City of Seven Points

, 806 S.W.2d 791, 794 (Tex. 1991). We review the trial

court’s conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand

, 8 3 S.W.3d

789, 794 (Tex. 2002). As a reviewing court, we may review the trial court’s legal

conclusions drawn from the facts to determine their correctness. Id.

When we review a finding for legal sufficiency, we credit evidence that supports

the finding i f 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

also City of Keller v. Wilson

, 168 S.W.3d 802, 827 (Tex. 2005).

In a review of the factual

- sufficiency issue, an appellate court must consider all

the evidence in the record. Ortiz v. Jones

, 917 S.W.2d 770, 772 (Tex. 1996). We may

overturn findings only if they are so against the great weight and preponderance of the

evidence as to be clearly wrong and unjust. Id. Under either standard of review, the trierBrazos Valley Roadrunners, LP v. Lee Page 5

of fact is the sole judge of the credibility of the witnesses and the weight to be given the ir

testimony. McGalliard v. Kuhlmann , 722 S.W.2d 694, 697 (Tex. 1986); see City of Keller , 168

S.W.3d at 819.

III. A PPLICABLE L AW

Under chapter 2308

, subchapter J of the Act entitled “Rights of Owners and Operators

of Stored or Booted Vehicles, ” a party is entitled to a hearing to challenge the towing of a

vehicle as long as the party makes a proper request for such a hearing. See T EX

. O CC

.

C ODE A NN

. § 2308.451

- .460; see als o H & H Wrecker v. Koctar

, No. 14

- 15

- 00311

- CV, 2016

Tex. App. LEXIS 7182, at *2 n.2 (Tex. App.

— Houston [14th Dist.] July 7, 2016, no pet.)

(mem. op.). Section 2308.452 specifically states: “The owner or operator of a vehicle that

has been removed and pla ced in a vehicle storage facility

. . . 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

. . . .” T EX

. O CC

. C ODE A NN

. § 2308.452. The hearing takes

place in a justice court having jurisdiction over the precinct from which the vehicle was

towed. See id. § 2308.453(a); see also H & H Wrecker

, 2016 Tex. App. LEXIS 7182, at *2 n.2.

The primary issue at a hearing conducted under Chapter 2308 of the Act is wheth er

probable cause existed for the removal and placement of a towed vehicle. T EX

. O CC

. C ODE

A NN

. § 2308.451

- .452. If the court that conducts the hearing finds there was probable

cause for the removal and storage of the vehicle, the “person who requested the hearing

shall pay the costs of the removal and storage.” Id. § 2308.451(a). Conversely, if the courtBrazos Valley Roadrunners, LP v. Lee Page 6

finds that no probable cause existe d for the removal and storage of the vehicle, “the

towing company, vehicle storage facility, or parking facility owner or law enforcement

agency that authorized the removal shall” pay the costs of removal and storage or

reimburse the owner or operator for removal and storage costs already paid by the owner

or operator of the vehicle

. Id. § 2308.451(b). At the conclusion of the hearing, the trial

court may award : ( 1) court costs and attorney’s fees to the prevailing party; (2) the cost

of any photographs s ubmitted by the vehicle owner or operator who is the prevailing

party; (3) the amount that fees exceeded the permitted amount; and (4) reimbursement of

fees for towing and storage. Id. § 2308.458(e).

Section 2308.459 of the Act provides for an appeal from the justice court’s

decision. Id. § 2308.459; Manderscheid v. LAZ Parking of Tex., LLC

, 506 S.W.3d 521, 527

(Tex. App.

— Houston [1st Dist.] 2015, pet. denied). Appeals from justice courts are tried

de novo in county court. See T EX

. R. C IV

. P. 506.3; see also Badaiki v. Miller

, No. 14

- 17

-

00450

- CV, 2019 Tex. App. LEXIS 1384, at *6 (Tex. App.

— Houston [14th Dist.] Feb. 26,

2019, no pet.) (mem. op.).

IV. A NALYSIS

In its first two issues

, Roadrunners argues that the evidence is legally and factually

insufficient to support the trial court’s finding that there was not probable cause to tow

Lee’s vehicle. Roadrunners contends that it had probable cause to tow Lee’s vehicleBrazos Valley Roadrunners, LP v. Lee Page 7

because Lee left the l ot before returning to pay and the l ot’s posted rules clea rly required

customers to pay before walking away from the lot.

Probable cause, in the context of a tow hearing, “exists when reasonably

trustworthy facts and circumstances within the knowledge of the officer on the scene

would lead a man of reasonable pru dence to believe that the instrumentality of a crime

or evidence of a crime will be found.” See, e.g., Wilt v. City of Greenville Police Dep’t

, No.

06

- 10

- 00107

- CV, 2011 Tex. App. LEXIS 3257, at *5 (Tex. App.

— Texarkana Apr. 29, 2011,

no pet.) (mem. op.) (citing Small v. State

, 977 S.W.2d 771, 774 (Tex. App.

— Fort Worth 1998,

no pet.); Senter v. City of Dallas

, No. 05

- 05

- 01416

- CV, 2006 Tex. App. LEXIS 9669, at *6

(Tex. App.

— Dallas Nov. 8, 2006, no pet.) (mem. op.)). Probable cause “is a flexible,

comm on sense standard requiring only a probability of suspect activity rather than an

actual showing of such activity.” Id. at *6 (citing Senter

, 2006 Tex. App. LEXIS 9669, at *6).

The Texarkana Court of Appeals recently addressed a n almost identical set of facts

in a case that was transferred from this Court due to docket equalization. See generally

Brazos Valley Roadrunners, LLC v. Hargrove

, No. 06

- 20

- 00088

- CV,

___ S.W.3d

___, 2021 WL

2272932 (Tex. App.

— Texarkana June 4, 2021, no pet. h.)

. Specifically, the Hargrove Court

noted the following:

The evidence at trial showed that Hargrove left the Lot for less than five

minutes to retrieve cash to pay the parking fee. Even assuming Hargrove’s

brief departure led to his vehicle becoming temporarily unauthorized,

Chapter 2308 only permits the towing of an unauthorized vehicle, and it is

undisputed that Hargrove returned and quickly paid the fee before finally

leaving the Lot. As a result, sufficient evidence supported the trial court’sBrazos Valley Roadrunners, LP v. Lee Page 8

findings that “[a]uthorized use of the Coyote Lot

. . . was cond itioned solely

on reasonably prompt payment of $5,” and “Hargrove’s use of the Coyote

Lot

. . . was authorized because he completed reasonably prompt payment

of $5.” Even though Hargrove’s truck was authorized to park in the Lot

after payment, Roadrunners still towed it. Based on the evidence in this

case, we conclude that the trial court’s finding that Roadrunners lacked

probable cause to tow was not so against the great weight and

preponderance of the evidence as to be clearly wrong and unjust.

Id. at *5.

Like Hargrove

, Lee left the parking l ot before paying but paid the fee before her

vehicle was towed. While the video evidence of Lee returning to pay the fee was not

available at trial, the court made a factual finding , based on Kang’s testimony, that : “She

returned within minutes and paid the fee.” As the factfinder, the trial court was free to

believe Kang’s testimony that the video footage showed Lee returning to pay within

minutes of crossing the street. Therefore, even if we assume that Lee was not authorized

to park her vehicle in the lot during the brief time that she left the lot to get help, Lee

returned and paid the required parking fee well before Roadrunners had her vehicle

towed. Lee did not finally leave the lot until she had paid t he required fee. This evidence

demonstrates Lee was authorized to park her vehicle in the lot at the time Roadrunners

had it towed

. 1 See id.

1 We limit our holding to the facts of this case and express no opinion on whether a towing company

or parking

- facility owner would have probable cause to tow a vehicle if a longer time elapsed between

parking and payment.Brazos Valley Roadrunners, LP v. Lee Page 9

Furthermore, based on the evidence in this case, we conclude that the trial court’s

finding that Roadrunners lac ked probable cause to tow Lee’s vehicle was not so against

the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Accordingly, we hold that legally and factually sufficient evidence supported the trial

court’s finding that R oadrunners did not have probable cause to tow Lee’ s vehicle. We

overrule Roadrunners’ s first and second issues.

In its remaining three issues, Roadrunners challenges the trial court’s finding s

regarding the adequacy of the signage at the l ot. However, be cause we have concluded

that Roadrunners did not have probable cause to tow Lee’s vehicle, we need not address

Roadrunners’s remaining issues as they are immaterial. See Anderson, Greenwood & Co. v.

Martin , 44 S.W.3d 200, 216 (Tex. App.

— Houston [14th Dist.] 2001, pet. denied) (stating

that a finding on a question is immaterial if the question should not have been submitted

to the factfinder or if it has been rendered immaterial by other findings); see also T EX . R.

A PP

. P. 47.1

, 47.4. Accordingly, we overrule Roadrunners’s last three issues.

V. C ONCLUSION

Having overruled all of Roadrunners’ s issues on appeal, we affirm the judgment

of the trial court.

MATT JOHNSON

JusticeBrazos Valley Roadrunners, LP v. Lee Page 10

Before Chief Justice Gray,

Justice Johnson,

and Justice Wright 2

Affirmed

Opinion delivered and filed July 28, 2021

[CV06]

2 The Honorable Jim R. Wright, Sen ior Chief Justice (Retired) of the Eleventh Court of Appeals,

sitting by assignment of the Chief Justice of the Texas Supreme Court. See T EX

. G OV ’ T C ODE A NN . §§ 4.003,

75.002, 75.003.