CAUSE NO.

05-12-01027-CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS

Sisaat Sisavath, Oythib Phouangsavath, Appellants V. Donald Oates, Sutton Place HOA, Appellees

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

BRIEF OF APPELLANTS NORRED LAW, PLLC Warren V. Norred State Bar Number: 24045094 200 E. Abram, Suite 300 Arlington, TX 76010 P. 817.704.3984 F. 817.549.0161 Attorney for Appellants ORAL ARGUMENT REQUESTED

I.

Identity of Parties and Counsel

The following is a list of all parties and all counsel in this matter:

A. Appellants in this matter are Sisaat Sisavath and Oythib Phouangsavath, who were plaintiffs in the trial court. The attorney representing Appellants is: Warren V. Norred, Norred Law, PLLC State Bar Number: 24045094 200 E. Abram, Suite 300; Arlington, TX 76010 P. 817.704.3984; F. 817.549.0161 B. Appellees/Defendants in this matter are Donald Oates and Sutton Place HOA. The attorney representing Appellees is: Timothy Baker 1205 S. Greenville Avenue Allen, TX 75002 P. 214-727-4956; F. 972-680-2362 C. Defendant Cencir, Inc. was a defendant in the original trial, but did not appeal to the County Court, and is not part of this proceeding.

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II.
I. II. III. IV. V. VI. VII. VIII. IX. X. XI.

Table of Contents
Identity of Parties and Counsel............................................................................................. 1 Table of Contents ................................................................................................................. 2 Index of Authorities ............................................................................................................. 3 Statement of the Case........................................................................................................... 4 Statement Regarding Oral Argument ................................................................................... 5 Statement of Jurisdiction..................................................................................................... 5 Issues Presented .................................................................................................................. 5 Statement of Facts ............................................................................................................... 6 Brief Procedural History ..................................................................................................... 7 Summary of the Argument.................................................................................................. 8 Arguments ........................................................................................................................... 9 A. The trial court erred by applying res judicata to a tow hearing in Justice Court. .................. 9 a. Res judicata is not generally applicable to justice court findings. .............................. 9 b. Even if res judicata might be applicable in the Justice Courts, the doctrine is not applicable between tow hearings and civil suits. ........................................................ 9 B. The Appeals Court should clarify the sole appropriate method of calculating civil suit damages in wrongful tow suits. ....................................................................................... 11 C. The Appeals Court should reverse and render judgment for Appellants. ............................ 13 a. Fire lanes must meet specific requirements in order to be enforceable; those requirements were not met in this case. .................................................................... 14 b. Before beginning non-consent towing, the parking facility was required to provide written authorization to the tow company, confirming that the signage is correct. .. 15 c. Plaintiff properly pled and proved reasonable and necessary attorney fees .............. 15

XII. XIII.

Prayer ................................................................................................................................ 16 Appendix ........................................................................................................................... 17

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III.

Index of Authorities

Statutes TEX. CIV. PRAC. & REM. CODE 31.005 ........................................................................................ 9 TEX. CIV. PRAC. & REM. CODE 51.012 .......................................................................................... 5 TEX. GOV'T CODE 22.220 .............................................................................................................. 5 TEX. OCC. CODE 2308. ............................................................................................................. 5, 7 TEX. OCC. CODE 2308.251 ......................................................................................................... 14 TEX. OCC. CODE 2308.252 ................................................................................................... 12, 14 TEX. OCC. CODE 2308.255 ......................................................................................................... 13 TEX. OCC. CODE 2308.404 ........................................................................................... 4, 7, 10, 11 TEX. OCC. CODE 2308.407 ......................................................................................................... 13 TEX. OCC. CODE 2308.451 ........................................................................................................... 9 TEX. OCC. CODE 2308.458 ....................................................................................................... 4, 7 Cases Attorney General of Texas v. Allred, 871 S.W.2d 298, 300 (Tex. App.--Fort Worth 1994, no writ.) .......................................................................................................................................... 10 Lopez v. Sulak, 76 S.W.3d 597 (Tex. App.--Corpus Christi 2002, no pet.) ................................. 10 Wren v. Gusnowski, 919 S.W.2d 847 (Tex. App.Austin 1996, no writ.).................................... 9

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IV. 1.

Statement of the Case The underlying suit arises out of an action for an illegal tow hearing and later civil

suit that began in the justice court and heard de novo in county court. 2. Appellants were towed for parking in an unauthorized area while parked on a

neighborhood street maintained by Appellee Sutton Place Homeowners Association, which had contracted for tow services with Cencir, Inc. Cencir towed Appellants vehicles, allegedly for parking in an unauthorized area, and an asserted fire lane. 3. Appellants requested and received a tow hearing pursuant to the Texas Towing and

Booting Act ("the Act"), TEX. OCC. CODE 2308.458, in Justice Court, Precinct 2-1, Dallas County. The Justice Court found that no probable cause existed for the tow, and awarded Appellants their tow fees ($293.30) and court costs ($25) from Appellees. 4. Appellants then filed a civil suit for violations of the Act in Cause No. JC10-1599D,

seeking triple the tow fees assessed, statutory damages of $1000, and attorney fees pursuant to TEX. OCC. CODE 2308.404(d) as it was written at the time1. The Justice Court awarded Appellants $3700 in damages. 5. Appellees appealed and received a bench trial de novo in County Court Number

Two, Cause No. CC-1106075-B, entitled "Sisaat Sisavath, Oythib Phouangsavath, and Andre Southivong, v. Cencir, Inc., and Donald W. Oates." The Honorable Judge Fifer presided over the bench trial, and after hearing all testimony on the merits and all evidence, ruled that Appellants should take nothing because they had elected their remedy (a tow hearing) at the original tow hearing, and could not afterward ask for damages under the
1

TEX. OCC. CODE 2308.404(d) was amended in September 2011 to remove attorney fees in civil suits.

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doctrine of res judicata. CR 31, Notice of Ruling; App. 3, Findings of Fact and Conclusions of Law, 1-2, 8. 6. Appellants ask the Court of Appeals to reverse the trial court's ruling and judgment,

and render judgment for Appellants, or in the alternative, reverse the court's ruling and remand for new trial. V. 7. Statement Regarding Oral Argument The Court would benefit from oral argument in this case because the application of

the law to the facts in the questions raised in this fact pattern are sparse, the trial court's record contains discussion of claims of assault and other issues irrelevant to the appeal, and the trial court's findings of fact do not reflect the court's ruling or judgment. Having the attorneys present for oral argument to answer the Courts specific legal questions and factual questions from the record will aid the Court to resolve the case more quickly. VI. 8. Statement of Jurisdiction This Court has jurisdiction under TEX. GOV'T CODE 22.220 and TEX. CIV. PRAC. &

REM. CODE 51.012.

VII. 9.

Issues Presented The trial court erred as a matter of law when it found that:

A) Damages sought by Appellants under a civil suit under TEX. OCC. CODE 2308.404 were barred by res judicata after Appellants received judgment for damages in a tow hearing pursuant to TEX. OCC. CODE 2308.458.
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B) The trial court failed to calculate damages or accept a particular methodology to calculate damages for the civil suit after prevailing on the merits. C) Plaintiffs failed to meet their burden in proving its causes of action with respect to claimed violations of the Act, TEX. OCC. CODE 2308. D) Plaintiffs failed to meet their burden that they were entitled to attorney fees. VIII. Statement of Facts 10. The following facts must be considered as true from the Appellants evidence and

pleadings under the standard of review this Court applies to appellate proceedings: 11. On September 18, 2010, cars belonging to Appellants Sisaat Sisavath and Oythib

Phouangsavath were towed from a street controlled and maintained by Appellant Sutton Place HOA. RR2 58:3-61:7; RR3, Exh. D. 12. 13. Appellants each paid $293.30 to retrieve their cars. RR2, 47:17-19; RR3, Exh. I,J. During the trial, HOA president Donald Oates testified that the HOA had

authorized tow signage and towing from the street generally, as well as the creation of a fire lane, confirming earlier discovery responses. RR3, 80:1-9; RR3, Exh. A, Interrog. 1. 14. The tow signs were placed approximately 90 feet from the entrance to the parking

area. RR2, 57:8-15; 104:1. 15. The HOA never sent a written confirmation that tow signage was installed and the

tow company could begin towing from the area. RR2, 87:25-88:4. 16. The asserted fire lanes state, "NO PARKING FIRE LANE, and not "NO

PARKING - TOW AWAY ZONE". RR2, 53:16-54:1; RR3, Exh. K1.

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17.

The tow company, an agent of Appellee and acting on its behalf, claimed that the

Sisavath's and Phouangsavath's vehicles could be towed because they were parked in a fire lane. RR3, Exh. A, Interrog. 7. IX. 18. Brief Procedural History Appellants Sisavath and Phouangsavath requested and received a tow hearing

pursuant to the Ac TEX. OCC. CODE 2308.458 in Justice Court, Precinct 2-1, Dallas County. The Justice Court found that no probable cause existed for the tow, and awarded Appellants their tow fees and court costs from Appellees. 19. Appellants then filed suit in the same Justice Court for violations of the Act in

Cause No. JC10-1599D, seeking triple the tow fees paid by Appellants to retrieve their car, $1000, and attorney fees pursuant to TEX. OCC. CODE 2308.404(d) as it was written at the time. The Justice Court awarded Appellants $3700 in damages. 20. Appellees appealed and received a bench trial de novo in County Court Number

Two, Cause No. CC-1106075-B, entitled "Sisaat Sisavath, Oythib Phouangsavath, and Andre Southivong, v. Cencir, Inc., and Donald W. Oates," in County Court at Law Number Two, Dallas County, Texas. 21. The Honorable Judge Fifer presided over the bench trial, and after hearing all

testimony on the merits and all evidence, ruled that Plaintiffs/Appellants should take nothing because they had chosen their remedy at the original tow hearing and could not afterward ask for additional damages under the doctrine of res judicata. App. 3, Findings of Fact and Conclusions of Law, 1-2, 8.
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22.

Judge Fifer filed Findings of Fact and Conclusions of Law with eight bulleted

findings/conclusions. App. 3, Findings of Fact and Conclusions of Law, 1-2, 8. a. Points 1-2 reflected his ruling and judgment that Appellants claims were barred. b. Points 3-7 were legal conclusions not addressed by Judge Fifer's ruling or judgment, but were statements denying that Appellants met their burden on the merits of their claimed violations of the Act and entitlement to attorney fees. c. The points was the legal conclusion based on the first two findings, that Appellants/Plaintiffs had elected their remedy, and were therefore barred from seeking further damages. d. All of the bulleted findings were legal conclusions. No actual findings of fact were filed by the Court. X. 23. Summary of the Argument Appellants seek: 1) a reversal of the trial court's legal conclusion that a successful

tow hearing has any bearing on a civil suit filed under the Act, because tow hearings are limited in scope, and general violations are not allowed to be heard at tow hearings, res judicata is not generally applicable in county courts from justice courts; 2) a single method of calculating civil suit damages for wrongful tows; and 3) a reversal of the trial court's findings on the merits of the case, including a rendering of the judgment in favor of Plaintiffs/Appellants, because uncontroverted testimony and evidence proves that Appellees' vehicles were wrongfully towed.

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XI.

Arguments A. The trial court erred by applying res judicata to a tow hearing in Justice Court.

24.

The trial court determined that the Appellants were barred from new claims based

on the illegal tow of their vehicles due to the doctrine of res judicata. CR:38. This conclusion is incorrect for two reasons. B. Res judicata is not generally applicable to justice court findings. 25. Res judicata is not applicable to justice courts, except to claims actually litigated,

according to TEX. CIV. PRAC. & REM. CODE 31.005, and explained in Wren v. Gusnowski, 919 S.W.2d 847 (Tex. App.Austin 1996, no writ). 26. Appellants sought and received a finding of "no probable cause" in a tow hearing,

but sought findings on very different claims of various violations of the Texas Towing and Booting Act. Thus, res judicata is not a limiting doctrine in this case. 27. As the Trial Court's Final Judgment states that Plaintiffs/Appellants were barred

from seeking damages, and its Legal Conclusions supported that Judgment by improper use of res judicata, the Trial Court's Judgment is based on reversible error, must be reversed and either returned to the Trial Court for further adjudication, or reversed and rendered for Plaintiffs, as Appellants argue infra. C. Even if res judicata might be applicable in the Justice Courts, the doctrine is not applicable between tow hearings and civil suits. 28. Tow hearings are very specific legal proceedings limited to two issues - probable

cause, and overcharging of fees. TEX. OCC. CODE 2308.451. No other legal court
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proceeding has the duty and sole jurisdiction to adjudicate issues of probable cause. Therefore a plaintiff is not allowed to bring general claims against parties for violations of the Texas Towing and Booting Act in a tow hearing. 29. Because the issues of a tow hearing are limited to the two enumerated issues, later

suits are not barred from addressing other claims that could not have been heard during the tow hearing. A very similar fact pattern was addressed in an eviction/title suit in Lopez v. Sulak, 76 S.W.3d 597 (Tex. App.--Corpus Christi 2002, no pet.), where the justice court was allowed to decide an eviction issue, but the facts in that eviction had no control over the later title issue decided by the district court. The Appellate Court stated in Lopez that Texas follows the transactional approach to res judicata, which mandates that defendants bring counterclaims that come from the subject matter of the opposing party's suit, but claims are not barred by res judicata if the court rendering judgment in the initial suit lacked subject-matter jurisdiction over the claim. Id. at 606. 30. Fort Worth's 2nd District provides an additional example in Attorney General of

Texas v. Allred, 871 S.W.2d 298, 300 (Tex. App.--Fort Worth 1994, no writ), which held that a claim is not barred by res judicata if it could not have been brought in the court rendering the prior judgment. As Plaintiff could not have brought the claims or issues of the civil suit in the same legal action as the tow hearing, Defendant cannot use res judicata claim a preclusive effect in this civil action. 31. Civil suits under the Act make parking facilities and tow companies liable to

operators of vehicles who are towed while they are operating in violation of the Act. The Act has many specific requirements that may not impact a particular tow, such as the
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requirement that a tow company be insured, or whether a tow company is licensed, or the tow signage has the correct wording, but any violation of the Act supports a finding for a plaintiff who has been towed during the violation. 32. A tow company may have probable cause to tow a car, but still be in violation of

the Act because the driver has let his insurance lapse. A tow company may be completely in compliance, but still not have probable cause to tow, because the driver of a vehicle has properly parked his vehicle. 33. For a plaintiff to prevail in the two proceedings, referred to here as "tow hearings"

and "civil suits", he must prove different elements. However, the damage calculation for the successful plaintiff does have a common element of tow fees. a. Tow Hearings - Plaintiff receives a refund and costs. TEX. OCC. Code 2308.405. b. Civil Suit - At the time of the causes of actions occurred in this case, a plaintiff was awarded a sum equal to triple the tow retrieval fee, $1000, and reasonable and necessary attorney fees. TEX. OCC. CODE 2308.404. (The law was changed in September 2011.) 34. Plaintiffs may often use one action by a defendant to satisfy the differing elements,

which can be confusing. For example, a plaintiff can argue that inadequate signage makes a finding of probable cause impossible during a tow hearing, but then repeat the same charge at a civil suit, because tow signage must be constructed in particular ways. D. The Appeals Court should clarify the sole appropriate method of calculating civil suit damages in wrongful tow suits.

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35.

Because of the common fact patterns in tow hearings and civil suits under the Act,

courts are often confused by the calculation of damages after a plaintiff's successful civil suit damage. At least four methods of calculating damages are arguable: a. The damages awarded after a tow hearing and a civil suit have nothing to do with each other; a successful tow hearing has impact on civil suit damages awarded. b. A successful plaintiff in a Civil Suit is awarded its tripled tow fee in damages (and $1000 statutory fee and attorney fees), but the plaintiff must give the defendant credit against that award for any previous return of the tow fee after a tow hearing. c. A successful tow hearing eliminates the economic damages completely, with the reasoning that the damages awarded is triple the unreturned tow fee of zero, so a Civil Suit can only result in the $1000 statutory award of damages (and fees). d. A Civil Suit is completely eliminated due to the elimination of economic damages after a successful tow hearing. 36. Case law reveals no authority supporting any particular interpretation of the Act

on this issue. However, the Civil Suit damages provided in TEX. OCC. Code 2308.404 do not address any impact on the calculation based on a prior tow hearing. 37. Additionally, a requirement that Civil Suit damages are reduced in some way by a

tow hearing has the impact of pushing damaged tow victims away from tow hearings and solving the problem without an attorney. 38. When the legislature has not specified a method of reducing the damages, courts

should refrain from interjecting their own various calculations, and this appeal seeks to establish a single approved method of calculation.
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E. 39.

The Appeals Court should reverse and render judgment for Appellants.

The Trial Court issued Findings of Fact and Conclusions of Law on September 4,

2012, which contained no findings of fact, but only legal conclusions regarding res judicata, and denials that Plaintiffs carried their burden, irrespective of the evidence presented. The Trial Court refused to amend the Findings and Conclusions after Appellants requested such. 40. As conclusions of law are reviewed de novo, Appellants proceed as though no

factual findings were issued. 41. Appellants filed suit on several violations of the Texas Towing and Booting Act

(the "Act") causing the tows of their cars to be illegal because of the following: a. Improper and insufficient signage, referring to an improperly marked asserted fire lane as required under TEX. OCC. CODE. 2308.251, and therefore unenforceable. b. Improper notice of towing, as required under TEX. OCC. CODE. 2308.252, making the tow illegal. c. The tow company had no authorization to conduct legal towing because Appellees had failed to provide written confirmation to the tow company that correct tow signage was installed, as required by TEX. OCC. CODE 2308.255(1). 42. Appellants also provided evidence and testimony of reasonable and necessary

attorney fees that was uncontroverted. RR2, 107:9-116, as discussed infra. 43. The Trial Court had legally sufficient evidence to find in favor of Appellants on

each of the three issues presented, and there was no evidence of a negative finding on any of these three issues.
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a. Fire lanes must meet specific requirements in order to be enforceable; those requirements were not met in this case. 44. TEX. OCC. CODE 2308.251 states that, if a government regulation governing the

marking of a fire lane applies to a parking facility, a fire lane in the facility must be marked as provided by the regulation. However, if a government regulation on the marking of a fire lane does not apply to the parking facility, all curbs of fire lanes must be painted red and be conspicuously and legibly marked with the warning "FIRE LANE-TOW AWAY ZONE" in white letters at least three inches tall, at intervals not exceeding 50 feet. The legislature did not provide even minor variation in the wording for fire lanes, though the state legislature specifically did provide leeway in tow sign lettering (see TEX. OCC. CODE 2308.407); the decision to require specific wording was a conscious decision that the trial court should respect. a. These towings occurred on HOA-controlled streets, rather than any government entity. RR3, Exh. F. Thus, the state law requires the required wording on fire lanes on the HOA-controlled streets. b. The asserted fire lanes from where the towing occurred had only the wording, NO PARKING FIRE LANE". RR3, Exh. K1. c. The asserted fire lanes were authorized by Appellees and painted by its agent, the tow company with which it contracted for towing. RR3, Exh. A, Interrog. 4. d. Because the asserted fire lanes used the wrong wording, they were not enforceable, and the tows conducted due to their enforcement were wrongful and a violation of the Texas Towing and Booting Act.
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b. Before beginning non-consent towing, the parking facility was required to provide written authorization to the tow company, confirming that the signage is correct. 45. TEX. OCC. CODE 2308.255 states that a tow company may tow vehicles without

the owners consent only after the tow company has received written verification from the parking facility that the parking facility has installed the signs required by TEX. OCC. CODE 2308.252(a)(1), or the parking facility has given notice to the vehicle owner complying with complying with TEX. OCC. CODE 2308.252(a)(3), unless the vehicle is obstructing a paved driveway or left in violation of TEX. OCC. CODE 2308.251, and when insured against property damage, andonly when the parking facility has requested that a particular vehicle be towed, or the tow company and parking facility have a standing agreement for the tow company to enforce parking restrictions. 46. Testimony at trial by an agent of Appellees revealed that no written authorization

was provided to the tow company so that it could commence towing. (RR2 87:1-88:8.) 47. Without written authorization pursuant to TEX. OCC. CODE 2308.252, the tows in

question were illegal, and a violation of the Texas Towing and Booting Act. c. Plaintiff properly pled and proved reasonable and necessary attorney fees, which should be awarded. 48. Plaintiffs' counsel provided testimony on reasonable and necessary fees in

connection with this case. RR2 107:8-116:19. No contravening evidence was admitted. 49. Plaintiff's counsel gave evidence that the compensable reasonable and necessary

fees in the case were $9,297.90.

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50.

Because the liability of Appellee Mr. Oates was in question, Plaintiff's counsel

testified that, had no claims been made against Mr. Oates, the fees would have been reduced by less than $1000. RR2 108:1-10. 51. Plaintiff's counsel also discussed the intertwined nature of the claims, and testified

that any single claim under the Act would have resulted in 90% of the work performed. RR2 113:22-115:2 52. As prevailing party in the case, the lowest amount that could be awarded would be

90% of the reasonable fees, first subtracting the $1000 that might be directed towards claims involving Oates, or 90% of ($9,297.90 - $1000) = $7,468.11, which Appellants are requesting the Appeals Court to award.

XII. 53.

Prayer Appellant prays that this Court reverse the trial courts ruling and judgment, and

render the judgment that the trial court should have rendered for Appellants, and pursuant to TEX. OCC. CODE 2308.404, award damages to include: a) triple each of the $293.30 tow fees, or $1759.8; b) $1000 twice, once for each tow, or $2000; and the reasonable and necessary fees that were proven and uncontroverted, $7,468.1. The total requested is the sum of $1759.80, $2000, and $7468.10, or $11,227.91. 54. In the alternative, Appellants request that the Court of Appeals reverse the

judgment, and remand the case for further proceedings.

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APPENDIX 1

APPENDIX 2

APPENDIX 3

APPENDIX 4
Appendix 4 - Excerpt from the Texas Towing and Booting Act.
Sec. 2308.404. CIVIL LIABILITY OF TOWING COMPANY, BOOTING COMPANY, OR PARKING FACILITY OWNER FOR VIOLATION OF CHAPTER. (a) A towing company, booting company, or parking facility owner who violates this chapter is liable to the owner or operator of the vehicle that is the subject of the violation for: (1) damages arising from the removal, storage, or booting of the vehicle; and (2) towing, storage, or booting fees assessed in connection with the vehicle's removal, storage, or booting. (b) A vehicle's owner or operator is not required to prove negligence of a parking facility owner, towing company, or booting company to recover under Subsection (a). (c) 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 the subject of the violation for $1,000 plus three times the amount of fees assessed in the vehicle's removal, towing, storage, or booting. (d) In a suit brought under this chapter, the prevailing party is entitled to recover reasonable attorney's fees.

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