Opinion
No. 12-06-00411-CV
Opinion delivered June 29, 2007.
Appeal from the County Court at Law of Nacogdoches County, Texas.
OPINION
Canal Insurance Company appeals the trial court's final judgment in a lawsuit brought by Mark Hopkins d/b/a Hopkins Towing and Recovery to recover towing charges incurred by Paul Mullinax, Canal's insured. Canal raises seven issues on appeal. We affirm.
Background
On August 20, 2004, Henry Sweeney was operating a tractor-trailer rig hauling a load of peas when he lost control of the rig, which traveled off the road and into a deep ditch. The tractor-trailer struck several small trees and, eventually, rolled over onto its left side. Sweeney was the lessee and operator of the tractor, which was owned by Mullinax. Mullinax also owned the trailer. Both the tractor and trailer were insured against physical damage under an insurance policy issued by Canal. Mullinax was the named insured.
Sweeney was injured in the wreck and was removed from the tractor by emergency personnel. As Sweeney was being removed from the tractor, Trooper Jimmie Faulkner of the Texas Department of Public Safety arrived at the wreck site. After Sweeney had been removed and placed on a gurney, Trooper Faulkner approached Sweeney and briefly interviewed him. Following the interview, Sweeney was taken by ambulance to a hospital for treatment.
Trooper Faulkner ordered that a wrecker service be called in to tow the tractor and trailer. After two other wrecker services had refused the job because they "didn't have the capabilities to do it," Hopkins was called in to do the job. Because of the layout of the wreck site and the position of the tractor and trailer, Hopkins determined that they would have to use special air bags to return the trailer to an upright position. Hopkins recruited a subcontractor out of Tyler, Texas to supply the necessary air bags and operating personnel. In addition, Hopkins supplied three of his tow trucks and seven or eight employees who worked through the night, and in the rain, in order to remove the tractor and trailer from the ditch.
The tractor and trailer were initially towed to a vehicle storage facility operated by Hutto's Wrecker Service. At Mullinax's later request, Hopkins subsequently towed both to Hopkins's own vehicle storage facility. Hopkins submitted a bill of $12,690.00 to Mullinax for the work his company performed to remove the tractor and trailer and tow them to Hutto's facility, and for the work performed by the airbag subcontractor. When Mullinax failed to pay the bill, Hopkins sought payment from Canal. Because the language of the insurance policy in question did not expressly provide coverage of third parties who perform towing services, Canal refused to pay Hopkins.
Hopkins filed a lawsuit against both Mullinax and Canal. Hopkins's cause of action against Canal was based upon section 2303.156(b) of the Texas Occupations Code. See Tex. Occ. Code Ann. § 2303.156(b) (Vernon 2004). Mullinax filed a pro se answer but did not appear at trial. Canal filed an answer and appeared at trial by way of its representative, Ron King, and through counsel. Following a bench trial, the trial court entered a final judgment against Mullinax and Canal, holding them jointly and severally liable to Hopkins for the initial towing charges of $12,690.00 plus prejudgment interest and court costs. This appeal followed.
Consent to Tow
In its first issue, Canal challenges the legal and factual sufficiency of the evidence supporting the trial court's implied finding of fact that the tow in question was not performed with consent, a nonfinding.
Both parties have assumed that the trial court made an implied nonfinding of consent, and neither addresses the nonfinding's omission from the trial court's written findings of fact. Absent any argument to the contrary, we will imply, arguendo, such a nonfinding and decline to conduct any review of this issue using the methodology set forth in Vickery v. Commission for Lawyer Discipline , 5 S.W.3d 241, 253 (Tex.App.BHouston [14th Dist.] 1999, pet. denied).
Standard of Review
Section 2303.003(a) of the Occupations Code states that "[t]his chapter does not apply to a vehicle stored or parked at a vehicle storage facility with the consent of the owner of the vehicle." Tex. Occ. Code Ann. § 2303.003(a) (Vernon 2004). As such, a defendant may raise the issue of consent as a defense to actions brought under section 2303.156(b). See Brown Root, Inc. v. Shelton , No. 12-01-00259-CV, 2003 WL 21771917, at * 2 (Tex.App.BTyler July 31, 2003, no pet.) (construing a statute of repose as a defense to a personal injury action based on strict liability or negligence). For the purposes of our analysis here, we assume that Sweeney could give consent under section 2303.003(a).
Both Mullinax, who owned the tractor and trailer, and Sweeney, who was the lessee of the tractor, fall within the Occupations Code definition of "owner." See Tex. Occ. Code Ann. § 2303.002(5) (Vernon 2004). Additionally, the tractor and trailer each qualify as a "vehicle" under the Code. See id. § 2303.002(7). Therefore, under the express language of the Code, Sweeney could consent to the tow of the tractor but not the trailer. See id. § 2303.002(5). We do not address whether Sweeney was Mullinax's agent.
In this case, the issue of consent was a question of fact. See Tackett v. Terrill , 404 S.W.2d 158, 160 (Tex.Civ.App.BEastland 1966, no writ) ("[I]t is apparent that whether the widow consented or not [to an autopsy of her late husband] was a question of fact."). Implied findings of fact may be challenged for legal and factual sufficiency. Wade v. Comm'n for Lawyer Discipline , 961 S.W.2d 366, 374 (Tex.App.BHouston [1st Dist.] 1997, no pet.). The standard of review is the same as that applied to a jury's findings or a trial court's written findings of fact. Id.
When reviewing a finding of fact for legal sufficiency, we may set aside a finding of fact only if the evidence at trial would not enable a reasonable and fair minded finder of fact to reach the finding under review. See City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we must credit favorable evidence if a reasonable finder of fact could, and disregard contrary evidence unless a reasonable finder of fact could not. See id. The finder of fact is the sole judge of the credibility of the witnesses and the weight to be assigned to their testimony. See id. at 819. The finder of fact is free to believe one witness and disbelieve another, and reviewing courts may not impose their own opinions to the contrary. See id. Accordingly, reviewing courts must assume that the finder of fact decided all credibility questions in favor of the verdict if a reasonable person could do so. See id. If a reasonable finder of fact could have done so, we must assume that the finder of fact chose what testimony to disregard in a way that was in favor of the verdict. See id. at 820. A finder of fact "may disregard even uncontradicted and unimpeached testimony from disinterested witnesses" where reasonable. See id. at 819-20.
In addition, it is within the finder of fact's province to resolve conflicts in the evidence. See id. at 820. Consequently, we must assume that, where reasonable, the finder of fact resolved all conflicts in the evidence in a manner consistent with the verdict. See id. Where a reasonable finder of fact could resolve conflicting evidence either way, we must presume the finder of fact did so in favor of the verdict. See id. at 821. Where conflicting inferences can be drawn from the evidence, it is within the province of the finder of fact to choose which inference to draw, so long as more than one inference can reasonably be drawn. See id. Therefore, we must assume the finder of fact made all inferences in favor of the verdict if a reasonable person could do so. See id.
Regarding factual sufficiency challenges, when the party who had the burden of proof on an issue in a bench trial complains about the absence of a finding of fact by the trial court, we treat the absence of the finding as a refusal by the trial court to find the fact from a preponderance of the evidence. Santa Fe Petroleum, L.L.C. v. Star Canyon Corp. , 156 S.W.3d 630, 637 (Tex.App.BTyler 2004, no pet.) (citing Sterner v. Marathon Oil Co. , 767 S.W.2d 686, 690 (Tex. 1989)). When the party who had the burden of proof on an issue asserts that the trial court's refusal to find the fact is contrary to the evidence, we must overrule the complaint unless, considering all the evidence, the refusal is so contrary to the great weight and preponderance of the evidence that it is manifestly unjust. See Ramsey v. Lucky Stores, Inc. , 853 S.W.2d 623, 632 (Tex.App.BHouston [1st Dist.] 1993, writ denied) (citing Cropper v. Caterpillar Tractor Co. , 754 S.W.2d 646, 649 (Tex. 1988)).
When reviewing factual sufficiency issues arising from a bench trial, we must remember that the trial court, as the trier of fact, is the sole judge of the credibility of the witnesses and weight to be given their testimony. Santa Fe Petroleum , 156 S.W.3d at 638. The trial court may take into consideration all of the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. Where enough evidence is before the trial court so that reasonable minds could differ on the meaning of the evidence, or the inferences and conclusions to be drawn from the evidence, we may not substitute our judgment for that of the trial court. Id.
Discussion
It is undisputed that Mullinax was not contacted before the initial tow was conducted. Likewise, it is axiomatic that Mullinax's subsequent consent to later tows does not relate back in time and render the initial tow consensual. Therefore, the only disputed question of fact before the trial court was whether Sweeney gave consent to conduct the initial tow.
Neither Sweeney nor Mullinax testified at trial. Hopkins testified that he did not speak with Sweeney before the initial tow. The only remaining possibility is that Sweeney could have consented to the tow by expressing his consent to Trooper Faulkner. The sole witness at trial regarding Sweeney's possible consent was Trooper Faulkner. He testified as follows:
Q All right. And did you learn who the owner of the vehicle [that] was involved in that collision was when you arrived?
A Yes, sir.
Q How did you learn that?
A I believe that I spoke to him briefly before he went to the hospital.
Q Him being who?
A Mr. Henry Sweeney.
. . . .
Q At the time, did you have any conversation with him regarding [the] disposition he wanted made of the truck or trailer?
A I don't recall.
. . . .
Q Did he ever indicate to you his desire that anything in particular be done with the truck and trailer?
A Not to my knowledge.
. . . .
Q Do you know how [Hopkins] was called to the scene?
A I believe at that time I did. Or had somebody call him.
. . . .
Q Did you ever talk to the owner of the truck, a Mr. Paul Mullinax?
A I can't recall.
Q Did anyone, to your knowledge, ever call you and give you instructions as to what they wanted done with this truck and trailer if it was removed?
A Not to my knowledge.
. . . .
Q [D]id you discuss [the fact that the truck had rolled onto its side] with [Sweeney] and did he seem to be aware that the truck was turned over? Did he seem to be aware of that?
A I don't know about turned over, but he knew he was in [a] wreck.
Q Did he seem to understand the truck was going to have to be towed?
A Yes.
Q Did you tell him the truck was going to be towed?
A I usually ask the driver of the truck, did you have a preference. But on 18-wheelers most of them are from out of town. I'm sure I asked him who he wanted.
Q Okay. So you recall a conversation with Sweeney about the truck was going to have to be towed? We have to get something done here, correct?
A Yes, sir.
Q And he agreed to that?
A I'm sure he did.
. . . .
Q I'm not sure I understood. Do you have any recollection if Mr. Sweeney ever discussed with you who would tow that truck or how would it be towed or anything of that nature?
A Not specifically. This is two years ago.
. . . .
Q You are saying you may be recalling another wreck involving a roll over?
A Yes, sir. And it is confusing me.
. . . .
Q And from what you're saying, again based on recollection, when you did talk to Mr. Sweeney at the scene he understood the tractor-trailer was going to be towed? It was crystal clear to you and everybody else [that] he wasn't getting in it and neither was any other truck driver going to get in it and drive it away?
A Yes.
Q You don't recall him saying, no, I can't do anything. I have to talk to somebody or do something special? You don't remember that?
A No, sir.
Trooper Faulkner gave conflicting testimony about whether he recalled Sweeney's expressing a consent to tow. Because this was a bench trial, it was within the trial court's province to resolve this conflict in the evidence. See City of Keller , 168 S.W.3d at 820. Because a reasonable finder of fact could have resolved this conflicting evidence in favor of a nonfinding of consent, we must presume the trial court did so. See id. at 821. Therefore, after reviewing the record, we conclude that the evidence at trial was sufficient to enable a reasonable and fair minded finder of fact to make a nonfinding of consent. As such, the evidence was legally sufficient to support the nonfinding. See id. at 827.
Because reasonable minds could differ on the conclusions to be drawn from Sweeney's testimony, we may not substitute our judgment for that of the trial court. See Santa Fe Petroleum , 156 S.W.3d at 638. After considering all the evidence, we conclude that the trial court's refusal to find that the tow was consensual was not contrary to the great weight and preponderance of the evidence. Therefore, the evidence was factually sufficient to support the trial court's nonfinding of consent. See id. at 637.
Having held that the evidence supporting the trial court's nonfinding of consent was based on legally and factually sufficient evidence, we overrule Appellant's first issue.
Total Loss
In its second issue, Canal challenges the legal sufficiency of the evidence supporting the trial court's written finding of fact that Canal had paid "a claim of total loss on a vehicle." Specifically, Canal claims that there was "no evidence that Canal paid `a claim of total loss.'" It is undisputed that Canal paid an insurance claim to Mullinax for the damage to the tractor and trailer. Likewise, Canal does not challenge the following pertinent findings of fact made by the trial court:
Section 2303.156(b) reads as follows:
An insurance company that pays a claim of total loss on a vehicle in a vehicle storage facility is liable to the operator of the facility for any money owed to the operator in relation to delivery of the vehicle to or storage of the vehicle in the facility regardless of whether an amount accrued before the insurance company paid the claim.
Tex. Occ. Code Ann. § 2303.156(b).
16. The estimated fair market value of the truck prior to the wreck was $10,000, while the estimated cost to repair was $10,687.17.
17. The estimated fair market value of the trailer prior to the wreck was $9,125.00, while the estimated cost to repair was $11,509.20.
Unchallenged findings of fact, absent fundamental error, are not subject to appellate review and must be accepted by an appellate court as proven facts. See Lovejoy v. Lillie , 569 S.W.2d 501, 504 (Tex.App.BTyler 1978, writ ref'd n.r.e.) (op. on reh'g). Therefore, the only question for review is whether the evidence of repair costs that exceed the value of the property to be repaired constitutes legally sufficient evidence of a total loss.
Standard of Review
Whether property is a "total loss" is a question of fact. See Crutchfield v. St. Paul Fire Marine Ins. Co. , 306 S.W.2d 948, 951 (Tex.Civ.App.BFort Worth 1957, no writ) (addressing the issue of total loss as a question of fact). When we review a legal sufficiency challenge to written findings of fact, the standard of review is the same as that applied to a jury's verdict upon jury questions. Catalina v. Blasdel , 881 S.W.2d 295, 297 (Tex. 1994). As stated above, when reviewing a finding of fact for legal sufficiency, we may set aside a finding of fact only if the evidence at trial would not enable a reasonable and fair minded finder of fact to reach the finding under review. See City of Keller , 168 S.W.3d at 827. In making this determination, we must credit favorable evidence if a reasonable finder of fact could, and disregard contrary evidence unless a reasonable finder of fact could not. See id.
Discussion
Property is a total loss if a reasonably prudent uninsured owner, desiring to restore the property to its preincident condition, would not utilize that property for such restoration. See State Farm Fire Cas. Co. v. Mower , 917 S.W.2d 2, 4 (Tex. 1995); Glen Falls Ins. Co. v. Peters , 386 S.W.2d 529, 531 (Tex. 1965); Royal Ins. Co. v. McIntyre , 90 Tex. 170, 182, 37 S.W. 1068, 1074 (1896). Logic dictates that, absent other factors, a reasonably prudent uninsured owner would not repair a vehicle where the repair costs exceeded the vehicle's preincident fair market value.
Here, the trial court made findings of fact that the cost of repairing the tractor and trailer exceeded the fair market value of those items. In contrast, there was evidence at trial that showed Mullinax wanted to retain title to the tractor and trailer and that he hoped to repair them. However, absent any specifics as to why Mullinax thought such a course to be prudent, and in the context of the excessive cost to repair, the trial court was free to disregard this evidence as an unreasonable idea that would not comport with the ideas of a reasonable uninsured owner. See City of Keller , 168 S.W.3d at 827. We note that Canal employee Ron King testified that he did not pay a claim of total loss because he does not consider a vehicle that can be repaired to be a total loss. Nonetheless, King's personal definition of total loss was irrelevant because it did not comport with the definition of total loss that has been consistently applied by the Texas Supreme Court. See Mower , 917 S.W.2d at 4; Peters , 386 S.W.2d at 531; McIntyre , 90 Tex. at 182, 37 S.W. at 1074. Therefore, because the trial court's findings of fact relating to fair market value and repair cost have not been challenged, we conclude that the evidence regarding cost to repair was sufficient to enable a reasonable and fair minded finder of fact to find that the tractor and trailer were a total loss. Thus, the evidence was legally sufficient to support the finding. See City of Keller , 168 S.W.3d at 827. We overrule Canal's second issue.
Lien
In its third issue, Canal argues that the Texas Occupations Code does not create a lien against insurance settlement funds. A review of the record shows that the trial court's judgment was not based upon a belief that the Occupations Code created any such lien. We overrule Canal's third issue.
Unconstitutional Vagueness
In its fourth issue, Canal asserts that section 2303.156(b) of the Texas Occupations Code is unconstitutionally vague because the statute does not define the term "total loss."
Standard of Review
According to Canal, the trial court's judgment is predicated on the allegedly incorrect conclusion of law that section 2303.156(b) is not unconstitutionally vague. We review a trial court's conclusions of law de novo. Smith v. Smith , 22 S.W.3d 140, 149 (Tex.App.BHouston [14th Dist.] 2000, no pet.). When performing a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin , 7 S.W.3d 109, 116 (Tex. 1999). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Waggoner v. Morrow , 932 S.W.2d 627, 631 (Tex.App.BHouston [14th Dist.] 1996, no writ).
Discussion
A statute is unconstitutionally vague if the persons regulated by it are exposed to risk or detriment without fair warning or if it invites arbitrary and discriminatory enforcement. See Comm'n for Lawyer Discipline v. Benton , 980 S.W.2d 425, 437 (Tex. 1998). We scrutinize civil statutes less severely than criminal statutes because the consequences of imprecision are not as severe. See Village of Hoffman Estates, Inc. v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 498-99, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362 (1982). A statute is not unconstitutionally vague unless it would require people of common intelligence to guess at its meaning or there is a substantial risk of miscalculation by those whose acts are subjected to regulation. See Tex. Liquor Control Bd. v. Attic Club, Inc. , 457 S.W.2d 41, 45 (Tex. 1970).
The mere fact that the parties disagree as to the statute's meaning does not equate that we must necessarily guess at that meaning. See Mills v. Fletcher , No. 04-06-00345-CV, 2007 WL 1423883, at *4 (Tex.App.BSan Antonio May 16, 2007, no pet. h.). Unless a contrary intent is clearly shown, the legislature is presumed to have enacted new or revised statutes with knowledge of the existing state of the law and with the intent that the new law be subject to the old. Twin City Fire Ins. Co. v. Cortez , 576 S.W.2d 786, 789 (Tex. 1978). The Texas Supreme Court has consistently defined and interpreted the term "total loss" for over 100 years. See, e.g., Mower , 917 S.W.2d at 4; Peters , 386 S.W.2d at 531; McIntyre , 90 Tex. at 182, 37 S.W. at 1074. Bearing in mind this consistent definition of "total loss" and the presumption that the legislature enacted section 2303.156(b) with the intent that it be subject to older law (here, the consistent definition of "total loss"), we determine that people of common intelligence would not be required to guess at the meaning of the statute and that there is not a substantial risk of miscalculation by those whose acts are subjected to regulation. Therefore, we hold that section 2303.156(b) is not unconstitutionally vague. See Attic Club, Inc. , 457 S.W.2d at 45. We overrule Canal's fourth issue.
Error Preservation
In its fifth, sixth, and seventh issues, Canal challenges the constitutionality of section 2303.156(b), arguing that the statute, as applied, results in (1) an unconstitutional impairment of Canal's right to contract, (2) an unconstitutional taking of Canal's property, and (3) a violation of Canal's due process rights.
Rule 33.1(a) of the Texas Rules of Appellate Procedure states as follows:
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Here, Canal did not assert its contract impairment, takings clause, and due process complaints at trial. As such, Canal failed to preserve error, if any, for appellate review. See Tex. R. App. P. 33.1(a); Regan v. Lee , 879 S.W.2d 133, 136 (Tex.App.BHouston [14th Dist.] 1994, no writ) (noting that the general rules of error preservation apply to complaints involving conclusions of law in nonjury trials). But see Sammons v. Elder , 940 S.W.2d 276, 279-80 (Tex.App.BWaco 1997, writ denied) (stating that conclusions of law in nonjury trials are always reviewable, even without preservation).
We note that, under the fundamental error doctrine, we may review error that has not been preserved at trial. Fundamental error exists "in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas." Wal-Mart Stores, Inc. v. Alexander , 868 S.W.2d 322, 328 (Tex. 1993) (quoting Pirtle v. Gregory , 629 S.W.2d 919, 920 (Tex. 1982)). We have not been presented with fundamental error in this case. See id. We overrule Canal's fifth, sixth, and seventh issues.
Disposition
We affirm the judgment of the trial court.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.