Opinion
No. 05-15-00131-CV
03-31-2016
SISSAT SISAVATH AND OYTHIB PHOUANGSAVATH, Appellants v. DONALD W. OATES AND SUTTON PLACE HOMEOWNER'S ASSOCIATION, Appellees
On Appeal from the County Court at Law No. 2 Dallas County, Texas
Trial Court Cause No. CC-11-06075-B
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Stoddart
Opinion by Justice Fillmore
Appellants Sissat Sisavath and Oythib Phouangsavath appeal from a take-nothing judgment in their suit against CenCir, Inc., Donald W. Oates, and Sutton Place Homeowner's Association (the HOA) under the Texas Towing and Booting Act, TEX. OCC. CODE ANN. §§ 2308.001-.595 (West 2012 & Supp. 2015) (the Act), asserting the evidence is legally and factually insufficient to support the judgment and the trial court erred by failing to award appellants the costs they were awarded by this Court for prevailing in a prior appeal of the case. We affirm the trial court's judgment.
Although CenCir did not appear in the trial court, the trial court's judgment ordered that appellants take nothing as to CenCir. CenCir has not appeared in this appeal.
Background
The HOA owns the streets within Sutton Place, a neighborhood in Garland, Texas. In 2010, the Board of the HOA began discussing parking issues within the neighborhood. The Board voted on June 7, 2010, that as long as there would be no cost to the HOA, Oates, the president of the Board, was authorized to obtain the services of a towing company to address the parking issues. Oates signed a contract with CenCir on June 10, 2010, that provided CenCir would patrol the Sutton Place neighborhood between 7 p.m. and 7 a.m. and was authorized to tow vehicles that were parked on the grass or in a fire lane; were blocking an entrance, exit, or driveway; were double parked; or were "heavy-duties." As relevant to this appeal, the contract stated, "one wheel on grass ok to tow." The contract contained a receipt from CenCir for $160 for "Signage/Posting and/or Material," which included $10 for ten signs, $50 for a roll of 500 warning stickers, and $100 for one year of the "Warning Sticker Program." Although the contract reflected the $160 was paid in cash, Oates testified no money actually "changed hands," and the provision was in the contract so that CenCir could "fulfill their obligations."
Appellants presented evidence there was no vote at the June 7, 2010 Board meeting that authorized Oates to enter into a towing contract and that later corrections to the minutes of that meeting were incorrect. There was also evidence the Board subsequently removed the person responsible for preparing the minutes of the Board meetings for failing to keep accurate minutes. Regardless, it was the role of the trial court, as the factfinder, to weigh the credibility of the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 819, 822 (Tex. 2005); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
At some point in late June, CenCir installed signs within the Sutton Place neighborhood that contained a symbol of a car being towed and the following:
TOWING ENFORCED
NO PARKING IN FIRELANES, ON GRASS OR SIDEWALK,
TWO SPACES, NO PARKING ZONES, WITH NO HANDICAP
PERMITS, NO BLOCKING ENTRANCE/EXIT OR DUMPSTER,
UNAUTHORIZED, ABANDONED, INOPERABLE VEHICLES,
NO BACKING IN, EXPIRED STATE INSPECTION/
REGISTRATION, NO FOR SALE CARS, NO
18 WHEELER TRACTOR/TRAILER PARKING,
RESIDENTS/VISITORS MUST DISPLAY PERMITS
AND/OR PARK IN DESIGNATED AREAS,
The signs provided CenCir's contact information and the location where a person could reclaim a towed vehicle. CenCir also marked some of the streets within the Sutton Place neighborhood with a red line stenciled "NO PARKING - FIRE LANE." Oates testified that, because CenCir installed the signs, he never sent it a letter stating the signs had been installed and it could commence towing.
"UNAUTHORIZED VEHICLES WILL BE TOWED AT OWNERS
OR OPERATOR'S EXPENSE." TOWING ENFORCED 24/7
CenCir installed one of the signs in the grassy circular median of Highgate Place, a cul-de-sac within the Sutton Place neighborhood. It also painted a red line around the grassy median and marked it as a fire lane. Donna Leaumont, who owned a home at 1709 Highgate Place, attended the July 12, 2010 meeting of the Board and, at the end of the meeting, raised the issue of the new towing policy. Although it is not clear it was presented to the Board, the record contains a petition for the immediate removal of the red fire lane line and to cancel the towing service contract. The petition was signed by seventeen people who lived on Highgate Place, including Khamsing Southivong, who lived at 1708 Highgate Place. The discussion at the Board meeting between Leaumont and Craig Culver, the vice-president of the Board, became heated, and Culver walked out of the meeting stating he would resign from the Board. Oates and two other members of the Board, Sharon Oates and Vicki Birmingham, also left the meeting.
The majority of the August 2, 2010 meeting of the Board was held in executive session with legal counsel. On September 13, 2010, the Board held a meeting attended by Leaumont. Leaumont expressed her opinion that the red fire lane line on Highgate Place devalued her property and was causing parking problems. Oates explained the reason for the fire lane and the use of a towing company was to maintain a twenty-foot strip at the center of the street to allow access for fire apparatus. Further, having cars parked on both sides of the street created a hazard for the children playing in the area.
On September 18, 2010, the Southivong family had a party at their house on Highgate Place. The family members who attended the party parked around the cul-de-sac. According to Andre Southivong, the cars were parked on the side of the street alongside the grass. When questioned about whether there was a sign present at the time of the party warning that unauthorized vehicles would be towed, Andre initially testified "the sign was barely put up a couple of days before" the party and he did not really pay attention to it. However, he later testified he did not really remember if a sign warning that unauthorized cars would be towed was present at the time of the party, but did not believe there was such a sign. According to Andre, at the time of the trial in 2012, there was a sign "on the tip of the cul-de-sac grass area" warning that unauthorized vehicles would be towed.
Sisavath testified he attended the party and parked his truck "like everybody else" around the middle of the cul-de-sac. According to Sisavath, he was parked on the side of the street and not in the grass. Sisavath did not see the fire lane or any sign warning that unauthorized vehicles would be towed. Phouangsavath testified she parked her car behind Sisavath's truck and did not see either the fire lane or any sign warning that unauthorized vehicles would be towed. Although she could not remember clearly, Phouangsavath believed she was not parked on either the grass or the street, but "between the grass and the street." Sisavath's and Phouangsavath's vehicles were towed by CenCir at approximately midnight. Phouangsavath testified she heard from her sister that the towing company had come out earlier in the evening, but did not tow any cars at that time. Sisavath and Phouangsavath each paid $293.30 to have their vehicles released from the impoundment lot.
Leaumont testified she was a friend and neighbor of the Southivong family, but was not present at the party and did not witness the towing of the two vehicles. Leaumont did not believe that, on September 18, 2010, there was a sign in the cul-de-sac warning that unauthorized vehicles would be towed. This belief was based on members of the Board noting at the September 10, 2010 meeting that somebody had removed the sign and asking her if she knew who had taken it down. Leaumont also testified that, because there was no sign on Highgate Place warning that unauthorized vehicles would be towed, she provided appellants information about the location to which their vehicles had been towed by showing them pictures she had previously taken of the sign. Leaumont, however, did not testify as to when she shared this information with appellants, and the record reflects appellants did not retrieve their vehicles from the impoundment lot until after 10:00 a.m. on September 19, 2010. Leaumont took photographs of the cul-de-sac on September 20, 2010, two days after appellants' vehicles were towed, that show the sign warning that unauthorized vehicles would be towed was missing from its pole.
Oates testified that, before September 18, 2010, the sign on Highgate Place warning that unauthorized vehicles would be towed was vandalized five times. The pole for the sign had been bent and the sign had been ripped down. Oates replaced the sign each time it was vandalized and, due to the repeated vandalism, periodically checked the sign. Oates confirmed the sign warning that unauthorized vehicles would be towed was present on Highgate Place on either September 16, 2010, or September 17, 2010. However, Oates could not definitively say the sign had not been vandalized again and was still on its pole on September 18, 2010.
At approximately 8:30 p.m. on September 18, 2010, Oates was contacted by CenCir's representative, Tom Richardson. Richardson told Oates that, during a regular patrol, two tow truck drivers had found two vehicles parked on the median on the grass. The tow truck drivers decided to tow the two vehicles, but a "crazy lady was chasing them around with a baseball bat." Because he did not want anyone to get hurt, Oates told Richardson to have the tow truck drivers leave. Oates went to bed and did not hear his telephone ring at 12:30 a.m. The following day, Oates had a message from a Garland police officer about an improper tow that had been reported. Oates thought the sequence of events was the tow truck drivers "attempted to tow at 8:30, sent away, and then towed from [his] understanding close to midnight."
Appellants filed a suit in the justice of the peace court contending there was no probable cause to tow their vehicles. See TEX. OCC. CODE ANN. § 2308.451(b) (West 2012). The justice of the peace ruled in favor of appellants and ordered they recover $293.30 each for the charges to retrieve their vehicles from the impoundment lot. Appellants then filed this suit in justice of the peace court seeking statutory penalties, treble the amount of the towing fees, and attorney's fees based on intentional, knowing, or reckless violations of the Act. The justice of the peace awarded appellants $100 each plus $3,500 for attorney's fees and interest. Appellees appealed for trial de novo in the county court.
Following a bench trial, the trial court ordered that appellants take nothing and made findings of fact and conclusions of law. The trial court first found that, by obtaining a judgment in the justice of the peace court that awarded them the towing fees they paid to retrieve their vehicles from the impoundment lot, appellants had elected their remedy and were barred by res judicata from seeking statutory penalties in this litigation. The trial court also found appellants had failed to meet their burden of establishing their right to recover on any of their claims under the Act. On appeal, we concluded appellants were not barred by res judicata from seeking to recover statutory penalties for violations of the Act, reversed the trial court's judgment, and remanded for further proceedings. See Sisavath v. Oates, No. 05-12-01027-CV, 2014 WL 1010162 (Tex. App.—Dallas Mar. 13, 2014, no pet.) (mem. op.).
On remand, the trial court indicated it would decide the case on submission of dispositive motions. Appellants filed an amended motion for summary judgment, while appellees filed a motion for judgment. Based on its previously issued findings of fact and conclusions of law, the pleadings, argument of counsel, and the evidence, the trial court ordered that appellants take nothing. Appellants filed this appeal.
Sufficiency of the Evidence
As relevant to this appeal, section 2308.404(a) of the occupations code provides that a parking facility owner who violates the Act is liable to the owner of the vehicle that is the subject of the violation for towing or storage fees assessed in connection with the vehicle's removal or storage. TEX. OCC. CODE ANN. § 2308.404(a)(2) (West 2012). A parking facility owner who intentionally, knowingly, or recklessly violates the Act is liable to the owner of the vehicle that is the subject of the violation for a statutory penalty of $1,000 plus three times the amount of fees assessed in the vehicle's removal, towing, or storage. Id. § 2308.404(c). In their second amended petition, appellants pleaded three violations of the Act: (1) the fire lanes failed to comply with statutory requirements; (2) appellants were not provided the statutorily required notice before their vehicles were towed; and (3) prior to CenCir towing appellants' vehicles, appellees failed to provide proper written verification to CenCir that signs warning unauthorized vehicles would be towed had been installed. See TEX. OCC. CODE ANN. §§ 2308.251(c) (West 2012), .252(a) (West Supp. 2015)). In their first and third issues, appellants assert the evidence is legally and factually insufficient to support the trial court's judgment because the undisputed evidence at trial established they were entitled to judgment as a matter of law and, even on disputed issues, the judgment was against the great weight of the evidence.
Standard of Review
In an appeal from a bench trial, we review a trial court's findings under the same legal and factual sufficiency of the evidence standards used when determining if sufficient evidence exists to support an answer to a jury question. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Bayview Loan Servicing, LLC v. Martinez, No. 05-14-00835-CV, 2016 WL 825670, at *2 (Tex. App.—Dallas Mar. 3, 2016, no pet. h.) (mem. op.). We review de novo the trial court's conclusions of law. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). If the trial court rendered the proper judgment, we will not reverse based on an erroneous conclusion of law. Id.; Bayview Loan Servicing, LLC, 2016 WL 825670, at *2.
When the party who had the burden of proof at trial complains on appeal that the evidence is legally insufficient to support an adverse finding, that party must demonstrate the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). In determining whether the evidence is legally sufficient to support a finding, we consider the evidence in the light most favorable to the judgment and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id. at 807, 827. If there is no evidence to support the adverse finding, we examine the entire record to determine whether the contrary proposition was established as a matter of law. Dow Chem. Co., 46 S.W.3d at 241. We sustain the issue only if the contrary proposition is conclusively established. Id. "The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller, 168 S.W.3d at 827.
In reviewing a factual sufficiency challenge to an adverse finding on which the party had the burden of proof, we determine whether "the adverse finding is against the great weight and preponderance of the evidence." Dow Chem. Co., 46 S.W.3d at 242. We consider all the evidence in the record pertinent to that finding and will set aside the judgment only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Id. We defer to a trial court's factual findings if they are supported by the evidence. Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008).
The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819 (legal sufficiency review); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency review). We will not substitute our judgment for that of the trial court merely because we might reach a different conclusion. City of Keller, 168 S.W.3d at 819, 822; Golden Eagle Archery, Inc., 116 S.W.3d at 761.
Legal Sufficiency of the Evidence
In their first issue, appellants assert the evidence is legally insufficient to support the trial court's judgment because there was undisputed evidence that no tow signage was present during the tow; the alleged fire lane did not have the statutorily required wording; appellees failed to provide written verification to CenCir that signs meeting the statutory requirements had been installed; the HOA accepted signs and painting from CenCir at no cost; and the unauthorized tows were done intentionally, knowingly, or recklessly.
Presence of Signage
We turn first to appellants' contention the evidence conclusively established a violation of the Act because they did not receive proper notice that their vehicles would be towed. As relevant to this appeal, section 2308.252 of the occupations code provides:
(a) A parking facility owner may, without the consent of the owner or operator of an unauthorized vehicle, cause the vehicle and any property on or in the vehicle to be removed and stored at a vehicle storage facility at the vehicle owner's or operator's expense if:TEX. OCC. CODE ANN. § 2308.252(a) (internal footnote omitted); see also Emesowum v. Milam Street Auto Storage, Inc., No. 01-14-00472-CV, 2015 WL 3799371, at *2 (Tex. App.—Houston [1st Dist.] June 18, 2015, no pet.) (mem. op.). Relying on their own testimony, as well as testimony from Andre and Leaumont, appellants argue the undisputed evidence shows there was no sign present on Highgate Place on September 18, 2010, warning that unauthorized vehicles would be towed.
(1) signs that comply with Subchapter G prohibiting unauthorized vehicles are located on the parking facility at the time of towing and for the preceding 24 hours and remain installed at the time of towing;
Appellants both testified they parked their vehicles where they always parked when they visited the Southivong family and did not see a sign warning that unauthorized vehicles would be towed. Andre first testified a sign had been put up a day or two before the party, but then stated that, although he did not really remember, he did not believe a sign was present at the time appellants' vehicles were towed. Neither appellants' nor Andre's testimony conclusively established there was not a sign on Highgate Place on September 18, 2010, warning that unauthorized vehicles would be towed.
Leaumont testified there was no sign present on September 18, 2010, and she took pictures of the pole supporting the sign on September 20, 2010, showing the sign was missing. However, Leaumont was not present when appellants' vehicles were towed, and her belief there was no sign in the cul-de-sac on September 18, 2010, warning that unauthorized vehicles would be towed was based on (1) her providing information to appellants about the location to which their vehicles were towed using a picture she had previously taken, and (2) the discussion at the meeting of the Board of the HOA on September 10, 2010, during which the Board members noted the sign was missing and asked her if she knew who had removed the sign. Leaumont did not testify about when she showed appellants the picture of the sign, and the record reflects appellants did not retrieve their vehicles from the impoundment lot until September 19, 2010. Further, as to the Board discussion on September 10, 2010, Oates testified that, because the sign on Highgate Place warning that unauthorized vehicles would be towed had been repeatedly vandalized, he periodically checked the sign and replaced it, if necessary. Oates confirmed the sign was present on either September 16, 2010, or September 17, 2010. Oates's testimony corroborated Andre's initial testimony that a sign was installed a day or two before the party on September 18, 2010.
Reviewing the evidence in the light most favorable to the trial court's ruling, we conclude a reasonable factfinder could have determined (1) the sign on Highgate Place warning that unauthorized vehicles would be towed had been vandalized and was not present on September 10, 2010; (2) Oates replaced the sign following the September 10, 2010 Board meeting; (3) Oates confirmed the sign was present on September 16, 2010, or September 17, 2010; and (4) the sign was again missing on September 19, 2010. We conclude the evidence did not conclusively establish there was not a sign warning that unauthorized vehicles would be towed present on Highgate Place on September 18, 2010, when appellants' vehicles were towed.
Finally, the language of the sign prohibited vehicles from parking on the grass, and the contract with the HOA allowed CenCir to tow any vehicle that had one wheel on the grass. Appellees and Andre testified the vehicles were not parked on the grassy median. However, there was evidence that, at approximately 8:30 p.m., tow truck drivers employed by CenCir observed two vehicles parked on the grass. Oates instructed CenCir not to tow the vehicles because of the danger posed to the tow truck drivers by a woman at the scene wielding a baseball bat. Oates testified he believed the series of events was the tow truck drivers attempted to tow at 8:30 p.m., were sent away, and later towed the vehicles. Based on this record, a reasonable factfinder could have determined appellants' vehicles were the ones the tow truck drivers observed parked on the grass.
Appellants failed to conclusively establish there was no sign on Highgate Place on September 18, 2010, warning that unauthorized vehicles would be towed or that their vehicles were properly parked. Appellants, therefore, failed to establish as a matter of law that appellees violated the Act by towing appellants' vehicles when no signs warning that unauthorized vehicles would be towed were present or by towing appellants' properly parked vehicles.
Improper and Insufficient Signage
Appellants also contend they conclusively established the sign on Highgate Place warning that unauthorized vehicles would be towed failed to meet the requirements of subchapter G of the occupations code because the signs were not permanently mounted. See TEX. OCC. CODE ANN. § 2308.301(a)(3) (West 2012) (sign prohibiting unauthorized vehicles on parking facility must be permanently mounted on pole, post, permanent wall, or permanent barrier). In their second amended petition, appellants did not allege appellees violated the Act by failing to comply with section 2308.301(a)(3) of the occupations code and, therefore, may not raise this issue on appeal. See TEX. R. APP. P. 33.1(a); Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 629-30 (Tex. App.—Dallas 2004, pet. denied) ("This new theory of recovery cannot be raised for the first time on appeal.").
Unenforceable Fire Lane
Appellants next assert they conclusively established appellees violated the Act by towing appellants' vehicle from an unenforceable fire lane. Appellants specifically argue the marking on the curb around the cul-de-sac in Highgate Place did not contain the statutorily required language. See TEX. OCC. CODE ANN. § 2308.251(c) ("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."). We have already concluded appellants failed to conclusively establish their vehicles were improperly towed because there was no sign present on September 18, 2010, warning that unauthorized vehicles would be towed. Therefore, we need not address whether appellants conclusively established their vehicles were improperly towed because the marked fire lane failed to contain statutorily required language. See TEX. R. APP. P. 47.1.
Written Verification Signage Installed
Relying on section 2308.225(a)(1)(A) of the occupations code, appellants contend the evidence conclusively established appellees violated the Act by failing to send written verification to CenCir that proper signage had been installed. As relevant to this appeal, section 2308.255(a)(1)(A) allows a towing company that is insured as required by the Act to remove and store an unauthorized vehicle at a vehicle storage facility, without the consent of the owner or operator of the vehicle, if the towing company has received written verification from the parking facility owner that the owner has installed the signs required by the Act or the owner or operator of the vehicle has received notice under the Act. TEX. OCC. CODE ANN. § 2308.255(a)(1) (West 2012). Section 2308.255(a)(1)(A) does not, however, provide that it is a violation of the Act for the parking facility owner to fail to send such written verification. We conclude appellants failed to conclusively establish appellees violated the Act by failing to send written verification to CenCir that proper signs had been installed.
Free Signage and Painting
Relying on two opinions of the Texas Attorney General, appellants next argue they conclusively established appellees violated the Act by accepting signs and stickers, as well as painting of fire lanes, from CenCir without paying for the items and painting service. Section 2308.401(a)(1) of the occupations code prohibits a parking facility owner from, directly or indirectly, accepting "anything of value from a towing company in connection with the removal of a vehicle from a parking facility." TEX. OCC. CODE ANN. § 2308.401(a)(a) (West 2012). The evidence established the HOA authorized Oates to contract with a towing company only if there would be no cost to the HOA. Although Oates entered into a contract with CenCir that contained a receipt stating the HOA paid $160 in cash for the signs and stickers and one year of the "Warning Sticker Program," he testified the receipt in the contract was to allow CenCir to "fulfill their obligations" and the HOA did not pay CenCir any money. CenCir subsequently installed signs in the Sutton Place neighborhood warning that unauthorized vehicles would be towed and painted fire lanes in the Sutton Place neighborhood. Therefore, the question before us is whether, by accepting complimentary signs and painting services from CenCir, appellees accepted something of value in connection with the removal of a vehicle from a parking facility.
See TEX. ATT'Y GEN OP. No. JC-0554 (2002); TEX. ATT'Y GEN. OP. No. DM-330 (1995).
We review questions of statutory construction de novo. In re Lee, 411 S.W.3d 445, 450 (Tex. 2013). Our fundamental objective in interpreting a statute is "to determine and give effect to the Legislature's intent." Id. at 451 (quoting Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex. 2012)). When possible, we must ascertain that intent from the plain meaning of the words chosen by the Legislature. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). If the statute is unambiguous, the text is determinative of the Legislature's intent, unless the plain meaning would lead to an absurd result. Id.; see also In re Lee, 411 S.W.3d at 451. However, when statutory text is ambiguous, we may consult statutory construction rules and related legislative history to determine the meaning of the statute. Perkins v. Groff, 936 S.W.2d 661, 664 (Tex. App.—Dallas 1996, writ denied); see also Ruttiger, 381 S.W.3d at 452; Elin v. Neal, 720 S.W.2d 224, 226 (Tex. App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.).
The Act does not define what constitutes "anything of value" and does not clearly state whether the Legislature intended to prohibit only a parking facility owner receiving something of value in exchange for each specific vehicle towed or intended to encompass broader interaction between the towing company and the parking facility owner that does not relate to a tow of a specific vehicle. We, therefore, turn to legislative history to ascertain the Legislature's intent.
The purpose of section 2308.401(a)(1) is to prohibit a parking facility owner from accepting "kickbacks" from a towing company. HOUSE COMM. ON BUS. & INDUS., Bill Analysis, Tex. C.S.H.B. 1739, 65th Leg. R.S. (1977) (enacting predecessor statute). In 2011, the Legislature amended the Act to provide that section 2308.401 "does not apply to a sign required under Section 2308.301 provided by a towing company" to a parking facility operator. TEX. OCC. CODE ANN. § 2308.401(d). In considering this amendment to the statute, the Legislature noted:
As relevant to this appeal, a "kickback" is "a percentage payment exacted as a condition for granting assistance by one in a position to open up or control a source of income or gain." Kickback, WEBSTER'S 3RD NEW INTERNATIONAL DICTIONARY (1981).
The bill clarifies that prohibitions against a parking facility owner receiving financial gain from or being financially involved with a towing or booting company do not apply to a required sign provided by a towing or booting company to the parking facility owner.HOUSE COMM. ON LICENSING & ADMIN. PROCEDURES, Bill Analysis, Tex. C.S.H.B. 3510, 82d Leg. R.S. (2011). Although section 2308.401(d) was not in effect at the time appellants' vehicles were towed, this clarification of the Legislature's intention when it originally enacted the statute "should be considered in ascertaining the legislative intent of the provisions before this court." Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 n.4 (Tex. 1991); see also Stanford v. Butler, 142 Tex. 692, 701-02, 181 S.W.2d 269, 274 (1944); Calvert v. Marathon Oil Co., 389 S.W.2d 153, 158 (Tex. App.—Austin 1965, writ ref'd n.r.e.) (considering amendment to statute in construing statutory language because Legislature's stated purpose in amending statute was to clarify existing law and express original intention of Legislature).
We conclude that when it enacted the statute now codified as section 2308.401(a)(1) of the occupations code, the Legislature did not intend that signs warning an unauthorized vehicle may be towed or the painting of a fire lane to designate an area in which a vehicle is not authorized to park, that are provided by a towing company to a parking facility operator, are things of value that constitute a "kickback" prohibited by the Act. Accordingly, appellants did not conclusively establish appellees violated the Act by accepting complimentary signs and painting services from CenCir.
Mental State
Appellants finally argue the evidence is undisputed that appellees violated the Act intentionally, knowingly, or recklessly. Because we have concluded appellants failed to conclusively establish appellees violated the Act, we need not address this argument. See TEX. R. APP. P. 47.1.
Conclusion
We conclude appellants failed to establish the evidence is legally insufficient to support the trial court's judgment. We resolve appellants' first issue against them.
Factual Sufficiency of the Evidence
In their third issue, appellants argue a finding by the trial court that the HOA authorized the painting of a fire lane on Highgate Place was against the great weight and preponderance of the evidence, and set out the evidence from trial that they contend established this lack of authorization by the HOA. However, because we have concluded the trial court's judgment may be affirmed based on a finding that, at the time appellants' vehicles were towed, there was a sign on Highgate Place warning that unauthorized vehicles would be towed, we need not determine whether appellants' vehicles were improperly towed based on a fire lane that did not comply with the statutory requirements. See TEX. R. APP. P. 47.1.
The remainder of appellants' third issue states:
Even if [whether the HOA properly authorized the painting of the fire lane] remains disputed, the record and the great weight of the evidence support a judgment for Appellants because no notice was provided to Appellants before the tow; no tow signage was present during the tows; the alleged fire lane contains incorrect wording; Appellee HOA accepted signs and painting at no cost; neither Appellee HOA nor Appellee Oates provided written verification to Tow Company; and the tows were intentional, knowing, and reckless.The Texas Rules of Appellate Procedure control the required contents and organization of an appellant's brief. See TEX. R. APP. P. 38.1; ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). An appellant's brief must concisely state all issues or points presented for review and, among other things, must contain a clear concise argument for the contentions made, with appropriate citations to authorities and to the record. TEX. R. APP. P. 38.1(i). We may not speculate as to the substance of the specific issues asserted by an appellant and may not make a party's argument for him. Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). And we have no duty to perform an independent review of the record and the applicable law to determine if the trial court erred. Strange, 126 S.W.3d at 678; Castro v. Castro, No. 04-14-00785-CV, 2015 WL 8984139, at *1 (Tex. App.—San Antonio Dec. 16, 2015, pet. filed) (mem. op.). An appellant's failure to cite legal authority or provide substantive analysis of a legal issue results in waiver of the complaint. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (observing that error may be waived by inadequate briefing); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.).
The final paragraph of appellants' third issue does not provide proper, meaningful analysis in support of their contentions. They neither cite to any authority, discuss any applicable law, nor apply the law to any facts. We conclude appellants waived any argument in this paragraph through inadequate briefing. See TEX. R. APP. P. 38.1(i); Fredonia State Bank, 881 S.W.2d at 284.
We resolve appellants' third issue against them.
Costs of Prior Appeal
In their second issue, appellants argue the trial court erred by failing to award them the costs of appeal from the prior appeal of this case. Appellants prevailed in the previous appeal, and we awarded them the costs of that appeal. Our mandate in the prior appeal directed the trial court "to observe the order of the Court of Appeals for the Fifth District of Texas, in this behalf, and have it duly obeyed and executed." Attached to our mandate was a certified cost bill for the appeal.
The trial court has the duty to enforce our mandate. See TEX. R. APP. P. 51.1(b); Malekzadeh v. Malekzadeh, No. 14-05-00113-CV, 2007 WL 1892233, at *8 (Tex. App.—Houston [14th Dist.] July 3, 2007, pet. denied) (mem. op.); Walston v. Walston, 971 S.W.2d 687, 697 (Tex. App.—Waco 1998, pet. denied). To recover costs assessed by an appellate court following remand, the prevailing party on appeal must apply to the trial court for a writ of execution. City of Garland v. Long, 722 S.W.2d 49, 51 (Tex. App.—Dallas 1986, no writ); Walston, 971 S.W.2d at 697. When the prevailing party requests an execution for the costs of appeal, the trial court has the duty to issue a writ of execution. City of Garland, 722 S.W.2d at 51; Walston, 971 S.W.2d at 697. However, the trial court is not required to re-order the payment of costs of the first appeal that were previously assessed by the appellate court. Malekzadeh, 2007 WL 1892233, at *8; Walston, 971 S.W.2d at 697. We conclude the trial court did not err by failing to award appellants their costs from the prior appeal in the judgment now being appealed. We resolve appellants' second issue against them.
The record does not reflect appellants have requested that the trial court issue a writ of execution in order to collect the costs of the first appeal from appellees. --------
Conclusion
We conclude the evidence is legally and factually sufficient to support the trial court's take-nothing judgment. We further conclude the trial court did not err by failing to award appellants in the judgment now on appeal the costs we awarded to appellants following the first appeal of this case. We affirm the trial court's judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE 150131F.P05
JUDGMENT
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. CC-11-06075-B.
Opinion delivered by Justice Fillmore, Justices Bridges and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Donald W. Oates and Sutton Place Homeowner's Association recover their costs of this appeal from appellants Sissat Sisavath and Oythib Phouangsavath. Judgment entered this 31st day of March, 2016.