Opinion
NO. 14-18-00915-CV
09-01-2020
RAY W. WARE, M.D., AS GUARDIAN FOR THE PERSON AND ESTATE OF ALAN KEITH WARE, Appellant v. MACARTHUR TOWNHOMES HOMEOWNERS ASSOCIATION BOARD OF DIRECTORS; JOHN DELOACH ENTERPRISES, INC. d/b/a BEXAR TOWING; AND OUACHITA ENTERPRISES, INC. d/b/a BEXAR AUTO STORAGE, Appellees
On Appeal from the 225th District Court Bexar County, Texas
Trial Court Cause No. 2017CI20339
MEMORANDUM OPINION
Appellant, Ray W. Ware, M.D., guardian for the person and estate of Alan Keith Ware, appeals the trial court's judgment in favor of Appellees, MacArthur Townhomes Homeowners Association Board of Directors (hereinafter "MacArthur"); John Deloach Enterprises, Inc. d/b/a Bexar Towing (hereinafter "Bexar Towing"); and Ouachita Enterprises, Inc. d/b/a Bexar Auto Storage (hereinafter "Bexar Storage"). We affirm.
This appeal was transferred to the Fourteenth Court of Appeals from the Fourth Court of Appeals. In cases transferred by the Supreme Court of Texas from one court of appeals to another, the transferee court must decide the case in accordance with the precedent of the transferor court under the principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court. See Tex. R. App. P. 41.3.
BACKGROUND
Our recitation of the factual background is constrained by the appellate record before us. We draw the following from the partial record.
In December 2002, Alan Keith Ware inherited condominium unit #307 and two-vehicle parking space #307 at MacArthur Townhomes, which is a condominium complex in San Antonio. The condominium unit Alan inherited was subject to "any and all restrictions" including the "[t]erms and provisions, contained in Condominium Declaration for the MacArthur Townhomes, . . . the Bylaws, and the Rules and Regulations . . . as they may be amended from time to time." (CR13)
The Condominium Declaration was recorded in 1979 and provided for the establishment of a homeowners' association ("MacArthur Townhomes Homeowners Association") to be governed by a board of directors. The Declaration authorized the board of directors to maintain the property and make bylaws and rules and regulations that govern the homeowners' association and the condominium complex. Bylaws and rules and regulations were recorded in January 2001. The rules and regulations contain a "Parking" section which provides, among other things:
The Condominium Declaration's full title is "Declaration of Covenants Conditions and Restrictions for MacArthur Townhomes".
5. No automobile shall be allowed to be placed and left over twenty-four (24) hours on blocks, jacks or similar devices. No
automobile shall be allowed to remain on the premises that does not have both current Texas license plates and a current Texas inspection sticker.While living in his condominium, Alan served on the MacArthur Townhomes Homeowners Association as a board of director. Alan and the other directors enforced the parking rules and regulations on numerous occasions, including the ones requiring vehicles to have current registration and inspection stickers in assigned parking spaces.
* * *
10. Any vehicle that is parked in violation of these Rules and Regulations shall be subject to immediate removal without notice to the Owner and at the cost of the Owner.
Alan owned a 1997 Mercury Sedan and a 1999 Dodge Ram which he parked in space #307. In 2011, Alan became disabled after suffering a traumatic brain injury. Alan's father, Dr. Ray W. Ware, started taking care of Alan's affairs but was not formally appointed as Alan's guardian until September 2015. In the meantime, Alan's two vehicles had not been driven in several years and remained parked in Alan's parking space #307. "One had been wrecked and neither had current inspection stickers or license tags."
Alan and Dr. Ware "had both been on notice for years that the homeowners association wanted the vehicles towed." Notices were placed on Alan's vehicles on May 27, 2014, warning that the vehicles would be towed on June 2, 2014, because they were inoperable. The homeowners' association, which had a towing contract with Bexar Towing, requested that Bexar Towing tow Alan's vehicles. On June 3, 2014, Bexar Towing complied with the homeowners' association's request, towed Alan's vehicles, and took them to Bexar Storage to be stored.
Eventually, Bexar Storage sold Alan's vehicles.
On June 20, 2014, Dr. Ware challenged the legality of the tow as Alan's authorized agent. Dr. Ware filed a "Request for Hearing on Towed/Removed Vehicle" in the justice court in Bexar County. He named MacArthur Townhomes Homeowners Association Board of Directors as authorizing the removal of Alan's vehicles and requested a hearing for the justice court to determine if the removal was supported by probable cause. The justice court held a hearing pursuant to section 2308.458 of the Texas Occupations Code, signed a judgment against Alan on July 23, 2014, and signed the following findings of fact and conclusions of law: "Probable cause existed for the removal and placement of the vehicle in storage, and the vehicle owner or operator shall pay the costs of the removal and storage, plus costs of court, if any."
See Tex. Occ. Code Ann. § 2308.452 ("The owner or operator of a vehicle that has been removed and placed in a vehicle storage facility or booted 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 or booting.").
See id. § 2308.458.
Dr. Ware filed a notice of appeal on July 28, 2014, stating that "the Plaintiff, Alan Ware, now gives the Justice Court Notice he intends to Appeal the decision of the Court to the County Court at Law of Bexar County, TX, requesting Trial De Novo."
As guardian of Alan's estate, Dr. Ware named MacArthur, Bexar Towing, and Bexar Storage in his live pleading in the county court at law. Dr. Ware alleged, among other things, that (1) MacArthur and Bexar Towing are liable under Texas Occupations Code chapter 2308 because MacArthur lacked authority to order the removal of Alan's vehicles from his parking space and Bexar Towing acted without probable cause to tow Alan's vehicles; (2) MacArthur, Bexar Towing, and Bexar Storage are liable for conversion of Alan's vehicles because Alan was the owner of them at all times and Appellees unlawfully exercised dominion or control over the vehicles; (3) MacArthur, Bexar Towing, and Bexar Storage are liable for conspiracy because they worked in concert to unlawfully deprive Alan of the possession, use, and enjoyment of his vehicles; (4) MacArthur and Bexar Towing are liable for trespass to property; and (5) Bexar Storage is liable for "violation of Texas Occupations Code [chapter] 2303."
Bexar Towing and Bexar Storage asserted a counterclaim, alleging that Dr. Ware's claims were groundless and frivolous, and seeking "recovery of reasonable and necessary attorney's fees and costs in defending this cause of action under Texas Rules of Civil Procedure; Texas Civil Practices and Remedies Code; Texas Occupations Code and/or Texas Transportation Code."
On October 12, 2017, the parties announced present and ready for a bench trial in county court at law. During pre-trial motions, Appellees "indicated that there was an issue concerning the title to the property owned by" Alan, referring to the parking space. The county court at law "indicated that it has no jurisdiction over title dispute matters, and that any questions involving title to real property [here, the parking space] may only be heard by the district courts." It therefore signed an order transferring the case to "the district courts of Bexar County, Texas for an expedited non-jury setting."
On April 10, 2018, a bench trial began in district court. The next day, Appellees presented motions for a directed verdict. Bexar Towing and Bexar Storage made the following arguments in support of their motion:
• There is no evidence of the value of Alan's two vehicles.
• Because of an inadequate property description, Alan's parking space #307 was not conveyed to him and he has no ownership of and title to
the parking space.
• Alan is not a parking facility owner because he does not own parking space #307; he merely has exclusive use of it.
• Pursuant to the homeowners' association's rules and regulations, MacArthur was authorized to have Alan's vehicles towed because any cars that do not have a current inspection sticker are subject to towing and are unauthorized to remain in a parking space.
• Alan and Dr. Ware had actual notice that MacArthur had authority to tow Alan's vehicles and the parties have been "fighting about it for years."
• There is no private cause of action regarding defects in notice on "post tow notice letters" under Texas Occupations Code chapter 2303.
• There is no evidence of damages to support a claim for conversion, trespass to property, and conspiracy.
MacArthur made the following arguments in support of their motion:
• "Section 2308.404 of the Texas Occupations Code forms the basis of the plaintiff's complaint for wrongful towing."
• Only a parking facility owner can be liable under section 2308.404.
• Dr. Ware pleaded and argued throughout this case that (1) only Alan is a parking facility owner with regard to parking space #307 and (2) MacArthur (a) is not a parking facility owner of space #307 and (b) is merely a parking facility owner as to common elements and unassigned parking spaces.
• MacArthur cannot be liable under section 2308.404 unless it is a
parking facility owner; because Dr. Ware contends that MacArthur is not a parking facility owner, it is not liable under section 2308.404 and Dr. Ware cannot recover under that section.The trial court granted Appellees' motion for directed verdict on April 12, 2018. The court concluded that (1) there is no civil remedy under chapter 2303 of the Texas Occupations Code for providing a defective notice to a vehicle owner; (2) "Bexar Towing did have the authority to tow the vehicles by virtue of a contract with the Board and by virtue of its authority under the occupations code"; (3) MacArthur "had the authority also as the parking facilitator[] for vehicles that violated their regulations" to tow Alan's vehicles and "enforce their parking space regulations and the Board did not act outside their authority in contacting Bexar Towing to remove vehicles"; and (4) "the [MacArthur] Board had no intentional, knowing or reckless conduct that violated the statute in finding the evidence of bad faith."
• If MacArthur is a parking facility owner, it has control over all parking spaces, including space #307.
On June 22, 2018, the trial court signed a judgment that Alan take nothing and that "Bexar Towing recover from Plaintiff on its counterclaim the sum of" $37,352.50 "in reasonable and necessary attorney's fees" as well as conditional appellate attorney's fees. Dr. Ware filed a motion for new trial and an amended motion for new trial. The trial court held a hearing on the motion on July 13, 2018. The motion for new trial was overruled by operation of law. Dr. Ware filed a timely notice of appeal on September 19, 2018. The trial court filed findings of fact and conclusions of law on October 15, 2018.
ISSUES STATED
Dr. Ware presents the following six issues on appeal:
1. Whether the Trial Court erred in granting a Directed Verdict for Mac Arthur Townhomes Homeowners Association, Inc.
2. Whether the Trial Court erred in granting a Directed Verdict for John DeLoach Enterprises, Inc., d/b/a Bexar Towing (Bexar Towing).
3. Whether the Trial Court erred in granting a Directed Verdict for Ouachita Enterprises, Inc., d/b/a Bexar Storage (Bexar Storage).
4. Whether the Trial Court erred in finding the tow was "authorized" rather than finding "whether probable cause existed for the removal and placement of the vehicle(s)" as required by Texas Occupations Code 2308.458(c)(1).
5. Whether the late-filed Findings of Facts and Conclusions of Law meet[] the requirements of Texas Occupations Code 2308.458(d).
6. Whether the Trial Court erred in not granting Plaintiff/Appellant's Amended Motion for New Trial.
ANALYSIS
I. Partial Reporter's Record
Before we turn to the merits of Dr. Ware's issues, we address Appellees' contention that "Dr. Ware's procedural missteps should compel the Court to affirm" this case. In that respect, Appellees argue that Dr. Ware failed to follow Texas Rule of Appellate Procedure 34.6(c) when he filed his appeal based upon a partial reporter's record. Specifically, Appellees argue that "because the record does not reflect that Dr. Ware complied with Rule 34.6(c) by including a statement of issues or points to be presented in the appeal in his request to the court reporter, the Court must presume the omitted portions of the reporter's record from the bench trial support the take nothing judgment."
Rule 34.6(c) of the Texas Rules of Appellate Procedure authorizes an appellant to request a partial reporter's record. Tex. R. App. P. 34.6(c). If he does so, "the appellant must include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues." Id. 34.6(c)(1). When an appellant gives proper notice of the limited issues being appealed, all parties have the opportunity to designate the relevant portions of the record, the partial record is filed, and all parties brief the identified issues in light of that record. See id. 34.6(c)(2),(3); Old Tin Roof Steakhouse, LLC v. Haskett, No. 04-12-00363-CV, 2013 WL 1148921, at *3 (Tex. App.—San Antonio Mar. 20, 2013, no pet.) (mem. op.). In its review, the court of appeals must presume the designated partial record constitutes the entire record. Tex. R. App. P. 34.6(c)(4).
If an appellant requests only a partial record and fails to give notice of the specific issues to be appealed, the reviewing court presumes the omitted portions of the record are relevant to the disposition of the appeal and support the trial court's ruling. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002) (per curiam); Haskett, 2013 WL 1148921, at *3. However, Rule 34.6(c) is not to be inflexibly and unfairly applied so that an appellant forfeits his appeal. Bennett, 96 S.W.3d at 229-30. For example, even though the rule specifies that the statement of issues must be included in the request for a partial reporter's record, courts allow an appellant to file the issue statement in a separate document. See Furr's Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 377 (Tex. 2001) (an issue statement in a separate notice sufficed to invoke the presumption that the partial reporter's record constituted the entire record for purposes of reviewing the stated issue); Haskett, 2013 WL 1148921, at *3 ("OTR did not file, serve on the court reporter, or serve on the Hasketts the statement of the points or issues to be presented on appeal required by Rule 34.6(c)(1), and did not include such a statement either in its notice of appeal or in its request for a reporter's record.").
The record does not contain a statement of points or issues by Dr. Ware included in his request for a partial reporter's record. But the record does contain Dr. Ware's notice of appeal, in which he provided a statement of points or issues and stated ten points he "desires to appeal." In keeping with "a more flexible approach" pronounced by the Texas Supreme Court, we conclude that Dr. Ware's statement of issues in his notice of appeal sufficed to invoke the presumption that the partial reporter's record constituted the entire record for purposes of reviewing the stated issues. See Bennett, 96 S.W.3d at 229-30; Furr's Supermarkets, Inc., 53 S.W.3d at 377; Haskett, 2013 WL 1148921, at *3. We reject Appellees' contention that we "must presume the omitted portions of the reporter's record from the bench trial support the take nothing judgment" and therefore affirm the judgment.
II. Standard of Review
Appellees moved for directed verdict in the trial court. Because the case was tried to the bench, the "'proper motion to make after the plaintiff rests in a bench trial is a motion for judgment,' as opposed to a motion for directed verdict." Estate of Ripley, No. 04-18-00968-CV, 2019 WL 4179128, at *1 (Tex. App.—San Antonio Sept. 4, 2019, pet. denied) (quoting Bledsoe Dodge, L.L.C. v. Kuberski, 279 S.W.3d 839, 841 (Tex. App.—Dallas 2009, no pet.)); see also Grounds v. Tolar Indep. Sch. Dist., 856 S.W.2d 417, 422 n.4 (Tex. 1993) (Gonzalez, J., concurring) ("Technically, the use of the term 'directed verdict' in a bench trial is incorrect because there is no jury to direct. In this situation, the correct procedure is for the defendant, at the close of the plaintiff's evidence, to make a 'motion for judgment.'").
Although parties may move for judgment in much the same way that they may move for directed verdict in a jury trial, one difference is the standard of review on appeal. See U.S. Fid. & Guar. Co. v. Coastal Ref. & Mktg., Inc., 369 S.W.3d 559, 564 (Tex. App.—Houston [14th Dist.] 2012, no pet.). By entering judgment at the close of the case-in-chief, the trial court, as the factfinder, is presumed to have ruled not only on the sufficiency of the evidence but also on the weight thereof and the credibility of the witnesses. Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303-05 (Tex. 1988); Huang v. Don McGill Toyota, Inc., 209 S.W.3d 674, 677 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Thus, after granting a motion for judgment, the trial court properly makes findings of fact and conclusions of law. See Qantel, 761 S.W.2d at 304; Huang, 209 S.W.3d at 677.
Findings of fact in a bench trial have the same force and dignity as a jury verdict, and we review them for legal and factual sufficiency under the same standards we apply in reviewing a jury's findings. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Huang, 209 S.W.3d at 677. On appeal from the trial court's judgment in a bench trial, the legal and factual sufficiency of the evidence to support the judgment may be challenged as in any other case. Huang, 209 S.W.3d at 677.
When a party attacks the legal sufficiency of an adverse finding on which he had the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of his proposed disposition. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). We review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
When a party attacks the trial court's adverse finding for factual insufficiency, he must demonstrate on appeal that the finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 241. We must consider and weigh all of the evidence, and we can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Huang, 209 S.W.3d at 678.
If a party does not challenge any actual or implied findings of fact but instead asserts that the trial court misapplied the law, these are questions of law that we review de novo. See U.S. Fid. & Guar. Co., 369 S.W.3d at 564.
"A declaration containing restrictive covenants in a subdivision defines the rights and obligations of property ownership, and the mutual and reciprocal obligation undertaken by all purchasers in a subdivision 'creates an inherent property interest possessed by each purchaser.'" C.A.U.S.E. v. Vill. Green Homeowners Ass'n, Inc., 531 S.W.3d 268, 274 (Tex. App.—San Antonio 2017, no pet.) (quoting Inwood N. Homeowners' Ass'n, Inc. v. Harris, 736 S.W.2d 632, 636 (Tex. 1987)). Restrictive covenants are subject to the general rules of contract construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); C.A.U.S.E., 531 S.W.3d at 274. As when interpreting any contract, our duty in construing a restrictive covenant is to ascertain the parties' intent from the document's language. C.A.U.S.E., 531 S.W.3d at 274. Thus, we construe the language of the restrictions to give effect to their purposes and intent and to harmonize all of the provisions so that none is rendered meaningless. Id. We give a restrictive covenant's words and phrases their commonly accepted meaning. Id. We review a trial court's interpretation of restrictive covenants de novo. Id.
III. Claims against MacArthur
Dr. Ware first challenges the trial court's judgment in favor of MacArthur. He argues in issues one and four, respectively, that the trial court erred by (1) "granting a Directed Verdict for Mac Arthur"; and (2) "finding the tows were 'authorized' rather than making a finding of Probable Cause as required by Texas Occupations Code [section] 2308.458(c)(1)."
Dr. Ware uses "Mac Arthur" in his briefing while Appellees, the trial court's judgment, and other documents refer to "MacArthur".
A. Statutory Claim
We begin by addressing Dr. Ware's complaint that the trial court erroneously granted MacArthur's motion for judgment because MacArthur violated chapter 2308 of the Texas Occupations Code (entitled the "Texas Towing and Booting Act") when it had Alan's cars towed from his parking space #307 and is liable under Texas Occupations Code section 2308.404(c). To support his argument that the trial court erroneously found in favor of MacArthur on his statutory claim, Dr. Ware cites excerpts of the following sections of the Texas Towing and Booting Act:
See Tex. Occ. Code Ann. § 2308.001 ("This chapter may be cited as the Texas Towing and Booting Act.").
§ 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.
* * *
Tex. Occ. Code Ann. § 2308.404.
(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.
§ 2308.252. Removal and Storage of Unauthorized Vehicle
(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 . . . .Id. § 2308.252.
§ 2308.002. Definitions
(7) "Parking facility" means public or private property used, wholly or partly, for restricted or paid vehicle parking. The term includes:
(A) a restricted space on a portion of an otherwise unrestricted parking facility . . . .
* * *
(8) "Parking facility owner" means:
Id. § 2308.002(7), (8).(A) an individual, corporation, partnership, limited partnership, limited liability company, association, trust, or other legal entity owning or operating a parking facility;
(B) a property owners' association having control under a dedicatory instrument, as that term is defined in Section 202.001, Property Code, over assigned or unassigned parking areas; or
(C) a property owner having an exclusive right under a dedicatory instrument, as that term is defined in Section 202.001, Property Code, to use a parking space.
Dr. Ware contends that MacArthur is a parking facility owner of common areas and unassigned parking spaces in the condominium complex, but it is not a parking facility owner of assigned and "individually and exclusively" owned parking spaces (such as space #307) because MacArthur has "no ownership interest, management or control" over assigned and "individually and exclusively" owned parking spaces. Dr. Ware argues that only Alan is a parking facility owner of space #307 because he "individually and exclusively" owns space #307, and only Alan "could have ordered the tows" of his vehicles. According to Dr. Ware, MacArthur is liable under section 2308.404(c) because, "[a]s the Parking Facility Owner for the common areas, [MacArthur] misused its authority in ordering these tows" when only Alan could have ordered tows as the sole parking facility owner of space #307.
There is no dispute that Alan is a property owner with the exclusive right under a dedicatory instrument to use his parking space #307; therefore, we agree that Alan is a parking facility owner of space #307 as defined in section 2308.002(8)(C). See id. § 2308.002(8)(C). Alan owns his condominium and his parking space #307 subject to "any and all restrictions", including the "[t]erms and provisions, contained in Condominium Declaration for the MacArthur Townhomes, . . . the Bylaws, and the Rules and Regulations . . . as they may be amended from time to time."
We disagree, however, with Dr. Ware's assertion that MacArthur is merely a parking facility owner of common areas and unassigned parking spaces in the condominium complex and is not a parking facility owner of space #307. As defined in section 2308.002(8)(B), MacArthur is a parking facility owner because it is "a property owners' association having control under a dedicatory instrument, as that term is defined in Section 202.001, Property Code, over assigned or unassigned parking areas." See id. § 2308.002(8)(B).
A "'[d]edicatory instrument" means each document governing the establishment, maintenance, or operation of a . . . condominium or townhouse regime . . . . The term includes a declaration or similar instrument subjecting real property to: (A) restrictive covenants, bylaws, or similar instruments governing the administration or operation of a property owners' association; (B) properly adopted rules and regulations of the property owners' association; or (C) all lawful amendments to the covenants, bylaws, instruments, rules, or regulations." Tex. Prop. Code Ann. § 202.001(1).
The trial court found in findings of fact #4 and #5 that the Condominium Declaration provides "for the establishment of a Board of Directors to govern the MacArthur Townhomes Homeowners Association" and "authorize[s] the Board of Directors to maintain the property and make bylaws and rules and regulations that govern the Association." The record supports the trial court's findings, and Dr. Ware does not challenge them. Specifically, the Condominium Declaration provides in section 14(s):
Each Co-Owner, tenant or occupant of a Townhome shall comply with the provisions of this Declaration, the Bylaws, decisions, rules, regulations, and resolutions of the Board or its duly authorized representative, all as lawfully amended from time to time, and failure to comply with any such provisions, decisions, rules, regulations, and resolutions, shall be grounds for an action . . . .Nowhere does the Condominium Declaration limit the Board of Directors' authority to make bylaws and rules and regulations to any specific areas in the condominium complex. As authorized by the Condominium Declaration, rules and regulations were recorded in 2001 and specifically provided that (1) "[n]o automobile shall be allowed to remain on the premises that does not have both current Texas license plates and a current Texas inspection sticker", and (2) "[a]ny vehicle that is parked in violation of these Rules and Regulations shall be subject to immediate removal without notice to the Owner and at the cost of the Owner." No language in the rules and regulations limits the parking rules to only unassigned parking spaces or common areas, and MacArthur had the authority to have Alan's vehicles towed from his assigned parking space. Pursuant to the rules and regulations, MacArthur had control over assigned and unassigned parking areas and was a parking facility owner of unassigned and assigned parking spaces (including space #307), as defined in section 2308.002(8)(B).
Accordingly, Dr. Ware incorrectly asserts that Alan was the only parking facility owner of parking space #307 and that MacArthur was not a parking facility owner of space #307. Moreover, MacArthur as a parking facility owner of space #307 had the authority to have Alan's vehicles towed without his consent as these vehicles were not authorized to be in space #307 under the applicable parking rules. See Tex. Occ. Code Ann. § 2308.252; Tex. Prop. Code Ann. § 202.001(1). The trial court found in finding of fact #15 that Alan's vehicles "did not have current Texas license plates nor inspection stickers in violation of the Rules and Regulations", and Dr. Ware does not challenge this finding on appeal. Nor does Dr. Ware challenge findings of fact #20, #21, and #25, which state (and are supported by the record) that (1) Alan and Dr. Ware "had both been on notice for years that the homeowners association wanted the vehicles towed"; (2) "[n]otices were placed on [Alan's] vehicles that the vehicles would be towed if [Alan] did not remove the vehicles or have them removed"; and (3) "when [Alan] was on the Board of Directors for MacArthur Townhomes Homeowners Association [he] had voted on several occasions that other vehicles should be towed out of numbered spaces."
Because MacArthur was authorized to remove Alan's vehicles under section 2308.252, MacArthur did not violate that section. See Tex. Occ. Code Ann. § 2308.252. In turn, MacArthur cannot be liable under section § 2308.404(c) because it did not "intentionally, knowingly, or recklessly violate[]" the Texas Towing and Booting Act. See Tex. Occ. Code Ann. § 2308.404. Therefore, the trial court did not err in concluding in conclusions of law #4 and #6 through #9 that MacArthur (1) "complied with Texas Occupations Code Chapter" 2308; (2) is a parking facility owner; (3) "was legally entitled to order the tow of the two vehicles" owned by Alan; (4) "did not violate Chapter 2308"; and (5) "did not intentionally, knowingly, or recklessly violate Chapter 2308 of the Texas Occupations Code."
Because MacArthur was a parking facility owner of parking space #307, we also reject Dr. Ware's contention that the tow of Alan's vehicles was (1) not supported by probable cause and (2) unlawful.
Citing Holleman v. Mission Trace Homeowners Association, 556 S.W.2d 632 (Tex. Civ. App.—San Antonio 1977, no writ), Dr. Ware also argues that we are "required to accept the precedent of the Holleman case as decided in the 4th Court of Appeals" pursuant to Texas Rule of Appellate Procedure 41.3 and "find that MacArthur is without power to enforce rules that conflict with a Co-Owner's use of property that is 'individually and exclusively' owned." We would be required to follow Holleman if it were applicable in this case. However, it is not.
In Holleman, a resolution of the board of directors of the homeowners' association restricted overnight parking in driveways. Id. at 636. The association sued to permanently enjoin several homeowners from parking any motor vehicle overnight on the driveways leading to their garages. Id. at 633. The Fourth Court of Appeals held that the resolution "does not apply to the [homeowners]' 13 feet of driveway they own in fee simple" because the bylaws authorized the board of directors "to publish rules and regulations governing the common area, such authority did not extend to that portion of the [homeowners]' driveway which is owned in fee simple." Id. at 636-37.
We cannot agree with Dr. Ware's assertion that "[t]he situation in Holleman is almost identical to the situation in which Plaintiff/Appellant Alan Ware finds himself." In Holleman, the board of directors could not regulate privately owned property because the bylaws only permitted them to "adopt and publish rules and regulations governing the use of the Common Area and facilities." Id. at 636. The Condominium Declaration, bylaws, and rules and regulations at issue in this case contain no limitations to regulate only "common areas" or prohibitions to regulate individually owned parking spaces. Instead, the record establishes:
(1)the "Parking" section of the rules and regulations unambiguously provides:
a. "No automobile shall be allowed to remain on the premises that does
not have both current Texas license plates and a current Texas inspection sticker" and
b. "[a]ny vehicle that is parked in violation of these Rules and Regulations shall be subject to immediate removal without notice to the Owner and at the cost of the Owner" and
(2) the vehicles at issue did not have "current inspection stickers or license tags."
Accordingly, we overrule Dr. Ware's first issue on his statutory claim under the Texas Towing and Booting Act.
In passing, Dr. Ware complains in his fourth issue that the trial court, "in announcing its ruling on April 12, 2018, did not make a finding of 'probable cause' as required by Texas Occupations Code [section] 2308.458(c)(1) but, rather, simply found that the tow was 'authorized' . . . and found in favor of the Defendants." Dr. Ware does not explain how the trial court's alleged failure to "make a finding of 'probable cause'" is erroneous (or even consequential) considering the trial court stated in its conclusions of law that probable cause existed for the tow. See Tex. R. App. P. 38.1(i) (appellant's "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."). We overrule Dr. Ware's fourth issue.
B. Conversion
We next turn to Dr. Ware's argument that the trial court erred in granting MacArthur's motion for judgment on his conversion claim.
To establish a claim for conversion of personal property, a plaintiff must show: (1) the plaintiff owned, had legal possession of, or was entitled to possession of the property; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as owner of the property; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Ortiz v. Las Blancas Minerals, L.P., No. 04-18-00769-CV, 2020 WL 806652, at *3 (Tex. App.—San Antonio Feb. 19, 2020, pet. filed) (mem. op.); John Deloach Enters., Inc. v. Telhio Credit Union, Inc., 582 S.W.3d 590, 595 (Tex. App.—San Antonio 2019, no pet.).
Dr. Ware argues that "Mac Arthur was without legal authority to order the tow" of Alan's vehicles because "ownership of the parking spaces was vested solely in" Alan. He argues that even though "Mac Arthur did not take manual possession of [Alan's vehicles], they did exercise unauthorized and wrongful dominion and control over the vehicles when they ordered . . . Bexar Towing to take physical control of the vehicles", and when "Bexar Towing carried out that order the conversion was complete."
As we already explained, MacArthur had the authority as a parking facility owner of parking space #307 to have Alan's vehicles towed because the vehicles were not in compliance with the applicable parking rules and regulations. See Tex. Occ. Code Ann. §§ 2308.002(7), (8), 2308.252. Alan's ownership of parking space #307 does not diminish or affect MacArthur's authority as a parking facility owner to have Alan's vehicles towed under section 2308.252, particularly given the rules and regulations subjecting the vehicles to "immediate removal without notice".
Because MacArthur was authorized under section 2308.252 to remove Alan's vehicles and did not violate the Texas Towing and Booting Act, Dr. Ware cannot establish the second element of a conversion claim, namely, that MacArthur "unlawfully and without authorization assumed and exercised dominion and control over" Alan's vehicles. See Ortiz, 2020 WL 806652, at *3; John Deloach Enters., Inc., 582 S.W.3d at 595. Accordingly, the trial court properly granted MacArthur's motion for judgment on Dr. Ware's conversion claim, and we overrule Dr. Ware's first issue in that regard.
C. Conspiracy
Dr. Ware further complains the trial court erroneously granted MacArthur's motion for judgment on his conspiracy claim.
"To recover for civil conspiracy, a plaintiff must show '(1) a combination of two or more persons; (2) the persons seek to accomplish an object or course of action; (3) the persons reach a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are taken in pursuance of the object or course of action; and (5) damages occur as a proximate result.'" Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 613 (Tex. App.—San Antonio 2018, pet. denied) (quoting First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017)).
There is no independent liability for civil conspiracy. Watson v. Talia Heights, LLC, 566 S.W.3d 326, 331 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Civil conspiracy often is described as a "derivative tort" because a defendant's liability requires proof of his participation in another underlying tort for which the plaintiff seeks to hold him liable. See Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996); Elkins, 553 S.W.3d at 613. If judgment is properly granted as to the underlying tort, judgment also must be granted with respect to the derivative conspiracy claim. See Watson, 566 S.W.3d at 331.
Dr. Ware asserted against MacArthur (1) claims under the Texas Towing and Booting Act, (2) a conversion claim, and (3) a derivative conspiracy claim. Because we concluded that the trial court properly granted MacArthur's motion for judgment with regard to Dr. Ware's statutory and conversion claims, MacArthur also was entitled to judgment on Dr. Ware's derivative conspiracy claim. See id. Accordingly, we overrule the remainder of Dr. Ware's first issue.
IV. Claims against Bexar Towing
In his second issue, Dr. Ware contends "the trial court erred in granting a directed verdict for" Bexar Towing on his Texas Towing and Booting Act claim, conversion claim, and conspiracy claim.
A. Statutory Claim
With regard to the Texas Towing and Booting Act claim, Dr. Ware contends that Bexar Towing unlawfully towed Alan's vehicles from his assigned, "individually and exclusively" owned parking spaces in violation of Texas Occupations Code section 2308.255. He contends that, "[i]n order for the tow performed by Defendant/Appellee Bexar Towing to be lawful, the request for the tow had to originate with the parking facility owner. However, on the tow at issue, the request was initiated by Defendant/Appellee Mac Arthur and not the true parking facility owner of parking spaces 307." Dr. Ware cites the following excerpts of section 2308.255:
§ 2308.255. Towing Company's Authority to Tow and Store
Unauthorized Vehicle
(a) A towing company may, without the consent of an owner or operator of an unauthorized vehicle, tow the vehicle to and store the vehicle at a vehicle storage facility at the expense of the owner or operator of the vehicle if:
(1) the towing company has received written verification from the parking facility owner that:
(A) the signs required by Section 2308.252(a)(1) are posted; or
(B) the owner or operator received notice under Section
2308.252(a)(2) or the parking facility owner gave notice complying with Section 2308.252(a)(3); or
(2) on request the parking facility owner provides to the owner or operator of the vehicle information on the name of the towing company and vehicle storage facility that will be used to tow and store the vehicle and the vehicle is:
(A) left in violation of Section 2308.251;
(B) in or obstructing a portion of a paved driveway; or
(C) on a public roadway used for entering or exiting the facility and the tow is approved by a peace officer.
(b) A towing company may not tow an unauthorized vehicle except under:
(1) this chapter;
(2) a municipal ordinance that complies with Section 2308.208; or
(3) the direction of:
(A) a peace officer; or
(B) the owner or operator of the vehicle.
(c) Only a towing company that is insured against liability for property damage incurred in towing a vehicle may tow and store an unauthorized vehicle under this section.
(d) A towing company may tow and store a vehicle under Subsection (a) only if the parking facility owner:
Tex. Occ. Code Ann. § 2308.255. Dr. Ware also contends that it is "evident from the statute [] the request for the tow of an unauthorized vehicle must come from the parking facility owner, i.e. the owner of the property from which the vehicles are to be removed."(1) requests that the towing company tow and store the specific vehicle; or
(2) has a standing written agreement with the towing company to enforce parking restrictions in the parking facility.
Dr. Ware correctly states section 2308.255 provides that a tow request should be made by a parking facility owner; however, there is no support in section 2308.255 for Dr. Ware's assertion that the parking facility owner requesting the tow must be the owner of the property from which the vehicles are towed. Further, we already rejected Dr. Ware's argument that only Alan is "the true parking facility owner of parking spaces 307" and that MacArthur is not a parking facility owner of space #307. As we have explained above, MacArthur is a parking facility owner of unassigned and assigned parking spaces in the condominium complex, including space #307. Therefore, we reject Dr. Ware's argument that the tow of Alan's vehicles is unlawful under section 2308.255 because it was ordered by MacArthur and not by Alan.
Dr. Ware also cites Texas Department of Licensing and Regulation v. Black Bull Towing, LLC, SOAH Docket No. 452-16-0052, TDLR Nos. TOW20150009122 & TOW20150012986 (Proposal for Decision dated March 31, 2016, dismissed on Dec. 30, 2016), and asserts the "Black Bull case presents similar facts to the case at bar. Here, as in the Black Bull case, the tow was based on violation of a parking rule that was inconsistent and in conflict with Texas Occupations Code [sections] 2308.252 and 2308.253." However, Dr. Ware makes no argument and provides no explanation how or why the parking rule in this case is inconsistent with sections 2308.252 and 2308.253. Nor does a careful reading of sections 2308.252 and 2308.253 support Dr. Ware's conclusory statement that the parking rule at issue was "inconsistent and in conflict" with these two sections.
Again relying on the decision in Black Bull, Dr. Ware also states that the Texas Department of Licensing and Regulation "made a ruling that a tow performed under 2308 must comply with the provisions of 2308 and that authority may not be enlarged by contract." (emphasis in original). He then concludes that the "tows performed by Defendant/Appellee Bexar Towing were based on their contractual rather than statutory authority, and as such violated Chapter 2308. Because the tows did not comply with the statute, they were unlawful tows."
Dr. Ware's statements and arguments are circular and conclusory. He does not explain how towing Alan's vehicles pursuant to Bexar Towing's contract with MacArthur violated section 2308.255 of the Texas Towing and Booting Act. Nor does he explain how Bexar Towing failed to "comply with the statute" so as to render the tows of Alan's vehicles unlawful. Instead, applying section 2308.255 to the facts of this case provides that Bexar Towing (1) may tow a vehicle, (2) without the vehicle owner's consent, (3) if it has a written agreement to enforce parking restrictions in the parking facility (the condominium complex), (4) with MacArthur (the parking facility owner) and (5) the vehicle owner received notice under Section 2308.252(a)(2) or MacArthur (the parking facility owner) gave notice complying with Section 2308.252(a)(3). See Tex. Occ. Code Ann. § 2308.255(a), (d).
Section 2308.252(a)(2) provides in pertinent part that "the owner or operator of the vehicle has received actual notice from the parking facility owner that the vehicle will be towed at the vehicle owner's or operator's expense if it is in or not removed from an unauthorized space." Tex. Occ. Code Ann. § 2308.252(a)(2).
Section 2308.252(a)(3) provides that "the parking facility owner gives notice to the owner or operator of the vehicle under Subsection (b)." Id. § 2308.252(a)(3). Subsection (b) provides in pertinent part: "A parking facility owner is considered to have given notice under Subsection (a)(3) if: (1) a conspicuous notice has been attached to the vehicle's front windshield or, if the vehicle has no front windshield, to a conspicuous part of the vehicle stating: . . . (C) that the vehicle will be towed at the expense of the owner or operator of the vehicle if it remains in an unauthorized area of the parking facility." Id. § 2308.252(b)(1)(C).
The trial court's unchallenged findings of fact supported by the record before us warrant the conclusion that Bexar Towing complied with the requirements for a lawful tow set out in section 2308.255. Findings of fact #20 and #22 to #25 provide: (1) "Alan Keith Ware and Ray W. Ware, had both been on notice for years that the homeowners association wanted the vehicles towed"; (2) "[n]otices were placed on the vehicles that the vehicles would be towed if Plaintiff Alan Keith Ware did not remove the vehicles or have them removed"; (3) Bexar Towing "had a valid contract with the Homeowners Association to tow vehicles from the property in question and did not violate the Texas Towing and Booting Act"; (4) "[t]he contract stated the tows were to be done by request only"; and (5) "[t]he Homeowners Association made such a request to tow the vehicles and contacted Bexar Towing to tow them."
The record reflects that Bexar Towing did not conduct an unlawful tow and did not violate the Texas Towing and Booting Act. We overrule Dr. Ware's second issue that the trial court erred in granted Bexar Towing's motion for judgment on Dr. Ware's Texas Towing and Booting Act claim.
B. Conversion
Turning to Dr. Ware's complaint that the trial court erred in granting Bexar Towing's motion for judgment on his conversion claim, we note that he advances a substantially similar argument to the one he made in his first issue with regard to his conversion claim against MacArthur. Dr. Ware contends that "[h]aving proven ownership of the parking spaces was vested solely in [Alan], Defendant/Appellee Mac Arthur was without legal authority to order the tow, and the tow was made by Defendant/Appellee Bexar Towing without establishing their authority to tow under the provisions of Texas Occupations Code 2308. Taking possession of [Alan]'s vehicles constituted conversion."
To establish a claim for conversion of personal property, a plaintiff must show: (1) the plaintiff owned, had legal possession of, or was entitled to possession of the property; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as owner of the property; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Ortiz, 2020 WL 806652, at *3; John Deloach Enters., Inc., 582 S.W.3d at 595.
MacArthur had the authority as a parking facility owner of Alan's parking space to have Alan's vehicles towed because the vehicles were not in compliance with the applicable parking rules and regulations. See Tex. Occ. Code Ann. §§ 2308.002(7), (8), 2308.252; see also supra pp. 15-17. Alan's ownership of his parking space does not affect MacArthur's authority as a parking facility owner to have Alan's vehicles towed under section 2308.252, particularly given the provision authorizing immediate removal without notice. Additionally, the record reflects that Bexar Towing complied with the requirements for a lawful tow set forth in section 2308.255 and did not violate the Texas Towing and Booting Act.
Because MacArthur was authorized under section 2308.252 to have Alan's vehicles towed and Bexar Towing complied with the requirements for a lawful tow pursuant to section 2308.255, neither MacArthur nor Bexar Towing violated the Texas Towing and Booting Act. Therefore, Dr. Ware cannot establish that Bexar Towing "unlawfully and without authorization assumed and exercised dominion and control over" Alan's vehicles. See Ortiz, 2020 WL 806652, at *3; John Deloach Enters., Inc., 582 S.W.3d at 595. Accordingly, we overrule Dr. Ware's second issue that the trial court erred in granting Bexar Towing's motion for judgment on his conversion claim.
C. Conspiracy
Dr. Ware challenges the trial court's grant of Bexar Towing's motion for judgment with respect to his conspiracy claim, stating: "In the matter of the illegal tow from [Alan]'s parking spaces C-307/307, a detached carport, it is clear that the Defendant/Appellees, working in concert, each taking actions that were unlawful in and of themselves, were able to achieve the objective of illegally removing [Alan]'s vehicles from his property without the consent of [Alan]."
There is no independent liability for civil conspiracy. Watson, 566 S.W.3d at 331. Instead, civil conspiracy is a "derivative tort" because "a defendant's liability for conspiracy requires proof of his participation in another underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable." See Tilton, 925 S.W.2d at 681. Therefore, if judgment is properly granted as to the underlying tort, judgment also must be granted with respect to the derivative conspiracy claim. See Watson, 566 S.W.3d at 331.
Dr. Ware asserted against Bexar Towing (1) a claim under the Texas Towing and Booting Act, (2) a conversion claim, and (3) a derivative conspiracy claim. Because we have overruled Dr. Ware's issues regarding the underlying claims, we overrule Dr. Ware's second issue regarding a derivative conspiracy claim.
V. Claims against Bexar Storage
In his third issue, Dr. Ware challenges the trial court's grant of Bexar Storage's motion for judgment with respect to his conversion and conspiracy claims. He contends that when "Mac Arthur and Bexar Towing removed [Alan]'s vehicles from his 'individually and exclusively' owned parking spaces . . . and exercised dominion and control over the vehicles without the consent of [Alan], the act of conversion was complete." According to Dr. Ware, "[u]pon transfer of the vehicles to Defendant/Appellee Bexar Storage, Bexar Storage became a party to the conversion and conspiracy of Defendants/Appellees Mac Arthur and Bexar Towing, and Defendant/Appellee Bexar Storage then continued that conversion by exercising their own dominion and control over [Alan]'s vehicles."
We already have determined that MacArthur and Bexar Towing cannot be held liable for conversion in this case because MacArthur was authorized under section 2308.252 to have Alan's vehicles towed and Bexar Towing complied with the requirements for a lawful tow pursuant to section 2308.255. Dr. Ware cannot establish the second element of a conversion claim that MacArthur or Bexar Towing "unlawfully and without authorization assumed and exercised dominion and control over" Alan's vehicles. See Ortiz, 2020 WL 806652, at *3; John Deloach Enters., Inc., 582 S.W.3d at 595. Consequently, Bexar Storage cannot be liable for a conversion that did not occur.
Without an underlying tort, Bexar Storage cannot be liable for conspiracy because civil conspiracy is a "derivative tort." See Tilton, 925 S.W.2d at 681. As we explained, "a defendant's liability for conspiracy requires proof of his participation in another underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable." See id. Given the absence of an underlying tort, we overrule Dr. Ware's third issue regarding Bexar Storage's motion for judgment.
VI. Findings of Fact and Conclusions of Law
In his fifth issue, Dr. Ware complains the trial court's findings of fact and conclusions of law did not "meet[] the requirements of Texas Occupations Code [section] 2308.458(d)" because the trial court failed to timely enter them pursuant to that section. Dr. Ware claims that entry of findings of fact and conclusions of law are "not left up to the parties to decide pursuant to Texas Rule of Civil Procedure 296 but, rather, is a requirement of the statute for entry of a judgment in a towing or booting case." We reject Dr. Ware's complaint.
First, section 2308.458 refers to a justice court hearing in the county from which a vehicle was towed to determine whether probable cause existed for the tow. See Tex. Occ. Code Ann. §§ 2308.452, 2308.453, 2308.458. The hearing referred to in section 2308.458 does not include proceedings in the county or district courts. See id. § 2308.453; see also Black Bull Towing, LLC v. Ybarra, No. 02-14-00227-CV, 2015 WL 3637933, at *2 (Tex. App.—Fort Worth June 11, 2015, pet. denied) (mem. op.). Therefore, requirements of section 2308.458 do not apply to proceedings in district court. See Tex. Occ. Code Ann. §§ 2308.453, 2308.458; Ybarra, 2015 WL 3637933, at *2.
Second, after a hearing was conducted in justice court, the justice court complied with section 2308.458(d) by including written findings of fact and conclusions of law in its judgment and determining that probable cause existed for the tow of Alan's vehicles. See Tex. Occ. Code Ann. §2308.458(c)(1), (d).
Third, the district court also signed findings of fact and conclusions of law, albeit late on October 15, 2018, and not in strict compliance with Texas Rule of Civil Procedure 297. See Tex. R. Civ. P. 297 ("The court shall file its findings of fact and conclusions of law within twenty days after a timely request is filed. The court shall cause a copy of its findings and conclusions to be mailed to each party in the suit.").
The procedural rules establishing the time limits for requesting and filing findings of fact and conclusions of law do not preclude the trial court from issuing belated findings. Rust v. Rust, No. 04-17-00674-CV, 2018 WL 4760157, at *2 (Tex. App.—San Antonio Oct. 3, 2018, no pet.) (mem. op.). Unless a litigant can show harm, he has no remedy if a trial court files untimely findings and conclusions. Id. To establish harm, a litigant must show either that (1) he was unable to request additional findings of fact, or (2) he was prevented from properly presenting his appeal. Id. If harm is shown, the usual remedy is to abate the appeal to afford an opportunity to request additional or amended findings and conclusions. Id.
Here, Dr. Ware does not argue that he was harmed by the trial court's failure to timely enter findings of fact and conclusions of law. Instead, he seemingly acknowledges he was not harmed by the trial court's untimely entry. Additionally, Dr. Ware does not even ask for a remedy from this court with regard to the late-filed findings and conclusions. Accordingly, we overrule Dr. Ware's fifth issue.
See Dr. Ware's appellate brief p. 50 ("While the Trial Court's failure to follow the dictates of Chapter 2308.454(d) in a timely fashion is regrettable, the late-filing of the Findings of Facts and Conclusions of Law does not invalidate those findings.").
VII. Motion for New Trial
In his sixth issue, Dr. Ware argues the trial court abused its discretion when it denied his amended motion for new trial by operation of law.
We review the denial of a motion for new trial for abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); Estate of Friend, No. 04-18-00714-CV, 2020 WL 806654, at *2 (Tex. App.—San Antonio Feb. 19, 2020, pet. denied) (mem. op.); Shin v. 1800 Broadway Urban Residence, No. 04-18-00431-CV, 2019 WL 286103, at *1 (Tex. App.—San Antonio Jan. 23, 2019, no pet.) (mem. op.). "A trial court abuses its discretion when it acts without reference to any guiding rules or principles." Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002).
Dr. Ware presents no new arguments in his sixth issue. Instead, he relies on his previously advanced arguments and asserts that Alan's vehicles should not have been towed from space #307 because (1) Alan "was the record owner of a condominium at Mac Arthur Townhomes"; (2) "[o]wnership of the condominium included the 'individual and exclusive' ownership of parking spaces C-307/307"; (3) "[a]s the owner of parking spaces C-307/307, a detached carport, [Alan] was the Parking Facility Owner of those spaces pursuant to Texas Occupations Code [section] 2308.002(8)"; and (4) "[t]he uncontroverted evidence established that [Alan] was the owner of a 1997 Mercury . . . and a 1999 Dodge Ram . . . and that he did not consent to the vehicle tow."
Because Dr. Ware fails to offer any new arguments and we already have addressed his arguments at length and rejected them, we cannot conclude the trial court abused its discretion in denying Dr. Ware's motion for new trial. Accordingly, we overrule his sixth issue.
CONCLUSION
We affirm the trial court's judgment.
/s/ Meagan Hassan
Justice Panel Consists of Justices Zimmerer, Spain, and Hassan.