Action Towing, Inc. v. the Mint Leasing, Inc.

Opinion issued November 18, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-13-00868-CV
———————————
ACTION TOWING, INC., Appellant
V.
THE MINT LEASING, INC., Appellee

On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2011-75403

OPINION

Appellee, The Mint Leasing, Inc. (“Mint”), sued appellant, Action Towing,

Inc. (“Action”), for conversion and theft of property under the Texas Theft
Liability Act. 1 Action argued that the Federal Aviation Administration

Authorization Act of 1994 2 (“FAAAA” or “the Act”) preempted Mint’s causes of

action. Both parties moved for summary judgment. The trial court denied

Action’s summary judgment motion and granted Mint’s. After a trial on damages,

the trial court rendered judgment in favor of Mint, ordering Action to pay

$18,496.96 in actual damages, $1,000 in statutory damages under the Theft

Liability Act, attorney’s fees, court costs, and post-judgment interest. In one issue,

Action contends that the trial court erred in granting summary judgment in favor of

Mint because (1) it raised fact issues on each element of its affirmative defense of

preemption and (2) the trial court improperly required it to disprove the

applicability of the statutory “safety exception” to its preemption defense.

We affirm.

Background

In late 2007, Mint, a vehicle leasing company located in Houston, leased a

2008 Pontiac to Albert and Anita Martinez, a married couple who have since

divorced. Albert and Anita leased the vehicle for approximately three and a half

years, but they stopped making lease payments in April 2011. In July 2011, Anita

took the vehicle to El Paso, where it broke down. Albert, who worked for AA

1
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 134.001–.005 (Vernon 2011 & Supp.
2014).
2
49 U.S.C. § 14501.

2
Superior Services, a towing company, had the vehicle towed back to Houston.

After Anita failed to pay him for the towing costs, Albert delivered the vehicle to

Action’s vehicle storage facility in League City.

On July 26, 2011, Action sent an invoice to Mint for $1,735 in towing and

storage fees. Mint refused to pay these charges, asserting that it was not liable for

the fees incurred by Martinez. Mint sent two letters to Action demanding return of

the vehicle. Mint asserted that, to the extent Action claimed a lien on the vehicle,

the lien was not valid under the Texas Property Code because Action was not

storing the vehicle with the consent of the owner, Mint. Action refused to return

the vehicle to Mint; instead, it sold the vehicle at public auction. Mint then filed

suit against Action for conversion and civil theft under the Theft Liability Act. 3

Action answered and asserted several affirmative defenses. It first asserted

that the FAAAA preempted Mint’s claims. It also asserted that it had a valid

garageman’s lien on the vehicle pursuant to Property Code section 70.003(c) and

pursuant to Occupations Code chapter 2303.

Mint moved for traditional summary judgment on the issue of Action’s

liability for conversion and civil theft and requested that the trial court hold a

separate hearing at a later date regarding its damages. Mint argued that Action had

3
Mint also sued Albert Martinez, Erik Palma d/b/a AA Superior Services, and the
Texas Department of Motor Vehicles. None of these defendants are parties to this
appeal.

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wrongfully exercised dominion and control over the vehicle because it did not have

any valid liens on the vehicle. Mint asserted, and attached evidence reflecting, that

it did not request towing or storage of the vehicle and that it did not consent to the

storage of the vehicle after Martinez delivered it to Action’s facility. It argued that

retaining possession of property under an invalid lien constituted both conversion

and civil theft.

In response, Action argued that the FAAAA preempted both of Mint’s

claims. It argued that section 14501(c) of the Act provides that, generally, a State

“may not enact or enforce a law, regulation, or other provision having the force

and effect of law related to a price, route, or service of any . . . broker . . . with

respect to the transportation of property.” 49 U.S.C. § 14501(c). It further argued

that it qualified as a “broker” under the statute because, as part of its business, it

“offers for sale and negotiates for providing and arranging for towing and storage

services (transportation) by motor carrie[r]s (tow trucks) for compensation.”

Specifically, it contended that it provided transportation services in the present

case when it received and stored Mint’s vehicle.

Action attached the affidavit of Hiatham Baqdounes, a corporate officer, to

establish its entitlement to the preemption affirmative defense. Baqdounes

averred:

Action Towing, Inc., operates a state licensed vehicle storage facility.
As part of its vehicle storage services, Action stores vehicles towed by

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 other tow truck operators to be picked up by the vehicle owner or later
towed to another location. Additionally, Action offers the service of
making arrangements for the stored vehicle to be towed from the
vehicle storage facility.
Typically, the tow truck service delivers the vehicle and presents the
towing bill for collection by Action. Action then stores the vehicle for
a fee and sends the required notices of the location of the vehicle and
the towing and storage fees owed to both the vehicle owner and lien
holder. If the vehicle is not claimed and the towing and storage fees
paid in the required time period, the vehicle can be sold at a public
auction. The towing company is paid by Action from the collected
towing fees or from the auction proceeds.
This procedure was exactly what happened in this case. Defendant
Albert Martinez towed the vehicle that is the subject of this lawsuit to
Action’s vehicle storage facility in July of 2011. Defendant Albert
Martinez was working for and operating a tow truck owned by
defendant Erik Palma d/b/a AA Superior Services, which the tow bill
stated. . . . Defendant Albert Martinez represented to Action that
defendant Anita Martinez or Mint Leasing would pick up the vehicle
and pay the towing and storage fees. Action accepted the vehicle for
storage, timely sent out the required notices to plaintiff Mint Leasing,
Inc., (the vehicle owner) and the lien holder, Sterling Bank. Because
Mint Leasing refused to pay the towing and storage fees owed, it was
refused release of the vehicle. With the towing and storage charges
not being paid the vehicle was sold at a public auction.

In reply, Mint argued that the trial court should grant summary judgment in

its favor because the FAAAA has four specific statutory exceptions to preemption,

including a “safety exception” that allows states to exercise their “safety regulatory

authority . . . with respect to motor vehicles,” and Action had offered no summary

judgment evidence to support the argument that “the laws that [Action] claims are

preempted do not fall under one of the statute’s regulatory exceptions” to

preemption. Mint argued that Action needed to present evidence raising a fact

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issue “on the non-applicability of each one of” the statutory exceptions to

preemption, but because it did not, the trial court should render summary judgment

in Mint’s favor. Mint further argued that it would likely prevail on the “safety”

exception to preemption.

Action filed a supplemental response, supported by an additional affidavit

from Baqdounes, in which it argued that this case did not implicate the safety

exception because “[a]ll the actions of a vehicle storage facility take place after the

vehicle owner’s or operator’s vehicle has been towed” and the role of the vehicle

storage facility is “basically administrative.”

Action then filed its own summary judgment motion on its preemption

affirmative defense. Action argued that the trial court should grant its summary

judgment motion because Mint’s claims against it were preempted as a matter of

law. Action reiterated the same arguments from its response to Mint’s summary

judgment motion, but it also argued that this case does not fall within the safety

exception to preemption.

Action attached an affidavit from Baqdounes that combined the contents of

his original and supplemental affidavits. In this affidavit, he averred, with regard

to the safety exception, that, in his opinion, common law conversion and civil theft

claims “are not related to towing and storage safety with respect to the operations

of a vehicle storage facility.” He further stated:

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 A vehicle storage facility has nothing to do with and plays no role in
the towing of the vehicle, the act leaving a vehicle owner or operator
without a vehicle. The role of a vehicle storage facility is to store the
vehicle, give notice as to the location of the vehicle, collect the towing
and storage fees [owed], and assist in having the vehicle towed to its
final destination. . . . Because a vehicle stor[age] facility role is
basically administrative, occurring after the vehicle owner or operator
has been left without a vehicle, none of a vehicle stor[age] facility’s
actions are related to safety.

Mint responded, again asserting that the FAAAA did not preempt its claims

and that Action had not addressed all possible statutory exceptions to preemption.

Mint also objected to the following statement in Baqdounes’ affidavit on the

grounds that it constituted a legal conclusion and an “unsubstantiated opinion”:

“[I]t is my opinion common law conversion and civil liability under the Texas

Theft Liability Act are not related to towing and storage safety with respect to the

operations of a vehicle storage facility.”

On August 10, 2012, the trial court signed an order sustaining Mint’s

objections to Baqduones’ affidavit and denying Action’s summary judgment

motion. That same day, the trial court issued a separate order on both Mint’s and

Action’s summary judgment motions. In this order, the trial court granted Mint’s

summary judgment motion. The trial court also handwrote the following

paragraph on the face of the order:

The court denies Defendant’s [Motion] for Summary Judgment
[regarding] preemption. Defendant has not conclusively proven every
element of its preemption defense, therefore Defendant’s motion must
be denied. And, as the preemption defense was the only defensive

7
 position of Defendant to Plaintiff’s Motion for Interloc[utory]
Summary Judgment, and because such defense was not conclusively
proven, the court must grant Plaintifff’s motion.

The trial court subsequently held a hearing on Mint’s damages and rendered final

judgment in favor of Mint, awarding it $18,496.96 in actual damages, $1,000 in

statutory damages under the Theft Liability Act, attorney’s fees, court costs, and

post-judgment interest. Action moved for a new trial, which was denied by

operation of law. This appeal followed.

Federal Preemption

In its sole issue, Action contends that the trial court erred in granting Mint’s

summary judgment motion because the trial court improperly required Action to

(1) conclusively establish its preemption affirmative defense when all it had to do

was raise a fact issue on each element, which it did, and (2) present evidence to

establish the non-applicability of the statutory exceptions to preemption.

A. Standard of Review

We review a trial court’s ruling on a summary judgment motion de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). To prevail on a

traditional summary judgment motion, the movant bears the burden of proving that

no genuine issues of material fact exist and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When a plaintiff moves for

8
summary judgment, it must prove that it is entitled to summary judgment as a

matter of law on each element of its causes of action. MMP, Ltd. v. Jones, 710

S.W.2d 59, 60, (Tex. 1986) (per curiam); Cleveland v. Taylor, 397 S.W.3d 683,

696–97 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). To defeat summary

judgment by raising an affirmative defense in response to the plaintiff’s summary

judgment motion, the defendant must bring forth evidence sufficient to raise a

genuine issue of material fact on each element of its affirmative defense. Brownlee

v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Anglo-Dutch Petroleum Int’l, Inc.

v. Haskell, 193 S.W.3d 87, 95 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

When a defendant is the party moving for summary judgment, it must either

(1) disprove at least one element of the plaintiff’s cause of action or (2) plead and

conclusively establish each essential element of an affirmative defense to rebut the

plaintiff’s cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam).

A matter is conclusively established if reasonable people could not differ as

to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168

S.W.3d 802, 816 (Tex. 2005); Cleveland, 397 S.W.3d at 697. If the movant meets

its burden, the burden then shifts to the nonmovant to raise a genuine issue of

material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler,

899 S.W.2d 195, 197 (Tex. 1995); Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 755 (Tex. 2007) (per curiam) (stating that summary judgment

9
evidence raises fact issue if reasonable and fair-minded jurors could differ in their

conclusions in light of all evidence presented). To determine if the nonmovant

raised a fact issue, we review the evidence in the light most favorable to the

nonmovant, crediting favorable evidence if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not. Fielding, 289

S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827); Cleveland, 397 S.W.3d at

697. We indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997));

Cleveland, 397 S.W.3d at 697.

We must affirm a summary judgment order if any of the grounds presented

to the trial court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 216 (Tex. 2003); Cleveland, 397 S.W.3d at 697.

B. Conversion and Civil Theft

Conversion is the wrongful assumption and exercise of dominion and

control over the personal property of another to the exclusion of, or inconsistent

with, the owner’s rights. Burns v. Rochon, 190 S.W.3d 263, 267–68 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (citing Waisath v. Lack’s Stores, Inc., 474

S.W.2d 444, 447 (Tex. 1971)). To establish a claim for conversion, the plaintiff

must prove that (1) the plaintiff owned or had possession of the property or

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entitlement to possession; (2) the defendant unlawfully and without authorization

assumed and exercised control over the property to the exclusion of, or inconsistent

with, the plaintiff’s rights as owner; (3) the plaintiff demanded return of the

property; and (4) the defendant refused to return the property. Id. at 268 (citing

Apple Imps., Inc. v. Koole, 945 S.W.2d 895, 899 (Tex. App.—Austin 1997, writ

denied)).

The Texas Theft Liability Act defines “theft” as “unlawfully appropriating

property or unlawfully obtaining services as described by” certain sections of the

Penal Code. TEX. CIV. PRAC. & REM. CODE ANN. § 134.002(2) (Vernon Supp.

2014). The statute provides that “[a] person who commits theft is liable for the

damages resulting from the theft.” Id. § 134.003(a) (Vernon 2011); Shaw v.

Lemon, 427 S.W.3d 536, 546 (Tex. App.—Dallas 2014, pet. denied). A person

who has sustained damages resulting from a theft may recover from the person

who committed the theft the amount of actual damages, statutory damages up to

$1,000, court costs, and reasonable and necessary attorney’s fees. TEX. CIV. PRAC.

& REM. CODE ANN. § 134.005(a)(1), (b) (Vernon 2011); Heritage Gulf Coast

Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 655 (Tex. App.—

Houston [14th Dist.] 2013, no pet.).

Action does not contend that Mint did not meet its initial summary judgment

burden to conclusively establish its right to recover on its causes of action for

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conversion and civil theft under the Theft Liability Act. Instead, it argues that it

raised a fact issue on each element of its federal preemption affirmative defense.

We therefore turn to whether the FAAAA preempts Mint’s causes of action.

C. Preemption Under the FAAAA

Action contends that the trial court erroneously granted Mint’s summary

judgment motion because the FAAAA preempts Mint’s claims.

FAAAA section 14501(c), relating to “[m]otor carriers of property”

provides:

(1) General rule.—Except as provided in paragraphs (2) and (3), a
State, political subdivision of a State, or political authority of 2
or more States may not enact or enforce a law, regulation, or
other provision having the force and effect of law related to a
price, route, or service of any motor carrier . . . or any motor
private carrier, broker, or freight forwarder with respect to the
transportation of property.

(2) Matters not covered.—Paragraph (1)—

(A) shall not restrict the safety regulatory authority of a
State with respect to motor vehicles, the authority
of a State to impose highway route controls or
limitations based on the size or weight of the
motor vehicle or the hazardous nature of the cargo,
or the authority of a State to regulate motor
carriers with regard to minimum amounts of
financial responsibility relating to insurance
requirements and self-insurance authorization;
(B) does not apply to the intrastate transportation of
household goods; and

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 (C) does not apply to the authority of a State or a
political subdivision of a State to enact or enforce
a law, regulation, or other provision relating to the
price of for-hire motor vehicle transportation by a
tow truck, if such transportation is performed
without the prior consent or authorization of the
owner or operator of the motor vehicle.

49 U.S.C. § 14501(c) (emphasis added).

Section 13102 defines “broker” as “a person, other than a motor carrier or an

employee or agent of a motor carrier, that as a principal or agent sells, offers for

sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise

as selling, providing, or arranging for, transportation by motor carrier for

compensation.” Id. § 13102(2). Section 13102 defines “transportation” as

including “a motor vehicle, vessel, warehouse, wharf, pier, dock, yard, property,

facility, instrumentality, or equipment of any kind related to the movement of

passengers or property, or both, regardless of ownership or an agreement

concerning use” and “services related to that movement, including arranging for,

receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation,

storage, handling, packing, unpacking, and interchange of passengers and

property.” Id. § 13102(23).

Action contends that because it stores vehicles that have been towed to its

facility and it offers the service of making further arrangements to tow the vehicle

13
from its facility, it qualifies as a “broker” of “transportation” services and thus

Mint’s claims against it fall within the FAAAA’s preemption provision.

The United States Supreme Court recently addressed the question of whether

the FAAAA preempts state-law claims relating to the disposal of stored vehicles

made against vehicle storage facilities like Action in Dan’s City Used Cars, Inc. v.

Pelkey, 133 S. Ct. 1769 (2013). In Dan’s City, Pelkey’s apartment complex

required all of its tenants to remove their cars from the parking lot in the event of a

snowstorm. Id. at 1776. Pelkey, who was suffering from a serious illness and was

confined to bed, did not remove his car, and, after a snowstorm, the apartment

complex contacted Dan’s City to tow and store Pelkey’s vehicle, which Dan’s City

did without notice to Pelkey. Id. at 1776–77. Pelkey was then admitted to the

hospital. Id. at 1777. While Pelkey was in the hospital, Dan’s City notified the

New Hampshire Department of Public Safety that it intended to sell the vehicle at

public auction, and the Department identified Pelkey as the owner. Id. After the

post office returned a letter from Dan’s City to Pelkey notifying him of the storage

of his vehicle, Dan’s City scheduled the auction of the vehicle. Id. Several days

before the auction, Pelkey was released from the hospital, and his attorney learned

of what had happened to the vehicle and contacted Dan’s City, explaining that

Pelkey wished to pay the towing and storage charges and reclaim his vehicle. Id.

Dan’s City ultimately traded the vehicle to a third party and did not pay Pelkey any

14
portion of the proceeds from the sale. Id. Pelkey brought state-law claims against

Dan’s City for violation of the New Hampshire Consumer Protection Act and for

negligently breaching its statutory and common-law duties as a bailee to use

reasonable care in disposing of the vehicle. Id.

The Supreme Court noted that the FAAAA’s preemption clause “prohibits

enforcement of state laws ‘related to a price, route, or service of any motor

carrier . . . with respect to the transportation of property.’” Id. at 1778 (quoting 49

U.S.C. § 14501(c)(1)). The phrase “related to” in the statute “embraces state laws

‘having a connection with or reference to’ carrier ‘rates, routes, or services’

whether directly or indirectly.” Id. (quoting Rowe v. N.H. Motor Transp. Ass’n,

552 U.S. 364, 370, 128 S. Ct. 989, 995 (2008)). The Court noted that the

preemption provision does not “preempt state laws affecting carrier prices, routes,

and services ‘in only a tenuous, remote, or peripheral . . . manner.’” Id. (quoting

Rowe, 552 U.S. at 371, 128 S. Ct. at 995). Instead, the addition of the phrase “with

respect to the transportation of property” in the statute “massively limits the scope

of preemption” under the FAAAA. Id. To have preemptive effect, it is not

sufficient that the state law or claims relate to “the ‘price, route, or service’ of a

motor carrier in any capacity; the law must also concern a motor carrier’s

‘transportation of property.’” Id. at 1778–79 (quoting 49 U.S.C. § 14501(c)(1)).

15
 The Court held that the FAAAA did not preempt Pelkey’s claims against

Dan’s City because the claims “are not ‘related to’ the service of a motor carrier

‘with respect to the transportation of property.’” Id. at 1778 (quoting 49 U.S.C.

§ 14501(c)(1)). Pelkey’s claims against Dan’s City did not relate to the

“movement” of his vehicle. Id. at 1779 (quoting 49 U.S.C. § 13102(23)(B))

(defining “transportation”). Instead, the state law under which Pelkey brought his

claims regulated “the disposal of vehicles once their transportation—here, by

towing—has ended.” Id. Pelkey did not complain about Dan’s City’s conduct in

towing his car or in the price of the tow; instead, he sought redress only for

conduct “occurring after the car ceased moving and was stored.” Id. The Court

noted that this was not a case in which Pelkey complained about Dan’s City’s

storage or handling of his vehicle while it was transit. Id. The storage of Pelkey’s

vehicle occurred after Dan’s City completed the towing, and thus the storage did

not involve “transportation” as defined in the FAAAA. Id.

The Court held that “state-law claims stemming from the storage and

disposal of a car, once towing has ended, are not sufficiently connected to a motor

carrier’s service with respect to the transportation of property to warrant

preemption under § 14501(c)(1).” Id. at 1775 (emphasis in original). The Court

reiterated that “state-law claims homing in on the disposal of stored vehicles fall

outside § 14501(c)(1)’s preemptive compass” and noted that this conclusion was

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“in full accord with Congress’ purpose in enacting” the preemption provision. Id.

at 1779–80. With the preemption provision, Congress targeted “a State’s direct

substitution of its own governmental commands for competitive market forces in

determining (to a significant degree) the services that motor carriers will provide.”

Id. at 1780 (quoting Rowe, 552 U.S. at 372, 128 S. Ct. at 995). In Dan’s City,

Pelkey sued “to gain compensation for the alleged unlawful disposal of his

vehicle,” and the state laws implicated in his claims “hardly constrain participation

in interstate commerce by requiring a motor carrier to offer services not available

in the market” and do not “freez[e] into place services that carriers might prefer to

discontinue in the future.” Id. (quoting Rowe, 552 U.S. at 372, 128 S. Ct. at 995).

The laws invoked by Pelkey “do not hamper the operations of tow truckers” and

“are not the kind of burdensome state economic regulation Congress sought to

preempt.” Id.

We conclude that this case is indistinguishable from Dan’s City and that that

decision governs our resolution of the preemption question in this case. Here,

Albert Martinez towed the vehicle at issue to Action, a vehicle storage facility.

Mint, the owner of the vehicle, refused to pay the towing and storage fees and

argued that Action could not have a valid lien on the vehicle because Mint, as the

owner, had not consented to the towing and storage of the vehicle. After Mint

failed to pay the towing and storage fees, Action sold the vehicle at auction. Mint

17
then filed state-law claims against Action for conversion and civil theft under the

Texas Theft Liability Act and relied upon the Texas Property Code to assert that

Action did not have a valid lien on the vehicle.

As Pelkey did in Dan’s City, Mint complains about actions taken by a

vehicle storage company after its vehicle had been towed to the facility,

specifically, the allegedly wrongful charge of towing and storage fees and disposal

of its vehicle at auction. Thus, Mint’s suit does not relate to the services of a motor

carrier “with respect to the transportation of property.” See id. at 1778 (quoting 49

U.S.C. § 14501(c)(1)). Mint, like Pelkey, “seeks redress only for conduct

subsequent to ‘transportation,’ conduct occurring after the car ceased moving and

was stored.” Id. at 1779. Action’s storage of Mint’s vehicle, its billing of Mint for

towing and storage charges, and its sale of Mint’s vehicle all occurred “after the

towing job was done” and therefore does not involve “transportation” as defined in

the FAAAA. See id. Furthermore, the state-law claims at issue here, common-law

conversion and civil theft under the Theft Liability Act, do not burden interstate

commerce by requiring motor carriers to “offer services not available in the

market,” the laws do not “freez[e] into place services that carriers might prefer to

discontinue in the future,” and the laws do not “hamper the operations of tow

truckers.” See id. at 1780. These laws are thus not “the kind of burdensome state

economic regulation Congress sought to preempt” in the FAAAA. See id.

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 Action argues that Dan’s City is distinguishable because “the transportation

(storage) of the vehicle in this case had not concluded as it had in the Dan’s City

case” because this vehicle was not “in an operating condition” when it arrived at

Action’s facility and thus would need a second tow when either Anita Martinez or

Mint picked up the vehicle for further transportation. Action contends that it raised

a fact issue concerning whether the transportation services had been completed

because of the possibility of a second tow. However, the summary judgment

evidence reflects that no “second tow” ever occurred because after Mint refused to

pay the towing and storage fees, Action sold the vehicle at auction. Regardless of

whether a “second tow” from Action’s facility could have theoretically occurred,

this case actually concerns, just as Dan’s City did, the allegedly wrongful storage

and sale of a vehicle by a vehicle storage facility. We conclude that Dan’s City

governs this case. 4

We conclude that, based on Dan’s City, the FAAAA’s preemption provision,

as a matter of law, does not preempt Mint’s state-law claims against Action. We
4
We also note that the vehicle storage facility at issue in Dan’s City also performed
towing services, as it was the entity that towed Pelkey’s vehicle from the
apartment complex to its storage facility. The fact that Dan’s City was a motor
carrier that performed some transportation services did not preclude the Supreme
Court from finding that the FAAAA did not preempt Pelkey’s claims, because the
Court focused on Dan’s City’s acts that formed the basis of Pelkey’s complaint:
its disposal of the vehicle after storage, not its towing services. See Dan’s City
Used Cars, Inc. v. Pelkey, 133 S. Ct. 1769, 1779 (2013) (“Pelkey does not object
to the manner in which his car was moved or the price of the tow; he seeks redress
only for conduct subsequent to ‘transportation,’ conduct occurring after the car
ceased moving and was stored.”).

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therefore hold that the trial court correctly granted Mint’s summary judgment

motion.5

We overrule Action’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

5
Because we hold that the preemption provision of section 14501(c)(1) does not
apply to Mint’s claims as a matter of law and that the trial court therefore correctly
granted Mint’s summary judgment motion, we need not address Action’s
contention that the trial court improperly (1) required Action to conclusively prove
its preemption affirmative defense and (2) allocated the burden of disproving the
statutory exceptions to preemption to Action.

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