Benedict Emesowum v. Milam Street Auto Storage, Inc. D/B/A Fast Tow Wrecker and Zone One Auto Storage

Opinion issued June 18, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00472-CV
———————————
BENEDICT EMESOWUM, Appellant
V.
MILAM STREET AUTO STORAGE, INC. D/B/A FAST TOW WRECKER
AND ZONE ONE AUTO STORAGE, Appellee

On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Case No. 1045789

MEMORANDUM OPINION

Benedict Emesowum appeals the trial court’s ruling that Fast Tow Wrecker

had probable cause to tow his car. Fast Tow towed Emesowum’s parked car from

a shopping center parking lot; Emesowum contends that a warning sign on the
parking lot’s premises did not meet statutory requirements and that Fast Tow was

not authorized to tow his car from the lot. He further contends that the trial court

abused its discretion in denying his request for a jury trial. Finding no error, we

affirm.

Background

In January 2014, Fast Tow towed Emesowum’s car. Milam Street Auto

Storage, Inc. operates a towing service, Fast Tow Wrecker, and a vehicle storage

facility, Zone One Auto Storage. Emesowum retrieved his car, paid the towing

fee, and requested a justice court hearing, claiming that Fast Tow had failed to

comply with section 2308 of the Texas Occupations Code. That section authorizes

towing from private property without the car owner’s consent, so long as the

landowner and towing company comply with its provisions. See TEX. OCC. CODE

ANN. §§ 2308.252, 2308.301 (West 2013).

The justice court heard the case in March. The justice court found that there

was probable cause to remove Emesowum’s car from the parking lot. A county

court heard the case on appeal; it likewise found that Fast Tow had probable cause

to tow. Emesowum appeals the county court’s judgment.

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 Discussion

We liberally construe Emesowum’s pro se brief.

I. Authorization to Tow

Emesowum first contends that Fast Tow did not have a general authorization

to tow his car because Amreit Uptown Park, no longer a party in this appeal, did

not authorize the tow. Emesowum does not cite to the record or to any legal

authority to support his contention; accordingly, we hold that he has waived this

issue on appeal. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and

concise argument for the contentions made, with appropriate citations to authorities

and to the record.”).

II. Towing Sign Compliance

Emesowum next challenges the adequacy of the warning sign in the parking

lot that notified unauthorized parkers that their cars could be towed.

Standard of Review

We regard this case as an appeal from a bench trial. When a trial court

issues no findings of fact, we imply that the trial court made the findings necessary

to support its judgment. Douglas v. Petroleum Wholesale, Inc., 190 S.W.3d 97, 99

(Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Roberson v. Robinson, 768

S.W.2d 280, 281 (Tex. 1989)). In an appeal from a bench trial, we review a trial

court’s findings under the same legal and factual sufficiency of the evidence

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standards used when determining whether sufficient evidence exists to support an

answer to a jury question. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.

1994). If the evidence falls “within [the] zone of reasonable disagreement,” we

will not substitute our judgment for that of the fact-finder. City of Keller v. Wilson,

168 S.W.3d 802, 822 (Tex. 2005).

We review de novo a trial court’s conclusions of law. Merry Homes, Inc. v.

Chi Hung Luu, 312 S.W.3d 938, 943 (Tex. App.—Houston [1st Dist.] 2010, no

pet.) (citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.

2002)). We uphold a conclusion of law if the judgment can be sustained on any

legal theory supported by the evidence. Id. (citing Adams v. H & H Meat Prods.,

Inc., 41 S.W.3d 762, 769 (Tex. App.—Corpus Christi 2001, no pet.).

Applicable Law and Analysis

The Texas Occupations Code provides that a car may be towed without the

consent of its owner if its requirements are met, including if a sign located on the

parking facility at the time of towing and for the preceding 24 hours, and that

remains installed at the time of towing, warns that unauthorized vehicles will be

towed. See TEX. OCC. CODE ANN. § 2308.252(a). A sign prohibiting unauthorized

vehicles must “contain[] a statement describing who may park in the parking

facility and prohibiting all others. . .” Id. § 2308.301(b)(4). Emesowum contends

that Fast Tow was required to personally notify him that his car would be towed

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and, moreover, that the warning sign in the parking lot did not meet the Occupation

Code’s requirements.

Emesowum does not contest that the parking facility had a posted warning

sign. Actual notice is not required if the sign complies with the Code. See id.

§ 2308.252(a). The sign stated: “Towing Enforced” and that “unauthorized

vehicles will be towed at owner’s or operator’s expense.” Accordingly, we reject

Emesowum’s argument that actual notice was required. The trial court heard

evidence that Emesowum left the shopping center while his car was parked in the

center’s lot and was no longer doing business in the shopping center when he left.

We hold that the trial court reasonably could have found that the towing sign met

the statutory requirement to identify who may park in the lot and to prohibit all

others, as it prohibited “unauthorized” individuals from parking in the shopping

center, and an individual was not authorized to use parking lot if they were not

visiting a business within the center. See Keller, 168 S.W.3d at 822; Merry

Homes, 312 S.W.3d at 943.

III. Civil Liability of Towing Company

In further arguing for reversal, Emesowum next cites the civil liability

statute found in Texas Occupations Code section 2308.404(c). This section

provides that “[a] towing company, booting company, or parking facility owner

who intentionally, knowingly, or recklessly violates this chapter is liable to the

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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.” TEX. OCC. CODE ANN. § 2308.404(c). Emesowum does not provide a

supporting argument explaining why this provision applies to his appellate

challenges and does not cite to the record; therefore, we hold that he has waived

this issue on appeal. See TEX. R. APP. P. 38.1(i).

IV. Jury Trial

Finally, Emesowum complains that the trial court refused his demand for a

trial by jury.

Standard of Review

We review a trial court’s denial of a party’s demand for a jury trial under an

abuse of discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d

664, 666 (Tex. 1996). When conducting an abuse of discretion review, we

examine the entire record. Id. We only find an abuse of discretion if the trial

court’s decision is “arbitrary, unreasonable, and without reference to guiding

principles.” Id.

Applicable Law

The Texas Constitution guarantees the right to a trial by jury. TEX. CONST.

art. I, § 15 (“The right of trial by jury shall remain inviolate.”); TEX. CONST. art. V,

§ 10 (“[N]o jury shall be empaneled in any civil case unless demanded by a party

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to the case, and a jury fee be paid by the party demanding a jury, for such sum, and

with such exceptions as may be prescribed by the Legislature”). “The right to jury

trial is one of our most precious rights, holding ‘a sacred place in English and

American history.’” Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex.

1997) (quoting White v. White, 196 S.W. 508, 512 (Tex. 1917)).

A request for a jury trial must be made “a reasonable time before the date set

for trial of the cause on the non-jury docket, but not less than thirty days in

advance.” TEX. R. CIV. P. 216(a). A payment of the jury fee must be made “within

the time for making a written request for a jury trial.” Id. at 216(b). The trial court

has discretion to deny a jury trial in the absence of a timely request for a jury or

payment of the applicable jury fee. Monroe v. Alternatives in Motion, 234 S.W.3d

56, 69–70 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Huddle v.

Huddle, 696 S.W.2d 895, 895 (Tex. 1985)). But a trial court should grant a jury

demand, even if untimely, if to do so would not interfere with the court’s docket,

delay the trial, or injure the other party. Id. at 70 (citing Ferguson v. DRG/Colony

N., Ltd., 764 S.W.2d 874, 881 (Tex. App.—Austin 1989, writ denied); see also

Gayle, 951 S.W.2d at 477 (“Under these particular and unusual circumstances, we

hold that the trial court abused its discretion by not granting a continuance to allow

[the party’s] jury request and fee to become timely.”). To prevail, the complaining

party bears the burden to show that the untimely demand would not interfere with

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the docket or prejudice the other side. Dawson v. Jarvis, 627 S.W.2d 444, 446–47

(Tex. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.); see also In re D.R., 177

S.W.3d 574, 579–80 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (“[The

requesting parties] have not demonstrated that a jury trial . . . would not have

interfered with the court’s docket, delayed the trial, or prejudiced the other

parties.”).

Analysis

Emesowum requested a jury trial and paid the jury fee less than two weeks

before the case was set for trial on the non-jury docket. See TEX. R. CIV. P. 216.

On April 24, the court notified the parties that the trial was set for June 2.

Emesowum did not request a jury until May 20, and he paid the jury fee two days

later. Emesowum did not move for a trial continuance. The jury demand and fee

did not become timely due to a trial reset. See Halsell v. Dehoyos, 810 S.W.2d

371, 371 (Tex. 1991) (per curiam) (holding that untimely request for jury trial

becomes timely when trial is later reset more than thirty days after request).

Emesowum also did not attempt to show that granting the request would not

interfere with the court’s docket, delay the trial, or injure the opposing parties. See

Monroe, 234 S.W.3d at 70; Dawson, 627 S.W.2d at 446–47. Because Emesowum

made an untimely jury demand and did not show that the demand would not

adversely affect the court or other parties, we hold that the trial court did not abuse

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its discretion in denying it. See Rhyne, 925 S.W.2d at 666; Monroe, 234 S.W.3d at

70.

Conclusion

We affirm the judgment of the trial court.

Jane Bland
Justice

Panel consists of Justices Jennings, Bland, and Brown.

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