IN THE
TENTH COURT OF APPEALS
No. 10-19-00424-CV
BRAZOS VALLEY ROADRUNNERS, L.P.,
Appellant
v.
IAN CICHY,
Appellee
From the County Court at Law
Brazos County, Texas
Trial Court No. 6148-B
MEMORANDUM OPINION
Brazos Valley Roadrunners, L.P. (“Roadrunners”) appeals the trial court’s ruling
that it was not authorized to tow Ian Cichy’s vehicle from the Coyote Parking Lot owned
and operated by the Dixie Chicken, Inc. (“DCI”). Specifically, in three issues,
Roadrunners contends that: (1) the trial court erred when it held that the contract
between Roadrunners and DCI does not address the facts presented; (2) the evidence is
legally insufficient; and (3) the evidence is factually insufficient. Both sufficiency issues
challenge the trial court’s finding that there was not probable cause to tow Cichy’s
vehicle. Finding no error, we affirm.
I. BACKGROUND
On the evening of May 4, 2019, Cichy parked his Toyota FJ Cruiser in the Coyote
Parking Lot owned by DCI. Cichy approached the pay area with a credit card in hand,
but soon realized that the parking lot only accepted cash as a form of payment. Because
he did not have any cash on hand, Cichy “ran inside to where I work, which is about ten
feet away from the parking lot, Shiner, and asked a coworker for $5 cash.” After receiving
$5 in cash from the coworker, Cichy “ran directly back out,” waived the $5 cash around
in view of Roadrunners’s surveillance cameras, and “turned the car alarm on so that any
potential spotters would have seen [his] car and that [he] was paying.” Cichy then
deposited the $5 cash in the appropriate slot. Cichy testified that he,
spoke to spotters and said, “I’m all good, right” to—“Y’all aren’t going to
tow me. I’m all right. You saw me pay, right?” And they confirmed that,
confirming, uh, contract law, that I had done everything I was supposed to
do not to get towed, and then I went to work and two hours later I was
towed.
Cichy had to pay Roadrunners $319.05 to retrieve his vehicle.
Pursuant to the Texas Towing and Booting Act (the “Act”), Cichy sued DCI and
Roadrunners for the removal of his vehicle without probable cause. As provided for in
the Act, Cichy requested a hearing before the Justice of the Peace Court (“JP Court”). The
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JP Court conducted the hearing, and after the hearing, it entered a judgment in Cichy’s
favor.
DCI and Roadrunners appealed the JP Court’s decision to the County Court at
Law (“County Court” or “Court”) of Brazos County, Texas. The County Court also
determined that Cichy proved his claim that Roadrunners towed his vehicle without
probable cause, and it entered a judgment in favor of Cichy as to Roadrunners for $360
and post-judgment interest at five percent. The Court also entered a take-nothing
judgment as to DCI. The Court also entered numerous findings of fact and conclusions
of law.
II. PROBABLE CAUSE IN TOWING CASES
In its second and third issues, which we will address first, Roadrunners asserts
that the evidence is legally and factually insufficient to support the trial court’s finding
that there was no probable cause to tow Cichy’s vehicle.
A. Standard of Review
When a trial court issues findings of fact and conclusions of law following a bench
trial, its findings are reviewable for legal and factual sufficiency of the evidence by the
same standards as applied in a review of the legal and factual sufficiency of the evidence
to support a jury’s finding. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); see also
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). We review the trial
court’s conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d
Brazos Valley Roadrunners, L.P. v. Cichy Page 3
789, 794 (Tex. 2002). As the reviewing court, we may review the trial court’s legal
conclusions drawn from the facts to determine their correctness. Id.
When we review a finding for legal sufficiency, we credit evidence that supports
the finding if reasonable jurors could, and disregard contrary evidence unless reasonable
jurors could not. See Kroger Tex., Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006); see
also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
In reviewing a factual-sufficiency issue, the court of appeals must consider all the
evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We may overturn
findings only if they are so against the great weight and preponderance of the evidence
as to be clearly wrong and unjust. Id.
B. Applicable Law
Under chapter 2308 of the Act, entitled “Rights of Owners and Operators of Stored
or Booted Vehicles, “a party is entitled to a hearing to challenge the towing of a vehicle
as long as the party makes a proper request for such a hearing.” See TEX. OCC. CODE ANN.
§ 2308.451-.460; see also H & H Wrecker v. Koctar, No. 14-15-00311-CV, 2016 Tex. App.
LEXIS 7182, at *2 n.2 (Tex. App.—Houston [14th Dist.] July 7, 2016, no pet.) (mem. op.).
Section 2308.452 specifically states: “The owner or operator of a vehicle that has been
removed and placed in a vehicle storage facility . . . 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 . . . .” TEX. OCC. CODE ANN. § 2308.452. The hearing takes place
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in a justice court having jurisdiction over the precinct from which the vehicle was towed.
See id. § 2308.453(a); see also H & H Wrecker, 2016 Tex. App. LEXIS 7182, at *2 n.2.
The primary issue at a hearing conducted under Chapter 2308 of the Act is whether
probable cause existed for the removal and placement of a towed vehicle. TEX. OCC. CODE
ANN. § 2308.451-.452. If the court that conducts the hearing finds there was probable
cause for the removal and storage of the vehicle, the “person who requested the hearing
shall pay the costs of the removal and storage.” Id. § 2308.451(a). Conversely, if the court
finds that no probable cause existed for the removal and storage of the vehicle, “the
towing company, vehicle storage facility, or parking facility owner or law enforcement
agency that authorized the removal shall” pay the costs of removal and storage or
reimburse the owner or operator for removal and storage costs already paid by the owner
or operator of the vehicle. Id. § 2308.451(b). At the conclusion of the hearing, the trial
court may award: (1) court costs and attorney’s fees to the prevailing party; (2) the cost
of any photographs submitted by the vehicle owner or operator who is the prevailing
party; (3) the amount that fees exceeded the permitted amount; and (4) reimbursement of
fees for towing and storage. Id. § 2308.458(e).
Section 2308.459 of the Act provides for an appeal from the justice court’s decision.
Id. § 2308.459; Manderscheid v. LAZ Parking of Tex., LLC, 506 S.W.3d 521, 527 (Tex. App.—
Houston [1st Dist.] 2015, pet. denied). Appeals from justice courts are tried de novo in
county court. See TEX. R. CIV. P. 506.3; see also Badaiki v. Miller, No. 14-17-00450-CV, 2019
Brazos Valley Roadrunners, L.P. v. Cichy Page 5
Tex. App. LEXIS 1384, at *6 (Tex. App.—Houston [14th Dist.] Feb. 26, 2019, no pet.) (mem.
op.).
C. Discussion
In the instant case, the trial court concluded that Roadrunners did not have
probable cause to tow Cichy’s vehicle because surveillance cameras showed that Cichy
paid the required parking fee prior to the time Roadrunners had his vehicle towed.
Roadrunners contends that it had probable cause to tow because Cichy left the Coyote
Parking Lot for a few minutes before returning to pay, and because the applicable rules
clearly require a person to pay before walking away from the lot.
Probable cause, in the context of a tow hearing, “exists when reasonably
trustworthy facts and circumstances within the knowledge of the officer on the scene
would lead a man of reasonable prudence to believe that the instrumentality of a crime
or evidence of a crime will be found.” See, e.g., Wilt v. City of Greenville Police Dep’t, No.
06-10-00107-CV, 2011 Tex. App. LEXIS 3257, at *5 (Tex. App.—Texarkana Apr. 29, 2011,
no pet.) (mem. op.) (citing Small v. State, 977 S.W.2d 771, 774 (Tex. App.—Fort Worth 1998,
no pet.); Senter v. City of Dallas, No. 05-05-01416-CV, 2006 Tex. App. LEXIS 9669, at *6
(Tex. App.—Dallas Nov. 8, 2006, no pet.) (mem. op.)). Probable cause “is a flexible,
common sense standard requiring only a probability of suspect activity rather than an
actual showing of such activity.” Wilt, 2011 Tex. App. LEXIS 3257, at *6 (citing Senter,
2006 Tex. App. LEXIS 9669, at *6).
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The Texarkana Court of Appeals recently addressed an almost identical set of
facts in a case that was transferred from this Court due to docket equalization. See
generally Brazos Valley Roadrunners, LLC v. Hargrove, No. 06-20-00088-CV, ___ S.W.3d ___,
2021 WL 2272932 (Tex. App.—Texarkana June 4, 2021, no pet. h.). Specifically, the
Hargrove Court noted the following:
The evidence at trial showed that Hargrove left the Lot for less than five
minutes to retrieve cash to pay the parking fee. Even assuming Hargrove’s
brief departure led to his vehicle becoming temporarily unauthorized,
Chapter 2308 only permits the towing of an unauthorized vehicle, and it is
undisputed that Hargrove returned and quickly paid the fee before finally
leaving the Lot. As a result, sufficient evidence supported the trial court’s
findings that “[a]uthorized use of the Coyote Lot . . . was conditioned solely
on reasonably prompt payment of $5,” and “Hargrove’s use of the Coyote
Lot . . . was authorized because he completed reasonably prompt payment
of $5.” Even though Hargrove’s truck was authorized to park in the Lot
after payment, Roadrunners still towed it. Based on the evidence in this
case, we conclude that the trial court’s finding that Roadrunners lacked
probable cause to tow was not so against the great weight and
preponderance of the evidence as to be clearly wrong and unjust.
Id. at *5.
Like Hargrove, Cichy left the parking lot for approximately five minutes to retrieve
cash to pay the parking fee. See id. Moreover, surveillance videos admitted at trial show
that Cichy paid the $5 parking fee about an hour before Roadrunners had his vehicle
towed. Therefore, even if we assume that Cichy was not authorized to park his vehicle
in the lot during the brief time that he left the lot to get some cash, Cichy returned and
paid the required parking fee well before Roadrunners had his vehicle towed. Cichy did
not finally leave the lot until he had paid the required fee. This evidence demonstrates
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that Cichy was authorized to park in the lot at the time Roadrunners had it towed. See
id.
Therefore, we conclude that sufficient evidence supports the trial court’s findings
that: (1) Cichy “parked in the Coyote Lot, approached the pay area with a credit card in
hand to pay, and discovered that the lot was a cash only lot. The Plaintiff then left the lot
for approximately 5 minutes to get $5 in cash”; (2) “upon reentering the lot to pay, the
Plaintiff held his money in the air and engaged the horn and lights of his vehicle to get
the spotters’ attention. He then went to the pay station and put his $5 into the appropriate
slot and left the lot”; and (3) “[a]pproximately one hour later, Brazos Valley Roadrunners,
L.P., towed the Plaintiff’s vehicle.” In other words, there is sufficient evidence to support
the finding that even though Cichy vehicle was authorized to park his vehicle in the lot
after payment, Roadrunners still towed it.1
Furthermore, based on the evidence in this case, we conclude that the trial court’s
finding that Roadrunners lacked probable cause to tow Cichy’s vehicle was not so against
the great weight and preponderance of the evidence as to be clearly wrong and unjust.
Accordingly, we hold that legally and factually sufficient evidence supported the trial
court’s finding that Roadrunners did not have probable cause to tow Cichy’s vehicle. We
overrule Roadrunners’s second and third issues.
1We limit our holding to the facts of this case and express no opinion on whether a towing company
or parking-facility owner would have probable cause to tow if a longer time elapsed between parking and
payment.
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III. THE CONTRACT BETWEEN ROADRUNNERS AND DCI
In its first issue, Roadrunners argues that the trial court erred in holding that the
contract between it and DCI does not address the facts presented. The trial court, in its
findings of fact, specifically stated that: “Brazos Valley Roadrunners, L.P. has a contract
with Defendant, Dixie [C]hicken, Inc., to enforce parking violations at a private parking
lot in College Station, TX known as the Coyote [L]ot” and “Brazos Valley Roadrunners,
L.P. maintain that they are following the rules put in place by the Dixie Chicken, Inc. The
rules are memorialized in in [sic] a written contract between the two Defendants.”
Further, in its conclusions of law, the trial court noted that: “The contract between the
Defendants does not address this type of situation.”
Nevertheless, in our analysis above, we presumed that the contract between DCI
and Roadrunners authorized Roadrunners to enforce parking violations at the Coyote
Lot.2 However, because we concluded that the evidence is sufficient to support the trial
court’s finding that Roadrunners lacked probable cause to tow Cichy’s vehicle, we
conclude that Roadrunners’s first issue is immaterial to our analysis. We overrule
Roadrunners’s first issue.
2 We note that Cichy did not challenge the adequacy of the signage at the lot in the trial court or on
appeal.
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IV. CONCLUSION
Having overruled all of Roadrunners’s issues on appeal, we affirm the judgment
of the trial court.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson,
and Justice Wright3
Affirmed
Opinion delivered and filed July 28, 2021
[CV06]
3
The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals,
sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§
74.003, 75.002, 75.003.
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