Canal Ins. Co. v. Hopkins

• Citation: 238 S.W.3d 549
• Decision Date: 24 October 2007
• Docket Number: No. 12-06-00411-CV.,12-06-00411-CV.
• Parties: CANAL INSURANCE COMPANY, Appellant v. Mark HOPKINS d/b/a Hopkins Towing and Recovery, Appellee.
• Court: Court of Appeals of Texas

238 S.W.3d 549

CANAL INSURANCE COMPANY, Appellant v. Mark HOPKINS d/b/a Hopkins Towing and Recovery, Appellee.

No. 12-06-00411-CV.

Court of Appeals of Texas, Tyler.

October 24, 2007.

J. Gene Bailey, Bedford, for Canal Insurance Company.

Tom D. Rorie, for Mark Hopkins d/b/a Hopkins Towing and Recovery.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

OPINION ON REHEARING

JAMES T. WORTHEN, Chief Justice.

Canal Insurance Company filed a motion for rehearing, which is granted. The court's opinion of June 29, 2007 is withdrawn and the following opinion is issued in its place.

Canal Insurance Company appeals the trial court's final judgment in a lawsuit brought by Mark Hopkins d/b/a Hopkins Towing and Recovery to recover towing charges incurred by Paul Mullinax, Canal's insured. Canal raises ten issues on appeal. We affirm.

BACKGROUND

On August 20, 2004, Henry Sweeney was operating a tractor-trailer rig hauling a load of peas when he lost control of the rig, which traveled off the road and into a deep ditch. The tractor-trailer struck several small trees and, eventually, rolled over onto its left side. Sweeney was the lessee and operator of the tractor, which was owned by Mullinax. Mullinax also owned the trailer. Both the tractor and trailer were insured against physical damage under an insurance policy issued by Canal. Mullinax was the named insured.

Sweeney was injured in the wreck and was removed from the tractor by emergency personnel. As Sweeney was being removed from the tractor, Trooper Jimmie Faulkner of the Texas Department of Public Safety arrived at the wreck site. After Sweeney had been removed and placed on a gurney, Trooper Faulkner approached Sweeney and briefly interviewed him. Following the interview, Sweeney was taken by ambulance to a hospital for treatment.

Trooper Faulkner ordered that a wrecker service be called in to tow the tractor and trailer. After two other wrecker services had refused the job because they "didn't have the capabilities to do it," Hopkins was called in to do the job. Because of the layout of the wreck site and the position of the tractor and trailer, Hopkins determined that they would have to use special air bags to return the trailer to an upright position. Hopkins recruited a subcontractor out of Tyler, Texas to supply the necessary air bags and operating personnel. In addition, Hopkins supplied three of his tow trucks and seven or eight employees who worked through the night, and in the rain, in order to remove the tractor and trailer from the ditch.

The tractor and trailer were initially towed to a vehicle storage facility operated by Hutto's Wrecker Service. At Mullinax's later request, Hopkins subsequently towed both to Hopkins's own vehicle storage facility. Hopkins submitted a bill of $12,690.00 to Mullinax for the work his company performed to remove the tractor and trailer and tow them to Hutto's facility, and for the work performed by the airbag subcontractor. When Mullinax failed to pay the bill, Hopkins sought payment from Canal. Because the language of the insurance policy in question did not expressly provide coverage of third parties who perform towing services, Canal refused to pay Hopkins.

Hopkins filed a lawsuit against both Mullinax and Canal. Hopkins's cause of action against Canal was based upon section 2303.156(b) of the Texas Occupations Code. See TEX. OCC.CODE ANN. § 2303.156(b) (Vernon 2004). Mullinax filed a pro se answer but did not appear at trial. Canal filed an answer and appeared at trial by way of its representative, Ron King, and through counsel. Following a bench trial, the trial court entered a final judgment against Mullinax and Canal, holding them jointly and severally liable to Hopkins for the initial towing charges of $12,690.00 plus prejudgment interest and court costs. This appeal followed.

CONSENT TO TOW

In its first issue, Canal challenges the legal and factual sufficiency of the evidence supporting the trial court's implied finding of fact that the tow in question was not performed with consent, a nonfinding.¹

Standard of Review

Section 2303.003(a) of the Occupations Code states that "[t]his chapter does not apply to a vehicle stored or parked at a vehicle storage facility with the consent of the owner of the vehicle." TEX. OCC.CODE ANN. § 2303.003(a) (Vernon 2004). As such, a defendant may raise the issue of consent as a defense to actions brought under section 2303.156(b). Cf. Brown & Root, Inc. v. Shelton, No. 12-01-00259-CV, ___ S.W.3d ___, ___, 2003 WL 21771917, at * 2 (Tex.App.-Tyler July 31, 2003, no pet.) (not yet released for publication) (construing a statute of repose as a defense to a personal injury action based on strict liability or negligence). For the purposes of our analysis here, we assume that Sweeney could give consent under section 2303.003(a).²

In this case, the issue of consent was a question of fact. See Tackett v. Terrill, 404 S.W.2d 158, 160 (Tex.Civ.App.-Eastland 1966, no writ) ("[I]t is apparent that whether the widow consented or not [to an autopsy of her late husband] was a question of fact."). Implied findings of fact may be challenged for legal and factual sufficiency. Wade v. Comm'n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex. App.-Houston [1st Dist.] 1997, no pet.). The standard of review is the same as that applied to a jury's findings or a trial court's written findings of fact. Id.

When reviewing a finding of fact for legal sufficiency, we may set aside a finding of fact only if the evidence at trial would not enable a reasonable and fair minded finder of fact to make the finding under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In making this determination, we must credit favorable evidence if a reasonable finder of fact could, and disregard contrary evidence unless a reasonable finder of fact could not. See id. The finder of fact is the sole judge of the credibility of the witnesses and the weight to be assigned to their testimony. See id. at 819. The finder of fact is free to believe one witness and disbelieve another, and reviewing courts may not impose their own opinions to the contrary. See id. Accordingly, reviewing courts must assume that the finder of fact decided all credibility questions in favor of the verdict if a reasonable person could do so. See id. If a reasonable finder of fact could have done so, we must assume that the finder of fact chose what testimony to disregard in a way that was in favor of the verdict. See id. at 820. A finder of fact "may disregard even uncontradicted and unimpeached testimony from disinterested witnesses" where reasonable. See id. at 819-20.

In addition, it is within the finder of fact's province to resolve conflicts in the evidence. See id. at 820. Consequently, we must assume that, where reasonable, the finder of fact resolved all conflicts in the evidence in a manner consistent with the verdict. See id. Where a reasonable finder of fact could resolve conflicting evidence either way, we must presume the finder of fact did so in favor of the verdict. See id. at 821. Where conflicting inferences can be drawn from the evidence, it is within the province of the finder of fact to choose which inference to draw, so long as more than one inference can reasonably be drawn. See id. Therefore, we must assume the finder of fact made all inferences in favor of the verdict if a reasonable person could do so. See id.

Regarding factual sufficiency challenges, when the party who had the burden of proof on an issue in a bench trial complains about the absence of a finding of fact by the trial court, we treat the absence of the finding as a refusal by the trial court to find the fact from a preponderance of the evidence. Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 637 (Tex.App.-Tyler 2004, no pet.) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989)). When the party who had the burden of proof on an issue asserts that the trial court's refusal to find the fact is contrary to the evidence, we must overrule the complaint unless, considering all the evidence, the refusal is so contrary to the great weight and preponderance of the evidence that it is manifestly unjust. See Ramsey v. Lucky Stores, Inc., 853 S.W.2d 623, 632 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (citing Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 649 (Tex. 1988)).

When reviewing factual sufficiency issues arising from a bench trial, we must remember that the trial court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Santa Fe Petroleum, 156 S.W.3d at 638. The trial court may take into consideration all of the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. Where enough evidence is before the trial court so that reasonable minds could differ on the meaning of the evidence, or the inferences and conclusions to be drawn from the evidence, we may not substitute our judgment for that of the trial court. Id.

Discussion

It is undisputed that Mullinax was not contacted before the initial tow was conducted. Also, it is axiomatic that Mullinax's subsequent consent to later tows does not relate back in time and render the initial tow consensual. Therefore, the only disputed question of fact before the trial court was whether Sweeney gave consent to conduct the initial tow.

Neither Sweeney nor Mullinax testified at trial. Hopkins testified that he did not speak with Sweeney before the initial tow. The only remaining possibility is that Sweeney could have consented to the tow by expressing his consent to Trooper Faulkner. The sole witness at trial regarding this possible consent was Trooper Faulkner. He testified as follows:

Q All right. And did you learn who the owner of the vehicle [that] was involved in that...