Whitten v. Vehicle Removal Corp.

• Decision Date: 10 August 2001
• Docket Number: No. 05-00-00531-CV,05-00-00531-CV
• Citation: 56 S.W.3d 293
• Parties: (Tex.App.-Dallas 2001) RUSSELL WHITTEN, Appellant v. VEHICLE REMOVAL CORP., Appellee
• Court: Texas Court of Appeals

Page 293

56 S.W.3d 293 (Tex.App.-Dallas 2001)

RUSSELL WHITTEN, Appellant v.VEHICLE REMOVAL CORP., Appellee

No. 05-00-00531-CV

Court of Appeals of Texas, Dallas

August 10, 2001

On Appeal from the County Court at LawNo. 3Dallas County, Texas Trial Court Cause No. cc-99-8429-c [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices James, Wright, and Richter

OPINION

James, Justice

After appellantRussell Whitten's car was towed from his apartment complex, he sued the towing company, appelleeVehicle Recovery Corp.(VRC).The trial court rendered a take-nothing judgment on all of Whitten's claims.In two issues, Whitten generally contends the trial court erred in ruling that his cause of action pursuant to the Texas Transportation Code is preempted by federal law.In a third issue, Whitten complains the court erred in granting VRC's motion for judgment notwithstanding the verdict on Whitten's contract claim.We affirm.

Background

While Whitten was on a trip in California, VRC towed Whitten's car from his apartment complex in Irving, Texas.VRC claimed it towed the vehicle at the direction of the apartment manager in an effort to rid the complex of illegally parked cars.Whitten's vehicle had an expired safety inspection sticker.Signs were posted on the property stating that vehicles which had invalid registration or inspection stickers would be towed at the owner's expense.

Whitten claimed his car was parked legally and was wrongfully towed without his consent.Whitten sued VRC in justice court, asserting numerous causes of action, including a claim generally alleging VRC failed to comply with chapter 684 of the Texas Transportation Code regulating certain towing practices.¹Whitten sought recovery for various alleged damages, including: compensation for losing the use of his vehicle; towing and storage charges incurred in recovering his vehicle; additional damages available pursuant to chapter 684 of the Texas Transportation Code for intentional, knowing, or reckless violations of the statute; punitive damages; and attorney's fees.VRC defaulted in the justice court and pursued a de novo trial in the county court.SeeTex. R. Civ. P. 591.

Whitten amended his petition in the county court and reasserted many of the same claims, including the chapter 684 claim, a DTPA claim, a claim for deprivation of constitutional rights under the Texas Constitution, and various common law causes of action sounding in both tort and contract.VRC filed a plea to the jurisdiction alleging all of Whitten's causes of action, except for a breach of contract claim, were preempted by federal law.The trial court granted the motion as to all of the challenged claims except for two claims alleging breach of an implied bailment agreement and recovery for money had and received.These two claims, along with the unchallenged breach of contract claim, were tried to a jury.After Whitten closed his evidence at trial, the court granted VRC's motion for directed verdict on the claims for bailment and money had and received.The trial court allowed Whitten's remaining claim for breach of contract to go to the jury on a third-party beneficiary theory.On this claim, the jury returned a verdict for Whitten in the amount of $3,500, plus $7,750 in attorney's fees.Following the verdict, the trial court granted VRC's motion for judgment not withstanding the verdict and rendered judgment that Whitten take nothing.This appeal ensued.

Preemption

In his first two issues, Whitten challenges the trial court's ruling sustaining VRC's plea to the jurisdiction that Whitten's claim pursuant to chapter 684 of the transportation code is preempted by federal law.Specifically, Whitten contends the trial court erred in determining that the regulation of non-consensual, intrastate towing of vehicles is preempted.Alternatively, Whitten contends that even if intrastate towing regulation is generally preempted by federal law, chapter 684 falls within an exception excluding state safety regulation from federal preemption.We note that nowhere in his appellate brief does Whitten complain of the dismissal of his common law tort claims DTPA action, or other claims which the trial court dismissed pursuant to VRC's plea to the jurisdiction.Nor does he complain about the trial court's directed verdict dismissing his causes of action for bailment and money had and received.Accordingly, we limit our review of the trial court's preemption ruling to the single preemption issue Whitten complains of on appeal: whether his statutory cause of action pursuant to chapter 684 of the Texas Transportation Code is preempted by federal law.We conclude that it is.

Preemption is an affirmative defense.Harrill v. A.J.'s Wrecker Serv., Inc., 27 S.W.3d 191, 194(Tex. App.-Dallas2000, pet. dism'd w.o.j.).The burden of demonstrating preemption is on the party who asserts it.Boon Ins. Agency, Inc. v. Am. Airlines, Inc., 17 S.W.3d 52, 55(Tex. App.-Austin2000, pet. denied)(citingSilkwood v. Kerr-McGee Corp., 464 U.S. 238, 255(1984)), cert. denied, 121 S. Ct. 858(2001).Most commonly, a preemption issue is resolved in the trial court through a motion for summary judgment.See, e.g., Havlen v. McDougall, 22 S.W.3d 343, 345(Tex.2000).VRC, however, raised the preemption issue in a plea to the jurisdiction.²Ordinarily, a plea to the jurisdiction is not the proper vehicle for resolving preemption issues.SeeHarrill, 27 S.W.3d at 195 n.1(noting that because plaintiff pled facts to establish a cause of action under chapter 684 of the transportation code, defendant's plea to the jurisdiction asserting preemption should not have been granted).Nonetheless, VRC contends that a plea to the jurisdiction was proper in this instance because the issue here is one of "choice of forum" preemption rather than "choice of law" preemption.SeeGorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 545-46(Tex.1991)(noting that a preemption provision which affects the choice of forum is a non-waivable jurisdictional issue while a preemption provision which affects only the choice of law is an affirmative defense that may be waived);see alsoHeci Exploration Co. v. Holloway, 862 F.2d 513, 518-22(5th Cir.1988)(analyzing ERISA choice-of-law preemption).We need not decide, however, whether VRC properly utilized a plea to the jurisdiction in this instance because Whitten did not object to the plea below, nor does he complain on appeal of any defect in the manner that the preemption issue was raised before the trial court.Therefore, any such error was waived.SeeTex. R. App. P. 33.1(a), 38.1(e);see alsoSullivan v. Bickel & Brewer, 943 S.W.2d 477, 486(Tex. App.-Dallas1995, writ denied).Accordingly, we turn to the substantive issue before us.

Whether state regulation of intrastate, non-consensual tows is preempted by federal law has received considerable judicial attention in recent years.The usual fact pattern, however, has involved an action by towing companies alleging that various municipal regulations or other practices, particularly rotational towing programs,³ are preempted by title 49, section 14501(c)(1) of the United States Code.⁴See, e.g., Tocher, 219 F.3d at 1043(tow truck operator challenged city ordinance establishing permit system and rotational towing program);Cardinal Towing & Auto Repair, Inc. v. City of Bedford, 180 F.3d 686, 689(5th Cir.1999)(tow truck operator challenged city contract awarding city towing business to single company);Ace Auto Body, 171 F.3d at 768-69(tow truck operators challenged city towing laws establishing rotational towing programs and other regulation);R. Mayer of Atlanta, Inc. v. City of Atlanta, 158 F.3d 538, 540-41(11th Cir.1998)(tow truck operators challenged city ordinances regulating towing services within city limits), cert. denied, 526 U.S. 1140(1999);see alsoFort Bend County Wrecker Assoc. v. Fort Bend County Sheriff, 39 S.W.3d 421, 424(Tex. App.-Houston[1st Dist.]2001, no pet. h.)(tow truck association challenged rotational towing program and associated rules and regulations promulgated by sheriff as illegally promulgated and unconstitutional).

Although the courts in such cases generally have determined that intrastate towing services fall within the general provision preempting state law "related to a price, route, or service of any motor carrier,"courts have also found certain aspects of state and municipal regulation to be excepted from preemption.In particular, certain rotational towing programs have been found to be excepted under the market participant exception to the preemption doctrine.⁵SeeTocher, 219 F.3d at 1049, 1052;Cardinal Towing, 180 F.3d at 691.Additionally, several courts have found state and local laws regulating towing to fall within a "safety regulation" exception provided by section 14501(c)(2)(A).⁶SeeTocher, 219 F.3d at 1051-52(finding two provisions of California Vehicle Code related to safety and therefore were not preempted);Hott v. City of San Jose, 92 F. Supp. 2d 996, 1000(N.D. Cal.2000)(finding regulation permitting revocation of permit for fraudulent business practices fell within safety exception and was not preempted);Ace Auto Body, 171 F.3d at 776(finding requirements regarding licensing, information displays, reporting, record keeping, criminal history, insurance, posting bond, and maintaining storage and repair facilities all fell within safety or financial responsibility exemptions);Harris County Wrecker Owners for Equal Opportunity v. City of Houston , 943 F. Supp. 711, 732(S.D. Tex.1996)(concluding, based on uncontroverted summary judgment evidence, that certain geographical service area restrictions were safety related);People ex rel. Renne v. Servantes103 Cal. Rptr. 2d 870, 880(Cal. Ct. App.2001)(finding following provisions of San Francisco towing ordinance all fell within safety exception and therefore were not...