Irma K. Ortega, as Next Friend of A.G.T., a Minor v. Phan-Tran Property Management, LLC, Minh Phan and Misty Tran

ACCEPTED 01-15-00676-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/16/2015 9:14:13 AM CHRISTOPHER PRINE CLERK

NO. 01-15-00676-CV ____________________________________________ FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE FIRST JUDICIAL DISTRICT 12/16/2015 9:14:13 AM HOUSTON DIVISION CHRISTOPHER A. PRINE _____________________________________________ Clerk

AMY G. TRIANA, D/B/A IRMA K. ORTEGA,

Appellant,

v.

PHAN-TRAN PROPERTY MANAGEMENT, LLC, MINH PHAN, MISTY TRAN, AND SERGIO CASTILLO,

Appellees. ______________________________________________

On Appeal from the 334th Judicial District Court Of Harris County, Texas Trial Court Cause No. 2013-74660 ______________________________________________

BRIEF OF APPELLANT, AMY G. TRIANA, B/N/F IRMA K. ORTEGA __________________

Kurt Arbuckle Texas Bar No. 01284500 Email: kurt@kurtarbuckle.com Kurt Arbuckle, P.C. 2121 Sage Road, Suite 100 Houston, Texas 77056 (713) 961-5353 (713) 961-5236 Fax Attorney for Appellant

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

The names of all parties to this appeal and their counsel are: Appellant/Plaintiff: Amy G. Triana, b/n/f Irma K. Ortega

Trial and Appellate Counsel for Appellant/Plaintiff: Kurt Arbuckle Kurt Arbuckle, P.C. 2121 Sage Road, Suite 100 Houston, Texas 77056

Appellees/Defendants: Phan-Tran Property Management, LLC, Minh Phan, and Misty Tran

Trial and Appellate Counsel for Wolfgang A. McGavran Appellees/Defendants: Haynes & Boone, LLP 1221 McKinney Street, Suite 2100 Houston, Texas 77010

i

TABLE OF CONTENTS PAGE

IDENTITY OF PARTIES AND COUNSEL ............................................................ i TABLE OF CONTENTS .......................................................................................... ii INDEX OF AUTHORITIES.................................................................................... iv STATEMENT OF THE CASE ..................................................................................1

STATEMENT REGARDING ORAL ARGUMENT ...............................................2

ISSUES PRESENTED...............................................................................................3 STATEMENT OF FACTS ........................................................................................4 SUMMARY OF THE ARGUMENT ......................................................................26 ARGUMENT ...........................................................................................................29 STANDARD FOR REVIEW ..................................................................................29 CIRCUMSTANTIAL EVIDENCE .........................................................................29

I. DURING A PERIOD WHEN THE DEFENDANT LANDLORDS CONCEDE THEY WERE ON THEIR PROPERTY SO OFTEN THEY WOULD HAVE KNOWN IF DOGS WERE KEPT THERE, ANIMAL CONTROL WAS CALLED AT LEAST 12 TIMES ABOUT AGGRESSIVE PIT BULLS HARASSING AND BITING PEOPLE. ANIMAL CONTROL DETERMINED THAT THE PIT BULLS WERE KEPT BY A TENANT ON THAT SAME PROPERTY. IS THERE CIRCUMSTANTIAL EVIDENCE THAT THE DEFENDANTS KNEW DANGEROUS DOGS WERE BEING KEPT ON THEIR PROPERTY? ......................................................................30

II. A PUBLIC NUISANCE EXISTS WHEN ACTIVITIES ON A LANDLORD’S PROPERTY ARE INJURIOUS TO THE SURROUNDING NEIGHBORHOOD. UNDER TEXAS LAW, A LANDLORD IS RESPONSIBLE FOR A PUBLIC NUISANCE ON ITS PROPERTY EVEN IF IT IS NOT SHOWN TO HAVE ACTUAL KNOWLEDGE OF THE PUBLIC

ii

NUISANCE, AND AN INDIVIDUAL WHO SUFFERS A UNIQUE INJURY BECAUSE OF THE PUBLIC NUISANCE HAS STANDING TO SUE. IS THERE AT LEAST A SCINTILLA OF EVIDENCE THAT DEFENDANT LANDLORDS ARE LIABLE FOR PLAINTIFF’S INJURIES RESULTING FROM A PUBLIC NUISANCE?..................................................................... 34

A. PUBLIC NUISANCE (DOGS) AFFECTS THE COMMUNITY ..............34

B. CONDUCT CREATING A PUBLIC NUISANCE .....................................36

CONCLUSION ........................................................................................................38 CERTIFICATE OF COMPLIANCE .......................................................................38 CERTIFICATE OF SERVICE ................................................................................39 APPENDIX ..............................................................................................................40

iii

INDEX OF AUTHORITIES

Cases Allen v. Albin, et al, 97 S.W.3d 655 (Tex. App. – Waco 2002) .............................32

Batra v. Clark, 110 S.W.3d 126, 130 (Tex. App. – Houston [1st Dist.] 2003, no writ) ................................................................................................................ 26, 30

Blount v. Bordens Inc., 910 S.W.2d 931, 933 (Tex. 1995 per curiam) ...................29

City of Garland v. White, 368 S.W.2d 12, 16 (Tex. Civ. App. – Eastland 1963), writ refused NRE ..................................................................................................37

Dodd v. State, 193 S.W.2d 569, 572 (Tex. Civ. App. – Texas – Dallas 1946) .......37

Gross vs. Houston Cmty. Newspapers, 252 S.W.3d 652, 654-655 (Tex. App. – Houston [14th Dist.] 2008, no pet.) ......................................................................29

Jamail v. Stoneledge Condominium Owners Association, 970 S.W.2d 673, 676 (Tex. App. – Austin 1998, no pet.) ................................................................ 34, 36

Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) ..............................................29 Marsan v. French, 61 Tex. 173 (1884) ....................................................................37

Merrill-Dow Pharmaceuticals, Inc. vs. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S. Ct. 1799, 140 L.Ed.2d 939 (1998) ........ 29, 33

Moore v. State, 107 Tex. 490, 181 S.W. 438, 439 (1915) .......................................37

Quanah Acme & P. Ry. Co. v. Swearingen, 45 S.W.2d 136, 139 (Tex. Civ. App. – Amarillo 1927, writ ref’d) ....................................................................................36

Soap Corp. of Am. v. Balis, 223 S.W.2d 957, 960 (Tex. Civ. App. – Fort Worth 1949), writ refused NRE .......................................................................................36

State v. Rabinowitz, 85 Kan. 841, 118 P. 1040, 1042, 39 L.R.A., N.S., 187 ..........35

iv

Stoughton v. City of Fort Worth, 277 S.W.2d 150, 153 (Tex. Civ. App. – Fort Worth 1955, no writ) ............................................................................................35

Walker v. Texas Electric Service Co., 499 S.W.2d 20, 27 (Tex. Civ. App. – Fort Worth 1973, no writ) ............................................................................................34

Statutes Restatement (Second) Torts § 821B cmt. e (1979)..................................................35

v

STATEMENT OF THE CASE

This is a personal injury case arising out of a dog attack by two pit bulls on a 12-year-old child. The case was filed on December 13, 2013, Cause No. 2013-74660 in the 334th Judicial District Court of Harris County, Texas, and presided over by the Honorable Grant Dorfman. The Defendants filed a No-Evidence Motion for Summary Judgment which the Court granted on July 9, 2015 (Appendix, Tab 1). A Notice of Appeal was filed on July 31, 2015.

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is requested. Oral argument would aid the Court’s decisionmaking process by allowing the Court to test the arguments of the parties with immediate feedback.

ISSUES PRESENTED

I. During a period when the Defendant Landlords concede they were on their property so often they would have known if dogs were kept there, animal control was called at least 12 times about aggressive pit bulls harassing and biting people. Animal control determined that the pit bulls were kept by a tenant on that same property. Is there circumstantial evidence that the Defendants knew dangerous dogs were being kept on their property?

II. A public nuisance exists when activities on a landlord’s property are injurious to the surrounding neighborhood. Under Texas law, a landlord is responsible for a public nuisance on its property even if it is not shown to have actual knowledge of the public nuisance, and an individual who suffers a unique injury because of the public nuisance has standing to sue. Is there at least a scintilla of evidence that Defendant Landlords are liable for Plaintiff’s injuries resulting from a public nuisance?

STATEMENT OF FACTS

1. Minh Phan, Misty Tran, and Phan-Tran Property Management, LLC (“Owners”) owned 10 commercial properties and 6-8 rent houses in October 2012. (CR 492, Gonzalez, 7:3-11)1 2. The Owners bought 2903 Red Bluff 4-5 years ago. (CR 561, Tran, 8:7-21)

Timeline of events begins on next page

1 The following depositions are identified in this brief and were included as summary judgment evidence (references to those depositions are to CR (Clerk’s Record) and page:line numbers): The deposition of Benilde Gonzalez, the property manager of the Owners (Gonzalez, page:line); The deposition of Minh Phan, one of the Owners (Phan, page:line); The deposition of Misty Tran, one of the Owners (Tran, page:line); The deposition, including its Exhibit “1,” of Officer Chris Sublett, the animal control officer ( Sublett, page:line); and The deposition of Amy Triana, the minor who was attacked by the dogs (Triana, page:line).

In September of 2012, the Defendants were in the middle of a six month renovation project (CR 498, Gonzalez 13:10-13:12). Both Defendants and their property manager went to the 2903 Red Bluff location “all the time” to oversee the work (CR 566, Tran 13:6-13:10). Misty Tran went two or three times per week (CR 566, Tran 13:17-13:19). Minh Phan was out there more than that (CR 567, Tran 14:9-14:12). Their property manager also went out more often than Tran and after work (CR 567, Tran 14:13-14:18). Tran concedes they were out there so often, that if dogs were being kept at 2903 Red Bluff, the Defendants and their property manager must know it (CR 568, Tran 15:8-15:12).

September 11, 2012, animal control was called about complaints of two aggressive pit bulls roaming the area. (CR 617-619, Sublett, Exhibit 1, “Bates” No. 00112- 00114).

September 12, 2012, a dog bite involving two pit bulls was reported to animal control. (CR 620-622, Sublett, Exhibit 1, “Bates” No. 00115-00117).

September 14, 2012, dogs reported to animal control. (CR 623-625, Sublett, Exhibit 1, “Bates” No. 00118-00120).

September 16, 2012, dogs reported to animal control. (CR 627-629, Sublett, Exhibit 1, “Bates” No. 00122-00124).

September 18, 2012, dogs reported to animal control. (CR 630-632, Sublett, Exhibit 1, “Bates” No. 00125-00127).

September 21, 2012, very aggressive dogs reported. (CR 633-635, Sublett, Exhibit 1, “Bates” No. 00128-00130).

September 24, 2012, animal control dispatched to area. (CR 636-638, Sublett, Exhibit 1, “Bates” No. 00131-00133).

In September and October of 2012, the Defendants were in the middle of a six month renovation project (CR 498, Gonzalez 13:10-13:12). Both Defendants and their property manager went to the 2903 Red Bluff location “all the time” to oversee the work (CR 566, Tran 13:6-13:10). Misty Tran went two or three times per week (CR 566, Tran 13:17-13:19). Minh Phan was out there more than that (CR 567, Tran 14:9-14:12). Their property manager also went out more often than Tran and after work (CR 567, Tran 14:13-14:18). Tran concedes they were out there so often, that if dogs were being kept at 2903 Red Bluff, the Defendants and their property manager must know it (CR 568, Tran 15:8-15:12).

October 5, 2012, Minh Phan and Misty Tran require Sergio Castillo to sign a lease. The lease says he is not allowed dogs. (CR 492, Gonzalez 7:15-7:24).

In October of 2012, the Defendants were in the middle of a six month renovation project (CR 498, Gonzalez 13:10-13:12). Both Defendants and their property manager went to the 2903 Red Bluff location “all the time” to oversee the work (CR 566, Tran 13:6-13:10). Misty Tran went two or three times per week (CR 566, Tran 13:17-13:19). Minh Phan was out there more than that (CR 567, Tran 14:9-14:12). Their property manager also went out more often than Tran and after work (CR 567, Tran 14:13-14:18). Tran concedes they were out there so often, that if dogs were being kept at 2903 Red Bluff, the Defendants and their property manager must know it (CR 568, Tran 15:8-15:12).

October 12, 2012, aggressive dogs reported to animal control. (CR 639-641, Sublett, Exhibit 1, “Bates” No. 00134-00136).

October 16, 2012, animal control set traps to try and catch dogs. (CR 642-644, Sublett, Exhibit 1, “Bates” No. 00137-00139).

October 18, 2012, animal control determined the pit bulls were staying at 2903 Red Bluff and identified the owner as Sergio Castillo. (CR 645-654, Sublett, Exhibit 1, “Bates” No. 00140-00149).

October 19, 2012, dogs are out running again. (CR 655-658, Sublett, Exhibit 1, “Bates” No. 00150-00153).

October 23, 2012, dogs are chasing people on bikes. (CR 659-662, Sublett, Exhibit 1, “Bates” No. 00154-00157).

October 30, 2012, Amy Triana is attacked by the pit bulls as she passes by 2903 Red Bluff. (CR 663-670, Sublett, Exhibit 1, “Bates” No. 00158-00165).

Details resume on next page

3. In the September through October 2012 timeframe, the Owners and

their property manager were at or near 2903 Red Bluff constantly to oversee renovations. (CR 530-531, Phan, 19:14 -20:15; CR 565-568, Tran, 12:10-15:24; CR 496-497, Gonzalez, 11:18-12:8)

4. The property manager, Benilde (“Beni”) Gonzalez also went to the

property twice a month as a normal practice. (CR 499, Gonzalez, 14:7-24)

5. Owners were out at 2903 Red Bluff so often that owner, Misty Tran, agrees: if dogs were kept by a tenant at 2903 Red Bluff, the Owners must know that. (CR 568, Tran, 15:8-24) She also agrees that a prudent landlord would have not allowed the two pit bulls to stay on the property. (CR 568, Tran, 15:13-24)

6. Sergio Castillo was a tenant at 2903 Red Bluff. The Owners inherited him from the prior owner when they bought 2903 Red Bluff. (CR 569, Tran, 16:6-9)

7. From at least September 11, 2012, and up through the attack on Amy Triana on October 30, 2012, two pit bull terriers terrorized the community around 2903 Red Bluff. (CR 586-588, Exhibit “1” to Sublett; the admissibility of Exhibit “1” under 803(8)(A), (B), and (C), Texas Rules of Evidence, is established by Sublett, 4:20-6:23)

8. Between September 11, 2012 and October 30, 2012, animal control

dispatched officers to the area on 12 dates: September 12, 14, 17, 19, 21, and 24, and October 12, 16, 18, 19, 23, and 30. (CR 614-690, Sublett Exhibit “1”)

9. The first person harassed by the dogs identified them as coming from 2903 Red Bluff. (CR 590-591, Sublett, 8:16-9:22)

10. Because the dogs were getting out and running around, animal control was setting traps to catch them. (CR 589-590, Sublett, 7:23-8:1)

11. On October 18, 2012, one dog got caught in a trap, but got loose. It was identified as being from 2903 Red Bluff. (CR 589-590, Sublett, 7:23-8:15)

12. Officer Sublett went to 2903 Red Bluff and talked to a tenant. (the tenant would be Leonel Garcia.) (CR 592, Sublett, 10:1-15)

13. Leonel Garcia identified Sergio Castillo as the owner of the dogs, pointing out Castillo to the officer as Castillo drove by. (CR 592, Sublett, 10:1-23)

14. Officer Sublett talked to Castillo and identified him by his driver’s license. (CR 592-593, Sublett, 10:24-11:7)

15. Castillo admitted they were his dogs. A note in the officer’s report reads, “[Castillo’s] dogs were the ones that have been running loose on Long Wood for over a month now and have bitten people and killed a cat too.” (CR 593, Sublett, 11:11-14 and CR 645, Sublett Exhibit “1”, Bates No. 00140)

16. Castillo was issued six citations. (CR 645, Sublett Exhibit “1,” Bates No. 00140)

17. Castillo was cautioned to find out how the dogs were getting out or he would continue to get citations. (CR 645, Sublett Exhibit “1,” Bates No. 00140)

18. After that, Officers were again dispatched on October 19th and 23rd, 2012 to deal with the dogs. (CR 615-690, Sublett Exhibit “1”)

19. All this happened over a time during which owner, Misty Tran, admits the Owners must know the dogs were there. (CR 568, Tran, 15:8-24)

20. On October 30, 2012, the dogs came out of the fence at 2903 Red

Bluff and confronted twelve-year-old Amy Triana walking past 2903 Red Bluff on her way to middle school. (CR 745-748, Triana, 54:19-57:17)

21. The dogs pursued Amy Triana as she tried to get away by crossing the street to get to a fire station. (CR 748, Triana, 57:18-21)

22. The dogs knocked Amy Triana to the ground and attacked her legs

and buttocks; bites severe enough to require surgery later. (CR 750, Triana, 59:8-16)

23. One of the dogs went for the girl’s throat. (CR 751, Triana, 60:5-9)

24. In a panic, she struck the dog and the two dogs ran off. (CR 751, Triana, 60:5-9)

25. Sergio Castillo had no lease agreement with the Owners for several years. (CR 568-572, Tran, 15:25-19:21)

26. Owners have produced a lease they say Mr. Castillo was required to sign. It is dated October 5, 2012, only three and a half weeks before the attack on Amy Triana. (CR 492-494, Gonzalez, 7:15-9:23) (The lease is under Tab 2 of the Appendix.)

27. Owners say the date on the lease is the date Castillo signed it, and as suspicious as that may seem, it is evidence they had control over the dogs by the lease provisions. (CR 568, Tran, 15:13-23)

28. The lease prohibits Mr. Castillo from having dogs at 2903 Red Bluff. (CR 568, Tran, 15:13-23)

29. Had the Owners chosen to enforce the lease, Mr. Castillo would have had to remove the dogs, and consequently, the Owners maintained control over that aspect of the tenancy. (CR 568, Tran, 15:13-23)

30. The Owners thought they would not be responsible, because the lease required the tenant to carry insurance. (CR 565, Tran, 12:1-12:9)

31. When Phan and Tran were notified that Plaintiff was making a claim against them, they transferred 2903 Red Bluff to Phan-Tran Property Management, LLC. (CR 561, 564, Tran, 8:23-25; 11:10-18)

SUMMARY OF THE ARGUMENT

On July 9, 2015, the Trial Court entered a judgment granting Defendants’ No-Evidence Motion for Summary Judgment. The Court did not state specific grounds for granting the motion. However, the Court handwrote the following, “See Batra v. Clark, 110 S.W.3d, 126 (Tex. App. – Houston [1st Dist.] 2003, no pet.)". The Court simply cited a case, but from the circumstances surrounding that citation, and the act of the Court writing it, we can infer that the Court considered that case to be the controlling case.

Because that case says that for a landlord to be liable for injuries caused by dangerous dogs owned by a tenant, the landlord must have actual knowledge of the dangerous propensity of the dogs and have the ability to control the premises, not only do we know from the circumstances that the Court considered that case to be controlling, but we also know that the Court must have thought the evidence did not meet that standard. From the mere citation , we have circumstantial evidence of what was in the Court’s mind.

Jurors may also use circumstantial evidence. When that circumstantial evidence could give rise to more than one reasonable inference, it is up to the jury to decide which inference to accept. Because all inferences must be found for the non-movant in a no-evidence motion for summary judgment, if an inference can be made from circumstantial evidence, the Court must find there is evidence.

In this case, the Owners/landlords of the property on which the dogs were being kept, admit they were at the premises so often that it would be impossible for them not to know the dogs were there. We know the dogs were there, because we have the deposition of the animal control officer, as well as his records, that show that the dogs were creating such a nuisance that animal control had been called out twelve times in the month and a half before the Plaintiff was attacked. There is direct evidence that the dogs were there and that the dogs were dangerous. From the landlords’ concession that they had to know if the dogs were there, the jury can infer that the landlords knew that a tenant was keeping dangerous dogs on their property.

In the middle of all the calls to animal control, there is a pause for approximately a week. During that week, the landlords required their tenant to sign a lease saying the tenant could not have dogs on the property. Shortly after that, the calls to animal control commenced again. The lease gave the landlords the power to control the presence of dogs on the property, simply by enforcing the lease. The landlords did not try to control the dogs, however, thinking the lease shielded them from any duty to do so. The reasonable inference is that the Owners insisted the dogs be locked up until they thought they could hide behind the lease.

There is direct evidence that the dangerous dogs were being kept on the property, there is direct evidence that the landlords could control the presence of *28 the dogs on the property, and the landlords’ concession they were on the property often enough they had to have known the dogs were there is circumstantial evidence of their knowledge. The elements of Batra are met.

This is not just a case of someone coming on the premises and being hurt by dogs being kept there. This is a case of dogs getting loose from the property and attacking someone walking along a public street. Therefore, this is a case of public nuisance. The Plaintiff has standing to bring a claim for her specific injuries caused by the public nuisance. A landlord has a common law duty to know enough about its property to prevent a public nuisance from emanating from that property. Because this is also a case of public nuisance, there is no requirement that the landlord know the dogs’ presence and their dangerous propensities.

ARGUMENT

STANDARD FOR REVIEW

A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Merrill-Dow Pharmaceuticals, Inc. vs. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S. Ct. 1799, 140 L.Ed.2d 939 (1998). More than a scintilla of evidence exists when reasonable and fair-minded people could differ in their conclusions. Havner, 953 S.W.2d at 711. The Court must view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. Review is de novo. Gross vs. Houston Cmty. Newspapers, 252 S.W.3d 652, 654-655 (Tex. App. – Houston [14th Dist.] 2008, no pet.).

CIRCUMSTANTIAL EVIDENCE

A fact may be established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved. Blount v. Bordens Inc., 910 S.W.2d 931, 933 (Tex. 1995 per curiam). If circumstantial evidence will support more than one reasonable inference, it is for the jury to decide which is more reasonable. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001). Because the Court must resolve all inferences in favor of the Plaintiff on a review of a no-*30 evidence summary judgment, even if more than one reasonable inference is raised by circumstantial evidence, the no-evidence summary judgment must be denied.

I. During a period when the Defendant Landlords concede they were on their property so often they would have known if dogs were kept there, animal control was called at least 12 times about aggressive pit bulls harassing and biting people. Animal control determined that the pit bulls were kept by a tenant on that same property. Is there circumstantial evidence that the Defendants knew dangerous dogs were being kept on their property?

The parties agree that the Owners had a duty to the Plaintiff to exercise ordinary care if they knew an animal’s dangerous propensities and presence on the property, and could control the premises. Batra v. Clark, 110 S.W.3d 126, 130 (Tex. App. – Houston [1st Dist.] 2003, no writ).

Both Owners, Minh Phan and Misty Tran, went out of their way in their depositions to argue that they were visiting the premises at 2903 Red Bluff almost constantly during the month of October 2012. (CR 566-568, Tran, 13:11-15:12) (13:17-19, “Myself, five times a week is a little bit too much. Maybe – maybe twice, twice or three times a week;” CR 567, 14:11-12 “He’s [Phan] probably out there more than I was, yeah;” CR 567, 14:16-18, [referring to the property manager] “Q. Again, as much as you? A. She’s probably gone out there more and after work hours.”) In addition, their property manager, Benilde Gonzalez, testified that she was going out there regularly, and visited all of their commercial properties at least twice a month. Misty Tran even testified that they were out *31 there so often, it would be impossible for Sergio Castillo to have dogs on the premises and the Owners not know it. (CR 568, Tran, 15:8-24)

According to the deposition of Officer Sublett, and the animal control records of the City of Pasadena, there is more than a scintilla of evidence that the dogs were being kept at 2903 Red Bluff by Sergio Castillo. (See the timeline in the Statement of Facts section of this brief and CR 583-670). The records show: In the month and a half before the attack on Amy Triana, animal control was called out on 12 different days. On October 18, 2012, Sergio Castillo told the animal control officer he was the owner of the dogs. When the dog escaped from a trap, it was followed back to 2903 Red Bluff. When one of the dogs harassed someone else on September 11, 2012, that person identified the dogs as coming from 2903 Red Bluff.

This evidence, with Misty Tran’s admission, provides more than a scintilla of evidence that the Owners had actual knowledge of the dogs and the dangerous propensities of the dogs. At the same time that the Owners admit to constantly being on or around 2903 Red Bluff, the dogs are constantly creating a dangerous nuisance throughout the neighborhood. Reasonable minds could infer that while the Owners were there, they must have seen the dogs were getting out, roaming the neighborhood, and causing problems. Minh Phan, admits that he knows that pit bulls can be dangerous to the public. (CR 533-534, Phan, 22:23-23:5) Misty Tran *32 agrees that a prudent landlord would take action to get those dogs off the property. (CR 568, Tran, 15:8-15:24)

The burden to produce some circumstantial evidence is not a heavy one. Allen v. Albin, et al, 97 S.W.3d 655 (Tex. App. – Waco 2002) illustrates how light that burden can be. There, suit was brought on behalf of a child injured by a dog against the owner of the dog, and the owner of a daycare provider. Referring to a conversation between the Defendants that occurred after the dog attack, the court said:

[A] jury might infer that even though the conversation between Albin and Haferckamp occurred after the attack, Albin was conveying what she already knew about the dog’s nature. A jury might infer to the contrary, though, and conclude that Albin said those things about the dog’s nature only because it had hurt the toddler. But we review the summary-judgment evidence in the light most favorable to Allen, disregarding any contrary evidence or inferences.

Id. at 664. (citations omitted).

The court had occasion to also consider circumstantial evidence regarding the negligence of the daycare provider. Referring to the daycare owner, the court said:

[A] jury might rely on her testimony as circumstantial evidence that because she had been aware of the fact that her neighbor kept a dog in the past, it is probable that she was aware of when her neighbor came into possession of the dog in question.

Id. at 670.

Here, the Defendants claim that they did not know about the dogs’ existence, yet they concede that it would be impossible for them to not know the dogs’ existence. Not only could the jury infer from the animal control records that anyone who saw the pit bulls would know they had dangerous propensities, but the jury could also infer from their denial of the dogs’ existence, that the Defendants were motivated to deny the existence of the dogs precisely because they did know of their dangerous propensities.

The Owners claim they did not know the dogs were there, but that must be disregarded in a review of a No-evidence Motion for Summary Judgment in which all inferences must be in favor of the non-movant. Their knowledge of the dogs and the dogs’ vicious nature is fairly and reasonably inferred by the Owners’ continuous presence of 2903 Red Bluff and the admission they would have had to have knowledge of the dogs. Havner, 953 S.W.2d at 711. There is more than a scintilla of evidence, which is all that is required, that the Owners knew the dogs were being kept on their property, they knew the dangerous propensities of the dogs, and that the lease they had with Sergio Castillo gave them the authority to enforce having the dogs removed from the property. (The lease is under Tab 2 of the Appendix.) They did not exercise that control or even require the dogs to be securely confined, and that is evidence of their negligence. Misty Tran has indicated *34 they thought the lease requirement that the tenant carry insurance meant the Owners would not be responsible and did not need insurance. (CR 565, Tran, 12:1-12:9)

II. A public nuisance exists when activities on a landlord’s property are injurious to the surrounding neighborhood. Under Texas law, a landlord is responsible for a public nuisance on its property even if it is not shown to have actual knowledge of the public nuisance, and an individual who suffers a unique injury because of the public nuisance has standing to sue. Is there at least a scintilla of evidence that Defendant Landlords are liable for Plaintiff’s injuries resulting from a public nuisance?

A. PUBLIC NUISANCE (DOGS) AFFECTS THE COMMUNITY

Amy Triana, besides her cause of action for negligence, has brought a cause of action for public nuisance. A public nuisance differs from a private nuisance. A private nuisance occurs when someone creates a condition that interferes with another person’s use and enjoyment of real property. A public nuisance comes about when the defendant’s conduct is a significant interference with the public’s safety or health, and the conduct adversely affects all or a considerable part of the community. Jamail v. Stoneledge Condominium Owners Association, 970 S.W.2d 673, 676 (Tex. App. – Austin 1998, no pet.); Walker v. Texas Electric Service Co., 499 S.W.2d 20, 27 (Tex. Civ. App. – Fort Worth 1973, no writ). So if a chemical plant dumps waste on an adjacent landowner’s property, that is a private nuisance. If a chemical company dumps waste into a river that contaminates a public beach *35 downstream, that is a public nuisance. See Restatement (Second) Torts § 821B cmt. e (1979).

While cases talk of a public nuisance affecting the community that is merely to differentiate from private nuisance and does not mean literally the whole entire community. A house of prostitution – clearly a public nuisance in Texas – does not cease to be a public nuisance just because not everyone goes there. The Ft. Worth Court of Appeals has said:

A public nuisance exists wherever acts or conditions are subversive of public order, or constitute an obstruction of public rights. 20 R.C.L., p. 384, Sec. 7.

For a nuisance to be a public one, it need not affect the whole community; but it is public if injury or annoyance affect the people of some local neighborhood, or are occasioned to such part of the public as come in contact with it. 39 Am.Jur., p. 288, Sec. 10.

Stoughton v. City of Fort Worth, 277 S.W.2d 150, 153 (Tex. Civ. App. – Fort Worth 1955, no writ).

A nuisance is public if it – as in this case – affects a street that pedestrians, such as Plaintiff, may walk along. Again, the Fort Worth Court of Appeals said in an even earlier case:

One of the cases cited by appellant under 46 C.J., p. 646, being the State v. Rabinowitz, 85 Kan. 841, 118 P. 1040, 1042, 39 L.R.A., N.S., 187, gives, we think, a correct definition of a public nuisance, as follows: "A nuisance is public if it affects a community at large, or if it affects a place where the public have a right to and do go, such as a park, street, or alley, and which nuisance necessarily annoys, offends, or injures those who come within the scope of its influence."

Soap Corp. of Am. v. Balis, 223 S.W.2d 957, 960 (Tex. Civ. App. – Fort Worth 1949), writ refused NRE.

A private citizen has standing to bring a claim for public nuisance if they suffered an injury different from the public . Jamail, 970 S.W.2d at 676; Quanah Acme & P. Ry. Co. v. Swearingen, 45 S.W.2d 136, 139 (Tex. Civ. App. – Amarillo 1927, writ ref’d). Amy Triana qualifies, because she was specifically attacked by the dogs. While other people in the community had to protect themselves and their property by avoiding the dogs – some less successfully than others – Amy Triana was actually savagely attacked by both dogs acting as a pack. While the City of Pasadena, Texas could have sued to abate the nuisance to protect the public from the dogs, Amy Triana can sue, because she was actually injured by the nuisance.

B. CONDUCT CREATING A PUBLIC NUISANCE

As argued above, there is more than a scintilla of evidence that the Owners knew the dogs were on the premises. There is more than a scintilla of evidence that the Owners knew of the dangerous propensities of the dogs being kept on the premises. The animal control records show there is more than a scintilla of evidence that the Owners knew that the dogs could get out from the premises. And there is more than a scintilla of evidence that the Owners could control the presence of the dogs on the premises by simply enforcing the lease. There is more *37 than a scintilla of evidence that the Owners allowed a public nuisance at 2903 Red Bluff.

A vicious dog roaming at large is a public nuisance. Cf. City of Garland v. White, 368 S.W.2d 12, 16 (Tex. Civ. App. – Eastland 1963), writ refused NRE. It has been the law in the State of Texas for over 130 years that an owner of property is liable for a public nuisance even if the owner did not know that a nuisance was being maintained on its property. See Marsan v. French, 61 Tex. 173 (1884), (A court’s charge requiring knowledge by a landlord that prostitution was occurring on his property was more favorable to the landlord than “should be applied in civil cases.”); see also Moore v. State, 107 Tex. 490, 181 S.W. 438, 439 (1915) (Approving Marsan v. French and stating, “The owner of premises is under a primary obligation to keep his premises from becoming a public nuisance. It is a common-law duty. Joyce on Nuisances, Section 453. It is frequently announced as a general rule that an owner is not liable for a nuisance created by his tenant of which he has no knowledge. But upon examination, it would be found that this is a doctrine applied to private nuisances. And it may be doubted whether it is to be accepted without qualification in relation to merely private nuisances.”); Dodd v. State, 193 S.W.2d 569, 572 (Tex. Civ. App. – Texas – Dallas 1946) (The owner of a house . . . may be enjoined from maintaining a public nuisance, although he had no knowledge of the illegal use to which his premises were being devoted.”) There *38 is more than a scintilla of evidence that a public nuisance emanated from 2903 Red Bluff. By allowing that public nuisance to continue, the Owners became liable for Triana’s special injuries even if they had managed to keep themselves ignorant of what was going on.

CONCLUSION

Appellant/Plaintiff requests the No-Evidence Summary Judgment be reversed and the case remanded for trial. Appellant/Plaintiff seeks such further relief to which she may be justly entitled.

Respectfully submitted,

KURT ARBUCKLE, P.C.

By:_/S/ Kurt Arbuckle________________ KURT ARBUCKLE Texas Bar No. 01284500 Email: kurt@kurtarbuckle.com 2121 Sage Road, Suite 100 Houston, Texas 77056 713 961-5353 713 961-5236 Fax ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE

The number of words in this brief, according to Microsoft Word 2007 is 5,695.

/S/ Kurt Arbuckle___________________ KURT ARBUCKLE

CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b),(d),(e), I certify I have served this document on all other parties – which are listed below – on the 16th day of December 2015:

Wolf A. McGavran Haynes & Boone, LLP 1221 McKinney Street, Suite 2100 Houston TX 77010 Attorney for Appellee

/S/ Kurt Arbuckle______________________ KURT ARBUCKLE

APPENDIX

Tab Pages

1 Order Granting Defendants’ No-Evidence Motion for Summary Judgment entered on July 9, 2015 2

2 Commercial Lease Agreement between Phan-Tran Property Management and Sergio Castillo dated October 5, 2012 6

NO. 01-15-00676-CV

IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT HOUSTON DIVISION

AMY G. TRIANA, D/B/A IRMA K. ORTEGA,

Appellant,

v.

PHAN-TRAN PROPERTY MANAGEl\1ENT, LLC, MINH PHAN, MISTY TRAN, AND SERGIO CASTILLO,

Appellees.

On Appeal from the 334th Judicial District Court Of Harris County, Texas Trial Court Cause No. 2013-7 4660

TAB 1 TO APPENDIX OF APPELLANT'S BRIEF

4/20/2015 3:20:22 PM Chris Daniel • District Clerk Harris· County Envelope No; 4956472 . By: JIMENEZ, DANIELLE N Flied: 4/20/2015 3:20:22 PM

AMY G. TRlANA, B/N/F, IRMAK. ORTEGA, CAUSE NO. 2013-74660

§ § IN THE DlSTRICf COURT OF 4>\ Plaintiff, § § § vs. § HARRIS COUNTY, TEXAS § PHAN-TRAN PROPERTY § MANAGEMENT, LLC, MINH PHAN, § MISTY TRAN, AND SERGIO CASTILLO, § Defendants. § 334TH JUDICIAL DISTRICT

ORDER GRANTING DEFENDANTS PHAN TRAN-PROPERTY MANAGEMENT, LLC'S, MINH PHAN'S, AND MISTY TRAN'S NO..EVIDENCE MOTION FOR SUMMMARY JUDGMENT , ~ On this day, the Court considered Defendants Phan-Tran Property Management, LLC's,

Minh ~Pban•s ... l and Misty"""Tran's \ No-Evidence Motion for Sununary Judgment (the ''Motion").

After reviewing the Motion, responses and replies thereto, summary judgment evidence, and

hearing argument from counsel, if any, the Court finds that the Motion should be GRANTED. ~< tJ~ .!1- ~L I/o .(1,.1 14 IZ.' (~.At~-~_,..,... [:J,n 1Ait:] t..3 lt4 411-.). IT IS THEREFORE ORDERED THAT the Motion is hereby granted. 'I I:/

IT IS FURTHER ORDERED THAT Plaintiff Amy G. Triana, BINIF lnna K. Ortega, TAKE NOTIIING by way of her claims against Defendants Phan-Tran Property Management, LLC, Minh Phan, and Misty Tran.

IT IS THEREFORE FURTHER ORDERED THAT the claims of Plaintiff Amy G. Triana, BINIF Irma K.. Ortega, against Defendants Phan-Tran Property Management, LLC, Minh Phan, and Misty Tran are hereby dismissed in their entirety with prejudice.

SO ORDERED on this'<& day of fV!J , 2015.

~-

NO. 01-15-00676-CV

IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT HOUSTON DIVISION

AMY G. TRlANA, D/B/A IRMA K. ORTEGA,

Appellant,

v.

PHAN-TRAN PROPERTY MANAGEMENT, LLC, MINH PHAN, MISTY TRAN, AND SERGIO CASTILLO,

Appellees.

On Appeal from the 334 th Judicial District Court Of Harris County, Texas Trial Court Cause No. 2013-74660

TAB2TO APPENDIX OF APPELLANT'S BRIEF

EXH!B!T A

COMMERCIAL LEASE AGREEMENT

This Commerdat Lease Agreement (NLease·) is made and effective October 05.2012 [Date). by and between PHAN·TRAN PROPERTY MANGEMENT [Landlord] (L.andlordj and SERGIO CASTILLO (Tenant] ("Tenantj.

Landlord is the O\Wlet of land and improvements commonly known and numbered as 2903 RED BLUFF PASADE~A. TX. 77502 [Address of Building} and legally described as follows.(the ..BuHding1:

~¥ = [legal Desaiptionof ~~~ .

landlord makes avaiJable for lease a portion of 1he Building designated as N/A or Other Number of Leased Building] (the "Leased Premises'").

Landlord desires to lease the Leased Premises to Tenant, and Tenant desires to lease the Leased Premises from Landlord for the term~ at the rental and upon the covenants, conditions and provisions herein set forth.

THEREFORE, in consideration of the mutual promises herein, contained and other good and valuable consider~tion, it is agreed:

.. C: 1. Tenn~ ... rL··~ ~ V ~ Landlfird hereby leases the Leased Premises to Tenant. and Tenant hereby leases the same from Landlord. for an ..Initial Tenn"' beginning 1010512012 [Start Date] and ending 1013112017 [End Dato). Landlord shall use its best efforts to give Tenant possession as neariy as possible at the beginning of the Lease lenn. If Landlord is unable tc timely provide the Leased Premi~s, rent shall abate for the period of d~ay. Tenant shall make rto other claim against landlord fer any such delay.

B. Tenant may renew the Lease for one extended term of (will discuss 30 days prior to end date) [Renewal Term]. Tenant shall exercise such renevvat option, if at aJI: by giving 'Mitten notice to Landlord not less than ninety (90) days prior to the expiration of the Initial Term. The renewal tenn shall be at the rental set forth below and otherwise upon the same covenants, conditions and proYisioos as provided in this Lease.

2. Rental..

Tenant shall pay to Landlord during the Initial Term rental of $7200.00 [Annual Rent] per year, payabfe in · 1St.a11ments of $600.00 (Moothiy RentaJ Amount) per month. Each instaRment payment shall be due in advance on the flrs1 day of each calendar month during the lease term to Landlord at 123 W. Southmore Ave Pasadena. TX. ns02 [landlord's Designated Payment 1\ddress] or at such other place designated by written notice from Landlord ot Tenant. The rental payment amount for any partial calendar months induded in the lease term shall be prorated on a daily basis. Tenant shalf also pay to Landlord a "Security Deposif' in the amount of $600.00 [Seo.trity Deposit).

B. The rental for any renewal lease term, if created as permitted under this Le~ shall be NOT AVAILABLE AT THIS MOMENT {Annual Rent in Renewal Term) per year payable in insCallments of NOT AVAILABLE AT THIS MOMENT [Monthly Rental Amount] per month.

~ &.3. Use Notwithstanding the forgoing, Tenant shall not use the Leased Premises for the purposes of stodng. " manufacturing or selling any explosives, flammables or other inhetentJy dangerous substance. chemical, thiJ!Q or device.

Page 1 of 6

:"''XHI~IT t: ... 0 ht'\

4. Sublease and Assignment.

Tenant shalt have the t1ght withoot Landlord's consent. to assign this Lease to a c:aporation with which Tenant may merge or consolidate, to any subsidiaty ofTenant. to any COtporation under common contrd with Tenant or to a purchaser of substantially aU of Tenanrs assets. ExceJJt as set forth abr.we, Tenant shall not sublease all or any part of the Leased Premises, or assign this Leese in whole or in part wi1hout LandJord·s conGent. such consent not to be unreasonably withheld or deiayed.

y L... / ......- 5. Repaiis. A- /r--J'=-· ·' During the Lease term. Tenant shall make. at Tenant's expense, all necessary repan to the Leased Premises. Repajrs shall indude such items as routine repairs of floors, walls, ceilings. and other parts of the Leased Prenrises cUimaged or \\Om through norma occupancy. except for major mechatlicat systems or the roof. subject to the obligations of the parties otheMtse set forth in this Lease.

6. Alterations and Improvements.

~Tenant. at Tenanfs expense, shall have the rtght fotlowing Landlord's consent to remodel. redecorate. and make addjtfons, improvements and replacements of and to an or any part of the Leased Premises from time to time as Tenant may deem desirable, provided the same are made in a workmanUke manner and utilizing good quality materias. Tenant shall have the right to ~ace and lnstaU personal property, trade fixtures, equipment and other temporary installations in and upon the Leased Premises. and fasten the same to the premises. All personal property, equipment, machinety. trade f.xtures and temporary Installations. whether acquired by Tenam at the commertCEment of the lease term or placed or instaJied on the leased Premises by Tenant thereafter, shall remain Tenant's property freG and dear of any dalm by Landlord. Tenant shall have the right to rem011e the same al any time during the term of this Lease provided that all damage to the Leased Premises caused by such removal shall be repaired by Tenant at Tenant's expense.

. 7. Property Taxes. }{.~A~ ~ landlord shall pay, prior to deUnquency. aU general real es1ate taxes and installments of special assessments coming due during the Lease tenn on the Leased Premises, and all personal property taxes with respect to landtord•s personal property. if arry, on the Leased Premises. Tenant shafl be responsible for paying all personal property taxes with respect to Tenanfs personal property at the Leased Premises.

8. Insurance. ~A. If the Leased F'!emiscs or any oU1t1r party of the Buiding is damaged by Ore or other casually resuiUng from any act or negligence of Tenant or aflt/ of Tenant's agents: empfoyees or invitees. rent shall not be diminished or a bated while such damages are under repair, and Tenant shall be responsible for the costs of repaJr not oovered by insurance.

B. Landlord shaD maintain fire and extended coverage insurance on the Building and the Leased Premises in such amounts as Landlord shall deem appropriate. Tenant shall be responsible. at Its expense. for fire and extended coverage insurance on all of its personal property. induding removable trade fixtures. located in the Leased Premises.

C. Tenant and Landlord shall, each at its own expense. maintain a ~icy or polides of comprehensive general llabtity insurance with respect to the respective adivilies of each in the Building "With the premiums thereon Mly paid on or before due date, issued by and binding upon some insurance company approved by Landlord, such insurance to afford minimum J)fotection of not less than S1.000,000 combined single limit COYernge of bodily injury, property damage or Ctlmbination thereof. Landlord shall be listed as an additional insure<! on Tenant's policy or policies of comprehensive general llabillty insurance. aoo Tenant shall provide Landlord tMth cunent Certificates of Insurance evidencing Tenant's compliance w1th this Paragraph. Tenant shalt obtain the agreement of Tenanfs insurers to notify Landlord that a policy lS due to expire at least (10) days prior to suets expiration. Landlord shall not be required to maintain instJrance against thefts within the Leased Premises f7 the &Jilding.

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EXH~BIT A

9. Utilities.

Tenant shall pay afl charges for water. sewer, gas. efectricity, telephone and other services an<.l utilities used by Tenant on the Leased Premeses during the term of this Lease unless otherwise expressly agreed in writing by landlord. lo the event that any utility or sertioe provided to the leased Premises is not separatety mateted, Landlord shall pay the amount due and separatefy itWoice Tenant for Tenanrs pro rata share of the charges. Tenant shall pay such amoun1s within fifteen (15) days of invoice. Tenant acknowledges that the Leased Premises are designed to provide standard office use etectrics facilities and standard office lighting. Tenant shall not use any equipment or devices that utilize excessive eledrical energy Ot which may, it: Landlord's reasofl8ble opinion. overload the wiring or interfefe with eJectrical services to other tenants.

,... ~(. 10. Signs.

·~FoRewing Landlord's consent, Tenant shall have the right to place on the Leased Premises. allocations seleded by Tenant, any signs which are permitted by app41cable zoning ordinances and private restrictions. Landlord may ref use consent to any proposed slgnage that as In Landlord's opinion too large. deceptive. unaUractive or otherwise inconsistent with or Inappropriate to the leased Premises or use of any other tenant Landloni shall assist and cooperate with Tenant in obtaining any necessary pemaission from govemmentaf authorities or adjoining ov-ners and occupants for Tenant to ~ace or construd the foregoing signs. Tenant shall repair ail damage to the Leased Premises resulting from the removaJ of signs ins1alled by Tenant.

_11. Entry• . /'#(, ., t.~ to enter upon the Leased Premises at reasonable hoors to inspect the same. Landlord shall have the rigtlt ~ provided Landlord shaU not thereby unreasonably Interfere with Tenant's business on the Leased Premises.

12. Parking.

~Duri~ lhe tenn of this Lease. Tenant shall have the nOIH!XCiusive use in common wllh Landlord. other tenants - of lhe BuDding, their guests and invitees, of the non-reserved common automobile par10ng areas. driveways. and footway s, subject to rules and regulations for the use thereof as presaibed from time to time by Land1ord. Landlord reserves the right to designate parking areas within the Building or in reasonable proximity thereto.. for Tenant and Tenant's agents and employees. Tenant shall provide landlord with a Jist of all license numbers f« the cars owned by Tenant. its agents and employees. Separated saructured parking. if any. located about the Building is reserved for tenants of the Building 'Aflo rent such parking spaces. Tenant hereby leases from Landlord N/A [Number of Parking Spacesl spaces In such structural parking area. such spaces to be on a first come-first served basis. In consideration of the leasing to Tenant of such spaces. Tenant shall pay a monthly rental of NIA [Parking Space Ren1al] pet space throughout the term of tne Lease. Such rental shall be due and oayabJe each month without demand at the time heein set for the payment of oUler monthly rentals. In addiUon to such other rentals.

13. Building Rules. .. . '- -~ Tenant will oomply v.tth the rules or the 8uild[ng adopted and altered by Landlord from time to time and v.ill cause all of its agents, employees, invitees and visitors to do so: all changes to such rules w;u be sent by Landlord to Tenant in writing. The initial rules for the Building are attached hereto as Exhibit ..A' and incorporated herein for all purposes. Tenant does not have permission to have pets within the leasing space Indoor or outdoor. This appUes to guard dogs or any ty~ of animal whidl may hold hann to clients. guests or visitors when coming and leaving of the teased premise. If teoant does not comply by this rule and retain an animal without owner's knowledge- owner is held hannless to an legal issues which may arise due to tenant non compliance of rules.

14. Damage and Destruction. c ubject to Section 8 A. above. If the Leased Premises or any part thereof or any appvrtenanoe thereto is so • amaged by fire. casualty or structural defects lhat the same cannot be used for Tenanfs purposes. then

Page 3of6

E.XH~BIT A

Tooant shall have the light within ninety (90) days following damage to eJect by notice to Landlord to lemllnate this Lease as of the date of sud1 damage. In the event of minor damage to any part of the leased Premfses. and if such damage does not render the Leased Premises unusable for Tenant's purposes. Landlord shaJI prompdy repair such damage at the cost of Ule Landlord. In making the repairs c&Uecl for in this paragraph. Landlord shall not be liable for any delays resulting from strikes. governmental restrictions, inabitity to obtain necessary materials or labor or other matters which are beyond the reasonabJe ccntrd of Landlord. Tonant shatl be relie\red rrcm paying reot and other charges during any portion of the Lease term mat the leased Premises are inoperable or unfit for occupancy, or use, in whole or in part, tor Tenant's purposes. Rentals and other charges paid in advance for any such periods shall be credited on the next ensuing payments. if any. but if no further payments are to be made, any such advance payments shall be refunded to Tenant. The provisions of this paragraph extend not only to the matters aforesaid, but also to any occurrence which is beyond Tenant's reasonable con1rot and which renders' the Leased Premises, or any appurtenance thereto, inof)efabfe or unfit for oco.Jpancy or use. in whole or in part. f<lr Tenant's purposes.

·,~ .sJ!!;:.. 15. Default ~ If default snatl at any tJme be made by Tenant in the payment of rent when due to Landlord as herein provided, and if said defaull shaJI continue for fifteen (15) days after wriHen notk:e thereof shan have been given to Tenant or by Landlord. or if default shall be made in any the olher covenants or conditions to be kept. observed and perfom1ed by Tenant and 5\Jch default shall continue for thirty (30) days after notice 1hereof in writing to Tenant by LandJotd v.tthoot correction thereof then having been commenced and thereafter diftgently proseculed, landlord may declare the term of this Lease ended and tenninated by giving Tenant written notice of such intentioo. aoo if possession of the Leased Premises is not surrendered. landlord may reenter said premises. Laodiord shall have, in addition to the remedy above provided. any other right or remedy available to Landlord on account of any Tenant default, either in law or equity. Landlon:i shall use reasonable efforts to mitigate Its damages.

c., 16. Quiet Possession. · 1 ¥.:, ~~ ~ Landlord covenants and warrants that upon performance by Tenant of its obligations hereunder, Landlord wHI keep and maintain Tenant in exdusive. quiet, peaceable aod undisturbed and uninterrupted possession of the Leased Premises during the term of this Lease.

17. Condemnation. ~'~b~ -~ If any legally, constituted authority condemns the BuDding or such part thereof which shall make the Leased Premises unsuitabfe for leasing. this Luase ~hall cease when the public autttori1y takes possession, and landlord and Ten ant shall account for rental as of that date. Such termination shaD be without prejudice to the rights of either party to recover compensation from the condemning authority for any toss or damage caused by the condemnation. Neither party stlall have any rights in or to any award made to the oUler by the condemning authority.

" C 18. Subordination. Tenant accepts this Lease subiect and subordinate to any mortgager deed of trust or other lien presently existing ot hereafter arising upon the Leased Premises. or upon the Building and to any rene\wJs, refinancing and extensions thereof. but Tenant agrees that any such mortgagee shaft have the right at any time to subordinate such mortgage. deed of trust or other lien to this Lease on such terms and subject to such conditions as such mortgagee may deem appropriate in its discmtiort. Landlord is hereby irrevocably vested with full power and aulhotity to subordinate this Lease to any mortgage~ deed of trust Of other lien now existing or hereafter placed upon the Leased Premises of the Building, and Tenant agrees upon demand to execute such further Instruments subordinating this Lease or attornlng to the holder of any such liens as Landlord may request. In the event that Tenant shouJr;J faa ro exeo.Jte any instrument of subordination herein required to be executed by Tenant promp1fy as requested, Tenant ~etaby irrevoc~y constitutes Landlord as its aUomey-in- fact to execute such instrument in Tenant~$ name, pace and stead. it being agreed that such power is one coupled with an interest. Tenant agrees that it wtU from limo to time upon request by Landlord execute and deliver to such persons as Landlord shall request a statement In recordable fonn certifying that this Lease is

Page 4 of6

EXHiBiT A

unmodified and in futl force and effect {or if there have been modifc:ations. that the same Is in fuJI force and effect as so modified). stating the dates to which rent and other charges payable under this Lease have been paid, stating that landlord is not in default hereunder (cr if Tenant arteges a default stating the nature of such alleged default) and further stating such other matters as Landlord shaJI reasonably require.

r c ..__ V:(:.. 19. Security Deposit. ~) ~ ~ The Security Deposit shall be held by Landlord without liability for Interest and as security for the performance by Tenant of Tenant's covenants and o~igations under this Lease, It betng expressly understood that the Security Deposit shall not be considered an advance payment d rental or a measure of Landlord's damages in case of default by Tenant. Unless otherwise provided by mandatory non..waivable law or regulation, Landlord may commingfe the Security Deposit with Landlord's other funds. landlord may, from time to tim~ 'Nithclut prejudice to any other remedy, use the Secur;ty Deposit to the extent necessary to make good any arresrages of rent or to satisly any other covenant 01 obligation of Tenant hereunder. Following any sud1 application of the Security Deposit, Tenant shall pay to Landlord on demand the amount so applied in order to restore the Security Deposit to its original amount. tf Tenar1t is not in default at the tennlnation of this Lease, the balance of the Security Deposit remaining after any such appJicaUon shall be returned by Landlord to Tenant. If landlord transfers i1s interest in the Premises during the teml of this Lease. Landlord may assign the Security Deposit to the transferee and thereafter ShaJI have no further liability for the return of such Security Deposit

Any ootice required or permitted under this Lease shall be deemed St.JfficientJy given or setVed If sent by United States certified maB. return receipt requestedy addressed as follows:

If to Landlord to: If to T(Nlant to:

PHAN-TRAN PROPERTY MANAGEMENT Sergio Castmo [landlord] [Tenant) 123W. Southmore Ave 2903 Red Stuff Pasadena. TX. 77502 Pasadena, TX. 77506 (landlord's Address] [Tenant's Address}

landlord and Tenant shall eacfl have the right from time to time to change the place notice is to be given under this paragraph by 'Mitten notice thereof to the other party.

. j,C) c.21. Brokers. ~enant represents that Tenant was not shown Ihe Premises by any teal estate broker or agent and that Tenant has not otherv.ise engaged in, any activity which could fonn the basis for a daim for real estate commission. brokerage fee, finder's fee or other similar charge. in connection wtth this Lease.

22. Waiver. _.., j/)(_, ~:,---No waiver of any default of Landlord or Tenant hereunder shall be implied from any omission to take any action on account of such default if suCh default persists or Is repeated, Bfld no express waiver shall affect any default other than the default specified ln the axpres$ waiver and that only for the time and to the extent therein stated. One or more waivers by landlord or Tenant shall not be construed as a waiver of a subsequent breach of the same covenant. tenn or condition.

I.. 23. Memorandum of Lease. ,. l:.:'c-.. . ~ The partJ~ hereto contemplate that thts Lease should not and shalt not be filed for record, but In lieu thereof. at lhe request of either party. Landlord and Tenant shall execute a Memorandum of Lease to be recorded for the purpose of givE1\g record notice of the apDroPriate provisions of this Lease.

24. Headings.

·~ Page5of6

EXHIBiT A

The headings used in this Lease are for convenience of the parties only and shalf not be considered in interpreting the meaning of any provision of this Lease.

,- . ~1.(..-~5. Successors. -~ The .erevJ2ions at this lease shall extet1d to and be binding upon landlord and Tenant and their respective legal represerrtatives, successors and assigns.

26. Consent.

~Landlord shall not unreasonably withhold or delay its consent with respect to any matter for which Landlord's consent is required or desirable under this Lease.

27. Performance.

~there Is a default With respect to any of Landlord's covenants, warranties or representauons under this Lease. and if the default continues more than fifteen (15) days after notice in \NI'iting from Tenant to landlord specifying the default. Tenant may, at its option and without affecting any other remedy hereunder, cure such default and dedud the cost thereof from the next accruing Installment or installments of rent payable hereunder until Tenant shall have been fulty reimbursed for such expenditures. together with interest thereon at a rate equal to the fesser of twelve percent (12%} per annum or the then highest lawful rate. If this Lease terminates prtor to Tenant's receiving full reimbursement. Landlord shalf pay the unreimbursed balance ptus accrued interest to Tenant on demand.

28. Compliance with Law.

~enant shall oomply With all laws, orders, ordinances and other pu!Jiic requirements now or hereafter pertaining to Tenant's use of the Leased Premises. Landlord shall comply with all laws, orders. ordinances and other public requirements now or hereafter affecting the Leased Premises.

29. Final Agreement

~is Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.

30. Governing Law .

. A E_~s Agreement shall be governed, construed and Interpreted by, through and under the Laws of the State of ~ Texas.

(land

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