                                                                             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.




                                                                                     1
              STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is requested. Oral argument would aid the Court’s decision-

making process by allowing the Court to test the arguments of the parties with

immediate feedback.




                                                                                  2
                             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?




                                                                                      3
                                      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).


                                                                                                                    4
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).




                                                                                 5
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).




                                                                               6
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).




                                                                                7
September 14, 2012, dogs reported to animal control. (CR 623-625, Sublett,
Exhibit 1, “Bates” No. 00118-00120).




                                                                             8
September 16, 2012, dogs reported to animal control. (CR 627-629, Sublett,
Exhibit 1, “Bates” No. 00122-00124).




                                                                             9
September 18, 2012, dogs reported to animal control. (CR 630-632, Sublett,
Exhibit 1, “Bates” No. 00125-00127).




                                                                             10
September 21, 2012, very aggressive dogs reported. (CR 633-635, Sublett, Exhibit
1, “Bates” No. 00128-00130).




                                                                              11
September 24, 2012, animal control dispatched to area. (CR 636-638, Sublett,
Exhibit 1, “Bates” No. 00131-00133).




                                                                               12
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).




                                                                             13
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).




                                                                                14
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).




                                                                               15
October 12, 2012, aggressive dogs reported to animal control. (CR 639-641,
Sublett, Exhibit 1, “Bates” No. 00134-00136).




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




                                                                                 17
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).




                                                                                18
October 19, 2012, dogs are out running again. (CR 655-658, Sublett, Exhibit 1,
“Bates” No. 00150-00153).




                                                                                 19
October 23, 2012, dogs are chasing people on bikes. (CR 659-662, Sublett,
Exhibit 1, “Bates” No. 00154-00157).




                                                                            20
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




                                                                                  21
      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)




                                                                                  22
      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)




                                                                                     23
      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)




                                                                                    24
      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)




                                                                                       25
                       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.



                                                                                     26
      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



                                                                                      27
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.




                                                                                    28
                                   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-




                                                                                   29
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

                                                                                    30
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



                                                                                       31
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.




                                                                                    32
      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



                                                                                  33
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



                                                                                     34
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."

                                                                                          35
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




                                                                                    36
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



                                                                                        37
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




                                                                                   38
                         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




                                                                                  39
                          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




                                                                  40
                 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
                                                                                                                                35
                                                                    :"''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.


                                                                         Page2 of6

                                                                                                                             36
                                                                     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

                                                                                                                               37
                                                               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


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                                                                     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
                                                                                                                               39
                                                           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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