                                                                                    ACCEPTED
                                                                                 01-14-00779-cv
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                          10/23/2015 1:23:38 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                         NO. 01-14-00779-CV

                       In the Court of Appeals              FILED IN
                    First Judicial District of Texas 1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
                            Houston, Texas           10/23/2015 1:23:38 PM
               ___________________________________CHRISTOPHER A. PRINE
                                                             Clerk
                   POINTE WEST CENTER, LLC
                                 Appellant,

                                 vs.

             IT’S ALIVE, INC. AND SHAMIL QURESHI
                             Appellees/Cross-Appellants,
__________________________________________________________________

              Appeal from County Civil Court at Law No. 1
                         Harris County, Texas
                          Cause No. 1022800
__________________________________________________________________

                APPELLEES/CROSS-APPELLANTS’
                    MOTION FOR REHEARING
__________________________________________________________________

                                           James A. Dunn
                                           Texas Bar No. 06244800
                                           3006 Brazos Street
                                           Houston, Texas 77006
                                           Tel.: (713) 403-7405
                                           Fax: (713) 230-8940
                                           Email: jdunn@dnglegal.com

                                           COUNSEL FOR APPELLEES/
                                           CROSS-APPELLANTS
                                           IT’S ALIVE, INC. AND
                                           SHAMIL QURESHI




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               TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………….3


ISSUE PRESENTED FOR REVIEW……………………………………………...5


ARGUMENT AND AUTHORITIES……………………………………………...5


PRAYER……………………………………………………………………...……9


CERTIFICATE OF COMPLIANCE……………………………………………...10


CERTIFICATE OF SERVICE……………………………………………………11




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                      INDEX OF AUTHORITIES

Akin, Gump, Strauss, Hauer & Feld, LLP v. National Development
and Research Corp., 299 S.W.3d 106, 123-124 (Tex. 2009)………….………...6, 7

Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007) …………………………….5, 6, 7

McGinty v. Hennen, 372 S.W.3d 625, 627 (Tex. 2012)……………………………8

Texarkana Memorial Hospital, Inc. v. Murdock, 946 S.W.2d 836,
841 (Tex. 1997)……………………………………………………………….……7

Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 1786 (Tex. 1986) …………………….9




                                  3
                             NO. 01-14-00779-CV

                           In the Court of Appeals
                        First Judicial District of Texas
                                Houston, Texas
                   ___________________________________

                       POINTE WEST CENTER, LLC
                                     Appellant,

                                      vs.

             IT’S ALIVE, INC. AND SHAMIL QURESHI
                             Appellees/Cross-Appellants,
__________________________________________________________________

              Appeal from County Civil Court at Law No. 1
                         Harris County, Texas
                          Cause No. 1022800
__________________________________________________________________

                APPELLEES/CROSS-APPELLANTS’
                    MOTION FOR REHEARING
__________________________________________________________________



TO THE HONORABLE COURT OF APPEALS:

      Appellees/Cross-Appellants, It’s Alive, Inc. and Shamil Qureshi file their

Motion for Rehearing. For the reasons set forth herein, the Judgment entered in

favor of Pointe West Center, LLC should be reversed and rendered.




                                       4
                      ISSUE PRESENTED FOR REVIEW

      Did the Court of Appeals err in reversing and remanding this case rather than

reversing and rendering when the Court of Appeals sustained Cross-Appellants’ No

Evidence of Damages Issue.

                      ARGUMENT AND AUTHORITIES

      In its Opinion the Court of Appeals stated that ordinarily appellate courts

render judgment when sustaining a no-evidence issue (opinion at p. 13). In deciding

to reverse and remand instead of render, the Court of Appeals stated that “when there

is evidence to support some damages, it is not appropriate to render judgment” citing

Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex. 2007). In Guevara, the Supreme

Court noted that “Affidavits proving up the medical bills are evidence that expenses

were reasonable in amount and necessary for treatment of [the plaintiff’s condition],

but the bills are not evidence of what all the conditions were nor that all the

conditions were caused by the accident.” Id at 669. The Supreme Court went on to

note that the evidence is legally sufficient to support a finding that some of his

medical expenses were causally related to the accident. However the Supreme Court

also concluded that the evidence was not legally sufficient to prove what the

conditions were that generated all of the medical expenses or that the accident caused

all of the conditions and expenses for their treatment. In the passage cited by the

Court of Appeals, the Supreme Court concluded that “when there is evidence to


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support some damages it is not appropriate to render judgment.” It is clear that the

Supreme Court was relying on the fact that the plaintiffs did produce legally

sufficient evidence as to both some of the medical expenses being reasonable and

necessary and caused by the accident. This is made clear when the Court concludes

by the suggestion that the case be remanded to the Court of Appeals for

determination of an appropriate remittitur “to consider remittitur as to expenses for

which expert evidence is required.” If there were no legally sufficient evidence, then

there would be no suggestion of remand for purposes of determining whether

remittitur was appropriate.

      In Akin, Gump, Strauss, Hauer & Feld, LLP v. National Development and

Research Corp., 299 S.W.3d 106, 123-124 (Tex. 2009) the Supreme Court cited the

Guevara opinion on the issue of reversal and remand. In Akin, the Supreme Court

noted that the plaintiff produced legally sufficient evidence to support the jury’s

finding that the defendant’s negligence caused plaintiff to retain two outside lawyer-

professors expert witnesses for which the plaintiff paid fees and for which the

plaintiff sought damages. The Supreme Court noted that there was legally sufficient

evidence on the damages issue as to the two outside lawyer-professors but noted that

the fees paid to these two lawyers amounted only to $59,500 out of the $216,590 in

fees awarded at trial. The Supreme Court stated: “Accordingly, although the

evidence is legally sufficient to support a finding of some amount, it is legally


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insufficient to support the entire amount the jury found.” [citing Guevara and

Texarkana Memorial Hospital, Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex. 1997)].

The Akin Court concluded that when there is some evidence of damages, but not

enough to support the full amount, it is inappropriate to render judgment. However,

the key point made is that where there is some legally sufficient evidence to support

the judgment but not the full amount, only then is it appropriate to reverse and

remand. The Supreme Court noted that ordinarily “we render judgment when we

sustain a no evidence issue.” Id at 124.

      The Murdock case cited in Akin was a medical malpractice case. The parties

stipulated that the medical expenses were reasonable and necessary. The issue was

to what extent the damages were caused by the defendants’ negligence. In deciding

to remand in that case, the Supreme Court stated: that because the plaintiffs

presented legally sufficient evidence that some of the medical expenses resulted

from the defendants’ negligence that they should be afforded the opportunity to

develop this evidence further.

      Unlike the cases cited above supporting reversal and remand, this Court has

held unequivocally that Pointe West failed to present legally sufficient evidence of

its damages. This Court noted “No testimony or exhibit was presented to

specifically identify what costs should be included as part of Pointe West’s claim for

damages.” (Opinion at p. 11) This Court noted that “None of the evidence offered


                                           7
any differentiation between work done in It’s Alive’s space, in other spaces within

the shopping center, or at locations beyond the shopping center. (Opinion at p. 11).

The Court further noted that Pointe West’s evidence failed to establish with any

reasonable particularity what the costs of repair actually were (Opinion at p.

12). This Court concluded that “Because there was no proof of the actual amount

of damages there was no proof that the damages presented were reasonable and

necessary.” (Opinion p. 12-13).

      In its opinion the Court stated that Pointe West presented ample evidence of

injury as It’s Alive vacated the premises, but the Court noted that a plaintiff seeking

to prove remedial damages must show more than the nature of injuries, need for

services rendered, and amounts charged citing McGinty v. Hennen, 372 S.W.3d 625,

627 (Tex. 2012). (Opinion at p. 12) It’s Alive has challenged Pointe West’s claims

as being exaggerated. Pointe West already has received a security deposit of

$8,000.00 from It’s Alive and kept that security deposit. (5 RR P. Ex. 1, D Ex. 5).

      Pointe West has had a full and complete opportunity to present legally

sufficient evidence of any reasonable and necessary expenses caused by It’s Alive.

It has failed to do so. This Court has sustained It’s Alive no evidence challenges to

the Judgment. Yet this Court has determined to give Pointe West a second bite at

the apple and force It’s Alive to incur the expense of another trial and potentially

even greater exposure for additional attorney’s fees sought by Pointe West. The


                                          8
long-standing rule that when a no evidence point is sustained, rendition is proper

should be followed.

      The case of Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176 (Tex. 1986) is

instructive. The Supreme Court noted that the Court of Appeals found that there

was no evidence of the automobile’s market value to support an award for damages

under the DTPA. The Court of Appeals then remanded the DTPA portion of the

cause for a new trial to determine market value. The Supreme Court stated that

“Generally, if the Court of Appeals sustains a ‘no evidence’ point, it is the court’s

duty to render judgment for appellant. This is such a basic rule of law that we are

convinced that the court of appeals meant to find insufficient evidence and remand

or to find no evidence and render. Rather than remand the Supreme Court held that

“there was no evidence to support the jury’s answer to market value. Rendition is

proper.” Id at 176.

                                     PRAYER

      Based on the foregoing, It’s Alive, Inc. and Shamil Qureshi, Appellees and

Cross-Appellants respectfully request that the Court of Appeals grant this Motion

for Rehearing and reverse the Judgment awarding Pointe West, LLC actual damages

in the amount of $15,000.00, and render Judgment that Pointe West, LLC take

nothing.




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                                     Respectfully submitted,

                                     DUNN, NEAL & GERGER, L.L.P.

                                     By: ____/s/ James A. Dunn _____________
                                           James A. Dunn
                                           Texas Bar No. 06244800
                                           3006 Brazos Street
                                           Houston, Texas 77006
                                           Tel.: (713) 403-7405
                                           Fax: (713) 960- 0204
                                           Email: jdunn@dnglegal.com

                                            Attorney for Appellees/Cross
                                            Appellants, It’s Alive, Inc. and
                                            Shamil Qureshi

                     CERTIFICATE OF COMPLIANCE
      This Brief of Cross-Appellants complies with the typeface and length

requirements of Texas Rule of Appellate Procedure 9.4 because:


      (1)   This brief complies with typeface and the type style requirements of

            Rule 9.4(e) because the brief has been prepared in a conventional

            typeface using Word with Times New Roman 14-point font.


      (2)   This brief complies with the length requirements of Rule 9.4(i)(2)(B)

            because it contains 1,659 words, excluding the parts of the brief

            exempted by Rule 9.4(i)(1).


                                                 /s/James A. Dunn
                                                James A. Dunn
                                            Attorney for Cross-Appellants

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                         CERTIFICATE OF SERVICE

      I certify that on October 23, 2015, a true and correct copy of the foregoing
instrument was served on Appellant’s counsel, Spencer E. Dunn, 4669 Southwest
Freeway, Suite 760, Houston, Texas 77027, by electronic service through the e-filing
case manager in accordance with the Texas Rules of Civil Procedure.

                                                   /s/ James A. Dunn
                                             James A. Dunn




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