                                                                                            ACCEPTED
                                                                                       01-14-00537-CV
                                                                             FIRST COURT OF APPEALS
                                                                                     HOUSTON, TEXAS
                                                                                 12/30/2014 4:45:34 PM
                                                                                   CHRISTOPHER PRINE
                                                                                                CLERK

                           No. 01-14-00537-CV
                    _______________________________
                                                                   FILED IN
                                                            1st COURT OF APPEALS
                   IN THE FIRST COURT OF APPEALS                HOUSTON, TEXAS
                           HOUSTON, TEXAS                   12/30/2014 4:45:34 PM
                    _______________________________         CHRISTOPHER A. PRINE
                                                                     Clerk

                             FRANCIE WILLIS,
                                Appellant,

                                      v.

                              BPMT, LLC,
                                Appellee.
                    _______________________________

                      APPELLANT’S REPLY BRIEF
                    _______________________________

    On Appeal from the 164th Judicial District Court, Harris County, Texas
                 Hon. Alexandra Smoots-Hogan, presiding
                          Cause No. 2010-49638
                  _______________________________

Jane Langdell Robinson, State Bar No. 24062970
Tiffany Joudi, State Bar No. 24065479
Reed N. Smith, State Bar No. 24067875
AHMAD, ZAVITSANOS, ANAIPAKOS, ALAVI & MENSING
1221 McKinney Street
Houston, Texas 77010
Telephone: (713) 655-1101
Facsimile: (713) 655-0062
jrobinson@azalaw.com
tjoudi@azalaw.com
rsmith@azalaw.com


                            Counsel for Appellant

                          Oral Argument Requested
                                         TABLE OF CONTENTS


TABLE OF CONTENTS ........................................................................................2

INDEX OF AUTHORITIES ...................................................................................4

INDEX OF RECORD REFERENCES ..................................................................7

RESPONSE TO APPELLEE’S STATEMENT OF FACTS ...............................8

ARGUMENT ............................................................................................................9

    I. BPMT’s reliance on Taylor and Seay to support its definition of “debt”
         is misplaced. (Response to Appellee’s Brief, part I-A.) .......................9

         A.       BPMT fails to address the fact that Section 171.255 is a penal statute
                    that must be interpreted strictly against liability. .............................9

         B.       The Taylor court recognized that but for the passage of Section
                    171.109 (now repealed), it would have come out the other way ...10

         C.       Not only did Seay interpret an entirely different statute, but the
                    legislature rejected and repealed Seay’s interpretation of the word
                    “debt” .............................................................................................11

         D.       Levy v. Hunt, Cain v. State, and Ballard v. Quinn likewise do not
                     support BPMT’s argument regarding the meaning of “debt” in this
                     case .................................................................................................14

         E.       BPMT’s argument that the debt was unliquidated because of the
                    lease’s mitigation clause demonstrates one of the significant
                    negative consequences of a ruling in BPMT’s favor. ....................16

    II. BPMT does not show any reason why this Court should ignore the
          repeal of Section 171.109. (Response to Appellee’s Brief, part I-B.) 19

    III. BPMT does not provide any persuasive reason why this Court should
          apply a definition of “debt” that has twice been rejected by the Texas
          Legislature. (Response to Appellee’s Brief, part I-C.) .......................20



                                                            2
       A.      BPMT’s argument that all contracts payable after forfeiture of a
                 corporate charter are subject to Section 171.255 is contradicted by
                 decades of Texas case law..............................................................20

       B.      It is possible to give meaning to both “create” and “incur” without
                   mandating liability in this case.......................................................22

   IV. Contrary to BPMT’s argument, the Tax Code does not create
        individual liability in corporate officers for their employers’
        franchise taxes. (Response to Appellee’s Brief, part I-D.) .................25

       A.      BPMT adds nothing new to its assertion regarding pre-existing
                 contractual obligations; the case law still holds that officers are
                 only liable for debts contracted after forfeiture. ............................25

       B.      BPMT cannot rely—implicitly or otherwise—on an alter ego theory
                 of liability against Ms. Willis because BPMT did not plead such a
                 theory nor did it offer it in support of its motion for summary
                 judgment. ........................................................................................27

       C.      The rule that this Court applies in this case will be the rule that
                 governs the liability of innocent corporate officers under Section
                 171.255. ..........................................................................................31

   V. Francie Willis cannot be vicariously liable for debt—including
        attorneys’ fees—on which Urban Retreat is not liable. (Response to
        Appellee’s Brief, part II.) .......................................................................32

CONCLUSION AND PRAYER ...........................................................................34

CERTIFICATE OF SERVICE ............................................................................35

CERTIFICATE OF COMPLIANCE ..................................................................36




                                                        3
                                      INDEX OF AUTHORITIES


Cases
Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc.,
      948 S.W.2d 293 (Tex. 1997) .........................................................................18
Ballard v. Quinn,
      14-97-01057-CV, 1998 WL 787558 (Tex. App.—Houston [14th Dist.]
      Sep. 10, 1998, no pet.) ................................................................ 15, 16, 22, 26

Beesley v. Hydrocarbon Separation, Inc.,
      358 S.W.3d 415 (Tex. App.—Dallas 2012, no pet.) .....................................21

Cain v. State,
      882 S.W.2d 515 (Tex. App.—Austin 1994, no writ) ............................. 14, 15

Davis v. State,
      846 S.W.2d 564 (Tex. App.—Austin 1993, no writ.) ...................................24

Fleming & Assoc., L.L.P. v. Barton,
     425 S.W.3d 560 (Tex. App.—Houston [14th Dist.] 2014,
     pet. filed) ....................................................................................................9, 33

Jonnet v. State,
      877 S.W.2d 520 (Tex. App.—Austin 1994, writ denied) ...................... 14, 15

Levy v. Hunt, 14-00-00549-CV, 2001 WL 306149
      (Tex. App.—Houston [14th Dist.] 2001, no pet.) .........................................14

McConnell v. Southside Indep. Sch. Dist.,
    858 S.W.2d 337 (Tex. 1993) ........................................................ 9, 28, 29, 33

McKinney v. Anderson,
     734 S.W.2d 173 (Tex. App.—Houston [1st Dist.] 1987,
     no writ).................................................................................................... 10, 21

PACCAR Fin. Corp. v. Potter,
    239 S.W.3d 879 (Tex. App.—Dallas 2007, no pet.) .....................................23

                                                            4
Pace Corp. v. Jackson,
     155 Tex. 179, 284 S.W.2d 340 (1955) ..........................................................31

Palmer v. Coble Wall Trust Co., Inc.,
     851 S.W.2d 178 (Tex. 1992) .........................................................................13

Pearson v. K-Mart, 755 S.W.2d 217
     (Tex. App.—Houston [1st Dist] 1988, no writ) ............................................13

River Oaks Shopping Ctr. v. Pagan,
      712 S.W.2d 190 (Tex. App.—Houston [14th Dist.] 1986,
      writ ref’d n.r.e.) ..................................................................... 10, 11, 19, 21, 27

Rogers v. Adler,
     696 S.W.2d 674 (Tex. App.—Dallas 1985, writ ref’d n.r.e.)................. 16, 26

Roylex, Inc. v. Langson Bros. Const. Co.,
      585 S.W.2d 768 (Tex. Civ. App.—Houston [1st Dist.] 1979,
      writ ref’d n.r.e) ...............................................................................................31

Seay v. Hall,
      677 S.W.2d 19 (Tex. 1984) ................................................................. 9-17, 20

SSP Partners v. Gladstrong Invs. (USA) Corp.,
     275 S.W.3d 444 (Tex. 2008) .........................................................................30

Taylor v. First Community Credit Union,
      316 S.W.3d 863 (Tex. App.—Houston [14th Dist.] 2010,
      no pet.) ........................................................................................ 10, 11, 19, 26

Tri-State Building Specialties, Inc. v. NCI Building Systems, L.P.,
      184 S.W.3d 242 (Tex. App.—Houston [1st Dist.] 2005, no pet.)...................9

Tryco Enters., Inc. v. Robinson,
      390 S.W.3d 497 (Tex. App.—Houston [1st Dist.] 2012)....................... 15, 29

Vecellio Ins. Agency, Inc. v. Vanguard Underwriters Ins. Co.,
      127 S.W.3d 134 (Tex. App.—Houston [1st Dist.] 2003, no pet.).................32




                                                           5
Wilburn v. State,
     824 S.W.2d 755 (Tex. App.—Austin 1992, no writ) ....................... 10, 16, 23

Williams v. Adams,
      74 S.W.3d 437 (Tex. App.—Corpus Christi 2002, pet. denied) ........ 9, 10, 15


Statutes
Tex. Bus. Orgs. Code § 21.223 ................................................................................29

Tex. Property Code § 91.006 ...................................................................................18

Tex. Tax Code § 171.109 ................................................................ 10, 11, 19, 20, 26
Tex. Tax Code § 171.255 ................................................................................. passim



Rules
Tex. R. App. Pro. 38.1 ...............................................................................................9




                                                          6
                    INDEX OF RECORD REFERENCES


CR                      Clerk’s Record

RR                      Reporter’s Record ([Vol.] RR [Page])

RR (Exhibits)           Reporter’s Record (5 RR [Pl/Def] [Exh. #])

App’t.Br.               Appellant’s Brief

App’ee.Br.              Appellee’s Brief



Citations to documents included in the Appendix are noted by “Tab #.”




                                         7
           RESPONSE TO APPELLEE’S STATEMENT OF FACTS
      BPMT states that Francie Willis is “the owner and President of Urban

Retreat.” App’ee.Br. at 4; see also App’ee.Br. at 2 (same). As is discussed further

below, BPMT returns throughout its brief to the theme that Ms. Willis is personally

and individually responsible for Urban Retreat’s obligations (e.g., for Urban

Retreat’s franchise taxes), perhaps on this assumption (unsupported in the record

or the law) that she is its “owner.”

      However, BPMT does not and cannot offer any citation to the record for the

assertion that Ms. Willis was the “owner” of Urban Retreat. Ms. Willis may have

been a shareholder during at least some relevant times, but this is not apparent

from the record for the simple reason that Ms. Willis’s status as a shareholder was

not an issue in this case.

      BPMT sued Ms. Willis solely in her role as an officer. CR 99-100 (Tab 1).

BPMT’s motion for summary judgment (from which this appeal is taken)

contained no evidence or argument suggesting that Ms. Willis was liable as a

shareholder, and the statute BPMT relied on does not refer to shareholder liability.

See CR 65-70 (Tab 2); Tex. Tax Code § 171.255 (“Liability of Director and

Officers”) (Tab 4). The stipulated facts on which the parties proceeded below do

not contain any reference to whether or not Ms. Willis was an Urban Retreat

shareholder. CR 367-68 (Tab 3). BPMT asserts this “fact” for the first time on



                                         8
appeal, without any record references to support it. See Tex. R. App. Pro. 38.1(g).

      Most important, since BPMT never asserted Ms. Willis’s status as a

shareholder in support of its motion for summary judgment, it cannot assert it as a

basis to support the judgment now. Fleming & Assoc., L.L.P. v. Barton, 425

S.W.3d 560, 572 (Tex. App.—Houston [14th Dist.] 2014, pet. filed) (“[S]ummary

judgments must stand or fall on the grounds raised therein; we cannot consider

grounds raised for the first time on appeal as a basis for affirming or reversing the

trial court’s judgment.”); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d

337, 341 (Tex. 1993) (A “motion for summary judgment must itself expressly

present the grounds upon which it is made. A motion must stand or fall on the

grounds expressly presented in the motion.”). Ms. Willis requests this Court to

give no weight to BPMT’s statements that Ms. Willis is Urban Retreat’s “owner.”

                                  ARGUMENT
I.    BPMT’s reliance on Taylor and Seay to support its definition of “debt”
      is misplaced. (Response to Appellee’s Brief, part I-A.)

      A.     BPMT fails to address the fact that Section 171.255 is a penal
             statute that must be interpreted strictly against liability.

      As Ms. Willis argued in her initial brief, Section 171.255 is penal in nature

and must be strictly construed against a finding of officer liability. App’t.Br. at

21-22; Tri-State Building Specialties, Inc. v. NCI Building Systems, L.P., 184

S.W.3d 242, 251 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Williams v.



                                         9
Adams, 74 S.W.3d 437, 440 (Tex. App.—Corpus Christi 2002, pet. denied);

Wilburn v. State, 824 S.W.2d 755, 760 (Tex. App.—Austin 1992, no writ);

McKinney v. Anderson, 734 S.W.2d 173, 174 (Tex. App.—Houston [1st Dist.]

1987, no writ); Schwab v. Schlumberger Well Surveying Corp., 145 Tex. 379, 198

S.W.2d 79, 81 (1946) (construing 171.255’s predecessor).

          BPMT fails to show how its interpretation of Section 171.255 overcomes

this requirement, or in fact to address this issue at all. Therefore, to the extent there

is any doubt, Section 171.255 should be construed against a finding that Ms. Willis

is personally liable for Urban Retreat’s debt.

          B.     The Taylor court recognized that but for the passage of Section
                 171.109 (now repealed), it would have come out the other way

          BPMT suggests that the court in Taylor v. First Community Credit Union,

316 S.W.3d 863 (Tex. App.—Houston [14th Dist.] 2010, no pet.) relied on Seay v.

Hall, 677 S.W.2d 19 (Tex. 1984) and the “ordinary” definition of “debt” BPMT

urges in order to reach its decision. App’ee.Br. at 7 (Taylor “was based in part on

prior definitions and standards set by the Texas Supreme Court”); App’ee.Br. at 19

(referring to the “reasoning and logic of Taylor”).1 This is not accurate. The

Taylor court noted expressly that—but for the legislature’s passage of Section

171.109—it would have been bound by the holding in River Oaks Shopping Ctr. v.


1
    But see App’ee.Br. at 11 n.2, acknowledging that Taylor did not actually rely on Seay.


                                                 10
Pagan, 712 S.W.2d 190 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.),

which supports Ms. Willis’s position in this case. Taylor, 316 S.W.3d at 869.

There is no discussion of the Seay opinion or of the “ordinary” meaning of the term

debt; rather, the court refers to the definition in Section 171.109 as the “statutory

definition.” Id.

      C.        Not only did Seay interpret an entirely different statute, but the
                legislature rejected and repealed Seay’s interpretation of the word
                “debt”

      BPMT puts a lot of emphasis on the interpretation of the word “debt” given

by the Texas Supreme Court in Seay v. Hall. However, BPMT does not discuss

either the reasoning of Seay or its reception by the legislature.          Both are

illuminating and demonstrate why Seay’s definition of the word “debt” does not

control here.

      Seay involved a wrongful death action brought by the administrator of a

decedent’s estate. 677 S.W.2d at 20. There was uncertainty regarding whether the

probate or district courts would have jurisdiction over the claim, so the

administrator brought the wrongful death action in both the probate and district

courts. Id. The defendants filed successful motions to dismiss in the probate court,

arguing that the probate court lacked jurisdiction. Id. Therefore, the question

presented in Seay was whether statutory probate courts have jurisdiction over

wrongful death actions. Id.



                                          11
      The court examined the relevant Texas Probate Code sections then in effect

at length. Id. at 20-21. The Probate Code provided that probate courts had the

power to hear “all matters incident to an estate.” Id. The Code defined matters

“incident to an estate” as including “all claims by or against an estate.” Id. at 21.

Finally, the Code provided that “claims” “include liabilities of a decedent which

survive…and debts due such estates.” Id. (emphasis added). The court noted that

the “pivotal issue” was whether “the statutory terms ‘appertaining to estates and

incident to an estate,’ ‘all matters relating to the settlement … of estates,’ and

‘claims’” were broad enough to confer dominant jurisdiction over wrongful death

claims in probate courts. Id. (alteration in original).

      The court then gave careful and detailed attention to the legislative history of

the Probate Code sections at issue. Id. at 21-25. The court concluded that if “there

is any legislative intent to be gleaned from the 1979 proceedings as to what

appertains to an estate, it would seemingly be that the legislature did not intend to

expand probate court jurisdiction to matters other than those in which the

controlling issue was the settlement, partition, or distribution of an estate.” Id. at

22. In light of its interpretation of the legislative history, the court construed the

phrase “debts due [to the] estates” narrowly, thus restricting the probate court’s

jurisdiction to matters where the controlling issue was the settlement, partition, or

distribution of an estate. Id. at 23.


                                          12
      With this background in mind, the court addressed whether a wrongful death

claim should be considered a “debt due [to an] estate.” Because such a claim

would be unrelated to settlement, partition, or distribution of an estate, the court

was reluctant to vest primary jurisdiction over such a claim in the probate court.

Therefore, the court focused on the fact that a wrongful death claim is typically

unliquidated and would not fall within the traditionally understood concept of a

“debt due [to an] estate,” reaching the result that it believed the legislature intended

of vesting jurisdiction over such claims in the district courts. Id. at 23-25.

      The year after Seay was decided, the Texas Legislature responded by

passing legislation to overrule it. Palmer v. Coble Wall Trust Co., Inc., 851

S.W.2d 178, 181 (Tex. 1992) (“We agree with the [assessment of the First Court of

Appeals] that ‘it is readily apparent that the purpose of [House Bill 479] was to

overrule Seay v. Hall.’”), citing Pearson v. K-Mart, 755 S.W.2d 217, 219 (Tex.

App.—Houston [1st Dist] 1988, no writ). Specifically, the legislature made the

amendment for the purpose of clarifying that the a personal representative bringing

a claim on behalf of estate could elect probate court for “any cause of action,

liquidated or unliquidated, contract or tort.” Pearson, 755 S.W.2d at 220.

      In other words, Seay interpreted the word “debt” to exclude unliquidated

claims (the interpretation BPMT relies on), and the Legislature’s immediate

response was to pass a law overruling that interpretation. Seay therefore hardly


                                          13
presents a compelling case that “debt” must be construed to exclude unliquidated

amounts.

      D.     Levy v. Hunt, Cain v. State, and Ballard v. Quinn likewise do not
             support BPMT’s argument regarding the meaning of “debt” in
             this case

      Levy v. Hunt, 14-00-00549-CV, 2001 WL 306149 (Tex. App.—Houston

[14th Dist.] 2001, no pet.) (not designated for publication), on which BPMT also

relies, is another Probate Code case and, in a footnote, simply adopts Seay’s

definition of the word “debt.” 2001 WL 306149 at *3 n.4 (Tab 5). It does not add

anything that would support BPMT’s argument here.

      Cain v. State, 882 S.W.2d 515 (Tex. App.—Austin 1994, no writ), which

BPMT also cites, is distinguishable in that it does not address a pre-existing

contractual obligation like the one at issue here. See App’ee.Br. at 15. Instead,

Cain addressed liability for administrative penalties assessed against a corporation

for failure to plug abandoned oil wells. 882 S.W. 2d at 516.

      As discussed in Ms. Willis’s principal brief at 36, in a similar case the

Austin Court of Appeals expressly distinguished cases like Cain from cases (such

as this one) “arising from a post-forfeiture breach of an existing agreement.”

Jonnet v. State, 877 S.W.2d 520, 523 (Tex. App.—Austin 1994, writ denied). The

court noted that “unlike situations in which the execution of a written instrument or

a specific transaction creates an obligation or duty to pay for a later breach of the



                                         14
agreement,” in administrative penalty cases such as Jonnet or Cain, “the obligation

to pay the statutory penalty only arises if and when a penalty is actually assessed.”

Id. at 523-24 (emphasis in original). See also Williams v. Adams, 74 S.W.3d 437,

443 (Tex. App.—Corpus Christi 2002, pet. denied) (distinguishing Cain and

Jonnet on this basis); Tryco Enters., Inc. v. Robinson, 390 S.W.3d 497, 518 (Tex.

App.—Houston [1st Dist.] 2012) (Keyes, J., concurring) (cases like Cain are those

in which “a penalty or judgment is incurred by a corporation after forfeiture of its

corporate charter as a result of the wrongful acts of the corporation’s officers or

directors before or after forfeiture.”) (emphasis added).

      BPMT also relies on Ballard v. Quinn, 14-97-01057-CV, 1998 WL 787558

(Tex. App.—Houston [14th Dist.] Sep. 10, 1998, no pet.) (not designated for

publication) to reinforce its proffered interpretation of the meaning of “debt”

within Section 171.255. App’ee.Br. at 14. However, Ballard v. Quinn strongly

supports Ms. Willis’s case, as discussed in her principal brief. App’t.Br. at 37-38.

The Ballard court accepted Seay’s definition of debt, but nonetheless refused to

impose individual liability on the defendant officer, holding:

         Strict construction of [Section 171.255] prohibits the imposition
         of liability in the present case where all of the operative facts
         occurred nearly two years before the corporate charter was
         forfeited and related back to the termite inspection agreement.
         “The mere fact that the amount of money owed … as damages
         was unspecified at the time of the forfeiture does not establish
         that the debt was created or incurred after forfeiture.”



                                         15
1998 WL 787558 at *2 (Tab 6), quoting Rogers v. Adler, 696 S.W.2d 674, 677

(Tex. App.—Dallas 1985, writ ref’d n.r.e.).

      Even if the Legislature had not overruled Seay, there is no reason why courts

might not properly construe the word “debt” differently in different legal contexts.

See Wilburn v. State, 824 S.W.2d 755, 759-60 (Tex. App.—Austin 1992, no writ)

(discussing narrow and broad constructions of the word “debt” in a variety of

Texas cases). The Wilburn court noted the rule of strict construction—which

BPMT does not address and which did not apply in Seay—and concluded that

“statutes making directors and officers liable for corporate debts must be strictly

construed and cannot be extended beyond the clear meaning of their language.”

824 S.W.2d at 760. For this reason, to the extent that there is doubt whether the

definition of “debt” used by the Seay court should control here, the doubt should be

resolved against a finding that Ms. Willis is personally liable for Urban Retreat’s

debt. App’t.Br. at 21-22.

      E.    BPMT’s argument that the debt was unliquidated because of the
            lease’s mitigation clause demonstrates one of the significant
            negative consequences of a ruling in BPMT’s favor.

      BPMT has argued throughout this case that its duty to mitigate under the

lease demonstrates that Urban Retreat’s debt was unliquidated and therefore should

fall within Section 171.255(a). CR 70 (BPMT’s motion for summary judgment on

Ms. Willis’s liability) (Tab 2) (due to the mitigation clause, “the debt cannot be



                                        16
calculated until the earlier of the leased premises being re-leased and the expiration

of the lease term…. Despite efforts to re-lease, the Landlord was not able to re-

lease the premises before the expiration of the lease term, and so it was not until

the lease term expired that the debt could be calculated.”); CR 99 (Second

Amended Petition) (Tab 1) (“The debt owed to the Landlord under the Lease is

calculated with the formula provided in Section 18.5 of the Lease, as follows: all

rent and other charges required to be paid under the Lease through the end of the

lease term reduced by sums received by the Plaintiff through the re-letting of the

space during the lease term”) (emphasis in original).

      BPMT continues that theme in its brief before this Court. App’ee.Br. at 5

(“The tenant was liable for the rent and other charges required to be paid under the

Lease … reduced by sums received through the re-letting of the space.”) (emphasis

in original); 13 (arguing that the amount due under the Lease was not ascertainable

at the time of execution in part because the calculation included triple-net rent “and

required the application of offsets (which were unknown at the time of the lease

execution).”).

      By BPMT’s reasoning, every time a corporate tenant goes out of business,

stops paying its franchise taxes, and abandons its lease—an unfortunately common

occurrence—its officers and directors will be personally liable for the balance the

corporation owes on the lease, no matter how much and regardless of fault. This is


                                         17
because (a) BPMT takes the position that all corporate officers are personally and

individually responsible for ensuring their employer’s franchise taxes are paid (see,

e.g., App’ee.Br. at 22, discussed below) and (b) as a matter of law, all leases must

allow mitigation of damages through re-letting of the space. Tex. Property Code

§ 91.006 (providing that a “landlord has a duty to mitigate damages if a tenant

abandons the leased premises in violation of the lease” and rendering void any

contract term purporting to waive that right); Austin Hill Country Realty, Inc. v.

Palisades Plaza, Inc., 948 S.W.2d 293, 299 (Tex. 1997) (in a case pre-dating Tex.

Property Code § 91.006, recognizing that in the absence of an agreement to the

contrary, commercial landlords have “a duty to make reasonable efforts to mitigate

damages when the tenant breaches the lease and abandons the property”).

      In other words, if the duty to mitigate renders the amount owed on the lease

unknowable at the time the lease is signed, and if the fact that the amount owed is

unknowable means that Section 171.255 is triggered once the corporation goes out

of business and defaults on its franchise taxes, then corporate officers are taking on

a staggering personal liability every time their employer signs a lease. No public

purpose could be served by this result. Even though the jury in this case was not

persuaded by this theory, and even if BPMT chooses to abandon it at oral

argument, it is not clear why this result would not follow logically if this Court

accepts BPMT’s position regarding the meaning of “debt” in Section 171.255.


                                         18
II.      BPMT does not show any reason why this Court should ignore the
         repeal of Section 171.109. (Response to Appellee’s Brief, part I-B.)

         BPMT argues that despite the Legislature’s repeal of Section 171.109

(containing the definition of “debt” upon which BPMT relies), Section 171.255

was unaffected by the repeal. App’ee.Br. at 16. In other words, BPMT is urging

this Court to accept that the Legislature intended the passage of Section 171.109 to

modify officer and director liability, App’ee.Br. at 14,2 but did not intend the

repeal of Section 171.109 to have any effect on that modified liability, App’ee.Br.

at 16.

         BPMT’s argument directly contradicts the law governing the effect of

repealed statutes, as detailed by Ms. Willis in her principal brief. App’t.Br. at 27-

29.      Moreover, BPMT does not offer any authority (or logic) to support its

argument. BPMT argues that because the bill repealing Section 171.109 “restricted

the method for an entity to arrive at its taxable margin … it was no longer

necessary to have Section 171.109.” App’ee.Br. at 16. To the contrary, if the

Legislature intended Section 171.109 to continue enlarging the personal liability of

corporate officers under Section 171.255, Section 171.109 would certainly still be

necessary. Instead, however, the Legislature repealed it, and according to the law

2
  The Fourteenth Court agreed that the passage of Section 171.109 materially changed the effect
of Section 171.255. Taylor, 316 S.W.3d at 869 (holding that because the passage of Section
171.109 constituted “an intervening and material change in the statutory law,” the court was not
required to follow the precedent set in River Oaks Shopping Center v. Pagan, 712 S.W.2d 190
(Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.).).


                                              19
governing savings of repealed statutes, Section 171.109 does not apply to this case.

App’t.Br. at 27-29.

III.   BPMT does not provide any persuasive reason why this Court should
       apply a definition of “debt” that has twice been rejected by the Texas
       Legislature. (Response to Appellee’s Brief, part I-C.)

       BPMT argues that even though the Texas Legislature has repealed Section

171.109 (and, although BPMT does not mention it, has also repealed the holding of

Seay construing the term “debt”), this Court should apply the Section 171.109

definition anyway. App’ee.Br. at 16-17. BPMT’s reasoning is not persuasive, as

discussed below.

       A. BPMT’s argument that all contracts payable after forfeiture of a
          corporate charter are subject to Section 171.255 is contradicted by
          decades of Texas case law.

       BPMT argues that because Section 171.255 refers to debts that are “created”

or “incurred,” in order to give meaning to both words this Court must construe

“incurred” to mean when the “triggering event in the future occurs” that requires

the amount to be actually paid. App’ee.Br. at 18. Apparently, BPMT means by

this that if a corporation enters into a contract when it is in good standing, but some

or all of the contractual payments come due after the corporation forfeits its

charter, the corporation’s officers and directors should be individually liable for

those later amounts.

       This argument far overreaches BPMT’s primary argument, which is limited



                                          20
to sums that cannot be ascertained at the time a contract is entered. App’ee.Br. at 7

(The “debt in this case … was created or incurred at the time of the breach …

because the amount of the debt could not be calculated at the time the lease was

executed.”).

      More important, the courts of this State (including this Court) have

repeatedly and emphatically rejected this argument. Beesley v. Hydrocarbon

Separation, Inc., 358 S.W.3d 415, 423 (Tex. App.—Dallas 2012, no pet.) (“We

conclude that HSI’s debt to Beesley was created or incurred in 1992 when the

Employment Contract was signed, not in 1996 after forfeiture of HSI’s charter.”);

Serna v. State, 877 S.W.2d 516, 519 (Tex. App.—Austin 1994, writ denied)

(“Under Texas case law, contractual obligations entered into before the forfeiture

of corporate privileges do not impose liability on the officers or directors for

payments that are due after forfeiture.”) (emphasis in original); McKinney v.

Anderson, 734 S.W.2d 173, 174 (Tex. App.—Houston [1st Dist.] 1987, no writ)

(“Under Section 171.255, individual liability is imposed only for debts contracted

after the forfeiture of the right to do business, and has no application to obligations

arising or renewed prior thereto.”) (emphasis in original); River Oaks Shopping

Center v. Pagan, 712 S.W.2d 190, 192 (Tex. App.—Houston [14th Dist.] 1986,

writ ref’d n.r.e.) (The “obligation to pay rent was created or incurred at the time the

lease agreement was executed,” not in the future when the periodic payments were


                                          21
due.); Curry Auto Leasing, Inc. v. Byrd, 683 S.W.2d 109, 112 (Tex. App.—Dallas

1984, no writ) (“When parties enter into a contract the law presumes they intend

the consequences of its performance.               It follows that performance or

implementation of the contractual provisions relate back to and are authorized at

the time of execution of the contract.”); Ballard v. Quinn, 14-97-01057-CV, 1998

WL 787558 at *2 (Tex. App.—Houston [14th Dist.], Sept. 10, 1998, no pet.) (not

designated for publication) (Tab 6) (“Individual liability is imposed only for debts

contracted after the forfeiture of the right to do business, and has no application to

obligations arising or renewed prior thereto.”).

      B. It is possible to give meaning to both “create” and “incur” without
         mandating liability in this case.

      Contrary to BPMT’s argument, it is possible to give different meanings to

the words “create” and “incur” as used in the statute without violating the

precedent set above or the policies embodied in Section 171.255, and without

concluding that Ms. Willis must be liable in this case. See App’ee.Br. at 17-18.

For example, imagine that a corporation in good standing enters into a contract

with a bank to open a line of credit, and borrows some money on the line without

drawing it down completely. Later, the corporation forfeits its charter, but after

forfeiture an officer borrows additional money on the line of credit. The bank

would have a strong argument that even though the corporation executed the

contract enabling the line of credit before forfeiture, the debt incurred by drawing

                                         22
down the line of credit after forfeiture triggered application of Section 171.255.


      This result would additionally be consistent with the cases holding that the

officer must engage in some culpable act (here, voluntarily borrowing new money

even after the corporation lost the right to do business) in order to trigger personal

liability. PACCAR Fin. Corp. v. Potter, 239 S.W.3d 879, 883 (Tex. App.—Dallas

2007, no pet.) (“The language of the statute is concerned with the creation or

incursion of debts by the corporation after the franchise report is delinquent. … It

is the act of creating or incurring a debt when the franchise report is delinquent that

triggers personal liability….     These directors and officers have abused the

corporate privilege by continuing to create and incur debts after the franchise tax is

delinquent … and are, therefore, ‘culpable.’”); Wilburn v. State, 824 S.W.2d 755,

761 (Tex. App.—Austin 1992, no writ) (Section 171.255 “was meant to prevent

wrongful acts of culpable officers of a corporation” and creates personal liability in

corporate officers for debts “knowingly and consensually created or incurred after

forfeiture of corporate privileges and before revival of the right to do business.”);

see also Schwab v. Schlumberger Well Surveying Corp., 148 Tex. 379, 198 S.W.2d

79, 81 (1946) (predecessor to 171.255 “was meant to prevent wrongful acts of

culpable officers of a corporation, and was for the protection of the public and

particularly those dealing with the corporation”); Davis v. State, 846 S.W.2d 564,

570 (Tex. App.—Austin 1993, no writ.) (Section 171.255 “is meant to prevent


                                          23
wrongful acts of culpable officers of a corporation”).

      Similarly, this result would be consistent with subsection (c) of Section

171.255, which provides a safe harbor for directors and officers who object to the

creation of the debt or who reasonably are not aware of it.         Tex. Tax Code

§ 171.255(c). As discussed in Ms. Willis’s principal brief, this safe harbor only

makes sense if Section 171.255(a) contemplates a voluntary corporate act taken

after forfeiture of the right to do business, because there is no reason to expect or

require a corporate officer to object to ordinary business transactions made when a

corporation is in good standing. App’t.Br. at 32-34.

      It is important to note in this case that once the lease was signed (which

happened years before Urban Retreat forfeited its corporate charter, CR 367-68),

there was nothing that Ms. Willis could have done to avoid Urban Retreat’s

liability on the lease. In other words, once Urban Retreat was no longer authorized

to do business, there was no act or omission by Ms. Willis that created or worsened

the corporation’s liability on the lease. In fact, Urban Retreat attempted to reduce

the harm by selling its assets, vacating the premises, and subletting to another

corporation. CR 367 (Tab 3). However, when the sublessee vacated the premises,

BPMT was unable to re-let it, leaving Urban Retreat liable on the remainder of the

lease. See CR 70 (Tab 2) (“Despite efforts to re-lease, the Landlord was not able

to re-lease the premises before the expiration of the lease term.”); 3 RR 190:6-


                                         24
191:1 (BPMT representative’s testimony regarding efforts to re-lease).

      Therefore, this case is not a case involving a culpable act after the forfeiture

of the corporate charter. Relatedly, there was no opportunity for Ms. Willis to seek

the safe harbor of Section 171.255(c), because all of the voluntary acts which

created liability in this case (i.e., signing the lease) took place while Urban Retreat

was still in good standing. The fact that Ms. Willis was not able to protect herself

from liability under BPMT’s theory, despite the Legislature’s intent to allow

innocent officers to protect themselves, demonstrates why Section 171.255 should

not apply in this case.

IV.   Contrary to BPMT’s argument, the Tax Code does not create individual
      liability in corporate officers for their employers’ franchise taxes.
      (Response to Appellee’s Brief, part I-D.)

      A. BPMT adds nothing new to its assertion regarding pre-existing
         contractual obligations; the case law still holds that officers are only
         liable for debts contracted after forfeiture.

      In Section D of its brief, BPMT reiterates its argument that contractual

payments owed after forfeiture of a corporation’s charter trigger Section 171.255.

App’ee.Br. at 19-20. As discussed herein and in Ms. Willis’s principal brief,

Texas courts have rejected that argument, even when the amount due could not be

calculated at the time the contract was signed. Serna v. State, 877 S.W.2d 516, 519

(Tex. App.—Austin 1994, writ denied) (“Even when the exact amount of future

debt is unknown at the time the parties enter into the contract, Texas case law



                                          25
holds that the entire debt was created at the time the contract was signed.”); Rogers

v. Adler, 696 S.W.2d 674, 677 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) (“The

mere fact that the amount of money owed to Rogers as damages was unspecified at

the time of the forfeiture does not establish that the debt was created or incurred

after forfeiture.”); Curry Auto Leasing, Inc. v. Byrd, 683 S.W.2d 109, 111-12 (Tex.

App.—Dallas 1984, no writ) (Even though amounts due “were all ascertained,

paid, or charged…after Physicians Accounting Services’ corporate privileges had

been forfeited,” original contract was signed before forfeiture and therefore

officers were not individually liable); Ballard v. Quinn, 14-97-01057-CV, 1998

WL 787558 at *2 (Tex. App.—Houston [14th Dist.], Sept. 10, 1998, no pet.) (not

designated for publication) (quoting Rogers v. Adler, 696 S.W.2d at 677).

      BPMT’s assertion that “the reasoning and logic of Taylor is a better fit to the

facts of this case” is puzzling. App’ee.Br. at 19. As discussed above, the result in

Taylor was based exclusively on the enactment of Section 171.109 (now repealed).

BPMT does not explain what “reasoning and logic” from Taylor would apply here.

      In addition, Ms. Willis disagrees with BPMT’s assertion that “the amount of

liability was fully calculable at the inception of the lease” in Curry Auto Leasing.

App’ee.Br. at 20. In that case, the vehicle lease at issue specified that upon

termination of the lease, the cars would be sold and the profit or loss attributed to

each would be applied to any remaining balance due on the lease. 683 S.W.2d at


                                         26
110-11.    The court expressly found that the offsets and penalties that were

calculated as part of the corporation’s ultimate debt “were all ascertained, paid, or

charged after … Physicians Accounting Services’ corporate privileges had been

forfeited.” Id. at 111.

      BPMT makes the same argument with respect to River Oaks Shopping

Center v. Pagan, 712 S.W.2d 190 (Tex. App.—Houston [14th Dist.] 1986, writ

ref’d n.r.e.). However, the facts as discussed by the Court of Appeals do not reveal

whether the amount was known or not at the time of contracting. Rather, the Court

of Appeals did not appear to consider that fact significant in its determination,

since it concluded that Section 171.255 only imposes liability for debts contracted

after forfeiture of the right to do business. Id. at 192.

      To the extent that BPMT is arguing that the mere fortuity of the calculation

of triple-net rent should control liability under Section 171.255 (and abandoning its

earlier argument regarding mitigation of damages), there is no sound basis in law,

logic, or policy for that distinction, as set forth in Ms. Willis’s principal brief.

App’t.Br. at 40-41.

      B. BPMT cannot rely—implicitly or otherwise—on an alter ego theory
         of liability against Ms. Willis because BPMT did not plead such a
         theory nor did it offer it in support of its motion for summary
         judgment.

      At pages 22-24 of its brief, BPMT makes an extraordinary argument in

which it conflates Ms. Willis with Urban Retreat. For example, BPMT states that

                                           27
Ms. Willis “chose to evade paying her taxes” and therefore should not be protected

by the corporate shield. App’ee.Br. at 22; see also App’ee.Br. at 24 (Ms. Willis is

not “innocent” because she “failed to pay her taxes, and she walked [sic] this

lease.”); 4 (Ms. Willis “allowed the corporate charter to be forfeited”).

      It is hard to make sense of this argument except as a belated and

unsupported effort to pierce the corporate veil and hold Ms. Willis to be the alter

ego of Urban Retreat. This conclusion is supported by BPMT’s statement at page

22 that “[o]fficers and directors of companies enjoy great protections of the

corporate shield in Texas: provided that they follow the rules, keep their affairs

separate, and pay their taxes.” This statement is not followed by any citation to the

record or to the law.

      Indeed, such citations would not be possible. With respect to the record,

BPMT has never pleaded that Urban Retreat and Willis failed to keep their affairs

separate, that they were alter egos or that the corporate veil should be pierced, or

even that Willis was a shareholder of Urban Retreat; nor did BPMT make such an

argument in support of its motion for summary judgment. See CR 65-70 (BPMT’s

motion for summary judgment) (Tab 2); CR 99-100 (BPMT’s Second Amended

Petition) (Tab 1) (pleading only that Ms. Willis is vicariously liable as an officer

due to the application of Section 171.255). On this basis alone, this Court should

reject BPMT’s late-asserted theory of alter ego liability. McConnell v. Southside


                                          28
Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (A “motion for summary

judgment must itself expressly present the grounds upon which it is made. A

motion must stand or fall on the grounds expressly presented in the motion.”). In

addition, it is not clear what “rules” BPMT is alleging Ms. Willis failed to follow.

      Moreover, BPMT’s apparent statement regarding the basis of alter ego

liability (officers must “follow the rules, keep their affairs separate, and pay their

taxes”) does not accurately reflect the state of the law in Texas. Rather, alter ego

“applies when there is such unity between corporation and individual that the

separateness of the corporation has ceased and holding only the corporation liable

would result in injustice. [Disregarding] the corporate structure involves two

considerations: (1) the relationship between [the] two entities and (2) whether the

entities’ use of limited liability was illegitimate.” Tryco Enters., Inc. v. Robinson,

390 S.W.3d 497, 508 (Tex. App.—Houston [1st Dist.] 2012, pet. dism’d) (internal

quotation marks omitted); see also Tex. Bus. Orgs. Code § 21.223 (in order to

prove shareholder is corporation’s alter ego, obligee must show that the

shareholder caused the corporation to be “used for the purpose of perpetrating and

did perpetrate an actual fraud on the obligee primarily for the direct personal

benefit of” the shareholder).

      Even BPMT acknowledges that in order to impose individual liability on an

officer for a corporate obligation, there “must … be evidence of abuse, or …


                                         29
injustice and inequity,” such as “fraud, evasion of existing obligations,

circumvention of statutes, monopolization, criminal conduct, and the like.”

App’ee.Br. at 23, quoting SSP Partners v. Gladstrong Invs. (USA) Corp., 275

S.W.3d 444, 455 (Tex. 2008). As stated above, BPMT did not plead any bases for

alter ego liability in its petition, nor did its motion for summary judgment offer any

evidence or argument in support of such liability.

      Therefore, this Court should not give any weight to BPMT’s repeated

assertions that Ms. Willis failed to pay “her” taxes. Ms. Willis is at a loss to

understand what basis there could be for BPMT to claim that Urban Retreat’s

franchise taxes were in fact Ms. Willis’s taxes. If BPMT is arguing that officers

must be personally responsible for ensuring their corporate employers’ franchise

taxes are paid, or face personal liability for their employers’ debts under Section

171.255, BPMT is not only arguing for a result that it has cited absolutely no legal

authority for, but which will also shock and alarm corporate officers throughout

Texas, who face potentially astronomical personal liability for taxes and corporate

debts over which they have no control.

      While the Tax Code may have the goal of encouraging corporations to pay

their franchise taxes, there is no justification in the law to further that asserted goal

by imposing personal liability for corporate franchise taxes on corporate officers.

Such a result would directly contravene the law of this state, which holds that


                                           30
courts “will not disregard the corporate fiction and hold individual officers …

liable on the obligations of a corporation except where it appears that the

individuals are using the corporate entity as a sham to perpetrate a fraud, to avoid

personal liability, avoid the effect of a statute, or in a few other exceptional

situations.” Roylex, Inc. v. Langson Bros. Const. Co., 585 S.W.2d 768, 771 (Tex.

Civ. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e), quoting Pace Corp. v.

Jackson, 155 Tex. 179, 284 S.W.2d 340, 351 (1955).

      C. The rule that this Court applies in this case will be the rule that
         governs the liability of innocent corporate officers under Section
         171.255.

      BPMT’s attempts to throw mud on Ms. Willis, call her a tax evader, and

conflate her with Urban Retreat do not and cannot have any effect on the analysis

of this case because (among other things) there are no corresponding facts in the

record. Rather, the facts in this case simply show that Ms. Willis was an officer of

Urban Retreat and that BPMT did not plead or offer evidence to suggest that Ms.

Willis was engaged in any wrongdoing.

      Therefore, the rule that this Court applies in this case will be the rule that

applies to innocent corporate officers. If this Court holds that Ms. Willis is

liable for Urban Retreat’s debt, other innocent corporate officers in analogous

situations will be held to the same rule. For this additional reason, Ms. Willis

urges the Court not to be influenced by BPMT’s unsupported allegations that Ms.



                                        31
Willis “owned” Urban Retreat, or that she evaded her taxes or otherwise

committed wrongful acts.

V.    Francie Willis cannot be vicariously liable for debt—including
      attorneys’ fees—on which Urban Retreat is not liable. (Response to
      Appellee’s Brief, part II.)

      As discussed herein, the basis for BPMT’s theory of liability against Ms.

Willis throughout the case has been vicarious liability pursuant to Section 171.255.

CR 65-70; CR 99-100. “Vicarious liability is liability placed upon one party for

the conduct of another, based solely upon the relationship between the two.”

Vecellio Ins. Agency, Inc. v. Vanguard Underwriters Ins. Co., 127 S.W.3d 134,

138 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

      Inherent in the notion of vicarious liability is that the active party (here,

Urban Retreat) must have a liability before the passive party (here, Willis) can be

vicariously liable for it. See Tex. Tax Code § 171.255(a) (providing for liability by

officers for certain “debts of the corporation”) (emphasis added).

      Here, BPMT did not allege any independent basis for the award of fees

against Ms. Willis. Rather, the sole basis on which she can be liable for attorneys’

fees is via operation of Section 171.255, making her liable for Urban Retreat’s

attorneys’ fees. Because Urban Retreat did not appeal the judgment, Urban Retreat

cannot have incurred any conditional appellate fees for which Ms. Willis can be

vicariously liable.



                                         32
      For the first time on appeal, BPMT argues that it could have asserted that

Ms. Willis was personally liable, in the manner of a partner, on BPMT’s lease.

App’ee.Br. at 25. However, BPMT’s motion for summary judgment merely asked

the court to find that Ms. Willis was liable for the “debt arising from [Urban

Retreat’s] default” on the lease. Since BPMT’s summary judgment argument was

premised exclusively on a theory of vicarious liability for Urban Retreat’s debt,

rather than a finding that Ms. Willis was independently and individually liable on

the lease itself, BPMT cannot now argue that Ms. Willis has independent liability

to BPMT for a breach of contract claim. Fleming & Assoc., L.L.P. v. Barton, 425

S.W.3d 560, 572 (Tex. App.—Houston [14th Dist.] 2014, pet. filed) (“[S]ummary

judgments must stand or fall on the grounds raised therein; we cannot consider

grounds raised for the first time on appeal as a basis for affirming or reversing the

trial court’s judgment.”); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d

337, 341 (Tex. 1993) (A “motion for summary judgment must itself expressly

present the grounds upon which it is made. A motion must stand or fall on the

grounds expressly presented in the motion.”).

      Therefore, there was no independent basis on which the trial court could

award fees against Ms. Willis, as opposed to holding her vicariously liable for fees

owed by Urban Retreat. Since Urban Retreat did not appeal and cannot be held

liable for conditional appellate fees, Ms. Willis likewise cannot be liable for


                                         33
conditional appellate fees. To the extent that the judgment of the court below held

otherwise, it is incorrect.

                          CONCLUSION AND PRAYER
      The trial court incorrectly granted summary judgment in BPMT’s favor and

denied Ms. Willis’s cross-motion. Since Ms. Willis should not be personally liable

on BPMT’s claim as a matter of law, appellant asks this Court to reverse the trial

court’s judgment and render a judgment that BPMT take nothing against her.

Should this Court decline to reverse the trial court’s ruling on summary judgment,

Ms. Willis asks this Court to vacate the portion of the judgment awarding BPMT

$45,000 in conditional appellate fees.

                                Respectfully submitted,

                                AHMAD, ZAVITSANOS, ANAIPAKOS,
                                ALAVI & MENSING, P.C.

                                /s/ Jane Langdell Robinson
                                Jane Langdell Robinson
                                State Bar No. 24062970
                                Tiffany Joudi
                                State Bar No. 24065479
                                Reed N. Smith
                                State Bar No. 24067875
                                1221 McKinney Street
                                Houston, Texas 77010
                                Telephone: (713) 655-1101
                                Telecopier: (713) 655-0062

                                Counsel for Appellant




                                         34
                         CERTIFICATE OF SERVICE
      I hereby certify that on December 30, 2014, a true and correct copy of the
above and foregoing document was served by electronic filing manager and/or by
email in accordance with the Texas Rules of Appellate Procedure on the following
counsel of record:

      Jonathan D. Saikin
      Tanya Garrison
      Weycer, Kaplan, Pulaski & Zuber, P.C.
      1400 Summit Tower
      Eleven Greenway Plaza
      Houston, TX 77046
      Facsimile (713) 961.5341

      Counsel for Appellee, BPMT, LLC.


                                    /s/ Jane Langdell Robinson
                                    Jane Langdell Robinson




                                      35
                     CERTIFICATE OF COMPLIANCE
       I certify that this Appellee’s Reply Brief complies with the typeface and
word-count requirements set forth in the Texas Rules of Appellate Procedure. This
Brief has been prepared, using Microsoft Word, in 14-point Times New Roman
font for the text and 12-point Times New Roman font for any footnotes. This Brief
contains 6,745 words, as determined by the word count feature of Microsoft Word,
excluding those portions exempted by TEX. R. APP. P. 9.4(i)(1).


                                     /s/ Jane Langdell Robinson
                                     Jane Langdell Robinson




                                       36
                        No. 01-14-00537-CV
                 _______________________________

                IN THE FIRST COURT OF APPEALS
                        HOUSTON, TEXAS
                 _______________________________

                          FRANCIE WILLIS,
                             Appellant,

                                   v.

                           BPMT, LLC,
                             Appellee.
                 _______________________________

                       INDEX TO APPENDIX
                 _______________________________


TAB     DESCRIPTION
Tab 1   Plaintiff’s Second Amended Petition (CR 97-101)

Tab 2   Plaintiff’s Motion for Partial Summary Judgment on Liability of
        Defendant Francie Willis (CR 65-71)

Tab 3   Stipulated Facts (CR 367-68)

Tab 4   Texas Tax Code § 171.255

Tab 5   Levy v. Hunt, No. 14-00-00549-CV, 2001 WL 306149 (Tex. App.—
        Houston [14th Dist.] March 29, 2001, no pet.) (not designated for
        publication)

Tab 6   Ballard v. Quinn, No. 14-97-01057-CV, 1998 WL 787558 (Tex.
        App.—Houston [14th Dist.] Sep. 10, 1998, no pet.) (not designated for
        publication)
