                                                                                           ACCEPTED
                                                                                      01-14-00601-CV
                                                                            FIRST COURT OF APPEALS
                                                                                    HOUSTON, TEXAS
                                                                                 1/5/2015 12:48:24 PM
                                                                                  CHRISTOPHER PRINE
                                                                                               CLERK

                             No. 01-14-00601-CV

                                                                      FILED IN
                        In the First Court of Appeals          1st COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                               Houston, Texas                  1/5/2015 12:48:24 PM
                                                               CHRISTOPHER A. PRINE
                                                                       Clerk
             ROSEHURST HOMEOWNERS ASSOCIATION,

                                                  Appellant,

                                       v.

       HUGHES NATURAL GAS, INC. and REAL PROVENCHER,

                                                  Appellees.


                  On Appeal from the County Court at Law No. 2
                              Harris County, Texas
                               Cause No. 980933


                         REPLY BRIEF OF APPELLANT


J. Marcus Hill                         Kevin Dubose
HILL & HILL, P.C.                      State Bar No. 06150500
1770 St. James Place, Suite 115        kdubose@adjtlaw.com
Houston, Texas 77056                   ALEXANDER DUBOSE JEFFERSON
                                         & TOWNSEND LLP
Michael P. Fleming                     1844 Harvard Street
MICHAEL P. FLEMING & ASSOCIATES        Houston, Texas 77008
440 Louisiana, Suite 1920              Telephone: (713) 523-2358
Houston, Texas 77002                   Facsimile: (713) 523-4553


                         ATTORNEYS FOR APPELLANT

                         Oral Argument Requested
                                              TABLE OF CONTENTS
Index of Authorities .................................................................................................. 3
Summary of Argument ............................................................................................. 5

Argument in Reply .................................................................................................... 6

         I. Hughes is wrong about the standard of review. ....................................... 6
         II. Rosehurst did nothing wrong; it certainly did nothing to justify
             sanctions. .................................................................................................. 8

                   A. The trial court’s sanctions order did not identify specific
                      conduct by Rosehurst meriting sanctions. ..................................... 8

                   B. The cases relied on by Hughes do not support sanctions
                      against Rosehurst. ........................................................................ 11
                   C. The record does not establish that Rosehurst non-suited “to
                      avoid legal restrictions or unfavorable rulings.” .......................... 15

                            1. Rosehurst did not non-suit to avoid the dissolution of
                               the temporary injunction. ................................................... 16

                            2. Rosehurst did not non-suit to avoid a non-existent
                               summary judgment. ........................................................... 17

                   D. Hughes’s remaining arguments are unavailing. ........................... 18
         III. Even if sanctions were warranted, the award of attorney’s fees is
              excessive and unsupported. .................................................................... 20

Conclusion and Prayer ............................................................................................ 23

Certificate of Compliance ....................................................................................... 24

Certificate of Service .............................................................................................. 24

Appendix ................................................................................................................. 25




                                                             2
                                            INDEX OF AUTHORITIES


                                                                                                                  Page(s)

Cases
Aetna Cas. & Sur. Co. v. Specia,
   849 S.W.2d 805 (Tex. 1993) (orig. proceeding) ..........................................19, 20

In re Bennett,
    960 S.W.2d 35 (Tex. 1997) (per curiam) (orig. proceeding) .....12, 13, 15, 18, 23

Bruington Eng’g Ltd. v. Pedernal Energy L.L.C.,
   403 S.W.3d 523 (Tex. App.—San Antonio 2013, no pet.) ....................15, 17, 18

Chrysler Corp. v. Blackmon,
  841 S.W.2d 844 (Tex. 1992) (orig. proceeding) ................................................11

Epps v. Fowler,
  351 S.W.3d 862 (Tex. 2011) ..................................................................15, 17, 18
Ezeoke v. Tracy,
   349 S.W.3d 679 (Tex. App.—Houston [14th Dist.] 2011, no pet.) ..................... 8
Frommer v. Frommer,
   981 S.W.2d 811 (Tex. App.—Houston [1st Dist.] 1998, pet.
   dism’d) ..................................................................................................................7

GTE Commc’ns v. Tanner,
  856 S.W.2d 725 (Tex. 1993) (orig. proceeding) .................................................. 9
Hyundai Motor Co. v. Alvarado,
  892 S.W.2d 853 (Tex. 1995) (per curiam) .........................................................18

Jefa Co. v. Mustang Tractor & Equip. Co.,
   868 S.W.2d 905 (Tex. App.—Houston [14th Dist.] 1994, writ
   denied)...................................................................................................................7

Johnson ex rel. Johnson v. Chesnutt,
   225 S.W.3d 737 (Tex. App.—Dallas 2007, pet. denied)........................13, 14, 15




                                                              3
Keith v. Keith,
   221 S.W.3d 156 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ................22, 23

Love v. State Bar of Texas,
  982 S.W.2d 939 (Tex. App.—Houston [1st Dist.] 1998, no pet.) ........................ 7

Otis Elevator Co. v. Parmelee,
   850 S.W.2d 179 (Tex. 1993) ..........................................................................7, 11

Shook v. Gilmore & Tatge Mfg. Co.,
   851 S.W.2d 887 (Tex. App.—Waco 1993, writ denied) ...................................... 8

Solum Eng’g, Inc. v. Starich,
   No. 14-13-428-CV, 2014 WL 4262175 (Tex. App.—Houston
   [14th Dist.] Aug. 28, 2014, no pet. h.) (mem. op.) ...........................13, 14, 15, 23
In re Team Rocket, L.P.,
    256 S.W.3d 257 (Tex. 2008) (orig. proceeding) ..............................12, 15, 17, 19
Wendlandt v. Wendlandt,
  596 S.W.2d 323 (Tex. Civ. App.—Houston [1st Dist.] 1980, no
  writ) .......................................................................................................................7
West v. Joseph,
  No. 03-00-691-CV, 2001 WL 420743 (Tex. App.—Austin April
  26, 2001, no pet.) ....................................................................................14, 15, 23

Statutes
Tex. Civ. Prac. & Rem. Code §150.002 ..................................................................18

Rules
Tex. R. Civ. P.
  162...........................................................................................................13, 19, 20
  296.....................................................................................................................6, 7
  297.....................................................................................................................6, 7
  298.........................................................................................................................6
  683.......................................................................................................................16
  684.......................................................................................................................16
  685.......................................................................................................................16



                                                               4
                              SUMMARY OF ARGUMENT

      Rosehurst’s opening brief stated, “There is not a single Texas case that has

ever awarded monetary sanctions under these circumstances.” Br. Appellant at 9.

Hughes responds that Rosehurst “states the issue far too narrowly.” Br. Appellees at

14. To clarify, there is not a single Texas case that has awarded monetary sanctions

for non-suiting a case and re-filing it when:

         • There is no pending motion for sanctions at the time of the non-suit;

         • There is no allegation of discovery abuse or conduct other than the non-

             suit and re-filing;

          • There has been no adverse ruling on a contested matter before the non-

             suit that the non-suit and re-filing seeks to reverse or avoid.

At least one of those conditions exists in each of the cases relied upon by Hughes,

which renders them distinguishable to the point of not being binding precedent.

      Hughes repeatedly asserts that Rosehurst non-suited and re-filed to avoid and

circumvent: (1) the dissolution of an alleged temporary injunction, and (2) an

allegedly eminent summary judgment. But the temporary injunction never existed,

and Rosehurst did not even oppose the motion to dissolve it. And the dissolution of

the alleged injunction on procedural grounds does not justify an inference that

summary judgment would have been granted on substantive grounds. And Rosehurst

did not attempt to circumvent any existing ruling by the county court after non-suit.


                                          5
                                 ARGUMENT IN REPLY

I.     Hughes is wrong about the standard of review.

       Hughes opens its brief with two statements about the standard of review. Both

are mistaken.

       First, Hughes asserts that Rosehurst “glosses over the standard of review.” Br.

Appellees at 11. Both sides agree that the standard of review is “abuse of discretion.”

Rosehurst did not gloss over or hide from this fact. Both of the major headings in

Brief of Appellant state that “The trial court abused its discretion.” Br. Appellant at

10, 18. Some variation of the phrase “abuse of discretion” appears five other times

in the text, including three times in the Summary of Argument. If Rosehurst was

trying to gloss over or hide from this standard of review, it did a poor job of

obscuring or concealing it. Hughes’s accusation is unfounded.

       Second, Hughes argues that a stricter standard of review was implicated

because Rosehurst failed to request additional or amended conclusions of law or

findings of fact under Rule 297. Br. Appellees at 11. Rule 297 has nothing to do with

requests for additional or amended findings — those are addressed in Rule 298. But

both rules are found in a section of the Rules of Civil Procedure entitled “Findings

by the Court,” and the first rule in that section states that it applies to “any case tried

in the district or county court without a jury.” Tex. R. Civ. P. 296 (emphasis added).

Rule 298 does not come into play until “[a]fter the court files original findings of



                                            6
fact and conclusions of law” in response to a request under Rule 296. Because this

case has not yet been tried to a district or county court, there was no judgment

triggering the deadlines for a request, and there was no request for findings of fact

and conclusions of law under Rule 296, neither Rule 297 nor 298 requires a request

for amended or additional findings.

      Hughes cites two divorce cases that were appeals from a final judgment after

a trial before the court. See Br. Appellees at 12 (citing Frommer v. Frommer, 981

S.W.2d 811, 814 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d); Wendlandt v.

Wendlandt, 596 S.W.2d 323, 325 (Tex. Civ. App.—Houston [1st Dist.] 1980, no

writ)). The other case it cites involved a post-answer default judgment because one

of the litigants did not appear for trial. See Br. Appellees at 12 (citing Love v. State

Bar of Texas, 982 S.W.2d 939, 944 (Tex. App.—Houston [1st Dist.] 1998, no pet.)).

All of these cases are distinguishable because of the presence of a final judgment

following a trial of some sort.

      In situations involving sanctions rather than a judgment after a bench trial,

Texas courts have expressly ruled that findings pursuant to Rules 296, et seq. are not

required; the presumptions attendant to Rule 296 findings of fact and conclusions of

law do not apply; and the appellate court is not bound by the trial court’s findings,

but instead makes an independent inquiry considering the entire record. See Otis

Elevator Co. v. Parmelee, 850 S.W.2d 179, 180-81 (Tex. 1993); Jefa Co. v. Mustang


                                           7
Tractor & Equip. Co., 868 S.W.2d 905, 909-10 (Tex. App.—Houston [14th Dist.]

1994, writ denied); Shook v. Gilmore & Tatge Mfg. Co., 851 S.W.2d 887, 893-94

(Tex. App.—Waco 1993, writ denied).

      In short, Hughes’s assertion that the standard of review is altered by the

absence of a request for additional or amended findings of fact or conclusions of law

is unwarranted.

II.   Rosehurst did nothing wrong; it certainly did nothing to justify sanctions.

      A.     The trial court’s sanctions order did not identify specific conduct
             by Rosehurst meriting sanctions.

      Rosehurst demonstrated in its opening brief that the exercise of the inherent

power to impose sanctions for bad faith abuse of the judicial process must be

supported by “evidence and factual findings that the conduct complained of

significantly interfered with the court’s legitimate exercise of one of these powers.”

Ezeoke v. Tracy, 349 S.W.3d 679, 685 (Tex. App.—Houston [14th Dist.] 2011, no

pet.) (cited in Br. Appellant at 12-13). Hughes makes no response to this argument,

nor does it attempt to explain how the court’s order complies with this requirement.

      Instead of evidence and factual findings, the county court’s order strings

together unsupported legal conclusions: “significantly interfered with the Court’s

exercise of its core power to decide issues of fact and questions of law”; “bad faith

abuse of the judicial process”; “loss of judicial economy”; “needlessly increased the

cost of litigation”; “offensive conduct.” CR 191. As pointed out in the opening brief,


                                          8
the Texas Supreme Court has declared, in a similar circumstance, “We give no

deference to such unsupported conclusions.” GTE Commc’ns v. Tanner, 856 S.W.2d

725, 729 (Tex. 1993) (orig. proceeding) (cited in Br. Appellant at 13-14). Hughes

did not respond to that argument either.

      The only specific act mentioned in the county court’s order was the filing of

a “Second Supplement to Its Original Petition in the district court,” which alleged

the violation of a Rule 11 agreement that the county court “already determined . . .

was void as a matter of law. . . . in an attempt to circumvent th[e county] court’s

order.” CR 191. There are several reasons why this statement collapses under

scrutiny.

      First, the county court has not determined that the Rule 11 agreement (see

Tab A) was void as a matter of law, and Rosehurst’s pleading did not attempt to

circumvent the county court’s order. The county court’s order declared that the “the

temporary injunction in this case is void.” Supp. CR 21 (see Tab B). This was in

response to a motion pointing out procedural defects in the temporary injunction:

it was not limited by a trial date and required no bond. See generally Supp. CR 10-

20. The county court’s order granting this motion does not mention the Rule 11

Agreement, and certainly does not declare it void.

      Rosehurst subsequently filed allegations in the district court that Hughes

violated the Rule 11 agreement by moving to declare the temporary injunction void.


                                           9
See CR 161-62 (see Tab C). It would be entirely possible for the county court to

correctly hold that a temporary injunction was void for procedural reasons, but for

Rosehurst to properly allege that Hughes violated the Rule 11 Agreement that the

“Temporary Restraining Order is extended to a Temporary Injunction.” Supp. CR at

18. The pleading allegation complains about Hughes filing a motion; it does not seek

to reverse the county court’s granting of that motion. So that pleading does not

attempt to circumvent a decision already made by the county court.

       Second, although the county court notes that Rosehurst non-suited the case in

county court and “re-fil[ed] it on the same day in Harris County District Court,” the

pleading that was filed on that day (January 27, 2014) did not contain any allegations

about the Rule 11 agreement or the Temporary Injunction. 1 The first pleading with

an allegation about the Rule 11 Agreement was filed on March 27, 2014, CR 162,

191, two months after the non-suit and re-filing. So if the county court’s only specific

complaint about Rosehurst is the Rule 11 pleading, that is not directly or temporally

related to the non-suit and re-filing, but to a supplemental pleading in the district

court adding a single paragraph two months later.


1
  Hughes did not include the Plaintiff’s Original Petition filed in District Court in its Bench Brief
on Sanctions or Defendants’ Supplemental Brief on Sanctions or anywhere else in the record. But
this Court can infer that the original petition did not contain these pleadings because neither
Hughes’s briefing nor the trial court’s order mention anything about pleadings regarding the Rule
11 agreement until the Second Supplemental to Plaintiff’s Original Petition. To remove any doubt,
Rosehurst attaches a copy of the Plaintiff’s Original Petition filed in the District Court as Tab D to
this brief, and asks that the Court take judicial notice of it.


                                                 10
        Third, if the only specific complaint is about an allegedly improper filing in

the district court, that should be addressed by a motions for sanctions in the district

court. The county court judge lacks jurisdiction to sanction conduct in the district

court. Furthermore, if Rosehurst filed pleadings already foreclosed by a ruling in

another court — which, to be clear, this pleading was not — the remedy would

simply be a motion to strike that pleading in the district court, not a potential

$253,000 sanction arising from a legitimate exercise of the right to non-suit and re-

file.

        In sum, the county court’s sanctions order fails to satisfy the requirement of

evidence and factual findings sufficient to warrant monetary sanctions. Instead it

makes only broad conclusory findings, which this Court is not bound by, but instead

can make an independent inquiry considering the entire record. See Otis Elevator

Co. v. Parmelee, 850 S.W.2d 179, 180-81 (Tex. 1993); Chrysler Corp. v. Blackmon,

841 S.W.2d 844, 852 (Tex. 1992) (orig. proceeding).

        B.    The cases relied on by Hughes do not support sanctions against
              Rosehurst.

        In response to Rosehurst’s argument that “not a single Texas case . . . has ever

awarded monetary sanctions under these circumstances,” Br. Appellant at 9, Hughes

counters, “Several courts of appeals have held . . . [that] strategic nonsuits to avoid

unfavorable rulings . . . may warrant sanctions.” Br. Appellees at 14. Yet each of the




                                           11
cases cited by Hughes is distinguishable because of conduct far worse than the

simple non-suit and re-filing involved in this case.

In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding). As

explained in Brief of Appellant, this case involved attempts to “compromise the

integrity of the venue statute,” id. at 263, after an adverse ruling under the traditional

procedure for establishing venue. To prevent that attempted abuse, the supreme court

reinstated the original venue determination; it did not assess sanctions. These

distinctions were pointed out in Brief of Appellant. Br. Appellant at 11-12. Hughes

ignored them and asserted Team Rocket as controlling authority without addressing

the distinctions. Br. Appellees at 14.

In re Bennett, 960 S.W.2d 35 (Tex. 1997) (per curiam) (orig. proceeding). This case

involved “a deliberate circumvention of the random assignment of cases” in Nueces

County. Id. at 36. In a county with eight district courts, counsel filed the identical

suit seventeen times before landing in the desired court and non-suiting the previous

sixteen suits. Moreover, counsel “admitted . . . that the filing process he used was

designed to get his clients’ claims before a particular judge.” Id. at 37. Rosehurst

pointed out these distinctions in its opening brief, Br. Appellant at 17, but Hughes

again cited the case as authority without addressing the distinctions. Br. Appellees

at 14-16, 21.




                                           12
      In fact, Hughes argues that the conduct in this case was “more egregious” than

that in Bennett because the non-suit occurred later in the case. Br. Appellees at 15-

16. The Bennett opinion says nothing about timing being a factor, because it focused

on counsel’s admitted attempt to circumvent an established judicial process. And no

other opinions address whether a non-suit occurred early or late in a case, because

Rule 162 allows a non-suit “[a]t any time before the plaintiff has introduced all of

his evidence. . . .” Tex. R. Civ. P. 162. The only timing question that matters is

whether a motion for sanctions has already been filed or an adverse ruling to be

circumvented already has been made at the time of the non-suit.

Solum Eng’g, Inc. v. Starich, No. 14-13-428-CV, 2014 WL 4262175 (Tex. App.—

Houston [14th Dist.] Aug. 28, 2014, no pet. h.) (mem. op.). Here, a motion for

sanctions was filed before the plaintiff non-suited the case. Id. at *1. The basis for

the sanctions motion was not a non-suit and re-filing of the same suit, which had not

happened at the time of the sanctions motion, but instead on allegations that “the suit

was ‘initially and improperly filed’ in Fort Bend County” and the claims were

“frivolous and groundless.” Id. at *2.

Johnson ex rel. Johnson v. Chesnutt, 225 S.W.3d 737 (Tex. App.—Dallas 2007,

pet. denied). Here, again, the motion for sanctions “was pending at the time of non-

suit,” id. at 742, and the basis of the sanctions motion was not the non-suit, but

numerous discovery abuses. Id. at 740-41. Moreover, the sanctioned party “admitted


                                          13
that the non-suit was a tactical effort to avoid the penalties likely to result from her

failure to comply with her discovery obligations.” Id. at 744.

West v. Joseph, No. 03-00-691-CV, 2001 WL 420743 (Tex. App.—Austin April 26,

2001, no pet.). This case involved a motion for sanctions based on actions the trial

court described as “a course of conduct that was calculated solely to harass Joseph

and needlessly increase the cost of litigation, and . . . waste[d] judicial resources.”

Id. at *3. These actions included “the filing of multiple lawsuits, admittedly

unreasonable opposition to Defendant’s efforts to consolidate the multiple lawsuits,

and improper conduct during the discovery process.” Id. The appellate court also

concluded that the sanctioned party engaged in “a course of conduct to circumvent

the judicial process.” Id. at *4. Part of the sanctioned party’s course of conduct

included taking a non-suit and re-filing in a different district court. Id. at 3-4. But

counsel admitted that “the reason for the non-suit was that he did not agree with the

court’s pretrial rulings.” Id. at *4. Faced with this admission, the appellate court

concluded that the party “engaged in improper forum shopping by filing his non-suit

for the purposes of securing a different judge and different pretrial rulings.” Id.

      In sum, these cases share several common and important distinctions.

Sanctions were allowed because of several factors not present in this case:

   • Motions for sanction already pending at the time of non-suit (Solum,

      Johnson);


                                          14
   • Sanctions awarded for egregious conduct far beyond the non-suit (Bennett,

      Solum, Johnson, West);

   • Admissions of improper motives in filing non-suit (Bennett, Johnson, West);

   • Non-suit was obvious attempt to circumvent an established judicial statutory

      scheme or judicial administration practice (Team Rocket, Bennett).

   None of those factors are present here.

      C.     The record does not establish that Rosehurst non-suited “to avoid
             legal restrictions or unfavorable rulings.”

      In the absence of sanctions cases that fit the actions of Rosehurst, Hughes cites

two non-sanctions cases for the proposition that Texas courts “look with disfavor on

non-suits that are filed to circumvent legal restrictions or unfavorable rulings.” Br.

Appellees at 13 (citing Bruington Eng’g Ltd. v. Pedernal Energy L.L.C., 403 S.W.3d

523 (Tex. App.—San Antonio 2013, no pet.); Epps v. Fowler, 351 S.W.3d 862 (Tex.

2011). Even if those cases were applicable, there is no evidence that Rosehurst filed

the non-suit to circumvent legal restrictions or unfavorable rulings.

      Hughes never argues that Rosehurst non-suited to circumvent legal

restrictions. But it repeatedly argues that Rosehurst non-suited in order to circumvent

two unfavorable rulings: (1) the county court’s dissolution of a temporary injunction,

and (2) the allegedly “pending summary judgment.” See Br. Appellees at viii, 7-8,

9, 16-21. Both of these arguments are flawed, and the frequent repetition of them

does not give them any greater validity.

                                           15
             1.     Rosehurst did not non-suit to avoid the dissolution of the
                    temporary injunction.

      First, the motion and order dissolving the alleged temporary injunction were

unnecessary and can be considered a nullity. There never was a temporary injunction

order entered by the trial court as required by Rules 683-85. See Tex. R. Civ. P. 683-

85. There was only a Rule 11 agreement between the parties agreeing to treat the

temporary restraining order as a temporary injunction. See Supp. CR 18.

      Second, the dissolution of the temporary injunction was in response to a

motion based on procedural flaws with the injunction: the absence of a trial date and

a bond. See generally Supp. CR 10-20. Rosehurst did not even file a response or

otherwise contest the motion. Given that the motion to dissolve a non-existent

temporary injunction was not necessary and Rosehurst did not contest, this can

hardly be considered an adverse ruling.

      Third, and most important, Rosehurst has not sought to undo the effects of the

dissolution of the non-existent temporary injunction after non-suit and re-filing. The

Second Supplemental Petition filed in District Court that Hughes points to did not

seek to reinstate the injunction — it merely alleged that Hughes violated a Rule 11

agreement to be bound by the injunction and sought additional damages for breach.

See CR 161-62. Even that allegation was a minor supplement to the action originally

filed in the district court two months earlier.




                                           16
       In sum, the county court’s order dissolving the non-existent injunction was

not an unfavorable ruling that Rosehurst sought to circumvent by non-suiting and

re-filing.

             2.    Rosehurst did not non-suit to avoid a non-existent summary
                   judgment.

       The allegedly “pending summary judgment” is not something that ever

happened, nor can this Court infer that it ever would have happened. Hughes asserts

that the county court’s dissolution of the injunction “made clear its opinion that no

great harm would result from allowing Hughes to provide service outside of the

plotted easement.” Br. Appellees at 17. But the court’s order simply granting a

motion based on two procedural grounds does not in any way express an opinion

about the merits of the underlying dispute. See Supp. CR 21. That order cannot be

relied upon as foundation from which it is “a small step” to the granting of a

summary judgment on the merits. See Br. Appellees at 17.

       In any event, this speculation about whether the county court would have

made an unfavorable summary judgment ruling absent the non-suit is not relevant to

the legal analysis of whether the non-suit was sanctionable. When the two cases cited

by Hughes say that the courts look with disfavor on non-suits to circumvent

unfavorable rulings, they each cite the same three cases involving unfavorable

rulings that already have taken place — not anticipated rulings that might take

place. See Bruington, 403 S.W.3d at 532; Epps, 351 S.W.3d at 870 (both citing In


                                         17
re Team Rocket, 256 S.W.3d at 260 (attempt to circumvent venue determination); In

re Bennett, 960 S.W.2d at 36 (attempt to circumvent random assignment practice);

Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854 (Tex. 1995) (per curiam)

(decision on motion for partial summary judgment)). Similarly, the Bruington case

involved a failure to timely file a “certificate of merit” pursuant to section 150.002

of the Civil Practice & Remedies Code, and an attempt to extend the deadline by

non-suiting and re-filing.

      The only case cited by Hughes that involves a non-suit in response to an

anticipated ruling on a pending motion for summary judgment is Epps v. Fowler.

But that opinion is not about sanctions. Instead, it addresses whether the opposing

party can recover under a contract that entitles a “prevailing party” to recover

attorney’s fees. Epps, 351 S.W.3d at 865. There is a substantial difference between

determining who is a prevailing party for purposes of a contractually agreed exercise

in fee shifting and awarding sanctions for an abuse of the judicial process.

      D.     Hughes’s remaining arguments are unavailing.

      Hughes repeatedly accuses Rosehurst of filing a “strategic” non-suit. See Br.

Appellee at vii, viii, 9, 13, 14, 16, 17, 19, 21. There is nothing wrong with parties or

counsel making “strategic” decisions; in fact that is a large part of what parties pay

counsel to do. Hughes, in effect, admits that it made its own strategic decision not to

agree to a transfer because it believed it was in “a favorable forum.” Br. Appellee at



                                          18
27. “Strategic” decisions only become sanctionable when a party or counsel tries to

manipulate the system to undo a decision already made in accordance with a

procedure authorized by statute, rule, or procedure. That did not happen here.

Rosehurst did not try to undo or circumvent the order dissolving the temporary

injunction, and it did not try to undo or circumvent an existing order granting

summary judgment.

       Additionally, Hughes erroneously asserts that Rosehurst has contended that

“the county court lacked jurisdiction” after damages increased above the

jurisdictional limits, or that “the county court could not properly award the full

amount of damages that Rosehurst incurred.” Br. Appellee at 23 (without citation to

the record or to Appellant’s Brief). To the contrary, Rosehurst has never argued that

it could not obtain full relief in the county court, or that it had to try its case in district

court after its damages grew to exceed the jurisdictional limits of county court. But

after that happened the two courts had concurrent jurisdiction, and Rosehurst had a

choice about the court in which to litigate its claims. And it had a choice of vehicles

for litigating its case in a different court. It could have, but was not required to, filed

a motion to transfer. It also could non-suit its claims, at any point prior to the close

of its evidence, Tex. R. Civ. P. 162, and could re-file a subsequent suit seeking the

same relief. See In re Team Rocket, L.P., 256 S.W.3d at 259; Aetna Cas. & Sur. Co.

v. Specia, 849 S.W.2d 805, 806 (Tex. 1993) (orig. proceeding). The supreme court


                                              19
has declared that the right to take a non-suit is “important and firmly rooted in the

jurisprudence of our state,” and that “Rule 162 should be liberally construed in favor

of the right to take a non-suit.” Specia, 849 S.W.2d 805 at 806. Sanctioning a party

for exercising its right to take a non-suit is not consistent with that liberal

construction.

III.   Even if sanctions were warranted, the award of attorney’s fees is
       excessive and unsupported.

       Again, if the Court agrees that no sanctions are appropriate, it need not address

this argument, which is only presented in the alternative.

       Rosehurst argued that Hughes should not be entitled to recover all of its

attorney’s fees in the county court because the case would not have to “start all over

again” in the district court, as counsel repeatedly asserted at the hearing on sanctions.

See Br. Appellant at 18-19.

       In its Brief of Appellees, Hughes now backs off of the “start over again”

argument it made in the county court, and instead suggests that the amount awarded

is reasonable because it is less than counsel asked the court to award. See Br.

Appellees at 28 (noting that counsel requested over $130,000, and the court awarded

$78,600). Of course that alone does not mean the award was reasonable. Counsel

could have asked for $1,000,000 in sanctions based on fees, and if the court had

awarded $750,000, the fact that it was less than what was asked for would not make

an award of $750,000 reasonable.


                                           20
       What would make the award supportable would be evidence about (1) which

fees were generated for tasks that would have to be duplicated in the district court,

or (2) which fees would not have been necessary if the case had been filed originally

in district court. The attorney affidavit reciting that all fees incurred in the litigation

thus far were reasonable and necessary does not accomplish that purpose. There is

no evidence in the record to support the county court’s conclusion about which fees

were made necessary by first filing in county court, and would not have been

necessary if the suit were originally filed in district court. In the absence of that kind

of testimony, any award by the county court is necessarily based on speculation.

      Additionally, the affidavit testimony about appellate attorney’s fees is simply

conclusory. It is best viewed in contrast to the same affidavit’s discussion of

attorney’s fees in the county court, which describes the witness’s experience as a

trial lawyer, his knowledge of customary fees for trial litigation, the fourteen specific

tasks that were done, and five factors enumerated in case law and the Disciplinary

Rules for determining a fair fee. See generally, CR 95-96. The sum total of the

affidavit testimony about appellate fees consists of this: “Additionally, it is my

opinion that an additional $100,000.00 is a reasonable and necessary fee should this

judgment be appealed to the court of appeals, plus an additional $75,000.00 should

a petition for review be granted by the Texas Supreme Court.” CR 97.




                                            21
      As support for the proposition that one seeking attorney’s fees can simply

state a number without any further explanation, Hughes cites one case: Keith v.

Keith, 221 S.W.3d 156 (Tex. App.—Houston [1st Dist.] 2006, no pet.). But in that

case, the husband’s attorney testified that reasonable appellate fees would be

$15,000 for the court of appeals, and $20,000 for the supreme court. Id. at 170. The

trial judge then asked the wife’s attorney what he thought would be reasonable

appellate fees, and he said $7,500 for the court of appeals, and $10,000 for the

supreme court. Id. The trial court then awarded to the husband the lower appellate

attorney’s fees suggested by the wife’s attorney. Id. at n.9. Not surprisingly, this

Court affirmed, noting that the wife “does not complain about her own expert’s

conclusion as to contingent appellate fees.” Id.

      So the Keith opinion does not stand for the proposition that a party seeking

appellate attorney’s fees can simply have their expert name a number and it must be

affirmed. Instead, it stands for the proposition that when a party’s expert expresses

an opinion about the amount of attorney’s fees that should be awarded to the

opposing party, and the trial court awards the suggested numbers, that party cannot

challenge their own suggested numbers on appeal.

      Finally, as a point of reference it is useful to compare the amount of attorney’s

fees awarded in this case to the recent cases cited by Hughes in which attorney’s fees

were awarded as sanctions:


                                         22
      Keith v. Keith                     $7,500 for court of appeals
                                         10,000 for supreme court

      West                               $14,751 for sanctions (fees in trial court as a
                                         result of improper conduct)

      Solum Eng’g                        $7,500 for sanctions (fees in trial court as a
                                         result of improper conduct)

      In re Bennett                      $10,000 each against two attorneys

      Rosehurst v. Hughes                Attorney’s fees as sanctions in amount of:
      (this case)                        $78,600 for trial court
                                         $175,000 for appellate fees

      In comparison, the fees awarded in this case are excessive.

                             CONCLUSION AND PRAYER

      For all these reasons, Appellant Rosehurst Homeowner’s Association, Inc.,

respectfully requests that the county court’s sanction order be vacated, or, in the

alternative, that it be substantially reduced. Appellant also request all other relief to

which it may be entitled.

                                           Respectfully submitted,

 J. Marcus Hill                      /s/Kevin Dubose
 HILL & HILL, P.C.                   Kevin Dubose
 1770 St. James Place, Suite 115     State Bar No. 06150500
 Houston, Texas 77056                kdubose@adjtlaw.com
                                     ALEXANDER DUBOSE JEFFERSON
 Michael P. Fleming                    & TOWNSEND LLP
 MICHAEL P. FLEMING & ASSOCIATES 1844 Harvard Street
 440 Louisiana, Suite 1920           Houston, Texas 77008
 Houston, Texas 77002                Telephone: (713) 523-2358
                                     Facsimile: (713) 523-4553
                          ATTORNEYS FOR APPELLANT

                                           23
                          CERTIFICATE OF COMPLIANCE

      Based on a word count run in Microsoft Word 2013, this brief contains 4,649

words, excluding the portions of the brief exempt from the word count under Texas

Rule of Appellate Procedure 9.4(i)(1).

                                              /s/Kevin Dubose
                                              Kevin Dubose


                            CERTIFICATE OF SERVICE

      On January 5, 2015, I electronically filed this Reply Brief of Appellant with

the Clerk of Court using the eFile.TXCourts.gov electronic filing system which will

send notification of such filing to the following (unless otherwise noted below):

Mike Stafford
mstafford@gardere.com
Katharine D. David
kdavid@gardere.com
GARDERE WYNNE SEWELL LLP
1000 Louisiana Street, Suite 3400
Houston, Texas 77002


                                              /s/Kevin Dubose
                                              Kevin Dubose




                                         24
                          APPENDIX

Tab   Item
A.    Rule 11 Agreement (Supp. CR 18)

B.    Order declaring temporary Injunction Void (Supp. CR 21)

C.    Plaintiff’s Second Supplement to its Original Petition (CR 161-
      62)

D.    Plaintiff’s Original Petition (filed in District Court, not part of
      this Record)




                              25
                                FROll·HILL l   HIL~
                                                                                                                MU       P. OZ/02   F· I09
      01-D&·l I   16161




                                                  HILL & ffiLL, P.C.
                                                          1770 St. Jwnoa Plaoo, S\llto 115
                                                              Holl!ltOn> Tex11s 77656                           1'JlU!COPIBll.t71JJOM81'1
             11'LUPHOl'IB (113) 68i~'1$

                                                                   Janutuy 6, 2011
             Gr~g  MoEldowntiy
             Hayoiaa & Boone, LP
             1221 MoKlrmey SI.
             Sutta 2100
             Houeton, Texl!la 77010
             Telephone: 713.541.2641
             Fur-slmlle: 713.238,6676
                          Re:     Cause no. 98093~; ~o1'ehvrst Homeowners Aasoolatfan v. Hughes Nature/ Gas,
                                  /no, ttncl Real Provenohor, In the Counly Court et Law No, Two; Har1ls ociunty,
                                  T~xcia


             Dear Greg:
                      The purpo&a of 11111~ Jetter Is to mamorlallzo \he rule 11 ft(Jr•.u~ml'lnt al which we arrived
            ee1rller luday over lhe telephone. We agreed thllt, In Iha above captioned mattsr, Iha remporary
            Restraining Order le extended 10 a Temporary ln)Unotlc;in, Thtt Temporary lnjunotlon I& "nffm1d
            Into underlhe ea me terms and condltlomi,.a!_Wevlously aetfor1h In open court and In the Court's 1)
            reoqrd to eo::t1l.l)l!Ffrom-J11r1ulil1~-2a1.f.! 1f~~e!) of which la to schedule imd ~artef1;1lly Alt{'?;.,v.D
    · 1·        ltJ     '                       itiW                                                                 f'f
/>'Wf/P11"'H'e901VG thle•·1m1llO(~Oll•l'lrld to obtain\\ trlal d1i1te. If lh!B property aats our il.Qreement,
 ('(d' please ulu1 where ln~lcated below and return 11 r:lopy of thla letter to mo. Thanka for your
 ._           prof<,nu~fcll\ llam.                                                            I          11          ·Y"),
                                                                           ~         ~ ·,I\ 1-\\1 \ (L,C.:'I~ f' /]/'f 0 ,
                                , ·\   ~q      ·lr1 c~I   J.t,~<!. '\:e>       1
                                                                                   <~ Best regarde,              ; ·


                                                                               /Jtl2rfJ-t/
                                                                                   /   ~ltomay for the Pltt.lnlllf
              Ji:)T.RCP11:~·
                  r   '   -~    tl     !   !/"-··~
              a            oE"ilowoey              /
              Attorney for Peronctttnr·




                                                                           EXHIBIT

                                                                 I                 l




                                                                                                                                             18
                                                                      0                                                0
                                                                                                     t!J0oCJ/5 3
                                                                                    CAUSE       NO~
           ROSEHURST HOMEOWNER'S                                                                     §           IN THE COUNTY CIVIL
           ASSOCIATION, INC.                                                                         §
               Plaintiff,                                                                            §
           v.                                                                                        §           COURT ATLAWN0.2
                                                                                                     §
           HUGHES NATURAL GAS                                                                        §
           CORPORATION AND REAL                                                                      §
()         PROVENCHER                                                                                §
·'':
f;)i           Defendantv.                                                                           §           HARRIS COUNTY, TEXAS

                                                          ORDER DECLARING TEMPORARY INJUNCTION VOID

                      On this day, the Court having considered Defendants' Motion to Declare Temporary

           Injunction Void, the evidence presented, Plainti ff s response, if any, and arguments of counsel, if

           any, is of the opinion that the Defendants' Motion to Declare Temporary Injunction Void should

           be in all things GRANTED.


                      It is therefore, ORDERED, ADJUDGED and DECREED, that the temporary injunction

           in this case is VOID.




                      SIGNED this_ day of _ _ _ _ _• 2013.
                                                                                    NOV 2 0 2013




                                                                                                            JUDGE PRESIDING
                                         /,/)                    RECORDER'S      ~EMORANDUM:
                                 . ,.                     At the time of recordation, this instrument was
                                                    ~und lo be inadequate for the best photographic
                                      ,reproduct1on .because of llleglbility, carbon or
       0                         ~·;~.Pho.to copy, d1scolorad paper, etc. All blackouts,

       w               , ,        .. ·additions and changes were present at the time
                      . ·· i' .. ~-: ..·Iha Instrument was filed and recorded.

             0                           >-··
             N
             >                       .   ... J       .

             ~
                                         C:J ~
                             "';         '-'~~
             """
             -
                      ....   \
                      I........_
                                 ~          ~-

                                                 Ill:'.
                                                 ~
             ~        1;'11 :::
           GardcrcO I • 63i'5369v.2




                                                                                                                                        21
     MAR-27-2014 09:46A"     FROM-HILL HILL                                 +mm2s17                 T-Z41   P.002    F-961




                                                      CAUSE NO. 2014-03233

               ROSEHURST HOMEOWNERS                            §                 IN TH£ DISTRICT COURT
               ASSOCIATION, INC.                               §
                                                               §
               v.                                              §                OF HARRIS COUNTY, TEXAS
t.                                                             §
               HUGffES NATURAL GAS, INC.                       §
               and REAL PROVENCHER                             §                129TH JUDICIAL DISTRICT


                           PLAINTIFF'S SECOND SUPPLEMENT TO ITS ORIGINAL PETl'l'ION

                      TO THE HONORABLE JUDGE: OF SAID COURT:

               COMES NOW Rosehurst Homeowners Association, Inc., Plaintiff in the above entitled and

               numbered cause, and tiles this Second Supplement LO ics Original Petition against Hughes Natural

               Oas and Real Provencher, and would respectfully show the Court the following:

                                                                l.
                                                            DISCOVERY

                      As originally filed, this is a suit in which discovery will be conducted under Level 2, as

               provided in Rule 190.3 of the Texas Rules of Civil Procedure.

                                                              II.
                                                          SUPPLEMENT

                      Plaintiff bring!j its second supplement to allege a violation of the Rule 11 agreement

              entered into by the parties on January 5, 2011. Per the agreement, the injunction would remain

              effective until "the trial date to be set in this matter." Si!<! attached Ex. A.   The parties separately

              indicated their agreement to this handwritten tenn by initialing it. Id. Despite the agreement,

              Defendants subsequently filed a motion declaring the temporary injunction void, and citing as its

              reason, the fact that its duration was nor ··limited by a i:;pecific trial date." See attached Ex. B. The

              mere allegation, that a term to which the Defendimts expressly and separately agreed also served to

              invalidate the agreement is both disingenuous and a material breach. Accordingly, Plaintiff's




                                                                EXHIBIT

                                                        IA

                                                                                                                             161
IMR-ZMOl4 09:461.M          FROM-HILL HILL                                        +7136982817           M41   P 003/010   M61




          request damages for additional trespasses and anomey's fees it incurred as a result of the breach of

          the agreed injunction.

                                                                        III.
                                                                    PRAYER
                      WHEREFORE PREMISES CONSIDERED, Plaintiff respectfully prays all relief

          previously sought in Plaintiff's Original Petition as originally filed, for damages and attorney's

          fees related to the breach of the Rule 11, and for such other and further relief to which this Court

          may deem just and right.
                                                                     Respectfully submitted,

                                                                     Isl J. Mo:.rc+* HUL
                                                                     J. Marcus "Marc" Hill
                                                                     Hill & HILL. P.C.
                                                                     TBN 09638150
                                                                      1770 St. James Place, Suite 115
                                                                      Houston, Texas 77056
                                                                     Telephone: 713-688-6318
                                                                     Facsimile: 713-688-2817

                                                           CERTIFICATE (.W SERVICE

                   I certify that, pursuant to Rule 2 la of Texas Rules ol'c,:ivil Procedure. a trtte and correct copy ofthe
          above end foregoing has been sent to all counsel and prose parties on this the 27th day of March, 2014
                                                                                                                1
          either via hand dell very and/or via facslmlle and/or via cenified mail relum receipt requested.


                                                                     Isl J. Mfl.1'X!:'=+   Hu.L
                                                                     .I. Marcus Hill

          Mike Stafford                                      via ~.vl!n'i''I! undfacsimile
          Katharine D. David                                 via eservice c.mdfacsimlle
          Jared A. Wilkerson
          I 000 Louisiana Street. SLtitc 3400
          Houston. Texas 77002-5011
          Phone: 713-276-5500
          Fax:      713-276-SSSS
          I!J:>lal'ford@iarclcrc.com
          kdnvid(lligardere .com


          l   rule" \b1U bt!JQOOf!!\CMmoofvfii>smnd   mm




                                                                                                                                162
                                            CAUSE NO.
                                                                -------
ROSEHURST HOMEOWNERS                                                    IN THE DISTRICT COURT OF
ASSOCIATION, INC.

v.                                                                        HARRIS COUNTY, TEXAS

ffiJGHES NATURAL GAS, INC and
REAL PROVENCHER                                                                JUDICIAL DISTRICT


                                         PLAINTIFF'S ORIGINAL PETITION
                                         AND REQUEST FOR DISCLOSURE


TO THE HONORABLE JUDGE OF SAID COURT:


          COMES NOW ROSEHURST HOMEOWNERS ASSOCIATION, INC. (hereinafter called

"Plaintiff') and files this, its Original Petition against HUGHES NATURAL GAS, INC., AND

REAL PROVENCHER (hereinafter called "Defendant'' or sometimes The Defendants) and for

cause of action would respectfully show the court as follows:

                                          A. DISCOVERY-CONTROL PLAN

1.        Plaintiff intends to conduct discovery under Level 2 of the Texas Rule of Civil Procedure

190.3 and affirmatively pleads that this suit does not fall under the expedited-actions process of

Texas Rule of Civil Procedure 169 because Plaintiff seeks monetary relief in excess of $100,000.

                                                            B. RELIEF

2.       Plaintiff seeks monetary relief over $200,000 but not more than $1,000,000. Tex. R. Civ. P.

47(c)(4).

                                                           C. PARTIES
3.       Plaintiff, Rosehurst Homeowners Association, is a Texas corporation with offices in Harris

County, Texas.

4.       Defendant, Hughes Natural Gas, Inc. is a Texas corporation whose principal place of

business in Texas is, on information and belief, in Houston, Harris County, Texas and may be

served with citation by serving its registered agent, and Real Provencher is an individual which may
Rosehurst Homeowners Association v. Hughes Natural Gas, et al
Plaintiff's Original Petition and Request for Disclosure
be served at his place of business 31830 Texas Highway 249 in Pinehurst, Texas or wherever he

may be found.

                                           D . JURISDICTION AND VENUE

5.       The court has jurisdiction over the Defendant Hughes Natural Gas, Inc. because it is a

Texas Corporation doing business in Houston, Harris County, Texas and Defendant Real

Provencher because, on information and belief, he is a Texas resident.

6.       Venue is proper in Harris County, Texas, because the property made the basis of this suit

is located in Harris County, Texas.


                                    E. FAIR NOTICE OF FACTS IN THE CASE

7.        During all the times mentioned herein and at the commencement of this action, Plaintiff,

Rosehurst Homeowners Association, Inc. is and has been the owner in possession of certain real

property (hereinafter sometimes referred to as the "property") being a 116.25 acre tract of land in

the Solomon Brown Survey, A-7 Harris County, Texas. As found in the Official Public Records

of Real Property of Harris County, Texas.

8.        In late 2010, unbeknownst to and against the will of Plaintiff, Defendants willfully and

negligently commenced constructing a pipeline in, on and under the property made the basis of

the suit, causing physical damage in, on, and under the property by the laying of a pipeline and

the use of the land in connection therewith without the permission of the landowner and outside

of designated easements. As such injuring the private property of the Plaintiff.

                                               F. COUNT ONE: TRESPASS

9.        Plaintiff incorporates herein by reference the allegations in paragraphs one through eight

above. In doing the acts herein alleged, Defendants willfully trespassed on Plaintiffs property,

in 2010, 2011, 2012, 2013 and 2014, despite being told to and agreeing to cease and desist.

Defendants trespass is ongoing and constitutes a continuing-tort.
Roseh\U'St Homeowners Association v. Hughes Natural Gas, et al
Plaintiff's Original Petition and Request for Disclosure
                                                                 2
                                       IN THE ALTERNATIVE: NEGLIGENCE

10.       The actions complained of by the Defendants were committed, in the alternative, due to the

negligence of the Defendants and the damages requested in paragraph one through seven are

incorporated herein.

                G. COUNT TWO: WANTON DISREGARD OF PLAINTIFF'S RIGHTS

11 .      Plaintiff incorporates herein by reference the allegations in paragraphs one through ten

above. In doing the acts herein alleged, Defendants acted intentionally and maliciously with

willful, wanton disregard of the Plaintiffs rights, all for which it now seeks relief. Defendants '

acts were committed by a company and an individual without attempting to acquire proper

authorization, despite written requests to cease and desist damaging Plaintiff's property.

12.       The Defendants' acts subject them to punitive or exemplary damages for which Plaintiff

seeks judgment against Defendants for each and every day they trespassed on the property along

with pre-judgment and post judgment interest at the highest rate allowed by law, costs of court,

plus its attorneys' fees, all as a measure of punitive damages. for harm caused by defendants'

gross negligence under Texas Civil Practice & Remedies Code section 41 .003(a)(3), as defined

by section 41.001(11).

                                                OR IN THE ALTERNATIVE

13.       Plaintiff, Rosehurst Homeowners Association seeks 20% of the Defendants net worth along

with pre-judgment and post judgment interest at the highest rate allowed by law, costs of court, plus

its attorneys' fees, all as a measure of punitive damages.




Rosehurst Homeowners Association v . Hughes Natural Gas, et al
Plaintiff' s Original Petition and Request for Disclosure
                                                                 3
                                H. COUNT THREE: BREACH OF CONTRACT

14.       Plaintiff adopts and incorporates by reference the allegations in paragraphs one through

13 above.

15.       During all the times mentioned herein and at the commencement of this action, Plaintiff,

Rosehurst Homeowners Association, Inc. is and has been the owner in possession of certain real

property being a 116.25 acre tract of land in the Solomon Brown Survey, A-7 Harris County,

Texas. As found in the Official Public Records of Real Property of Harris County, Texas.

16.       Boyer, Inc., developer for Rosehurst Subdivision, and Defendant, Hughes Natural Gas

Corporation's predecessor, Capital Gas Distribution. Inc. ("Capital Gas"), executed a valid and

enforceable written contract on September 5, 2002, attached hereto as Exhibit A, and

incorporated by reference. In consideration of Boyer, lnc.'s payment of $13,500.00, attached

hereto as Exhibit B, the Contract provided that Capital Gas was to install a pipeline system that

was to provide gas service to the residents of Rosehurst subdivision and that Capital Gas would

be the sole owner of the lines and responsible for their maintenance.

17.       The contract provided for specific locations where the lines were to be installed.

Defendants failed to install the lines in the locations originally agreed to, and Rosehurst is the

beneficiary/successor to Boyer, Inc. in the Contract.

18.       Plaintiff fully performed Plaintiffs contractual obligations.

19.       Defendants intentionally, willfully, wantonly and with gross negligence, actual malice or

fraud breached the contract.

20.       Defendants' breach caused injury to plaintiff, which resulted in damages .

21.       Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.




Rosehurst Homeowners Association v. Hughes Natural Gas, ct al
Plaintiff's Original Petition and Request for Disclosure
                                                                4
22.       Defendants' breach of contract proximately caused injury to Plaintiff, which resulted in

the following damages:

               a. Loss in value, which is the reasonable and necessary costs of completing the job

                     or remedying the defects;

               b. Loss in value, which is the full contract price less the cost of remedying the

                     defects;

               c. Cost of delay in performance, which is the amount plaintiff incurred as a result of

                     the delay in performance caused by the breach of contract;

               d. Cost of mitigation of damages, which is the amount plaintiff incurred in

                     attempting to mitigate its damages after the breach of contract;

               e. Cost of substitute performance, which is the amount plaintiff incurred in

                     procuring substitute performance from another party after the breach of contract;

               f. Reliance damages, which are expenditures made by plaintiff in reliance on the

                     contract;

               g. Restitution damages, which is the reasonable value of the materials supplied or

                     the services rendered;

               h. Prejudgment and postjudgment interest at the highest rate allowed by law;

               i.    Costs of suit;

               j.    Exemplary damages;

               k. Reasonable and necessary attorney's fees; and Temporary rents from the time

                     Defendants entered the property of judgment until the pipeline is removed.




Rosehurst Homeowners Association v. Hughes Natural Gas, ct al
Plaintiffs Original Petition end Request for Disclosure
                                                                5
                                  I. COUNT FOUR: PRO:rvtISSORY ESTOPPEL

23.       Plaintiff adopts and incorporates by reference the allegations in paragraphs one through

22 above. Defendant, Hughes Natural Gas Corporation 's predecessor, Capital Gas Distribution,

Inc. promised Boyer, Inc., as developer for Rosehurst Subdivision, that it would supply natural

gas to the Rosehurst Subdivision and would be responsible for furnishing, installation and

maintenance of the gas system.

24.       Plaintiff relied on Defendants' promise by tendering to Defendant a check in the amount

of $13,500.00. Because of the nature of the promise, Plaintiff's reliance was both reasonable and

substantial.

25.       Defendants knew, or reasonably should have known, that Plaintiff would rely on

Defendants' promise.

26.       Only if Defendants' promise is enforced can injustice to Plaintiff be avoided.

27.       Plaintiff's reliance on Defendants' promise resulted in injury to plaintiff, which caused

damages, among others, the necessity of installing a temporary tank on the property of a

purchased lot.

28.       Plaintiff seeks unliquidated damages within the jurisdictional limits of this court.

                                                 J. COUNT FIVE: FRAUD

29.       Plaintiff adopts and incorporates by reference the allegations in paragraphs one through

28 above. Defendants made a false representation of fact to Plaintiff by representing that the line

that constituted the continuing trespass had been removed, when in fact it had not.

                                                  K. ATTORNEY'S FEES

30.       Plaintiff is entitled to recover reasonable and necessary attorney fees.




Roschurst Homeowners Association v. Hughes Natural Gas, et al
Plaintiff' s Original Petition and Request for Disclosure
                                                                6
                                            L. CONDITIONS PRECEDENT

31.       All conditions precedent to plaintiffs claim for relief have been performed or have

occurred and this statement is made per TRCP 54.

                                                 M. DEMAND FOR JURY

32.       Plaintiff demands a jury trial and tenders the appropriate fee with this petition.

                                          N. REQUEST FOR DISCLOSURE

33.       Under Texas Rule of Civil Procedure 194, plaintiff requests that defendant disclose,

within 50 days of the service of this request, the information or material described in Rule 194.2.

                                                                PRAYER

34.       For these reasons, Plaintiff, Rosehurst Homeowner' s Association, Inc. asks that

Defendants, Hughes Natural Gas Corporation and Real Provencher be cited to appear and answer

and that Plaintiff have judgment against Defendants for the following (plead in the alternative as

necessary):

      a. Damages including but not limited to temporary rents and/or diminution in fair market

          value of the property;

      b. Prejudgment and postjudgment interest at the highest rate allowed by law;

      c. Costs of suit;

      d. Exemplary damages; and

      e. Reasonable and necessary attorney' s fees.




Roseburst Homeowners Association v. Hughes Natural Gas, et al
Plaintiff's Original Petition and Request for Disclosure
                                                                  7
                                                                Respectfully submitted,

                                                                HILL & HILL, P.C.


                                                     By:          Isl J. Marcus Hill
                                                                J. Marcus Hill
                                                                Texas Bar No. 09638150
                                                                1770 St. James Place, Suite 115
                                                                Houston, Texas 77056
                                                                Telephone: (713) 688-6318
                                                                Telecopier: (713) 688-2817
                                                                Attorney for Plaintiffs




Roschurst Homeowners Association v. Hughes Natural Gas, ct al
Plaintiffs Original Petition and Request for Disclosure
                                                                   8
