No. 01-14-00537-CV

_______________________________

IN THE FIRST COURT OF APPEALS

HOUSTON, TEXAS

_______________________________

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 

ACCEPTED

01-14-00537-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/30/2014 4:45:34 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/30/2014 4:45:34 PM CHRISTOPHER A. PRINE Clerk
2

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171.109 (now repealed), it would have come out the other way...10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legislature rejected and repealed Seay’s interpretation of the word 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
3

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
4

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
5

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
6

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
7

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 #.”
8

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 
9

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. 
10

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.
11

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.
12

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.
13

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 
14

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 
15

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.”
16

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 
17

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 release 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 
18

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. 
19

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.).). 
20

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 
21

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 
22

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 
23

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 
24

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-
25

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 
26

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 
27

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 
28

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 
29

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 ... 
30

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 
31

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. 
32

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. 
33

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 
34

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
35

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
36

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
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)