NO. 01-15-00676-CV

____________________________________________

IN THE COURT OF APPEALS

FOR THE FIRST JUDICIAL DISTRICT

HOUSTON DIVISION

_____________________________________________

AMY G. TRIANA, D/B/A IRMA K. ORTEGA, 

 Appellant,

v.

PHAN-TRAN PROPERTY MANAGEMENT, LLC, 

MINH PHAN, MISTY TRAN, AND SERGIO CASTILLO,

 

 Appellees. 

______________________________________________

On Appeal from the 334th Judicial District Court

Of Harris County, Texas

Trial Court Cause No. 2013-74660

______________________________________________

BRIEF OF APPELLANT, AMY G. TRIANA, B/N/F IRMA K. ORTEGA

__________________

 Kurt Arbuckle 

 Texas Bar No. 01284500

 Email: kurt@kurtarbuckle.com

 Kurt Arbuckle, P.C.

 2121 Sage Road, Suite 100

 Houston, Texas 77056

 (713) 961-5353

 (713) 961-5236 Fax

 Attorney for Appellant

 

 

 ORAL ARGUMENT REQUESTED

ACCEPTED

01-15-00676-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/16/2015 9:14:13 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/16/2015 9:14:13 AM CHRISTOPHER A. PRINE Clerk
i

IDENTITY OF PARTIES AND COUNSEL

The names of all parties to this appeal and their counsel are:

Appellant/Plaintiff: Amy G. Triana, b/n/f Irma K. Ortega

Trial and Appellate Counsel for

Appellant/Plaintiff: Kurt Arbuckle

Kurt Arbuckle, P.C.

2121 Sage Road, Suite 100

Houston, Texas 77056

Appellees/Defendants: Phan-Tran Property Management, LLC,

Minh Phan, and Misty Tran

Trial and Appellate Counsel for Wolfgang A. McGavran

Appellees/Defendants: Haynes & Boone, LLP

1221 McKinney Street, Suite 2100

Houston, Texas 77010
ii

TABLE OF CONTENTS

 PAGE

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

TABLE OF CONTENTS.......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iv

STATEMENT OF THE CASE..................................................................................1

STATEMENT REGARDING ORAL ARGUMENT ...............................................2

ISSUES PRESENTED...............................................................................................3

STATEMENT OF FACTS ........................................................................................4

SUMMARY OF THE ARGUMENT ......................................................................26

ARGUMENT...........................................................................................................29

STANDARD FOR REVIEW ..................................................................................29

CIRCUMSTANTIAL EVIDENCE .........................................................................29

I. DURING A PERIOD WHEN THE DEFENDANT LANDLORDS CONCEDE 

THEY WERE ON THEIR PROPERTY SO OFTEN THEY WOULD HAVE 

KNOWN IF DOGS WERE KEPT THERE, ANIMAL CONTROL WAS 

CALLED AT LEAST 12 TIMES ABOUT AGGRESSIVE PIT BULLS 

HARASSING AND BITING PEOPLE. ANIMAL CONTROL 

DETERMINED THAT THE PIT BULLS WERE KEPT BY A TENANT ON 

THAT SAME PROPERTY. IS THERE CIRCUMSTANTIAL EVIDENCE 

THAT THE DEFENDANTS KNEW DANGEROUS DOGS WERE BEING 

KEPT ON THEIR PROPERTY? ......................................................................30

II. A PUBLIC NUISANCE EXISTS WHEN ACTIVITIES ON A LANDLORD’S 

PROPERTY ARE INJURIOUS TO THE SURROUNDING 

NEIGHBORHOOD. UNDER TEXAS LAW, A LANDLORD IS 

RESPONSIBLE FOR A PUBLIC NUISANCE ON ITS PROPERTY EVEN IF 

IT IS NOT SHOWN TO HAVE ACTUAL KNOWLEDGE OF THE PUBLIC 
iii

NUISANCE, AND AN INDIVIDUAL WHO SUFFERS A UNIQUE INJURY 

BECAUSE OF THE PUBLIC NUISANCE HAS STANDING TO SUE. IS 

THERE AT LEAST A SCINTILLA OF EVIDENCE THAT DEFENDANT 

LANDLORDS ARE LIABLE FOR PLAINTIFF’S INJURIES RESULTING 

FROM A PUBLIC NUISANCE?..................................................................... 34

 A. PUBLIC NUISANCE (DOGS) AFFECTS THE COMMUNITY ..............34

 B. CONDUCT CREATING A PUBLIC NUISANCE.....................................36

CONCLUSION........................................................................................................38

CERTIFICATE OF COMPLIANCE.......................................................................38

CERTIFICATE OF SERVICE ................................................................................39

APPENDIX..............................................................................................................40
iv

INDEX OF AUTHORITIES

Cases

Allen v. Albin, et al, 97 S.W.3d 655 (Tex. App. – Waco 2002) .............................32

Batra v. Clark, 110 S.W.3d 126, 130 (Tex. App. – Houston [1st Dist.] 2003, no 

writ)................................................................................................................ 26, 30

Blount v. Bordens Inc., 910 S.W.2d 931, 933 (Tex. 1995 per curiam)...................29

City of Garland v. White, 368 S.W.2d 12, 16 (Tex. Civ. App. – Eastland 1963), 

writ refused NRE ..................................................................................................37

Dodd v. State, 193 S.W.2d 569, 572 (Tex. Civ. App. – Texas – Dallas 1946).......37

Gross vs. Houston Cmty. Newspapers, 252 S.W.3d 652, 654-655 (Tex. App. –

Houston [14th Dist.] 2008, no pet.)......................................................................29

Jamail v. Stoneledge Condominium Owners Association, 970 S.W.2d 673, 676 

(Tex. App. – Austin 1998, no pet.)................................................................ 34, 36

Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) ..............................................29

Marsan v. French, 61 Tex. 173 (1884) ....................................................................37

Merrill-Dow Pharmaceuticals, Inc. vs. Havner, 953 S.W.2d 706, 711 (Tex. 1997), 

cert. denied, 523 U.S. 1119, 118 S. Ct. 1799, 140 L.Ed.2d 939 (1998)........ 29, 33

Moore v. State, 107 Tex. 490, 181 S.W. 438, 439 (1915).......................................37

Quanah Acme & P. Ry. Co. v. Swearingen, 45 S.W.2d 136, 139 (Tex. Civ. App. –

Amarillo 1927, writ ref’d) ....................................................................................36

Soap Corp. of Am. v. Balis, 223 S.W.2d 957, 960 (Tex. Civ. App. – Fort Worth 

1949), writ refused NRE.......................................................................................36

State v. Rabinowitz, 85 Kan. 841, 118 P. 1040, 1042, 39 L.R.A., N.S., 187..........35
v

Stoughton v. City of Fort Worth, 277 S.W.2d 150, 153 (Tex. Civ. App. – Fort 

Worth 1955, no writ) ............................................................................................35

Walker v. Texas Electric Service Co., 499 S.W.2d 20, 27 (Tex. Civ. App. – Fort 

Worth 1973, no writ) ............................................................................................34

Statutes

Restatement (Second) Torts § 821B cmt. e (1979)..................................................35
1

STATEMENT OF THE CASE

This is a personal injury case arising out of a dog attack by two pit bulls on a 

12-year-old child. The case was filed on December 13, 2013, Cause No. 2013-

74660 in the 334th Judicial District Court of Harris County, Texas, and presided 

over by the Honorable Grant Dorfman. The Defendants filed a No-Evidence 

Motion for Summary Judgment which the Court granted on July 9, 2015

(Appendix, Tab 1). A Notice of Appeal was filed on July 31, 2015. 
2

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is requested. Oral argument would aid the Court’s decisionmaking process by allowing the Court to test the arguments of the parties with 

immediate feedback.
3

ISSUES PRESENTED

I. During a period when the Defendant Landlords concede they were on their 

property so often they would have known if dogs were kept there, animal 

control was called at least 12 times about aggressive pit bulls harassing and 

biting people. Animal control determined that the pit bulls were kept by a 

tenant on that same property. Is there circumstantial evidence that the 

Defendants knew dangerous dogs were being kept on their property?

II. A public nuisance exists when activities on a landlord’s property are 

injurious to the surrounding neighborhood. Under Texas law, a landlord is 

responsible for a public nuisance on its property even if it is not shown to 

have actual knowledge of the public nuisance, and an individual who suffers 

a unique injury because of the public nuisance has standing to sue. Is there 

at least a scintilla of evidence that Defendant Landlords are liable for 

Plaintiff’s injuries resulting from a public nuisance?
4

STATEMENT OF FACTS

1. Minh Phan, Misty Tran, and Phan-Tran Property Management, LLC 

(“Owners”) owned 10 commercial properties and 6-8 rent houses in October 2012. 

(CR 492, Gonzalez, 7:3-11)1

2. The Owners bought 2903 Red Bluff 4-5 years ago. (CR 561, Tran, 8:7-21)

Timeline of events begins on next page

 1 The following depositions are identified in this brief and were included as summary judgment evidence (references 

to those depositions are to CR (Clerk’s Record) and page:line numbers): The deposition of Benilde Gonzalez, the 

property manager of the Owners (Gonzalez, page:line); The deposition of Minh Phan, one of the Owners (Phan, 

page:line); The deposition of Misty Tran, one of the Owners (Tran, page:line); The deposition, including its Exhibit 

“1,” of Officer Chris Sublett, the animal control officer ( Sublett, page:line); and The deposition of Amy Triana, the 

minor who was attacked by the dogs (Triana, page:line).
5

In September of 2012, the Defendants were in the middle of a six month 

renovation project (CR 498, Gonzalez 13:10-13:12). Both Defendants and their 

property manager went to the 2903 Red Bluff location “all the time” to oversee the 

work (CR 566, Tran 13:6-13:10). Misty Tran went two or three times per week 

(CR 566, Tran 13:17-13:19). Minh Phan was out there more than that (CR 567, 

Tran 14:9-14:12). Their property manager also went out more often than Tran and 

after work (CR 567, Tran 14:13-14:18). Tran concedes they were out there so 

often, that if dogs were being kept at 2903 Red Bluff, the Defendants and their 

property manager must know it (CR 568, Tran 15:8-15:12).
6

September 11, 2012, animal control was called about complaints of two aggressive 

pit bulls roaming the area. (CR 617-619, Sublett, Exhibit 1, “Bates” No. 00112-

00114).
7

September 12, 2012, a dog bite involving two pit bulls was reported to animal 

control. (CR 620-622, Sublett, Exhibit 1, “Bates” No. 00115-00117).
8

September 14, 2012, dogs reported to animal control. (CR 623-625, Sublett, 

Exhibit 1, “Bates” No. 00118-00120).
9

September 16, 2012, dogs reported to animal control. (CR 627-629, Sublett, 

Exhibit 1, “Bates” No. 00122-00124).
10

September 18, 2012, dogs reported to animal control. (CR 630-632, Sublett, 

Exhibit 1, “Bates” No. 00125-00127).
11

September 21, 2012, very aggressive dogs reported. (CR 633-635, Sublett, Exhibit 

1, “Bates” No. 00128-00130).
12

September 24, 2012, animal control dispatched to area. (CR 636-638, Sublett, 

Exhibit 1, “Bates” No. 00131-00133).
13

In September and October of 2012, the Defendants were in the middle of a six 

month renovation project (CR 498, Gonzalez 13:10-13:12). Both Defendants and 

their property manager went to the 2903 Red Bluff location “all the time” to 

oversee the work (CR 566, Tran 13:6-13:10). Misty Tran went two or three times 

per week (CR 566, Tran 13:17-13:19). Minh Phan was out there more than that 

(CR 567, Tran 14:9-14:12). Their property manager also went out more often than 

Tran and after work (CR 567, Tran 14:13-14:18). Tran concedes they were out 

there so often, that if dogs were being kept at 2903 Red Bluff, the Defendants 

and their property manager must know it (CR 568, Tran 15:8-15:12).
14

October 5, 2012, Minh Phan and Misty Tran require Sergio Castillo to sign a lease. 

The lease says he is not allowed dogs. (CR 492, Gonzalez 7:15-7:24).
15

In October of 2012, the Defendants were in the middle of a six month renovation 

project (CR 498, Gonzalez 13:10-13:12). Both Defendants and their property 

manager went to the 2903 Red Bluff location “all the time” to oversee the work 

(CR 566, Tran 13:6-13:10). Misty Tran went two or three times per week (CR 

566, Tran 13:17-13:19). Minh Phan was out there more than that (CR 567, Tran 

14:9-14:12). Their property manager also went out more often than Tran and after 

work (CR 567, Tran 14:13-14:18). Tran concedes they were out there so often, 

that if dogs were being kept at 2903 Red Bluff, the Defendants and their property 

manager must know it (CR 568, Tran 15:8-15:12).
16

October 12, 2012, aggressive dogs reported to animal control. (CR 639-641, 

Sublett, Exhibit 1, “Bates” No. 00134-00136).
17

October 16, 2012, animal control set traps to try and catch dogs. (CR 642-644, 

Sublett, Exhibit 1, “Bates” No. 00137-00139).
18

October 18, 2012, animal control determined the pit bulls were staying at 2903 Red 

Bluff and identified the owner as Sergio Castillo. (CR 645-654, Sublett, Exhibit 1, 

“Bates” No. 00140-00149).
19

October 19, 2012, dogs are out running again. (CR 655-658, Sublett, Exhibit 1, 

“Bates” No. 00150-00153).
20

October 23, 2012, dogs are chasing people on bikes. (CR 659-662, Sublett, 

Exhibit 1, “Bates” No. 00154-00157).
21

October 30, 2012, Amy Triana is attacked by the pit bulls as she passes by 2903 

Red Bluff. (CR 663-670, Sublett, Exhibit 1, “Bates” No. 00158-00165).

Details resume on next page
22

3. In the September through October 2012 timeframe, the Owners and 

their property manager were at or near 2903 Red Bluff constantly to oversee 

renovations. (CR 530-531, Phan, 19:14 -20:15; CR 565-568, Tran, 12:10-15:24; 

CR 496-497, Gonzalez, 11:18-12:8)

4. The property manager, Benilde (“Beni”) Gonzalez also went to the 

property twice a month as a normal practice. (CR 499, Gonzalez, 14:7-24) 

5. Owners were out at 2903 Red Bluff so often that owner, Misty Tran, 

agrees: if dogs were kept by a tenant at 2903 Red Bluff, the Owners must know 

that. (CR 568, Tran, 15:8-24) She also agrees that a prudent landlord would have 

not allowed the two pit bulls to stay on the property. (CR 568, Tran, 15:13-24)

6. Sergio Castillo was a tenant at 2903 Red Bluff. The Owners inherited 

him from the prior owner when they bought 2903 Red Bluff. (CR 569, Tran, 16:6-

9)

7. From at least September 11, 2012, and up through the attack on Amy 

Triana on October 30, 2012, two pit bull terriers terrorized the community around 

2903 Red Bluff. (CR 586-588, Exhibit “1” to Sublett; the admissibility of Exhibit 

“1” under 803(8)(A), (B), and (C), Texas Rules of Evidence, is established by 

Sublett, 4:20-6:23)
23

8. Between September 11, 2012 and October 30, 2012, animal control 

dispatched officers to the area on 12 dates: September 12, 14, 17, 19, 21, and 24, 

and October 12, 16, 18, 19, 23, and 30. (CR 614-690, Sublett Exhibit “1”)

9. The first person harassed by the dogs identified them as coming from 

2903 Red Bluff. (CR 590-591, Sublett, 8:16-9:22)

10. Because the dogs were getting out and running around, animal control 

was setting traps to catch them. (CR 589-590, Sublett, 7:23-8:1)

11. On October 18, 2012, one dog got caught in a trap, but got loose. It 

was identified as being from 2903 Red Bluff. (CR 589-590, Sublett, 7:23-8:15)

12. Officer Sublett went to 2903 Red Bluff and talked to a tenant. (the 

tenant would be Leonel Garcia.) (CR 592, Sublett, 10:1-15)

13. Leonel Garcia identified Sergio Castillo as the owner of the dogs, 

pointing out Castillo to the officer as Castillo drove by. (CR 592, Sublett, 10:1-23)

14. Officer Sublett talked to Castillo and identified him by his driver’s 

license. (CR 592-593, Sublett, 10:24-11:7)

15. Castillo admitted they were his dogs. A note in the officer’s report 

reads, “[Castillo’s] dogs were the ones that have been running loose on Long 

Wood for over a month now and have bitten people and killed a cat too.” (CR 

593, Sublett, 11:11-14 and CR 645, Sublett Exhibit “1”, Bates No. 00140)
24

16. Castillo was issued six citations. (CR 645, Sublett Exhibit “1,” Bates 

No. 00140)

17. Castillo was cautioned to find out how the dogs were getting out or he 

would continue to get citations. (CR 645, Sublett Exhibit “1,” Bates No. 00140)

18. After that, Officers were again dispatched on October 19th and 23rd, 

2012 to deal with the dogs. (CR 615-690, Sublett Exhibit “1”)

19. All this happened over a time during which owner, Misty Tran, admits 

the Owners must know the dogs were there. (CR 568, Tran, 15:8-24)

20. On October 30, 2012, the dogs came out of the fence at 2903 Red 

Bluff and confronted twelve-year-old Amy Triana walking past 2903 Red Bluff on 

her way to middle school. (CR 745-748, Triana, 54:19-57:17)

21. The dogs pursued Amy Triana as she tried to get away by crossing the 

street to get to a fire station. (CR 748, Triana, 57:18-21)

22. The dogs knocked Amy Triana to the ground and attacked her legs 

and buttocks; bites severe enough to require surgery later. (CR 750, Triana, 59:8-

16)

23. One of the dogs went for the girl’s throat. (CR 751, Triana, 60:5-9)

24. In a panic, she struck the dog and the two dogs ran off. (CR 751, 

Triana, 60:5-9)
25

25. Sergio Castillo had no lease agreement with the Owners for several 

years. (CR 568-572, Tran, 15:25-19:21)

26. Owners have produced a lease they say Mr. Castillo was required to 

sign. It is dated October 5, 2012, only three and a half weeks before the attack on 

Amy Triana. (CR 492-494, Gonzalez, 7:15-9:23) (The lease is under Tab 2 of the 

Appendix.)

27. Owners say the date on the lease is the date Castillo signed it, and as 

suspicious as that may seem, it is evidence they had control over the dogs by the 

lease provisions. (CR 568, Tran, 15:13-23)

28. The lease prohibits Mr. Castillo from having dogs at 2903 Red Bluff. 

(CR 568, Tran, 15:13-23)

29. Had the Owners chosen to enforce the lease, Mr. Castillo would have 

had to remove the dogs, and consequently, the Owners maintained control over 

that aspect of the tenancy. (CR 568, Tran, 15:13-23)

30. The Owners thought they would not be responsible, because the lease 

required the tenant to carry insurance. (CR 565, Tran, 12:1-12:9)

31. When Phan and Tran were notified that Plaintiff was making a claim 

against them, they transferred 2903 Red Bluff to Phan-Tran Property Management, 

LLC. (CR 561, 564, Tran, 8:23-25; 11:10-18)
26

SUMMARY OF THE ARGUMENT

On July 9, 2015, the Trial Court entered a judgment granting Defendants’ 

No-Evidence Motion for Summary Judgment. The Court did not state specific 

grounds for granting the motion. However, the Court handwrote the following, 

“See Batra v. Clark, 110 S.W.3d, 126 (Tex. App. – Houston [1st Dist.] 2003, no 

pet.)". The Court simply cited a case, but from the circumstances surrounding that 

citation, and the act of the Court writing it, we can infer that the Court considered 

that case to be the controlling case. 

Because that case says that for a landlord to be liable for injuries caused by 

dangerous dogs owned by a tenant, the landlord must have actual knowledge of the 

dangerous propensity of the dogs and have the ability to control the premises, not 

only do we know from the circumstances that the Court considered that case to be 

controlling, but we also know that the Court must have thought the evidence did 

not meet that standard. From the mere citation , we have circumstantial evidence 

of what was in the Court’s mind.

Jurors may also use circumstantial evidence. When that circumstantial 

evidence could give rise to more than one reasonable inference, it is up to the jury 

to decide which inference to accept. Because all inferences must be found for the 

non-movant in a no-evidence motion for summary judgment, if an inference can be 

made from circumstantial evidence, the Court must find there is evidence.
27

In this case, the Owners/landlords of the property on which the dogs were 

being kept, admit they were at the premises so often that it would be impossible for 

them not to know the dogs were there. We know the dogs were there, because we 

have the deposition of the animal control officer, as well as his records, that show 

that the dogs were creating such a nuisance that animal control had been called out 

twelve times in the month and a half before the Plaintiff was attacked. There is 

direct evidence that the dogs were there and that the dogs were dangerous. From 

the landlords’ concession that they had to know if the dogs were there, the jury can 

infer that the landlords knew that a tenant was keeping dangerous dogs on their 

property.

In the middle of all the calls to animal control, there is a pause for 

approximately a week. During that week, the landlords required their tenant to 

sign a lease saying the tenant could not have dogs on the property. Shortly after 

that, the calls to animal control commenced again. The lease gave the landlords 

the power to control the presence of dogs on the property, simply by enforcing the 

lease. The landlords did not try to control the dogs, however, thinking the lease 

shielded them from any duty to do so. The reasonable inference is that the Owners 

insisted the dogs be locked up until they thought they could hide behind the lease. 

There is direct evidence that the dangerous dogs were being kept on the 

property, there is direct evidence that the landlords could control the presence of 
28

the dogs on the property, and the landlords’ concession they were on the property 

often enough they had to have known the dogs were there is circumstantial 

evidence of their knowledge. The elements of Batra are met.

This is not just a case of someone coming on the premises and being hurt by 

dogs being kept there. This is a case of dogs getting loose from the property and 

attacking someone walking along a public street. Therefore, this is a case of public 

nuisance. The Plaintiff has standing to bring a claim for her specific injuries 

caused by the public nuisance. A landlord has a common law duty to know 

enough about its property to prevent a public nuisance from emanating from that 

property. Because this is also a case of public nuisance, there is no requirement 

that the landlord know the dogs’ presence and their dangerous propensities.
29

ARGUMENT

STANDARD FOR REVIEW

A no-evidence summary judgment is improperly granted if the respondent 

brings forth more than a scintilla of probative evidence to raise a genuine issue of 

material fact. Merrill-Dow Pharmaceuticals, Inc. vs. Havner, 953 S.W.2d 706, 

711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S. Ct. 1799, 140 L.Ed.2d 939 

(1998). More than a scintilla of evidence exists when reasonable and fair-minded

people could differ in their conclusions. Havner, 953 S.W.2d at 711. The Court 

must view the evidence in the light most favorable to the non-movant, disregarding 

all contrary evidence and inferences. Id. Review is de novo. Gross vs. Houston 

Cmty. Newspapers, 252 S.W.3d 652, 654-655 (Tex. App. – Houston [14th Dist.] 

2008, no pet.).

CIRCUMSTANTIAL EVIDENCE

A fact may be established by circumstantial evidence when it may be fairly 

and reasonably inferred from other facts proved. Blount v. Bordens Inc., 910 

S.W.2d 931, 933 (Tex. 1995 per curiam). If circumstantial evidence will support 

more than one reasonable inference, it is for the jury to decide which is more 

reasonable. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001). Because the 

Court must resolve all inferences in favor of the Plaintiff on a review of a no-
30

evidence summary judgment, even if more than one reasonable inference is raised 

by circumstantial evidence, the no-evidence summary judgment must be denied. 

I. During a period when the Defendant Landlords concede they were on their 

property so often they would have known if dogs were kept there, animal 

control was called at least 12 times about aggressive pit bulls harassing and 

biting people. Animal control determined that the pit bulls were kept by a 

tenant on that same property. Is there circumstantial evidence that the 

Defendants knew dangerous dogs were being kept on their property?

The parties agree that the Owners had a duty to the Plaintiff to exercise 

ordinary care if they knew an animal’s dangerous propensities and presence on the 

property, and could control the premises. Batra v. Clark, 110 S.W.3d 126, 130 

(Tex. App. – Houston [1st Dist.] 2003, no writ). 

Both Owners, Minh Phan and Misty Tran, went out of their way in their 

depositions to argue that they were visiting the premises at 2903 Red Bluff almost 

constantly during the month of October 2012. (CR 566-568, Tran, 13:11-15:12) 

(13:17-19, “Myself, five times a week is a little bit too much. Maybe – maybe 

twice, twice or three times a week;” CR 567, 14:11-12 “He’s [Phan] probably out 

there more than I was, yeah;” CR 567, 14:16-18, [referring to the property 

manager] “Q. Again, as much as you? A. She’s probably gone out there more and 

after work hours.”) In addition, their property manager, Benilde Gonzalez, 

testified that she was going out there regularly, and visited all of their commercial 

properties at least twice a month. Misty Tran even testified that they were out 
31

there so often, it would be impossible for Sergio Castillo to have dogs on the 

premises and the Owners not know it. (CR 568, Tran, 15:8-24)

According to the deposition of Officer Sublett, and the animal control 

records of the City of Pasadena, there is more than a scintilla of evidence that the 

dogs were being kept at 2903 Red Bluff by Sergio Castillo. (See the timeline in 

the Statement of Facts section of this brief and CR 583-670). The records show: In 

the month and a half before the attack on Amy Triana, animal control was called 

out on 12 different days. On October 18, 2012, Sergio Castillo told the animal 

control officer he was the owner of the dogs. When the dog escaped from a trap, it 

was followed back to 2903 Red Bluff. When one of the dogs harassed someone 

else on September 11, 2012, that person identified the dogs as coming from 2903 

Red Bluff. 

This evidence, with Misty Tran’s admission, provides more than a scintilla 

of evidence that the Owners had actual knowledge of the dogs and the dangerous 

propensities of the dogs. At the same time that the Owners admit to constantly 

being on or around 2903 Red Bluff, the dogs are constantly creating a dangerous 

nuisance throughout the neighborhood. Reasonable minds could infer that while 

the Owners were there, they must have seen the dogs were getting out, roaming the 

neighborhood, and causing problems. Minh Phan, admits that he knows that pit 

bulls can be dangerous to the public. (CR 533-534, Phan, 22:23-23:5) Misty Tran 
32

agrees that a prudent landlord would take action to get those dogs off the property. 

(CR 568, Tran, 15:8-15:24) 

The burden to produce some circumstantial evidence is not a heavy one. 

Allen v. Albin, et al, 97 S.W.3d 655 (Tex. App. – Waco 2002) illustrates how light 

that burden can be. There, suit was brought on behalf of a child injured by a dog 

against the owner of the dog, and the owner of a daycare provider. Referring to a 

conversation between the Defendants that occurred after the dog attack, the court 

said:

[A] jury might infer that even though the conversation between Albin 

and Haferckamp occurred after the attack, Albin was conveying what 

she already knew about the dog’s nature. A jury might infer to the 

contrary, though, and conclude that Albin said those things about the 

dog’s nature only because it had hurt the toddler. But we review the 

summary-judgment evidence in the light most favorable to Allen, 

disregarding any contrary evidence or inferences. 

Id. at 664. (citations omitted). 

The court had occasion to also consider circumstantial evidence 

regarding the negligence of the daycare provider. Referring to the daycare 

owner, the court said:

[A] jury might rely on her testimony as circumstantial evidence that 

because she had been aware of the fact that her neighbor kept a dog in 

the past, it is probable that she was aware of when her neighbor came 

into possession of the dog in question.

Id. at 670.
33

Here, the Defendants claim that they did not know about the dogs’

existence, yet they concede that it would be impossible for them to not know 

the dogs’ existence. Not only could the jury infer from the animal control 

records that anyone who saw the pit bulls would know they had dangerous 

propensities, but the jury could also infer from their denial of the dogs’ 

existence, that the Defendants were motivated to deny the existence of the 

dogs precisely because they did know of their dangerous propensities.

The Owners claim they did not know the dogs were there, but that 

must be disregarded in a review of a No-evidence Motion for Summary 

Judgment in which all inferences must be in favor of the non-movant. Their 

knowledge of the dogs and the dogs’ vicious nature is fairly and reasonably 

inferred by the Owners’ continuous presence of 2903 Red Bluff and the 

admission they would have had to have knowledge of the dogs. Havner, 953 

S.W.2d at 711. There is more than a scintilla of evidence, which is all that is 

required, that the Owners knew the dogs were being kept on their property, 

they knew the dangerous propensities of the dogs, and that the lease they had 

with Sergio Castillo gave them the authority to enforce having the dogs 

removed from the property. (The lease is under Tab 2 of the Appendix.) 

They did not exercise that control or even require the dogs to be securely 

confined, and that is evidence of their negligence. Misty Tran has indicated 
34

they thought the lease requirement that the tenant carry insurance meant the 

Owners would not be responsible and did not need insurance. (CR 565, 

Tran, 12:1-12:9)

II. A public nuisance exists when activities on a landlord’s property are 

injurious to the surrounding neighborhood. Under Texas law, a landlord is 

responsible for a public nuisance on its property even if it is not shown to 

have actual knowledge of the public nuisance, and an individual who suffers 

a unique injury because of the public nuisance has standing to sue. Is there 

at least a scintilla of evidence that Defendant Landlords are liable for 

Plaintiff’s injuries resulting from a public nuisance? 

A. PUBLIC NUISANCE (DOGS) AFFECTS THE COMMUNITY

Amy Triana, besides her cause of action for negligence, has brought a cause 

of action for public nuisance. A public nuisance differs from a private nuisance. A 

private nuisance occurs when someone creates a condition that interferes with 

another person’s use and enjoyment of real property. A public nuisance comes 

about when the defendant’s conduct is a significant interference with the public’s 

safety or health, and the conduct adversely affects all or a considerable part of the 

community. Jamail v. Stoneledge Condominium Owners Association, 970 S.W.2d 

673, 676 (Tex. App. – Austin 1998, no pet.); Walker v. Texas Electric Service Co., 

499 S.W.2d 20, 27 (Tex. Civ. App. – Fort Worth 1973, no writ). So if a chemical 

plant dumps waste on an adjacent landowner’s property, that is a private nuisance. 

If a chemical company dumps waste into a river that contaminates a public beach 
35

downstream, that is a public nuisance. See Restatement (Second) Torts § 821B 

cmt. e (1979). 

While cases talk of a public nuisance affecting the community that is merely 

to differentiate from private nuisance and does not mean literally the whole entire 

community. A house of prostitution – clearly a public nuisance in Texas – does 

not cease to be a public nuisance just because not everyone goes there. The Ft. 

Worth Court of Appeals has said:

A public nuisance exists wherever acts or conditions are subversive of 

public order, or constitute an obstruction of public rights. 20 R.C.L., 

p. 384, Sec. 7.

For a nuisance to be a public one, it need not affect the whole 

community; but it is public if injury or annoyance affect the people of 

some local neighborhood, or are occasioned to such part of the public 

as come in contact with it. 39 Am.Jur., p. 288, Sec. 10.

Stoughton v. City of Fort Worth, 277 S.W.2d 150, 153 (Tex. Civ. App. – Fort 

Worth 1955, no writ).

A nuisance is public if it – as in this case – affects a street that pedestrians, 

such as Plaintiff, may walk along. Again, the Fort Worth Court of Appeals said in 

an even earlier case:

One of the cases cited by appellant under 46 C.J., p. 646, being the 

State v. Rabinowitz, 85 Kan. 841, 118 P. 1040, 1042, 39 L.R.A., N.S., 

187, gives, we think, a correct definition of a public nuisance, as 

follows: "A nuisance is public if it affects a community at large, or if 

it affects a place where the public have a right to and do go, such as a 

park, street, or alley, and which nuisance necessarily annoys, offends, 

or injures those who come within the scope of its influence."
36

Soap Corp. of Am. v. Balis, 223 S.W.2d 957, 960 (Tex. Civ. App. – Fort Worth 

1949), writ refused NRE.

A private citizen has standing to bring a claim for public nuisance if they 

suffered an injury different from the public . Jamail, 970 S.W.2d at 676; Quanah 

Acme & P. Ry. Co. v. Swearingen, 45 S.W.2d 136, 139 (Tex. Civ. App. – Amarillo 

1927, writ ref’d). Amy Triana qualifies, because she was specifically attacked by 

the dogs. While other people in the community had to protect themselves and their 

property by avoiding the dogs – some less successfully than others – Amy Triana 

was actually savagely attacked by both dogs acting as a pack. While the City of 

Pasadena, Texas could have sued to abate the nuisance to protect the public from 

the dogs, Amy Triana can sue, because she was actually injured by the nuisance. 

B. CONDUCT CREATING A PUBLIC NUISANCE

As argued above, there is more than a scintilla of evidence that the Owners 

knew the dogs were on the premises. There is more than a scintilla of evidence 

that the Owners knew of the dangerous propensities of the dogs being kept on the 

premises. The animal control records show there is more than a scintilla of 

evidence that the Owners knew that the dogs could get out from the premises. And 

there is more than a scintilla of evidence that the Owners could control the 

presence of the dogs on the premises by simply enforcing the lease. There is more 
37

than a scintilla of evidence that the Owners allowed a public nuisance at 2903 Red 

Bluff.

A vicious dog roaming at large is a public nuisance. Cf. City of Garland v. 

White, 368 S.W.2d 12, 16 (Tex. Civ. App. – Eastland 1963), writ refused NRE. It 

has been the law in the State of Texas for over 130 years that an owner of property 

is liable for a public nuisance even if the owner did not know that a nuisance was 

being maintained on its property. See Marsan v. French, 61 Tex. 173 (1884), (A 

court’s charge requiring knowledge by a landlord that prostitution was occurring 

on his property was more favorable to the landlord than “should be applied in civil 

cases.”); see also Moore v. State, 107 Tex. 490, 181 S.W. 438, 439 (1915)

(Approving Marsan v. French and stating, “The owner of premises is under a 

primary obligation to keep his premises from becoming a public nuisance. It is a 

common-law duty. Joyce on Nuisances, Section 453. It is frequently announced 

as a general rule that an owner is not liable for a nuisance created by his tenant of 

which he has no knowledge. But upon examination, it would be found that this is a 

doctrine applied to private nuisances. And it may be doubted whether it is to be 

accepted without qualification in relation to merely private nuisances.”); Dodd v. 

State, 193 S.W.2d 569, 572 (Tex. Civ. App. – Texas – Dallas 1946) (The owner of 

a house . . . may be enjoined from maintaining a public nuisance, although he had 

no knowledge of the illegal use to which his premises were being devoted.”) There 
38

is more than a scintilla of evidence that a public nuisance emanated from 2903 Red 

Bluff. By allowing that public nuisance to continue, the Owners became liable for 

Triana’s special injuries even if they had managed to keep themselves ignorant of 

what was going on.

CONCLUSION

Appellant/Plaintiff requests the No-Evidence Summary Judgment be 

reversed and the case remanded for trial. Appellant/Plaintiff seeks such further 

relief to which she may be justly entitled.

Respectfully submitted,

KURT ARBUCKLE, P.C.

By:_/S/ Kurt Arbuckle________________

KURT ARBUCKLE

Texas Bar No. 01284500

Email: kurt@kurtarbuckle.com

2121 Sage Road, Suite 100

Houston, Texas 77056

713 961-5353

713 961-5236 Fax

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE

The number of words in this brief, according to Microsoft Word 2007 is

5,695.

/S/ Kurt Arbuckle___________________

KURT ARBUCKLE
39

CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b),(d),(e), I 

certify I have served this document on all other parties – which are listed below –

on the 16th day of December 2015:

Wolf A. McGavran

Haynes & Boone, LLP

1221 McKinney Street, Suite 2100

Houston TX 77010

Attorney for Appellee

/S/ Kurt Arbuckle______________________

KURT ARBUCKLE
40

APPENDIX

 Tab Pages

 

 1 Order Granting Defendants’ No-Evidence Motion for 

Summary Judgment entered on July 9, 2015 2

 2 Commercial Lease Agreement between Phan-Tran

Property Management and Sergio Castillo dated

October 5, 2012 6
NO. 01-15-00676-CV 

IN THE COURT OF APPEALS 

FOR THE FIRST JUDICIAL DISTRICT 

HOUSTON DIVISION 

AMY G. TRIANA, D/B/A IRMA K. ORTEGA, 

Appellant, 

v. 

PHAN-TRAN PROPERTY MANAGEl\1ENT, LLC, 

MINH PHAN, MISTY TRAN, AND SERGIO CASTILLO, 

Appellees. 

On Appeal from the 334th Judicial District Court 

Of Harris County, Texas 

Trial Court Cause No. 2013-7 4660 

TAB 1 TO 

APPENDIX OF 

APPELLANT'S BRIEF 
4/20/2015 3:20:22 PM 

Chris Daniel • District Clerk 

Harris· County 

Envelope No; 4956472 . By: JIMENEZ, DANIELLE N 

Flied: 4/20/2015 3:20:22 PM 

CAUSE NO. 2013-74660 

AMY G. TRlANA, B/N/F, § 

IRMAK. ORTEGA, § 

Plaintiff, § 

§ 

§ 

vs. § 

§ 

PHAN-TRAN PROPERTY § 

MANAGEMENT, LLC, MINH PHAN, § 

MISTY TRAN, AND SERGIO CASTILLO, § 

Defendants. § 

ORDER GRANTING 

IN THE DlSTRICf COURT OF 

HARRIS COUNTY, TEXAS 

334 TH JUDICIAL DISTRICT 

DEFENDANTS PHAN TRAN-PROPERTY MANAGEMENT, LLC'S, MINH PHAN'S, 

AND MISTY TRAN'S NO..EVIDENCE MOTION FOR SUMMMARY JUDGMENT 

, ~ 

On this day, the Court considered Defendants Phan-Tran Property Management, LLC's, 

Minh ~ ... l """ \ Pban•s and Misty Tran's No-Evidence Motion for Sununary Judgment (the ''Motion"). 

After reviewing the Motion, responses and replies thereto, summary judgment evidence, and 

hearing argument from counsel, if any, the Court finds that the Motion should be GRANTED. ~< tJ~ .!1- ~L I/o .(1,.1 14 IZ.' (~.At~-~_,..,... [:J,n 1Ait:] t..3 lt4 411-.). 

IT IS THEREFORE ORDERED THAT the Motion is hereby granted. 'I I:/ 

IT IS FURTHER ORDERED THAT Plaintiff Amy G. Triana, BIN IF lnna K. Ortega, 

TAKE NOTIIING by way of her claims against Defendants Phan-Tran Property Management, 

LLC, Minh Phan, and Misty Tran. 

IT IS THEREFORE FURTHER ORDERED THAT the claims of Plaintiff Amy G. 

Triana, BINIF Irma K.. Ortega, against Defendants Phan-Tran Property Management, LLC, Minh 

Phan, and Misty Tran are hereby dismissed in their entirety with prejudice. 

SO ORDERED on this'<& day of fV!J , 2015. 

~-

4>\ 
NO. 01-15-00676-CV 

IN THE COURT OF APPEALS 

FOR THE FIRST JUDICIAL DISTRICT 

HOUSTON DIVISION 

AMY G. TRlANA, D/B/A IRMA K. ORTEGA, 

Appellant, 

v. 

PHAN-TRAN PROPERTY MANAGEMENT, LLC, 

MINH PHAN, MISTY TRAN, AND SERGIO CASTILLO, 

Appellees. 

On Appeal from the 334 th Judicial District Court 

Of Harris County, Texas 

Trial Court Cause No. 2013-74660 

TAB2TO 

APPENDIX OF 

APPELLANT'S BRIEF 
EXH!B!T A 

COMMERCIAL LEASE AGREEMENT 

This Commerdat Lease Agreement (NLease·) is made and effective October 05.2012 [Date). by and between 

PHAN·TRAN PROPERTY MANGEMENT [Landlord] (L.andlordj and SERGIO CASTILLO (Tenant] ("Tenantj. 

Landlord is the O\Wlet of land and improvements commonly known and numbered as 2903 RED BLUFF 

PASADE~A. 

~ 

TX. 77502 [Address of Building} and legally described as follows.(the .. BuHding1: 

¥ = [legal Desaiptionof 

~~~ . 

landlord makes avaiJable for lease a portion of 1he Building designated as N/A or Other Number of Leased 

Building] (the "Leased Premises'"). 

Landlord desires to lease the Leased Premises to Tenant, and Tenant desires to lease the Leased Premises 

from Landlord for the term~ at the rental and upon the covenants, conditions and provisions herein set forth. 

THEREFORE, in consideration of the mutual promises herein, contained and other good and valuable 

consider~tion, it is agreed: 

.. C: 1. Tenn~ 

... rL··~ ~ V ~ Landlfird hereby leases the Leased Premises to Tenant. and Tenant hereby leases the same from Landlord. 

for an .. Initial Tenn"' beginning 1010512012 [Start Date] and ending 1013112017 [End Dato). Landlord shall use 

its best efforts to give Tenant possession as neariy as possible at the beginning of the Lease lenn. If Landlord is 

unable tc timely provide the Leased Premi~s, rent shall abate for the period of d~ay. Tenant shall make rto 

other claim against landlord fer any such delay. 

B. Tenant may renew the Lease for one extended term of (will discuss 30 days prior to end date) [Renewal 

Term]. Tenant shall exercise such renevvat option, if at aJI: by giving 'Mitten notice to Landlord not less than 

ninety (90) days prior to the expiration of the Initial Term. The renewal tenn shall be at the rental set forth below 

and otherwise upon the same covenants, conditions and proYisioos as provided in this Lease. 

2. Rental .. 

Tenant shall pay to Landlord during the Initial Term rental of $7200.00 [Annual Rent] per year, payabfe in 

· 1St.a11ments of $600.00 (Moothiy RentaJ Amount) per month. Each instaRment payment shall be due in advance 

on the flrs1 day of each calendar month during the lease term to Landlord at 123 W. Southmore Ave 

Pasadena. TX. ns02 [landlord's Designated Payment 1\ddress] or at such other place designated by written 

notice from Landlord ot Tenant. The rental payment amount for any partial calendar months induded in the 

lease term shall be prorated on a daily basis. Tenant shalf also pay to Landlord a "Security Deposif' in the 

amount of $600.00 [Seo.trity Deposit). 

B. The rental for any renewal lease term, if created as permitted under this Le~ shall be NOT AVAILABLE 

AT THIS MOMENT {Annual Rent in Renewal Term) per year payable in insCallments of NOT AVAILABLE AT 

THIS MOMENT [Monthly Rental Amount] per month. 

~ &. 3. Use 

Notwithstanding the forgoing, Tenant shall not use the Leased Premises for the purposes of stodng. 

" manufacturing or selling any explosives, flammables or other inhetentJy dangerous substance. chemical, thiJ!Q 

or device. 

Page 1 of 6 

35 
4. Sublease and Assignment. 

:"''XHI~IT t'\ t: ... 0 h 

Tenant shalt have the t1ght withoot Landlord's consent. to assign this Lease to a c:aporation with which Tenant 

may merge or consolidate, to any subsidiaty ofT enant. to any COtporation under common contrd with Tenant 

or to a purchaser of substantially aU of Tenanrs assets. ExceJJt as set forth abr.we, Tenant shall not sublease all 

or any part of the Leased Premises, or assign this Leese in whole or in part wi1hout LandJord·s conGent. such 

consent not to be unreasonably withheld or deiayed. 

y L.. . / ...... - 5. Repaiis. A- /r--J'=-· · ' During the Lease term. Tenant shall make. at Tenant's expense, all necessary repan to the Leased Premises. 

Repajrs shall indude such items as routine repairs of floors, walls, ceilings. and other parts of the Leased 

Prenrises cUimaged or \\Om through norma occupancy. except for major mechatlicat systems or the roof. 

subject to the obligations of the parties otheMtse set forth in this Lease. 

6. Alterations and Improvements. 

~Tenant. at Tenanfs expense, shall have the rtght fotlowing Landlord's consent to remodel. redecorate. and 

make addjtfons, improvements and replacements of and to an or any part of the Leased Premises from time to 

time as Tenant may deem desirable, provided the same are made in a workmanUke manner and utilizing good 

quality materias. Tenant shall have the right to ~ace and lnstaU personal property, trade fixtures, equipment 

and other temporary installations in and upon the Leased Premises. and fasten the same to the premises. All 

personal property, equipment, machinety. trade f.xtures and temporary Installations. whether acquired by 

Tenam at the commertCEment of the lease term or placed or instaJied on the leased Premises by Tenant 

thereafter, shall remain Tenant's property freG and dear of any dalm by Landlord. Tenant shall have the right to 

rem011e the same al any time during the term of this Lease provided that all damage to the Leased Premises 

caused by such removal shall be repaired by Tenant at Tenant's expense. 

. 7. Property Taxes. 

}{.~A~ ~ landlord shall pay, prior to deUnquency. aU general real es1ate taxes and installments of special assessments 

coming due during the Lease tenn on the Leased Premises, and all personal property taxes with respect to 

landtord•s personal property. if arry, on the Leased Premises. Tenant shafl be responsible for paying all 

personal property taxes with respect to Tenanfs personal property at the Leased Premises. 

8. Insurance. 

~A. If the Leased F'!emiscs or any oU1t1r party of the Buiding is damaged by Ore or other casually resuiUng from 

any act or negligence of Tenant or aflt/ of Tenant's agents: empfoyees or invitees. rent shall not be diminished 

or a bated while such damages are under repair, and Tenant shall be responsible for the costs of repaJr not 

oovered by insurance. 

B. Landlord shaD maintain fire and extended coverage insurance on the Building and the Leased Premises in 

such amounts as Landlord shall deem appropriate. Tenant shall be responsible. at Its expense. for fire and 

extended coverage insurance on all of its personal property. induding removable trade fixtures. located in the 

Leased Premises. 

C. Tenant and Landlord shall, each at its own expense. maintain a ~icy or polides of comprehensive general 

llabtity insurance with respect to the respective adivilies of each in the Building "With the premiums thereon Mly 

paid on or before due date, issued by and binding upon some insurance company approved by Landlord, such 

insurance to afford minimum J)fotection of not less than S1.000,000 combined single limit COYernge of bodily 

injury, property damage or Ctlmbination thereof. Landlord shall be listed as an additional insure<! on Tenant's 

policy or policies of comprehensive general llabillty insurance. aoo Tenant shall provide Landlord tMth cunent 

Certificates of Insurance evidencing Tenant's compliance w1th this Paragraph. Tenant shalt obtain the 

agreement of Tenanfs insurers to notify Landlord that a policy lS due to expire at least (10) days prior to suets 

expiration. Landlord shall not be required to maintain instJrance against thefts within the Leased Premises f7 the 

&Jilding. 

Page2 of6 

36 
EXH~BIT A 

9. Utilities. 

Tenant shall pay afl charges for water. sewer, gas. efectricity, telephone and other services an<.l utilities used by 

Tenant on the Leased Premeses during the term of this Lease unless otherwise expressly agreed in writing by 

landlord. lo the event that any utility or sertioe provided to the leased Premises is not separatety mateted, 

Landlord shall pay the amount due and separatefy itWoice Tenant for Tenanrs pro rata share of the charges. 

Tenant shall pay such amoun1s within fifteen (15) days of invoice. Tenant acknowledges that the Leased 

Premises are designed to provide standard office use etectrics facilities and standard office lighting. Tenant 

shall not use any equipment or devices that utilize excessive eledrical energy Ot which may, it: Landlord's 

reasofl8ble opinion. overload the wiring or interfefe with eJectrical services to other tenants. 

,... ~(. 10. Signs. 

·~FoRewing Landlord's consent, Tenant shall have the right to place on the Leased Premises. allocations 

seleded by Tenant, any signs which are permitted by app41cable zoning ordinances and private restrictions. 

Landlord may ref use consent to any proposed slgnage that as In Landlord's opinion too large. deceptive. 

unaUractive or otherwise inconsistent with or Inappropriate to the leased Premises or use of any other tenant 

Landloni shall assist and cooperate with Tenant in obtaining any necessary pemaission from govemmentaf 

authorities or adjoining ov-ners and occupants for Tenant to ~ace or construd the foregoing signs. Tenant shall 

repair ail damage to the Leased Premises resulting from the removaJ of signs ins1alled by Tenant. 

_11. Entry • . /'#(, 

., t.~ Landlord shall have the rigtlt to enter upon the Leased Premises at reasonable hoors to inspect the same. 

~ provided Landlord shaU not thereby unreasonably Interfere with Tenant's business on the Leased Premises. 

12. Parking. 

~Duri~ lhe tenn of this Lease. Tenant shall have the nOIH!XCiusive use in common wllh Landlord. other tenants 

- of lhe BuDding, their guests and invitees, of the non-reserved common automobile par10ng areas. driveways. 

and footway s, subject to rules and regulations for the use thereof as presaibed from time to time by Land1ord. 

Landlord reserves the right to designate parking areas within the Building or in reasonable proximity thereto.. for 

Tenant and Tenant's agents and employees. Tenant shall provide landlord with a Jist of all license numbers f« 

the cars owned by Tenant. its agents and employees. Separated saructured parking. if any. located about the 

Building is reserved for tenants of the Building 'Aflo rent such parking spaces. Tenant hereby leases from 

Landlord N/A [Number of Parking Spacesl spaces In such structural parking area. such spaces to be on a first 

come-first served basis. In consideration of the leasing to Tenant of such spaces. Tenant shall pay a monthly 

rental of NIA [Parking Space Ren1al] pet space throughout the term of tne Lease. Such rental shall be due and 

oayabJe each month without demand at the time heein set for the payment of oUler monthly rentals. In addiUon 

to such other rentals. 

13. Building Rules. .. . '-

-~ Tenant will oomply v.tth the rules or the 8uild[ng adopted and altered by Landlord from time to time and v.ill 

cause all of its agents, employees, invitees and visitors to do so: all changes to such rules w;u be sent by 

Landlord to Tenant in writing. The initial rules for the Building are attached hereto as Exhibit .. A' and 

incorporated herein for all purposes. Tenant does not have permission to have pets within the leasing 

space Indoor or outdoor. This appUes to guard dogs or any ty~ of animal whidl may hold hann to 

clients. guests or visitors when coming and leaving of the teased premise. If teoant does not comply by 

this rule and retain an animal without owner's knowledge- owner is held hannless to an legal issues 

which may arise due to tenant non compliance of rules. 

14. Damage and Destruction. 

c 

ubject to Section 8 A. above. If the Leased Premises or any part thereof or any appvrtenanoe thereto is so 

• amaged by fire. casualty or structural defects lhat the same cannot be used for Tenanfs purposes. then 

Page 3of6 

37 
E.XH~BIT A 

Tooant shall have the light within ninety (90) days following damage to eJect by notice to Landlord to lemllnate 

this Lease as of the date of sud1 damage. In the event of minor damage to any part of the leased Premfses. 

and if such damage does not render the Leased Premises unusable for Tenant's purposes. Landlord shaJI 

prompdy repair such damage at the cost of Ule Landlord. In making the repairs c&Uecl for in this paragraph. 

Landlord shall not be liable for any delays resulting from strikes. governmental restrictions, inabitity to obtain 

necessary materials or labor or other matters which are beyond the reasonabJe ccntrd of Landlord. T onant shatl 

be relie\red rrcm paying reot and other charges during any portion of the Lease term mat the leased Premises 

are inoperable or unfit for occupancy, or use, in whole or in part, tor Tenant's purposes. Rentals and other 

charges paid in advance for any such periods shall be credited on the next ensuing payments. if any. but if no 

further payments are to be made, any such advance payments shall be refunded to Tenant. The provisions of 

this paragraph extend not only to the matters aforesaid, but also to any occurrence which is beyond Tenant's 

reasonable con1rot and which renders' the Leased Premises, or any appurtenance thereto, inof)efabfe or unfit for 

oco.Jpancy or use. in whole or in part. f<lr Tenant's purposes. 

·,~ . sJ!!;:.. 15. Default 

~ If default snatl at any tJme be made by Tenant in the payment of rent when due to Landlord as herein provided, 

and if said defaull shaJI continue for fifteen (15) days after wriHen notk:e thereof shan have been given to Tenant 

by Landlord. or if default shall be made in any or the olher covenants or conditions to be kept. observed and 

perfom1ed by Tenant and 5\Jch default shall continue for thirty (30) days after notice 1hereof in writing to Tenant 

by LandJotd v.tthoot correction thereof then having been commenced and thereafter diftgently proseculed, 

landlord may declare the term of this Lease ended and tenninated by giving Tenant written notice of such 

intentioo. aoo if possession of the Leased Premises is not surrendered. landlord may reenter said premises. 

Laodiord shall have, in addition to the remedy above provided. any other right or remedy available to Landlord 

on account of any Tenant default, either in law or equity. Landlon:i shall use reasonable efforts to mitigate Its 

damages. 

1 c., 16. Quiet Possession. · 

~ 

¥.:, ~~ Landlord covenants and warrants that upon performance by Tenant of its obligations hereunder, Landlord wHI 

keep and maintain Tenant in exdusive. quiet, peaceable aod undisturbed and uninterrupted possession of the 

Leased Premises during the term of this Lease. 

17. Condemnation. 

~'~b~ -~ If any legally, constituted authority condemns the BuDding or such part thereof which shall make the Leased 

Premises unsuitabfe for leasing. this Luase ~hall cease when the public autttori1y takes possession, and 

landlord and Ten ant shall account for rental as of that date. Such termination shaD be without prejudice to the 

rights of either party to recover compensation from the condemning authority for any toss or damage caused by 

the condemnation. Neither party stlall have any rights in or to any award made to the oUler by the condemning 

authority. 

" C 18. Subordination. 

Tenant accepts this Lease subiect and subordinate to any mortgager deed of trust or other lien presently 

existing ot hereafter arising upon the Leased Premises. or upon the Building and to any rene\wJs, refinancing 

and extensions thereof. but Tenant agrees that any such mortgagee shaft have the right at any time to 

subordinate such mortgage. deed of trust or other lien to this Lease on such terms and subject to such 

conditions as such mortgagee may deem appropriate in its discmtiort. Landlord is hereby irrevocably vested with 

full power and aulhotity to subordinate this Lease to any mortgage~ deed of trust Of other lien now existing or 

hereafter placed upon the Leased Premises of the Building, and Tenant agrees upon demand to execute such 

further Instruments subordinating this Lease or attornlng to the holder of any such liens as Landlord may 

request. In the event that Tenant shouJr;J faa ro exeo.Jte any instrument of subordination herein required to be 

executed by Tenant promp1fy as requested, Tenant ~etaby irrevoc~y constitutes Landlord as its aUomey-infact to execute such instrument in Tenant~$ name, pace and stead. it being agreed that such power is one 

coupled with an interest. Tenant agrees that it wtU from limo to time upon request by Landlord execute and 

deliver to such persons as Landlord shall request a statement In recordable fonn certifying that this Lease is 

Page 4 of6 

38 
EXHiBiT A 

unmodified and in futl force and effect {or if there have been modifc:ations. that the same Is in fuJI force and 

effect as so modified). stating the dates to which rent and other charges payable under this Lease have been 

paid, stating that landlord is not in default hereunder (cr if Tenant arteges a default stating the nature of such 

alleged default) and further stating such other matters as Landlord shaJI reasonably require. 

~ 

r c . .__ V:(:.. 19. Security Deposit. ~ ) 

~ The Security Deposit shall be held by Landlord without liability for Interest and as security for the performance 

by Tenant of Tenant's covenants and o~igations under this Lease, It betng expressly understood that the 

Security Deposit shall not be considered an advance payment d rental or a measure of Landlord's damages in 

case of default by Tenant. Unless otherwise provided by mandatory non..waivable law or regulation, Landlord 

may commingfe the Security Deposit with Landlord's other funds. landlord may, from time to tim~ 'Nithclut 

prejudice to any other remedy, use the Secur;ty Deposit to the extent necessary to make good any arresrages 

of rent or to satisly any other covenant 01 obligation of Tenant hereunder. Following any sud1 application of the 

Security Deposit, Tenant shall pay to Landlord on demand the amount so applied in order to restore the Security 

Deposit to its original amount. tf Tenar1t is not in default at the tennlnation of this Lease, the balance of the 

Security Deposit remaining after any such appJicaUon shall be returned by Landlord to Tenant. If landlord 

transfers i1s interest in the Premises during the teml of this Lease. Landlord may assign the Security Deposit to 

the transferee and thereafter ShaJI have no further liability for the return of such Security Deposit 

Any ootice required or permitted under this Lease shall be deemed St.JfficientJy given or setVed If sent by United 

States certified maB. return receipt requestedy addressed as follows: 

If to Landlord to: 

PHAN-TRAN PROPERTY MANAGEMENT 

[landlord] 

123W. Southmore Ave 

Pasadena. TX. 77502 

(landlord's Address] 

If to T(Nlant to: 

Sergio Castmo 

[Tenant) 

2903 Red Stuff 

Pasadena, TX. 77506 

[Tenant's Address} 

landlord and Tenant shall eacfl have the right from time to time to change the place notice is to be given under 

this paragraph by 'Mitten notice thereof to the other party. 

~ 

. j,C) c.21. Brokers. 

enant represents that Tenant was not shown I he Premises by any teal estate broker or agent and that Tenant 

has not otherv.ise engaged in, any activity which could fonn the basis for a daim for real estate commission. 

brokerage fee, finder's fee or other similar charge. in connection wtth this Lease. 

22. Waiver. _.., j/)(_, 

~:,---No waiver of any default of Landlord or Tenant hereunder shall be implied from any omission to take any action 

on account of such default if suCh default persists or Is repeated, Bfld no express waiver shall affect any default 

other than the default specified ln the axpres$ waiver and that only for the time and to the extent therein stated. 

One or more waivers by landlord or Tenant shall not be construed as a waiver of a subsequent breach of the 

same covenant. tenn or condition. 

I.. 23. Memorandum of Lease. 

~ 

,. l:.:'c-.... 

The partJ~ hereto contemplate that thts Lease should not and shalt not be filed for record, but In lieu thereof. at 

lhe request of either party. Landlord and Tenant shall execute a Memorandum of Lease to be recorded for the 

purpose of givE1\g record notice of the apDroPriate provisions of this Lease. 

24. Headings. 

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39 
EXHIBiT A 

The headings used in this Lease are for convenience of the parties only and shalf not be considered in 

interpreting the meaning of any provision of this Lease. 

,- . ~1.(..-~5. Successors. 

-~ The .erevJ2ions at this lease shall extet1d to and be binding upon landlord and Tenant and their respective legal 

represerrtatives, successors and assigns. 

26. Consent. 

~Landlord shall not unreasonably withhold or delay its consent with respect to any matter for which Landlord's 

consent is required or desirable under this Lease. 

27. Performance. 

~there Is a default With respect to any of Landlord's covenants, warranties or representauons under this Lease. 

and if the default continues more than fifteen (15) days after notice in \NI'iting from Tenant to landlord specifying 

the default. Tenant may, at its option and without affecting any other remedy hereunder, cure such default and 

dedud the cost thereof from the next accruing Installment or installments of rent payable hereunder until Tenant 

shall have been fulty reimbursed for such expenditures. together with interest thereon at a rate equal to the 

fesser of twelve percent (12%} per annum or the then highest lawful rate. If this Lease terminates prtor to 

Tenant's receiving full reimbursement. Landlord shalf pay the unreimbursed balance ptus accrued interest to 

Tenant on demand. 

28. Compliance with Law. 

~ enant shall oomply With all laws, orders, ordinances and other pu!Jiic requirements now or hereafter pertaining 

to Tenant's use of the Leased Premises. Landlord shall comply with all laws, orders. ordinances and other 

public requirements now or hereafter affecting the Leased Premises. 

29. Final Agreement 

~is Agreement terminates and supersedes all prior understandings or agreements on the subject matter 

hereof. This Agreement may be modified only by a further writing that is duly executed by both parties. 

30. Governing Law . 

.. A E_~s Agreement shall be governed, construed and Interpreted by, through and under the Laws of the State of 

~ Texas. 

(land 

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