His One Stop Business, Inc. Chris Barger & Monica Barger v. Mark Holle as Trustee of the Holle Trust ( 2015 )

ACCEPTED
14-14-00592-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
2/6/2015 4:01:46 PM
CHRISTOPHER PRINE
CLERK
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
2/6/2015 4:01:46 PM
No. 14-14-00592-CV CHRISTOPHER A. PRINE
In the Clerk
Court of Appeals for the 14th District
of the
State of Texas

HIS ONE STOP BUSINESS, INC. ET AL.
Appellants
V.
MARK HOLLE AS TRUSTEE OF THE HOLLE TRUST
Appellees

APPELLANTS’ BRIEF

ERNIE GARCIA
616 CYPRESS CREEK PKWY
SUITE 105
HOUSTON, TEXAS 77090
ORAL ARGUMENT IS REQUESTED
IDENTITY OF THE PARTIES
Appellants: His One Stop Business, Inc.
Monica Barger
Chris Barger
Appellants’ Counsel in The Appeals Court: Ernie Garcia
616 Cypress Creek Parkway
Suite 105
Houston, Texas 77090
Appellee’s Counsel in the Appeals Court: Jason D. Kraus
13910 Champion Forest Drive
Suite 110
Houston, Texas 77069
Appellee: Mark Holle as Trustee of The Holle Trust
i
TABLE OF CONTENTS
IDENTITY OF THE PARTIES ........................................................................................... i
TABLE OF CONTENTS .................................................................................................... ii
INDEX OF AUTHORITIES .............................................................................................. iii
STATEMENT OF THE CASE ........................................................................................... 1
STATEMENT REGARDING ORAL ARGUMENT ......................................................... 3
STATEMENT OF FACTS .................................................................................................. 4
SUMMARY OF THE ARGUMENT .................................................................................. 6
ISSUE ONE ......................................................................................................................... 7
ISSUE TWO ...................................................................................................................... 13
ISSUE THREE .................................................................................................................. 17
ISSUE FOUR .................................................................................................................... 21
ISSUE FIVE ...................................................................................................................... 24
PRAYER ........................................................................................................................... 27
CERTIFICATE OF SERVICE .......................................................................................... 29
APPENDICES ................................................................................................................... 29
ii
INDEX OF AUTHORITIES
CASES
Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex. App.–
Amarillo 1988, writ denied). ............................................................. 7, 17, 18, 21, 22, 25
Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176 (Tex. 1986) (per curiam) ....... 7, 17, 21, 25
Wal-Mart Stores, Inc.v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (per curiam). .. 7, 18,
21, 25
Bocquet v.Herring, 972 S.W.2d 19, 20-21 (Tex. 1998) .............................. 8, 13, 18, 22, 25
Gen. Tire, Inc.v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998)............................. 8, 13, 18, 22
Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.–Houston [1st Dist.] 1993, writ
denied). .................................................................................................... 8, 13, 18, 22, 26
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). ..... 8, 9, 14,
19, 22, 23, 26, 27
McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995) ....................... 8, 18, 23, 27, 30
Walker v. Guiterrez, 111 S.W.3d 56, 62 (Tex. 2003). ................................ 9, 14, 19, 23, 30
Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004) ................................ 9, 14, 19, 23, 27
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) ................... 9
Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam).
............................................................................................................................ 9, 10, 15,
Jimenez v. Transwestern Prop. Co., 999 S.W.2d at 130 (Tex. App.—Houston [14th Dist.]
1999, no pet.) ................................................................................................................. 10
Beames v. Hooks (Tex. App., 2015) ............................................................................ 10, 12
Tex. Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 274 (Tex. App.—El Paso 2010, no pet.) . 10
Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App.—Dallas 2001,
pet. denied) (per curiam). .............................................................................................. 10
Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d at 737 (Tex. App.—Waco
2005, pet. denied) .................................................................................................... 11, 12
Smith v. CDI Rental Equip. Ltd., 310 S.W.3d 559, 567 (Tex.App.—Tyler 2010) ........... 15
Armes v. Thompson, 222 S.W.3d 79, 83-84 (Tex.App.—Eastland 2006, no pet.). ......... 15,
Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661-62 (Tex. 1996)
....................................................................................................................................... 16
Bybee v. Fireman’s Fund Ins. Co., 331 S.W.2d 910, 917 (Tex. 1960) ............................. 16
iii
Fountain Parkway, Ltd. v. Tarrant Appr. Dist., 920 S.W.2d 799, 802 (Tex. App.—Fort
Worth 1996, writ denied)............................................................................................... 16
State Bar v. Gomez, 891 S.W.2d 243, 245-46 (Tex. 1994) ............................................... 16
Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) ................................................... 10, 12
Hull v. S. Coast Catamarans, L.P., 365 S.W.3d 35, 45 (Tex. App.—Houston [1st Dist.]
2011, pet. denied) .......................................................................................................... 19
Holloway v. Skinner, 898 S.W.2d 793 (Tex., 1995).......................................................... 20
Maxey v. Citizen’s Nat’l Bank, 507 S.W.2d 722, 726 (Tex.1974) .................................... 20
Russell v. Edgewood Indep. Sch. Dist., 406 S.W.2d 249, 252 (Tex. Civ. App.—San
Antonio 1966, writ ref’d n.r.e.) ..................................................................................... 20
Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 299 (Tex.
1997). ............................................................................................................................. 27
STATUTES
TEX. R. CIV. P. 165a ....................................................................................................... 9
TEX. PROP. CODE ANN. § 91.006(a) ............................................................................ 27
OTHER SOURCES
Restatement (Third) of Agency § 6.01 (2006) ............................................................. 19
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The Appellee sued for breach of the Lease on March 22, 2013. Appellants
answered the lawsuit on May 16, 2013. On September 11, 2013 the Appellants and
the Appellee (Hereinafter, Parties) entered into an agreed motion for continuance.
The continuance was granted, and the case was reset to trial on December 16, 2013.
The Appellants filed an amended answer and a counterclaim on October 30,
2013. Again the Parties entered into an agreed motion for continuance. The
continuance was granted, and the case was reset to trial on March 24, 2014.
On September 12, 2013 the Court ordered the Parties to attend Mediation. The
Appellee deposed the Appellants on October 15, 2013. The Parties attended
Mediation on February 19, 2014 but were unable to reach terms of settlement.
On November 26, 2013 the Appellee filed a Motion for Summary Judgment.
The Appellants filed their response to Appellee’s motion on January 9, 2014. That
motion was set for a hearing on January 16, 2014. The Appellee failed to appear on
the date of his own hearing, and the matter was passed by the Judge.
The Appellee’s Motion for Summary Judgment was re-set for a hearing on
February 26, 2014. The Appellee filed a Reply to Appellants’ Response to
Appellee’s Motion for Summary Judgment on February 24, 2014. The Appellee
again failed to appear on the date of his own hearing, and the motion was denied by
the Judge on that date.
On March 3, 2014 the Appellee filed a Second Motion for Summary
Judgment. That motion was set for a hearing on March 20, 2014. The Parties agreed
on a Joint Motion for Continuance on March 14, 2014. The Court denied this setting,
and the Court refused to sign the Joint Motion.
The case had previously been set for Trial on March 24, 2014, and the Parties
were noticed to appear for trial on that date. The Appellee again failed to appear on
the date of trial, and the matter was Dismissed for Want of Prosecution on March
26, 2014.
On April 7, 2014, the Appellee filed a Motion to Reinstate and set the matter
for a hearing on April 22, 2014. Appellants filed their Response to Appellee’s
Motion on April 22, 2014. On April 22, 2014, the Court Ordered that the matter be
reinstated. The matter was then re-set to Trial on June 9, 2014.
On May 29, 2014 a Petition in Intervention was filed by the Appellee eleven
days prior to trial. The Appellants filed their response on June 8, 2014 with Motions
in Limine. The Case Proceeded to Trial on June 9, 2014.
The County Court at Law No 1 of Harris County, Texas awarded a judgment
to the Appellee on June 17, 2014 against all three Appellants. This appeal followed.

2
STATEMENT REGARDING ORAL ARGUMENT
Appellant respectfully requests oral argument, believing that oral argument
would be helpful to the Court in addressing issues that may arise after reading both
Appellant’s and Appellee’s briefs.

ISSUES PRESENTED
ISSUE ONE – THE TRIAL COURT ERRONEOUSLY REINSTATED THE
APPELLEE’S CASE INSPITE OF AN OBJECTION HAVING BEEN RAISED
BY THE APPELLANTS;
ISSUE TWO – THE TRIAL COURT ERRONEOUSLY ALLOWED THE
APPELLEE TO PROCEED TO TRIAL ALTHOUGH THE APPELLEE WAS AN
UNREGISTERED ENTITY WITHOUT THE CAPACITY TO MAINTAIN AN
ACTION OR PROCEEDING IN TEXAS COURTS;
ISSUE THREE – THE TRIAL COURT ERRONEOUSLY ISSUED A
JUDGMENT AGAINST MONICA BARGER AND CHRIS BARGER IN THEIR
INDIVIDUAL CAPACITIES;
ISSUE FOUR – THE TRIAL COURT ERRONEOUSLY AWARDED
DAMAGES TO THE APPELLEE AFTER THE APPELLANT TERMINATED
THE LEASE BETWEEN THE PARTIES;
3
ISSUE FIVE – THE TRIAL COURT ERRONEOUSLY AWARDED
DAMAGES TO THE APPELLEE AFTER THE APPELLANT SHOWED THAT
THE APPELLEE FAILED TO PROPERLY MITIGATE ITS OWN DAMAGES.

STATEMENT OF FACTS
Appellant, His One Stop Business, Inc. (Hereinafter, HOSB) is a corporate
entity formed in the State of Texas in 2011. On July 20, 2012 HOSB entered as a
tenant into a commercial lease (Hereinafter, Lease) with David Holle, Truste of the
Holle Trust (Hereinafter, Holle), Appellee. Monica Barger, Appellant, served as the
President of HOSB, and her son Chris Barger, Appellant, served as a manager of
HOSB. Both Monica Barger and Chris Barger signed the commercial lease on behalf
of HOSB and paid a deposit in the amount of $1,250. Although a personal guarantee
of the Lease was presented to both Monica Barger and Chris Barger, neither signed
the personal guarantee.
Under the terms of the Lease, Holle undertook certain essential preparations
to complete prior to the tenant taking possession of the premises. These items were
specified in Section 35 of the Lease. At trial, none of the Appellee’s witnesses
testified that these preparations had ever been completed. Particularly, the flooring
for the premises was never installed.
4
Section 3, subsection B of the Lease, titled “Delay of Occupancy,” states “If
Tenant is unable to occupy the leased premises after the 90th day after the
Commencement Date because of construction on the leased premises to be
completed by Landlord that is not substantially complete,…Tenant may terminate
this lease by giving notice to the Landlord before the lease premises become
available to be occupied by Tenant and Landlord will refund to Tenant any amounts
paid to Landlord by Tenant.” The agreeed “Commencement Date” under the terms
of the Lease was August 1, 2012. The 90th day thereafter was October 31, 2012.
The Appellants sent notice of termination of the Lease and demand for the
return of the initial deposit paid based on the Appellee’s failure to complete these
preparations. All parties recognize that the Appellants never assumed possession of
the premises. The Appellee subsequently filed his lawsuit against the Appellants for
damages.

5
SUMMARY OF THE ARGUMENT
The Trial Court abused its discretion, first, by allowing the Appellee to
reinstate its case after the Trial Court dismissed the case for want of prosecution.
The Trial Court also allowed the Appellee to amend its petition, changing the named
Plaintiff, The Holle Trust, to David Holle, as Trustee of The Holle Trust on the date
of trial. At no time was The Holle Trust a registered entity able to maintain in a court
of this state an action or proceeding arising out of a contract or act in which an
assumed name was used.
The Trial Court failed to recognize that Appellants Monica Barger & Chris
Barger had no personal liability in this matter and awarded a judgment against them
in favor of the Appellee. Both Appellants signed the Lease as agents of HOSB. The
Trial Court further erred in that it continued to recognize that the contract itself
continued to exist after notice of its termination had been sent in writing by the
Appellants. Under the stated terms of the Lease, the Appellants were allowed to
terminate the Lease for the Appellee’s failure to make the unit ready to occupy.
Finally, the Trial Court erred in that it awarded damages to the Appellee
inspite of the Appellee’s failure to properly mitigate its own damages. The evidence
presented at trial was insufficient and contradictory.

6
ISSUE ONE
THE TRIAL COURT ERRONEOUSLY REINSTATED THE APPELLEE’S
CASE INSPITE OF AN OBJECTION HAVING BEEN RAISED BY THE
APPELLANTS.
Standards of Review –
Legal Sufficiency
A legal sufficiency challenge asserts that there is a complete lack of
evidence to support a finding. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co.,
766 S.W.2d 264, 275 (Tex. App.–Amarillo 1988, writ denied). If successful, the
proper remedy for legal insufficiency of evidence generally is rendition of
judgment in favor of the complaining party. Vista Chevrolet, Inc. v. Lewis, 709
S.W.2d 176 (Tex. 1986)(per curiam). In deciding a legal sufficiency challenge, the
court “view[s] the evidence in a light that tends to support the disputed finding and
disregard[s] evidence and inferences to the contrary.” Wal-Mart Stores, Inc.v.
Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (per curiam). The legal sufficiency
standard is classified as either “no evidence” or “matter of law,” depending on
whether the complaining party had the burden of proof. Raw Hide, 766 S.W.2d at
275.
Abuse of Discretion
7
The abuse of discretion standard applies when a trial court has discretion to
either grant or deny relief based on its factual determinations. See Bocquet
v.Herring, 972 S.W.2d 19, 20-21 (Tex. 1998). Applying the abuse of discretion
standard is especially appropriate when the trial court must weigh competing
policy considerations and balance interests in determining whether to grant relief.
See Gen. Tire, Inc.v. Kepple , 970 S.W.2d 520, 526 (Tex. 1998).
In determining whether the trial court has abused its discretion, an appellate
court reviews the record in the light most favorable to the trial court’s action and
indulges every legal presumption in favor of its decision. Holley v. Holley, 864
S.W.2d 703, 706 (Tex. App.–Houston [1st Dist.] 1993, writ denied). As the Texas
Supreme Court has explained:
The test for abuse of discretion is not whether, in the opinion of the
reviewing court, the facts present an appropriate case for the trial
court’s action. Rather, it is a question of whether the court acted
without reference to any guiding rules and principles. Another way of
stating the test is whether the act was arbitrary or unreasonable.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985) (internal citations omitted). As interpreted by later courts, the Downer test
for abuse of discretion is whether the discretionary rulings were (1) arbitrary or
unreasonable or (2) without reference to any guiding rules and principles.
McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). Thus, even if the trial
court refers to the proper guiding rules and principles, an unreasonable or arbitrary
8
discretionary ruling is an abuse of discretion. Id. At least one court has incorrectly
summarized the Downer test by combining the two separate formulations to form a
single test. Walker v. Guiterrez, 111 S.W.3d 56, 62 (Tex. 2003) (the “trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles.”). In a more recent case, however, the
Texas Supreme Court correctly stated the Downer test. See Cire v. Cummings, 134
S.W.3d 835, 839 (Tex. 2004).
Argument –
Two sources grant a trial court the authority to dismiss a suit for want of
prosecution: (1) Texas Rule of Civil Procedure 165a and (2) the trial court's inherent
authority. See TEX. R. CIV. P. 165a; Villarreal v. San Antonio Truck & Equip., 994
S.W.2d 628, 630 (Tex. 1999). The trial court may dismiss a case pursuant to Rule
165a based on “the failure of any party seeking affirmative relief to appear for any
hearing or trial of which the party had notice.” See Villarreal, 994 S.W.2d at 630
(citing TEX. R. CIV. P. 165a(1), (2)).
When the trial court dismisses a case for want of prosecution, the court “shall
reinstate the case upon finding after a hearing that the failure of the party or his
attorney was not intentional or the result of conscious indifference but was due to an
accident or mistake or that the failure has been otherwise reasonably explained.”
TEX. R. CIV. P. 165a(3); Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467,
9
468 (Tex. 1995) (per curiam). A failure of the party or his attorney is not intentional
or due to conscious indifference “within the meaning of the rule merely because it
is deliberate; it must also be without adequate justification.” Smith, 913 S.W.2d at
468. “Proof of such justification—accident, mistake or other reasonable
explanation—negates the intent or conscious indifference for which reinstatement
can be denied.” Id. Conscious indifference “means more than mere negligence.” Id.
The plaintiff bears the burden of demonstrating that he has diligently
prosecuted his case. See Jimenez v. Transwestern Prop. Co., 999 S.W.2d at 130
(Tex. App.—Houston [14th Dist.] 1999, no pet.); See Beames v. Hooks (Tex. App.,
2015) (Citing Tex. Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 274 (Tex. App.—El
Paso 2010, no pet.) (“The complaining party has the burden to bring forth a record
to support its contention.”). On appeal, this Court can review the trial court’s
decision “to determine whether the litigant demonstrated good cause for not
prosecuting with greater diligence.” Olivas, 323 S.W.3d at 274.
This Appellate Court can review a trial court’s ruling dismissing a case for
want of prosecution and a court’s ruling on a motion to reinstate for an abuse of
discretion. See Smith, 913 S.W.2d at 468; Franklin v. Sherman Indep. Sch. Dist., 53
S.W.3d 398, 401 (Tex. App.—Dallas 2001, pet. denied) (per curiam). A trial court
abuses its discretion when it acts “without reference to any guiding rules or
principles,” that is, when it acts in an arbitrary and unreasonable manner. Dueitt v.
10
Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d at 737 (Tex. App.—Waco 2005,
pet. denied).
The court abused its discretion in reinstating the Appellee’s case because the
weight of the evidence proves that the basis for the Appellee’s “good cause” to
reinstate was false. No valid basis to reinstate existed, so the case should have
remained dismissed. The Appellee failed to supply sufficient proof which would
negate the Appellee’s conscious indifference in this matter. Without proof of “good
cause” to reinstate, the Trial Court’s decision was arbitrary and unreasonable.
The Appellee’s Verified Motion to Reinstate simply states facts of the case.
(CR, Vol. 1 of 1, pages 30-33). Section 4 of Appellee’s Motion states “[Appellee’s]
counsel inadvertently misread the office calendar and assumed the matter was set
for hearing by submission.” However, the matter in question was not a hearing date.
Appellee’s Counsel refers to the Motion for Continuance, which he filed on March
14, 2014. The setting, where Appellee’s Counsel failed to appear was a trial setting
on March 26, 2014, which he acknowledges in this own Motion. (CR, Vol. 1 of 1,
page 31).
Appellants’ Response to Appellee’s Motion was filed on April 21, 2014 and
featured an exhibit from the office of Appellee’s Counsel. (CR, Vol. 1 of 1, pages
39-44). Exhibit A of the Appellants’ Response to Appellee’s Motion to Reinstate
shows an Email message from the office of Appellee’s Counsel, which states “The
11
Court just called and our hearing for continuance will need to be heard on Monday,
March 24.” (CR, Vol. 1 of 1, page 42). While it is true that there may have been an
issue with regard to a hearing, it is also true that Counsel for the Appellee was fully
aware that the Trial Court had not granted the Motion for Continuance. Nothing in
Counsel’s Verified Motion to Reinstate mentions why he failed to appear on the date
of trial. (CR, Vol. 1 of 1, pages 39-44). It only mentions his reason for not attending
the hearing on his Motion for Continuance believing it to be set “by submission.”
Insufficient evidence exists for the Trial Court to have granted the Motion to
Reinstate. There is no indication that the Court used “guiding rules or principles” to
reinstate the case in this matter, as required under Dueitt. 180 S.W.3d at 737 (Tex.
App.—Waco 2005, pet. denied). The accident or mistake proposed by the Appellee’s
Counsel referred to his understanding of the hearing which he believed to be by
submission. The Motion made no mention of the Trial setting.
Additionally there is no proof in the record that Counsel for the Appellee met
his burden of demonstrating that he has diligently prosecuted his case as required
under the ruling this year of the First Court of Appeals in Beames v. Hooks. (Tex.
App., 2015). Without such proof, the Trial Court was in error to grant the Appellee’s
Motion to Reinstate. As such, this Court should reverse the Trial Court’s ruling
granting the Appellee’s Motion to Reinstate, and this case should again be dismissed
for want of prosecution.
12

ISSUE TWO
THE TRIAL COURT ERRONEOUSLY ALLOWED THE APPELLEE TO
PROCEED TO TRIAL ALTHOUGH THE APPELLEE WAS AN
UNREGISTERED ENTITY WITHOUT THE CAPACITY TO MAINTAIN AN
ACTION OR PROCEEDING IN TEXAS COURTS.
Standard of Review –
Abuse of Discretion
The abuse of discretion standard applies when a trial court has discretion to
either grant or deny relief based on its factual determinations. See Bocquet
v.Herring, 972 S.W.2d 19, 20-21 (Tex. 1998). Applying the abuse of discretion
standard is especially appropriate when the trial court must weigh competing
policy considerations and balance interests in determining whether to grant relief.
See Gen. Tire, Inc.v. Kepple , 970 S.W.2d 520, 526 (Tex. 1998).
In determining whether the trial court has abused its discretion, an appellate
court reviews the record in the light most favorable to the trial court’s action and
indulges every legal presumption in favor of its decision. Holley v. Holley, 864
S.W.2d 703, 706 (Tex. App.–Houston [1st Dist.] 1993, writ denied). As the Texas
Supreme Court has explained:
13
The test for abuse of discretion is not whether, in the opinion of the
reviewing court, the facts present an appropriate case for the trial
court’s action. Rather, it is a question of whether the court acted
without reference to any guiding rules and principles. Another way of
stating the test is whether the act was arbitrary or unreasonable.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985) (internal citations omitted). As interpreted by later courts, the Downer test
for abuse of discretion is whether the discretionary rulings were (1) arbitrary or
unreasonable or (2) without reference to any guiding rules and principles.
McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). Thus, even if the trial
court refers to the proper guiding rules and principles, an unreasonable or arbitrary
discretionary ruling is an abuse of discretion. Id. At least one court has incorrectly
summarized the Downer test by combining the two separate formulations to form a
single test. Walker v. Guiterrez, 111 S.W.3d 56, 62 (Tex. 2003) (the “trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles.”). In a more recent case, however, the
Texas Supreme Court correctly stated the Downer test. See Cire v. Cummings, 134
S.W.3d 835, 839 (Tex. 2004).
Argument –
The record shows that the Lease in question was entered into by the assumed
named “The Holle Trust.” (RR Vol. 4 of 4, page 6). Counsel for the Appellee stated
correctly on the first day of Trial on June 9, 2014, “I’m here to represent David Holle
14
as Trustee of the Holle Trust and he is essentially being substituted in for the Holle
Trust, which is not an entity.” (RR Vol. 2 of 4, page 5, lines 20-22). In fact there is
no record on file that proves anything other than the fact that The Holle Trust is an
unregistered entity.
“A person who fails to comply with Chapter 71 of the Texas Business and
Commerce Code may not maintain in a court of this state an action or proceeding
arising out of a contract or act in which an assumed name was used.” Tex. Bus. Com.
Code §71.201. If an entity does not exist at the time suit was filed, then it does not
have standing to assert a claim. Smith v. CDI Rental Equip. Ltd., 310 S.W.3d 559,
567 (Tex.App.—Tyler 2010) (Citing Armes v. Thompson, 222 S.W.3d 79, 83-84
(Tex.App. —Eastland 2006, no pet.) (Decedent did not have actual or legal
existence, did not represent a legal entity for purposes of filing suit, had no standing,
and her petition did not invoke the trial court’s jurisdiction.)).The Holle Trust is not
now, nor ever has been registered to do business in the State of Texas and so lacks
standing to bring a lawsuit in Texas Courts. The Appellee’s petition as drawn must
then be dismissed as a matter of law. (CR, Vol. 1 of 1, pages 4-23).
A party has standing when it is personally aggrieved and has capacity when it
has the legal authority to act. See Nootsie, Ltd. v. Williamson County Appraisal Dist.,
925 S.W.2d 659, 661-62 (Tex. 1996). In this case, David Holle was not personally
aggrieved. Therefore David Holle would not have standing to bring the lawsuit in
15
question. A plea to the jurisdiction is proper when pleadings show on their face that
the court does not have subject matter jurisdiction. See, e.g., Bybee v. Fireman’s
Fund Ins. Co., 331 S.W.2d 910, 917 (Tex. 1960); Fountain Parkway, Ltd. v. Tarrant
Appr. Dist., 920 S.W.2d 799, 802 (Tex. App.—Fort Worth 1996, writ denied). (CR,
Vol. 1 of 1, pages 4-23). It is clear from Appellee’s petition the court does not have
jurisdiction because there is no justiciable issue in this case that this court can
resolve. The Appellee’s petition does not allege a real controversy between the
parties that could be resolved by the judicial relief Appellee seeks. See, e.g., State
Bar v. Gomez, 891 S.W.2d 243, 245-46 (Tex. 1994) (district court did not have
authority to compel the State Bar or the Supreme Court to implement mandatory pro
bono). Subject-matter jurisdiction is essential for a court to have authority to decide
a case; it is never presumed, cannot be waived, and can be raised any time. See
Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008).
The Holle Trust was not properly registered with the State of Texas. David
Holle as Trustee of the Holle Trust could not maintain in a court of this state an
action or proceeding arising out of a contract or act in which the assumed name “The
Holle Trust” was used. Because the Appellee could not raise its petition in a Texas
Court, no judgment could flow from such a petition. As such, any judgment from
such a case would be void.
16
As the Trial Court lacked jurisdiction in this matter, the case should be
dismissed as a matter of law.

ISSUE THREE
THE TRIAL COURT ERRONEOUSLY ISSUED A JUDGMENT
AGAINST MONICA BARGER AND CHRIS BARGER IN THEIR INDIVIDUAL
CAPACITIES.
Standard of Review –
Legal Sufficiency
A legal sufficiency challenge asserts that there is a complete lack of
evidence to support a finding. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co.,
766 S.W.2d 264, 275 (Tex. App.–Amarillo 1988, writ denied). If successful, the
proper remedy for legal insufficiency of evidence generally is rendition of
judgment in favor of the complaining party. Vista Chevrolet, Inc. v. Lewis, 709
S.W.2d 176 (Tex. 1986) (per curiam). In deciding a legal sufficiency challenge,
the court “view[s] the evidence in a light that tends to support the disputed finding
and disregard[s] evidence and inferences to the contrary.” Wal-Mart Stores, Inc.v.
Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (per curiam). The legal sufficiency
standard is classified as either “no evidence” or “matter of law,” depending on
17
whether the complaining party had the burden of proof. Raw Hide, 766 S.W.2d at
275.
Abuse of Discretion
The abuse of discretion standard applies when a trial court has discretion to
either grant or deny relief based on its factual determinations. See Bocquet
v.Herring, 972 S.W.2d 19, 20-21 (Tex. 1998). Applying the abuse of discretion
standard is especially appropriate when the trial court must weigh competing
policy considerations and balance interests in determining whether to grant relief.
See Gen. Tire, Inc.v. Kepple , 970 S.W.2d 520, 526 (Tex. 1998).
In determining whether the trial court has abused its discretion, an appellate
court reviews the record in the light most favorable to the trial court’s action and
indulges every legal presumption in favor of its decision. Holley v. Holley, 864
S.W.2d 703, 706 (Tex. App.–Houston [1st Dist.] 1993, writ denied). As the Texas
Supreme Court has explained:
The test for abuse of discretion is not whether, in the opinion of the
reviewing court, the facts present an appropriate case for the trial
court’s action. Rather, it is a question of whether the court acted
without reference to any guiding rules and principles. Another way of
stating the test is whether the act was arbitrary or unreasonable.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985) (internal citations omitted). As interpreted by later courts, the Downer test
for abuse of discretion is whether the discretionary rulings were (1) arbitrary or
18
unreasonable or (2) without reference to any guiding rules and principles.
McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). Thus, even if the trial
court refers to the proper guiding rules and principles, an unreasonable or arbitrary
discretionary ruling is an abuse of discretion. Id. At least one court has incorrectly
summarized the Downer test by combining the two separate formulations to form a
single test. Walker v. Guiterrez, 111 S.W.3d 56, 62 (Tex. 2003) (the “trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles.”). In a more recent case, however, the
Texas Supreme Court correctly stated the Downer test. See Cire v. Cummings, 134
S.W.3d 835, 839 (Tex. 2004).
Argument –
Generally, an agent for a disclosed principal is not personally liable on
contracts that he signs for the principal. See Hull v. S. Coast Catamarans, L.P., 365
S.W.3d 35, 45 (Tex. App.—Houston [1st Dist.] 2011, pet. denied); see also
Restatement (Third) of Agency § 6.01 (2006). “An officer or director [of a
corporation] may not be held liable in damages for inducing the corporation to
violate a contractual obligation, provided that the officer or director acts in good
faith and believes that what he does is for the best interest of the corporation.”
Holloway v. Skinner, 898 S.W.2d 793 (Tex., 1995) (quoting Maxey v. Citizen’s Nat’l
Bank, 507 S.W.2d 722, 726 (Tex.1974)). “Even the officers and directors of an
19
ordinary corporation, while acting as such, are not personally liable even though they
recommend a breach of a valid contract.” Id. at 795 (quoting Russell v. Edgewood
Indep. Sch. Dist., 406 S.W.2d 249, 252 (Tex. Civ. App.—San Antonio 1966, writ
ref’d n.r.e.)).
The evidence in the Trial record shows that the Lease in question was signed
by Chris Barger in his capacity as a “Manager.” (RR, Vol. 4 of 4, page 19). The
evidence in the Trial record shows that the Lease in question was signed by Monica
Barger in her capacity as a “President.” (RR, Vol. 4 of 4, page 21). The Guaranty of
Lease was presented to both Chris Barger and Monica Barger, but the form was
never filled in, and it was never signed.
It is clear from the fact that the parties were presented a separate document
regarding a personal guaranty of the Lease, that the intent of the Parties was that
HOSB was the only person obligated under the lease. This was the basis for
Appellants Chris Barger and Monica Barger signing the document with their titles.
The Court erroneously overruled Appellants objection to the relevance of a
document that did not relate to the Lease. (RR, Vol 2 of 4, page 29, lines 6-7). As
such, the Trial Court erroneously awarded a judgment to the Appellee and against
Chris Barger and Monica Barger in their individual capacities. The Appellants now
ask that this Court reverse the Trial Court judgment in as much as any personal
liability would fall on Chris Barger or Monica Barger.
20
ISSUE FOUR
THE TRIAL COURT ERRONEOUSLY AWARDED DAMAGES TO THE
APPELLEE AFTER THE APPELLANT TERMINATED THE LEASE BETWEEN
THE PARTIES.
Standard of Review –
Legal Sufficiency
A legal sufficiency challenge asserts that there is a complete lack of
evidence to support a finding. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co.,
766 S.W.2d 264, 275 (Tex. App.–Amarillo 1988, writ denied). If successful, the
proper remedy for legal insufficiency of evidence generally is rendition of
judgment in favor of the complaining party. Vista Chevrolet, Inc. v. Lewis, 709
S.W.2d 176 (Tex. 1986) (per curiam). In deciding a legal sufficiency challenge,
the court “view[s] the evidence in a light that tends to support the disputed finding
and disregard[s] evidence and inferences to the contrary.” Wal-Mart Stores, Inc.v.
Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (per curiam). The legal sufficiency
standard is classified as either “no evidence” or “matter of law,” depending on
whether the complaining party had the burden of proof. Raw Hide, 766 S.W.2d at
275.
Abuse of Discretion
21
The abuse of discretion standard applies when a trial court has discretion to
either grant or deny relief based on its factual determinations. See Bocquet
v.Herring, 972 S.W.2d 19, 20-21 (Tex. 1998). Applying the abuse of discretion
standard is especially appropriate when the trial court must weigh competing
policy considerations and balance interests in determining whether to grant relief.
See Gen. Tire, Inc.v. Kepple , 970 S.W.2d 520, 526 (Tex. 1998).
In determining whether the trial court has abused its discretion, an appellate
court reviews the record in the light most favorable to the trial court’s action and
indulges every legal presumption in favor of its decision. Holley v. Holley, 864
S.W.2d 703, 706 (Tex. App.–Houston [1st Dist.] 1993, writ denied). As the Texas
Supreme Court has explained:
The test for abuse of discretion is not whether, in the opinion of the
reviewing court, the facts present an appropriate case for the trial
court’s action. Rather, it is a question of whether the court acted
without reference to any guiding rules and principles. Another way of
stating the test is whether the act was arbitrary or unreasonable.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985) (internal citations omitted). As interpreted by later courts, the Downer test
for abuse of discretion is whether the discretionary rulings were (1) arbitrary or
unreasonable or (2) without reference to any guiding rules and principles.
McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). Thus, even if the trial
court refers to the proper guiding rules and principles, an unreasonable or arbitrary
22
discretionary ruling is an abuse of discretion. Id. At least one court has incorrectly
summarized the Downer test by combining the two separate formulations to form a
single test. Walker v. Guiterrez, 111 S.W.3d 56, 62 (Tex. 2003) (the “trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles.”). In a more recent case, however, the
Texas Supreme Court correctly stated the Downer test. See Cire v. Cummings, 134
S.W.3d 835, 839 (Tex. 2004).
Argument –
The Appellee agreed to make some necessary changes on the premises in
Section 35 of the Lease to accommodate the business of the Appellant HOSB. (RR,
Vol. 4 of 4, page 18). The Record shows that the Appellee failed to complete the
necessary work prior to the Appellants taking possession when the Appellee
presented Robert Whitaker, the manager of the premises at trial. (RR, Vol. 2 of 4,
pages 40-51. The Record shows that the Appellee failed to complete the necessary
work prior to the Appellants taking possession when the Appellee presented Doug
Zorens, the contractor hired by Robert Whitaker, at trial. (RR, Vol. 2 of 4, pages 73-
83).
The Contractor clearly states that no additional work was performed after July
27, 2012. He testifies, “No, I wasn’t taking no instructions after that point. I was
done.” (RR, Vol. 2 of 4, page 76,lines 21-22). The Appellant Chris Barger testified
23
that the instructions for the flooring were given in August of 2012. (RR, Vol. 3 of 4,
page 42,lines 6-10). The Appellee never denied having received the Appellants’
notice of their intent to terminate the Lease for failure to complete the flooring. (RR,
Vol. 4 of 4, page 30). In fact, the Notice of Termination by Tenant was of the
Appellee’s own trial Exhibits.
Proper notice under the terms of the Lease was delivered. The testimony at
trial was that the Appellee failed to complete the work in question. The Appellee
never responded to the Appellants’ Notice of Termination by Tenant. As such, the
record does not support a ruling in favor of the Appellee for damages. The Trial
Court was in error to make any award for damages based on a Lease which was
terminated.
ISSUE FIVE
THE TRIAL COURT ERRONEOUSLY AWARDED DAMAGES TO THE
APPELLEE AFTER THE APPELLANT SHOWED THAT THE APPELLEE
FAILED TO PROPERLY MITIGATE ITS OWN DAMAGES.
Standard of Review –
Legal Sufficiency
A legal sufficiency challenge asserts that there is a complete lack of
evidence to support a finding. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co.,
766 S.W.2d 264, 275 (Tex. App.–Amarillo 1988, writ denied). If successful, the
24
proper remedy for legal insufficiency of evidence generally is rendition of
judgment in favor of the complaining party. Vista Chevrolet, Inc. v. Lewis, 709
S.W.2d 176 (Tex. 1986) (per curiam). In deciding a legal sufficiency challenge,
the court “view[s] the evidence in a light that tends to support the disputed finding
and disregard[s] evidence and inferences to the contrary.” Wal-Mart Stores, Inc.v.
Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (per curiam). The legal sufficiency
standard is classified as either “no evidence” or “matter of law,” depending on
whether the complaining party had the burden of proof. Raw Hide, 766 S.W.2d at
275.
Abuse of Discretion
The abuse of discretion standard applies when a trial court has discretion to
either grant or deny relief based on its factual determinations. See Bocquet
v.Herring, 972 S.W.2d 19, 20-21 (Tex. 1998). Applying the abuse of discretion
standard is especially appropriate when the trial court must weigh competing
policy considerations and balance interests in determining whether to grant relief.
See Gen. Tire, Inc.v. Kepple , 970 S.W.2d 520, 526 (Tex. 1998).
In determining whether the trial court has abused its discretion, an appellate
court reviews the record in the light most favorable to the trial court’s action and
indulges every legal presumption in favor of its decision. Holley v. Holley, 864
25
S.W.2d 703, 706 (Tex. App.–Houston [1st Dist.] 1993, writ denied). As the Texas
Supreme Court has explained:
The test for abuse of discretion is not whether, in the opinion of the
reviewing court, the facts present an appropriate case for the trial
court’s action. Rather, it is a question of whether the court acted
without reference to any guiding rules and principles. Another way of
stating the test is whether the act was arbitrary or unreasonable.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985) (internal citations omitted). As interpreted by later courts, the Downer test
for abuse of discretion is whether the discretionary rulings were (1) arbitrary or
unreasonable or (2) without reference to any guiding rules and principles.
McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). Thus, even if the trial
court refers to the proper guiding rules and principles, an unreasonable or arbitrary
discretionary ruling is an abuse of discretion. Id. At least one court has incorrectly
summarized the Downer test by combining the two separate formulations to form a
single test. Walker v. Guiterrez, 111 S.W.3d 56, 62 (Tex. 2003) (the “trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles.”). In a more recent case, however, the
Texas Supreme Court correctly stated the Downer test. See Cire v. Cummings, 134
S.W.3d 835, 839 (Tex. 2004).
Argument –
26
The only evidence of the Appellee’s attempts to mitigate their own damages
was a commercial lease signed by Houston Home Remodeling and More. (RR, Vol.
4 of 4, pages 38-55). However, the lease in question does not reflect the same space
contracted for in the Lease before this Court. (RR, Vol. 4 of 4, pages 6-21). The
addresses do not match.
The Property Code imposes a duty on a landlord to mitigate damages if a
tenant abandons the leased premises in violation of the lease. See TEX. PROP.
CODE ANN. § 91.006(a) (West 2007). This duty requires the landlord to use
objectively reasonable efforts to re-lease the premises when the tenant vacates in
breach of the lease. See Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948
S.W.2d 293, 299 (Tex. 1997). However in this case, there is no evidence that the
amount of money that the Appellee received from the Houston Home Remodeling
and More commercial lease was a leasehold of similar value. No evidence was
presented as to the value of any attempt by the Appellee to re-lease the premises for
the Lease before this Court.
As such, the Trial Court erroneously found that the Appellee had, in fact,
fulfilled his duty to mitigate his damages in this matter.

PRAYER
27
I respectfully submit that all things are regular and that the final judgment of
trial court should be reversed.
Respectfully submitted,
By:________________________
Ernie Garcia
Texas Bar No. 24072106
616 FM 1960, Suite 105
Houston, Texas 77090
Tel. (832) 305-7694
Fax (832) 553-2984
ATTORNEY FOR APPELLANTS
28
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing instrument has been mailed to the
opposing counsel at the following address on February 6, 2014:
Jason D. Kraus
13910 Champion Forest Drive
Suite 110
Houston, Texas 77069
Fax: (281) 840-5611
________________________
Ernie Garcia
APPENDICES
TEX. R. CIV. P. 165a ....................................................................................................... 9
TEX. PROP. CODE § 91.006(a) ....................................................................................... 27
29
TEXAS RULES OF CIVIL PROCEDURE
RULE 165a. DISMISSAL FOR WANT OF PROSECUTION
1. Failure to Appear. A case may be dismissed for want of prosecution on failure of any party
seeking affirmative relief to appear for any hearing or trial of which the party had notice.
Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall
be sent by the clerk to each attorney of record, and to each party not represented by an
attorney and whose address is shown on the docket or in the papers on file, by posting same
in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want
of prosecution unless there is good cause for the case to be maintained on the docket. If the
court determines to maintain the case on the docket, it shall render a pretrial order assigning
a trial date for the case and setting deadlines for the joining of new parties, all discovery,
filing of all pleadings, the making of a response or supplemental responses to discovery and
other pretrial matters. The case may be continued thereafter only for valid and compelling
reasons specifically determined by court order. Notice of the signing of the order of
dismissal shall be given as provided in Rule 306a. Failure to mail notices as required by this
rule shall not affect any of the periods mentioned in Rule 306a except as provided in that
rule.
2. Non-Compliance With Time Standards. Any case not disposed of within time standards
promulgated by the Supreme Court under its Administrative Rules may be placed on a
dismissal docket.
3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by
the movant or his attorney. It shall be filed with the clerk within 30 days after the order of
dismissal is signed or within the period provided by Rule 306a. A copy of the motion to
reinstate shall be served on each attorney of record and each party not represented by an
attorney whose address is shown on the docket or in the papers on file. The clerk shall
deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as
practicable. The court shall notify all parties or their attorneys of record of the date, time and
place of the hearing.
The court shall reinstate the case upon finding after a hearing that the failure of the party or
his attorney was not intentional or the result of conscious indifference but was due to an
accident or mistake or that the failure has been otherwise reasonably explained.
In the event for any reason a motion for reinstatement is not decided by signed written order
within seventy-five days after the judgment is signed, or, within such other time as may be
allowed by Rule 306a, the motion shall be deemed overruled by operation of law. If a motion
to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has
been perfected, has plenary power to reinstate the case until 30 days after all such timely
filed motions are overruled, either by a written and signed order or by operation of law,
whichever occurs first.
4. Cumulative Remedies. This dismissal and reinstatement procedure shall be cumulative of
the rules and laws governing any other procedures available to the parties in such cases. The
same reinstatement procedures and timetable are applicable to all dismissals for want of
30
prosecution including cases which are dismissed pursuant to the court's inherent power,
whether or not a motion to dismiss has been filed.
TEXAS PROPERTY CODE
TITLE 8. LANDLORD AND TENANT
CHAPTER 91. PROVISIONS GENERALLY APPLICABLE TO LANDLORDS AND
TENANTS
Sec. 91.006. LANDLORD'S DUTY TO MITIGATE DAMAGES.
(a) A landlord has a duty to mitigate damages if a tenant abandons the leased premises in
violation of the lease.
(b) A provision of a lease that purports to waive a right or to exempt a landlord from a liability or
duty under this section is void.
31