Irma K. Ortega, as Next Friend of A.G.T., a Minor v. Phan-Tran Property Management, LLC, Minh Phan and Misty Tran ( 2015 )

ACCEPTED
01-15-00676-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/16/2015 9:14:13 AM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00676-CV
____________________________________________
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST JUDICIAL DISTRICT 12/16/2015 9:14:13 AM
HOUSTON DIVISION CHRISTOPHER A. PRINE
_____________________________________________ Clerk
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
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
i
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
ii
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
iii
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
iv
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
v
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.
1
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is requested. Oral argument would aid the Court’s decision-
making process by allowing the Court to test the arguments of the parties with
immediate feedback.
2
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?
3
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).
4
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).
5
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).
6
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).
7
September 14, 2012, dogs reported to animal control. (CR 623-625, Sublett,
Exhibit 1, “Bates” No. 00118-00120).
8
September 16, 2012, dogs reported to animal control. (CR 627-629, Sublett,
Exhibit 1, “Bates” No. 00122-00124).
9
September 18, 2012, dogs reported to animal control. (CR 630-632, Sublett,
Exhibit 1, “Bates” No. 00125-00127).
10
September 21, 2012, very aggressive dogs reported. (CR 633-635, Sublett, Exhibit
1, “Bates” No. 00128-00130).
11
September 24, 2012, animal control dispatched to area. (CR 636-638, Sublett,
Exhibit 1, “Bates” No. 00131-00133).
12
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).
13
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).
14
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).
15
October 12, 2012, aggressive dogs reported to animal control. (CR 639-641,
Sublett, Exhibit 1, “Bates” No. 00134-00136).
16
October 16, 2012, animal control set traps to try and catch dogs. (CR 642-644,
Sublett, Exhibit 1, “Bates” No. 00137-00139).
17
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).
18
October 19, 2012, dogs are out running again. (CR 655-658, Sublett, Exhibit 1,
“Bates” No. 00150-00153).
19
October 23, 2012, dogs are chasing people on bikes. (CR 659-662, Sublett,
Exhibit 1, “Bates” No. 00154-00157).
20
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
21
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)
22
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)
23
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)
24
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)
25
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.
26
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
27
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.
28
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-
29
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
30
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
31
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.
32
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
33
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
34
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."
35
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
36
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
37
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
38
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
39
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
40
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
AMY G. TRlANA, B/N/F,
IRMAK. ORTEGA,
CAUSE NO. 2013-74660
§
§
IN THE DlSTRICf COURT OF
4>\
Plaintiff, §
§
§
vs. § HARRIS COUNTY, TEXAS
§
PHAN-TRAN PROPERTY §
MANAGEMENT, LLC, MINH PHAN, §
MISTY TRAN, AND SERGIO CASTILLO, §
Defendants. § 334TH JUDICIAL DISTRICT
ORDER GRANTING
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 ~Pban•s
... l 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, BINIF 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.
~-
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
:"''XHI~IT
t: ... 0 ht'\
4. Sublease and Assignment.
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 ofTenant. 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