ACCEPTED
01-14-00779-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/23/2015 1:23:38 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00779-CV
In the Court of Appeals FILED IN
First Judicial District of Texas 1st COURT OF APPEALS
HOUSTON, TEXAS
Houston, Texas 10/23/2015 1:23:38 PM
___________________________________CHRISTOPHER A. PRINE
Clerk
POINTE WEST CENTER, LLC
Appellant,
vs.
IT’S ALIVE, INC. AND SHAMIL QURESHI
Appellees/Cross-Appellants,
__________________________________________________________________
Appeal from County Civil Court at Law No. 1
Harris County, Texas
Cause No. 1022800
__________________________________________________________________
APPELLEES/CROSS-APPELLANTS’
MOTION FOR REHEARING
__________________________________________________________________
James A. Dunn
Texas Bar No. 06244800
3006 Brazos Street
Houston, Texas 77006
Tel.: (713) 403-7405
Fax: (713) 230-8940
Email: jdunn@dnglegal.com
COUNSEL FOR APPELLEES/
CROSS-APPELLANTS
IT’S ALIVE, INC. AND
SHAMIL QURESHI
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TABLE OF CONTENTS
INDEX OF AUTHORITIES……………………………………………………….3
ISSUE PRESENTED FOR REVIEW……………………………………………...5
ARGUMENT AND AUTHORITIES……………………………………………...5
PRAYER……………………………………………………………………...……9
CERTIFICATE OF COMPLIANCE……………………………………………...10
CERTIFICATE OF SERVICE……………………………………………………11
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INDEX OF AUTHORITIES
Akin, Gump, Strauss, Hauer & Feld, LLP v. National Development
and Research Corp., 299 S.W.3d 106, 123-124 (Tex. 2009)………….………...6, 7
Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007) …………………………….5, 6, 7
McGinty v. Hennen, 372 S.W.3d 625, 627 (Tex. 2012)……………………………8
Texarkana Memorial Hospital, Inc. v. Murdock, 946 S.W.2d 836,
841 (Tex. 1997)……………………………………………………………….……7
Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 1786 (Tex. 1986) …………………….9
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NO. 01-14-00779-CV
In the Court of Appeals
First Judicial District of Texas
Houston, Texas
___________________________________
POINTE WEST CENTER, LLC
Appellant,
vs.
IT’S ALIVE, INC. AND SHAMIL QURESHI
Appellees/Cross-Appellants,
__________________________________________________________________
Appeal from County Civil Court at Law No. 1
Harris County, Texas
Cause No. 1022800
__________________________________________________________________
APPELLEES/CROSS-APPELLANTS’
MOTION FOR REHEARING
__________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
Appellees/Cross-Appellants, It’s Alive, Inc. and Shamil Qureshi file their
Motion for Rehearing. For the reasons set forth herein, the Judgment entered in
favor of Pointe West Center, LLC should be reversed and rendered.
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ISSUE PRESENTED FOR REVIEW
Did the Court of Appeals err in reversing and remanding this case rather than
reversing and rendering when the Court of Appeals sustained Cross-Appellants’ No
Evidence of Damages Issue.
ARGUMENT AND AUTHORITIES
In its Opinion the Court of Appeals stated that ordinarily appellate courts
render judgment when sustaining a no-evidence issue (opinion at p. 13). In deciding
to reverse and remand instead of render, the Court of Appeals stated that “when there
is evidence to support some damages, it is not appropriate to render judgment” citing
Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex. 2007). In Guevara, the Supreme
Court noted that “Affidavits proving up the medical bills are evidence that expenses
were reasonable in amount and necessary for treatment of [the plaintiff’s condition],
but the bills are not evidence of what all the conditions were nor that all the
conditions were caused by the accident.” Id at 669. The Supreme Court went on to
note that the evidence is legally sufficient to support a finding that some of his
medical expenses were causally related to the accident. However the Supreme Court
also concluded that the evidence was not legally sufficient to prove what the
conditions were that generated all of the medical expenses or that the accident caused
all of the conditions and expenses for their treatment. In the passage cited by the
Court of Appeals, the Supreme Court concluded that “when there is evidence to
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support some damages it is not appropriate to render judgment.” It is clear that the
Supreme Court was relying on the fact that the plaintiffs did produce legally
sufficient evidence as to both some of the medical expenses being reasonable and
necessary and caused by the accident. This is made clear when the Court concludes
by the suggestion that the case be remanded to the Court of Appeals for
determination of an appropriate remittitur “to consider remittitur as to expenses for
which expert evidence is required.” If there were no legally sufficient evidence, then
there would be no suggestion of remand for purposes of determining whether
remittitur was appropriate.
In Akin, Gump, Strauss, Hauer & Feld, LLP v. National Development and
Research Corp., 299 S.W.3d 106, 123-124 (Tex. 2009) the Supreme Court cited the
Guevara opinion on the issue of reversal and remand. In Akin, the Supreme Court
noted that the plaintiff produced legally sufficient evidence to support the jury’s
finding that the defendant’s negligence caused plaintiff to retain two outside lawyer-
professors expert witnesses for which the plaintiff paid fees and for which the
plaintiff sought damages. The Supreme Court noted that there was legally sufficient
evidence on the damages issue as to the two outside lawyer-professors but noted that
the fees paid to these two lawyers amounted only to $59,500 out of the $216,590 in
fees awarded at trial. The Supreme Court stated: “Accordingly, although the
evidence is legally sufficient to support a finding of some amount, it is legally
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insufficient to support the entire amount the jury found.” [citing Guevara and
Texarkana Memorial Hospital, Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex. 1997)].
The Akin Court concluded that when there is some evidence of damages, but not
enough to support the full amount, it is inappropriate to render judgment. However,
the key point made is that where there is some legally sufficient evidence to support
the judgment but not the full amount, only then is it appropriate to reverse and
remand. The Supreme Court noted that ordinarily “we render judgment when we
sustain a no evidence issue.” Id at 124.
The Murdock case cited in Akin was a medical malpractice case. The parties
stipulated that the medical expenses were reasonable and necessary. The issue was
to what extent the damages were caused by the defendants’ negligence. In deciding
to remand in that case, the Supreme Court stated: that because the plaintiffs
presented legally sufficient evidence that some of the medical expenses resulted
from the defendants’ negligence that they should be afforded the opportunity to
develop this evidence further.
Unlike the cases cited above supporting reversal and remand, this Court has
held unequivocally that Pointe West failed to present legally sufficient evidence of
its damages. This Court noted “No testimony or exhibit was presented to
specifically identify what costs should be included as part of Pointe West’s claim for
damages.” (Opinion at p. 11) This Court noted that “None of the evidence offered
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any differentiation between work done in It’s Alive’s space, in other spaces within
the shopping center, or at locations beyond the shopping center. (Opinion at p. 11).
The Court further noted that Pointe West’s evidence failed to establish with any
reasonable particularity what the costs of repair actually were (Opinion at p.
12). This Court concluded that “Because there was no proof of the actual amount
of damages there was no proof that the damages presented were reasonable and
necessary.” (Opinion p. 12-13).
In its opinion the Court stated that Pointe West presented ample evidence of
injury as It’s Alive vacated the premises, but the Court noted that a plaintiff seeking
to prove remedial damages must show more than the nature of injuries, need for
services rendered, and amounts charged citing McGinty v. Hennen, 372 S.W.3d 625,
627 (Tex. 2012). (Opinion at p. 12) It’s Alive has challenged Pointe West’s claims
as being exaggerated. Pointe West already has received a security deposit of
$8,000.00 from It’s Alive and kept that security deposit. (5 RR P. Ex. 1, D Ex. 5).
Pointe West has had a full and complete opportunity to present legally
sufficient evidence of any reasonable and necessary expenses caused by It’s Alive.
It has failed to do so. This Court has sustained It’s Alive no evidence challenges to
the Judgment. Yet this Court has determined to give Pointe West a second bite at
the apple and force It’s Alive to incur the expense of another trial and potentially
even greater exposure for additional attorney’s fees sought by Pointe West. The
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long-standing rule that when a no evidence point is sustained, rendition is proper
should be followed.
The case of Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176 (Tex. 1986) is
instructive. The Supreme Court noted that the Court of Appeals found that there
was no evidence of the automobile’s market value to support an award for damages
under the DTPA. The Court of Appeals then remanded the DTPA portion of the
cause for a new trial to determine market value. The Supreme Court stated that
“Generally, if the Court of Appeals sustains a ‘no evidence’ point, it is the court’s
duty to render judgment for appellant. This is such a basic rule of law that we are
convinced that the court of appeals meant to find insufficient evidence and remand
or to find no evidence and render. Rather than remand the Supreme Court held that
“there was no evidence to support the jury’s answer to market value. Rendition is
proper.” Id at 176.
PRAYER
Based on the foregoing, It’s Alive, Inc. and Shamil Qureshi, Appellees and
Cross-Appellants respectfully request that the Court of Appeals grant this Motion
for Rehearing and reverse the Judgment awarding Pointe West, LLC actual damages
in the amount of $15,000.00, and render Judgment that Pointe West, LLC take
nothing.
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Respectfully submitted,
DUNN, NEAL & GERGER, L.L.P.
By: ____/s/ James A. Dunn _____________
James A. Dunn
Texas Bar No. 06244800
3006 Brazos Street
Houston, Texas 77006
Tel.: (713) 403-7405
Fax: (713) 960- 0204
Email: jdunn@dnglegal.com
Attorney for Appellees/Cross
Appellants, It’s Alive, Inc. and
Shamil Qureshi
CERTIFICATE OF COMPLIANCE
This Brief of Cross-Appellants complies with the typeface and length
requirements of Texas Rule of Appellate Procedure 9.4 because:
(1) This brief complies with typeface and the type style requirements of
Rule 9.4(e) because the brief has been prepared in a conventional
typeface using Word with Times New Roman 14-point font.
(2) This brief complies with the length requirements of Rule 9.4(i)(2)(B)
because it contains 1,659 words, excluding the parts of the brief
exempted by Rule 9.4(i)(1).
/s/James A. Dunn
James A. Dunn
Attorney for Cross-Appellants
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CERTIFICATE OF SERVICE
I certify that on October 23, 2015, a true and correct copy of the foregoing
instrument was served on Appellant’s counsel, Spencer E. Dunn, 4669 Southwest
Freeway, Suite 760, Houston, Texas 77027, by electronic service through the e-filing
case manager in accordance with the Texas Rules of Civil Procedure.
/s/ James A. Dunn
James A. Dunn
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