doc 5 baez v khraish def motion for summary judgment

DEFENDANT KHRAISH H. KHRAISHS MOTION FOR SUMMARY JUDGMENT PAGE 1

CAUSE NO. DC-15-06728

DEFENDANT KHRAISH H. KHRAISHS MOTION FOR SUMMARY JUDGMENT

MAY IT PLEASE THE COURT:

COMES NOW Defendant, Khraish H. Khraish, and files Defendants Motion for

Summary Judgment, and would show the Court as follows:

I. INTRODUCTION

1. Plaintiff is Jose Baez. (hereafter Baez or Plaintiff)

2. Defendant is Khraish H. Khraish. (hereafter Khraish or Defendant).

3. Plaintiff alleges in the instant suit that Defendant is liable for an alleged rat bite personal

injury because of a breach of contract and fraud (common law and statutory) in regard to a

residential lease.

4. The instant lawsuit is Plaintiffs second lawsuit against Defendant to hold him liable for

an alleged injury resulting from a rat bite on a premises that Defendant neither owned or leased

to Plaintiff. Plaintiff first attempt resulted in a final judgment against Plaintiff.

JOSE BAEZ, Plaintiff, V. KHRAISH H. KHRAISH, individually HANNAH E. KRAISH, individually KHRAISH DEVELOPMENT GROUP, LLC & HMK, LTD. Defendants.

IN THE DISTRICT COURT

191ST JUDICIAL DISTRICT DALLAS COUNTY, TEXAS

FILEDDALLAS COUNTY

9/16/2015 3:20:36 PMFELICIA PITRE

DISTRICT CLERK


5. As Defendant Khraish H. Khraish will show herein, Plaintiff did not join in the first

lawsuit the claims he is making in the instant suit even though those claims involve the same

transaction and the same injury giving rise to the instant suit.

6. Defendant files this Motion Summary Judgment in regard to all of Plaintiffs allegations

based upon res judicata and collateral estoppel.

II. SUMMARY OF ARGUMENT AND STATEMENT OF FACTS

7. The instant lawsuit (also referred to as the the second lawsuit) is Plaintiffs second

frivolous lawsuit against Defendant to hold him liable for an alleged injury resulting from a rat

bite that allegedly occurred on or about June 17, 2012, on a premises that Defendant neither

owned or leased to Plaintiff. Plaintiff alleges in the instant suit that Defendant is liable for the rat

bite injury because of a breach of contract and fraud (common law and statutory) in regard to a

residential lease.

5. In the first lawsuit (Jose Baez vs Khraish Khraish, Cause No. CC-14-02577-D, in

County Court at Law No. 4), Plaintiff brought suit against Defendant for the same alleged rat bite

injury that allegedly occurred on or about June 17, 2012. However, in the first lawsuit Plaintiff

claimed Defendant was liable for the alleged injury because of negligence and negligence per se.

Plaintiff first lawsuit resulted in a summary judgment against Plaintiff. The judgment was not

appealed and is therefore a final judgment.

6. Since Plaintiff did not join in the first lawsuit the claims he is making in the instant suit

(even though those claims involve the same transaction and the same alleged injury giving rise to

the instant suit) his are barred by res judicata and collateral estoppel. Accordingly Defendants

summary judgment should be granted.


III. STANDARD OF REVIEW

7. The function of summary judgment is not to deprive litigants of the right to trial by jury,

but to eliminate patently unmeritorious claims and defenses. Gulbenkian v. Penn, 252 S.W.2d 929,

931 (Tex. 1952).

8. For a defendant as movant to prevail on summary judgment under rule 166a(c), it must

either (1) disprove at least one element of each of the plaintiffs theories of recovery or (2) plead

and conclusively establish each essential element of an affirmative defense, thereby rebutting the

plaintiffs cause of action. State v. Allied Mktg. Group, Inc., 949 S.W.2d 816, 819 (Tex. App.

Dallas 1997, writ denied). For a defendant moving for summary judgment on his counterclaims,

the burden of proof is the same as for a plaintiff moving for summary judgment on his cause of

action. Rabe v. Dillards, Inc., 214 S.W.3d 767, 767 (Tex. App. Dallas 2007). An issue is

conclusively established when the evidence is such that there is no room for ordinary minds to

differ as to the conclusion to be drawn from it. Triton Oil & Gas Corp. v. Marine Contractors &

Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).

IV. SUMMARY JUDGMENT EVIDENCE

The following exhibits are attached hereto and incorporate herein to this motion:

EXHIBIT A PLAINTIFFS FIRST AMENDED PETITION IN Jose Baez vs Khraish H. Khraish, Cause No. CC-14-02577-D, in County Court at Law No. 4

EXHIBIT B DEFENDANTS MOTION FOR SUMMARY JUDGMENT Jose Baez vs Khraish H. Khraish, Cause No. CC-14-02577-D, in County Court at Law No. 4.


EXHIBIT C JUDGMENT OF COURT IN Jose Baez vs Khraish Khraish, Cause No. CC-14-02577-D in County Court at Law No. 4. 1

EXHIBIT D NOTICE OF NON-SUIT IN Jose Baez vs Khraish Khraish, Cause No. CC-14-02577-D in County Court at Law No. 4.

THE ABOVE NOTED EXHIBITS ARE INCORPORATED HEREIN FOR ALL PURPOSES AND SHOULD BE CONSIDERED PART OF DEFENDANTS SUMMARY JUDGMENT EVIDENCE.

V.

ARGUMENT AND AUTHORITIES

1. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT BECAUSE OF PLAINTIFFS CLAIMS ARE BARRED BY RES JUDICATA

9. Res Judicata, or claim preclusion, prevents the litigation of a claim or cause of action that

was adjudicated and resolved by a final judgment, as well as related matters that with the use of

diligence should have been litigated in the earlier suit. Citizens Ins. v. Daccach, 217 S.W.3d 430,

439 (Texas 2007). Claims preclusion prevents splitting a cause of action. Barr v. Resolution

Trust Corp., 837 S.W.2d 627, 629 (Tex. 1992). The critical issue is whether the two claims arise

from the same transaction and are based on the same nucleus of operative facts. Musgrave v

Owen, 67 S.W. 3d 513, 519 (Tex. App.Texarkana 2002, no pet.) A claim of res judicata

requires proof of (a) a final judgment in the first lawsuit , (b) the parties in the first and second

suit are the same, and (c) the second suit is based on the same claims that were raised or that

could have been raised in the first suit. Citizens Ins. v. Daccach, 217 S.W.3d at 449.

10. Defendant is entitled to summary judgment because Defendant can show that all of the

essential elements to support his defense of res judicata are present:

11. (a) A court of competent jurisdiction signed a final judgment on the merits in the

first lawsuit. In the first lawsuit, Plaintiff sued Defendant Khraish Khraish and sought damages

1 Plaintiff added HMK, Ltd. in his First Amended Petition and then non-suited HMK, Ltd. after the summary judgment was granted in favor of Defendant Khraish H. Khraish thereby making the judgment final as to all remaining parties. See Exhibit D Notice of Non-Suit.


for negligence and negligence per se against Defendant Khraish Khraish for a rat bite Plaintiff

alleged occurred on June 17, 2012, on a premises owed by Defendant and leased to Plaintiff. See

Exhibit A, Plaintiffs Petition in Jose Baez vs Khraish Khraish, Cause No. CC-14-02577-D,

in County Court at Law No. 4. Defendant moved for summary judgment on numerous grounds

including the lack of any duty of Defendant to Plaintiff, the breach of any duty of Defendant to

Plaintiff, any breach by Defendant proximately causing Plaintiffs injury, and no evidence of

Plaintiffs injury being related to a rat bite. Moreover, Defendants summary judgment evidence

established that Defendant was not the owner of the property where the alleged rat bite occurred

and did not lease the property to Plaintiff. See Exhibit B, Defendants Traditional and No

Evidence Motion for Summary Judgment in Jose Baez vs Khraish Khraish, Cause No. CC-14-

02577-D, in County Court at Law No. 4. The court in the first lawsuit granted Defendants

motion for summary judgment in its entirety. See Exhibit C Judgment in Jose Baez vs

Khraish Khraish, Cause No. CC-14-02577-D, in County Court at Law No. 4. Plaintiff did not

appeal the judgment and the judgment became a final judgment.

12. (b) The parties in the first suit are the same as those in the second suit. In the first

suit, Plaintiff brought suit against Defendant Khraish H. Khraish. See Exhibit A. In the

instant lawsuit, Plaintiff brought suit against amongst others Defendant Khraish H. Khraish. See

Plaintiff Petition in the instant case.

13. (c) The second suit is based on the same claims that were raised in the first suit or

that could have been raised in the first lawsuit. As noted above in the first suit, Plaintiff

claimed that Defendants negligence and negligence per se on or about June 17, 2012, (in regard

to the premises located at 917 Ann Street, Dallas, Texas) resulted in the rat bite injury to

Plaintiff. See Exhibit A. Plaintiff now claims in the second lawsuit that his alleged injuries

occurred on June 17, 2012, and were the result of a rat bite related to Defendants breach of


contract and fraud in regard to the same premises and the premises lease that were involved in

the first lawsuit. See Plaintiff Petition in the instant case. These are obviously claims that

Plaintiff could have brought against this Defendant in the first lawsuit but failed to do so.

14. For the foregoing reasons, Plaintiffs claims against Defendant Khraish H. Khraish

should be barred based on the doctrine of Res Judicata and Defendants motion for summary

judgment granted.

2. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT BECAUSE OF PLAINTIFFS CLAIMS ARE BARRED BY COLLATERAL ESTOPPEL

15. Collateral estoppel, or issue preclusion, prevents a party from re-litigating a particular

fact issue that the party already litigated and lost in an earlier suit. State & Cty. Mut. Fire Ins. v.

Miller, 52 S.W. 3d 693, 696 (Tex. 2001). To invoke collateral estoppel, a party must establish (a)

the same facts sought to be ligated in the second suit were fully litigated in the first suit; (b) those

facts were essential to the judgment in the first suit, and (c) the parties were case as adversaries

in the first suit. Sysco Food Servs. V. Trapnell 890 S.W.2d 796, 801 (Tex. 1994).

16. Defendant is entitled to summary judgment because Defendant can show that all of the

essential elements to support his defense of collateral estoppel are present:

17. (a) The same facts sought to be ligated in the second suit were fully litigated in the

first suit. In the first lawsuit, Plaintiff pleading claimed that he was injured as the result of a rat

bite that occurred on June 17, 2012, on a premises owned by Defendant and leased to Plaintiff by

Defendant. See Exhibit A. Plaintiff is making the same claim for personal injury in the second

lawsuit but has couched it in terms of a breach of contract and fraud claims in an obvious and

vain attempt to avoid the two year limitations period of a personal injury and circumvent the

judgment in the first lawsuit. (Collateral estoppel can bar relegation of issues even if the later suit

is based on a different cause of action. Johnson & Higgins v. Kenneco Energy, Inc., 962 S.W.2d


507, 521 (Tex. 1998). Defendant moved for summary judgment on numerous grounds including

the lack of any duty of Defendant to Plaintiff, the breach of any duty of Defendant to Plaintiff,

any breach by Defendant proximately causing Plaintiffs injury, no privity between Plaintiff and

Defendant and no evidence of Plaintiffs injury being related to a rat bite. Moreover, Defendants

summary judgment evidence in the first lawsuit established that Defendant was not the owner of

the property where the alleged rat bite occurred and did not lease the property to Plaintiff. See

Exhibit B. The court in the first lawsuit granted Defendants motion for summary judgment in

its entirety. See Exhibit C. Plaintiff did not appeal the judgment and the judgment became a

final judgment.

18. (b) The same factual issues were essential to the first judgment as the second

lawsuit. In the first lawsuit, Defendant moved for summary judgment and it was granted because

Defendant had no duty to Plaintiff; Defendant did not breach any duty to Plaintiff; no alleged

breach by Defendant proximately caused Plaintiffs injury; there was no privity between Plaintiff

and Defendant; there was no evidence of Plaintiffs injury being related to a rat bite; Defendant

was not the owner of the property where the alleged rat bite occurred and Defendant did not

lease the property to Plaintiff. See Exhibit B and Exhibit C.

19. (c) The parties were cast as adversaries in the first suit. The last element is clear in

both the first and the second lawsuits. Plaintiff sued Defendant in the first lawsuit originally as

the sole Defendant for negligence and negligence per se for his alleged injuries. See Exhibit

A. In the instant lawsuit, Plaintiff has sued Defendant again for the same injuries but just

adding additional causes of action with a four-year limitations period to avoid the two-year

limitations period for a personal injury claim and circumvent the judgment in the first lawsuit.


VI. CONCLUSION

20. Defendant has established that he is entitled to summary judgment on the basis of res

judicata and collateral estoppel. Plaintiff claims are barred on the basis of res judicata because

(a) there was a final judgment in the first lawsuit involving Plaintiff and Defendant in regard to

the June 17, 2012 rat bite; (b) both Plaintiff and Defendant were parties in the first and second

suit; and (c) the second suit is based on the same claims that were raised or that could have been

raised in the first suit by Plaintiff. See Citizens Ins. v. Daccach, 217 S.W.3d at 449. Plaintiff

claims are barred on the basis of collateral estoppel because a) the same facts sought to be ligated

in the second suit were fully litigated in the first suit; (b) those facts were essential to the

judgment in the first suit, and (c) Plaintiff and Defendant were adversaries in the first suit. Sysco

Food Servs. V. Trapnell 890 S.W.2d at 801. Accordingly, Defendants summary judgment

should be granted and sanctions imposed on Plaintiff filing a frivolous suit against Defendant a

second time.

VII.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that

this Honorable Court take judicial notice of the evidence attached to this motion; grant

Defendants motion in its entirety; grant Defendants full and final judgment in this case; award

Defendant damages, costs and sanctions to which he is entitled; and that this Court grant the

Defendant any and all further relief, whether at law or in equity, to which Defendant may be

justly entitled.


Respectfully submitted, /s/ Bernard E. Zwillenberg State Bar No. 22299020 [email protected] P.O. Box 670342 Dallas, Texas 75367 214-365-9936 Direct Telephone 214-219-0571 Facsimile

CERTIFICATE OF SERVICE

On this the 16th day of September, 2015, a copy of Defendant Khraish H.

Khraishs Motion Summary Judgment was served in accordance with the Texas

Rules of Civil Procedure on the following counsel of record:

Michael Hindman Rolle, Breeland, Ryan, Landau, Wingler & Hindman 2030 Main Street, Suite 200 Dallas, Texas 75201 Email: [email protected] Fax: 214-637-6872 /s/ Bernard E. Zwillenberg


EXHIBIT A

CAUSE NO. CC44-02577-D JOSE BAEZ,

Plaintiff,

v.

KHRAISH H. KHRAISH, And HMK, LTD.,

IN THE COUNTY COURT

AT LAW NO. 4

Defendants. DALLAS COUNTY, TEXAS

PLAINTIFF'S FIRST AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW JOSE BAEZ, hereinafter called Plaintiff, complaining of

KHRAISH H. KHRAISH and HMK, LTD., hereinafter referred to as Defendants. This

matter shall be conducted under a Level 2 Discovery Control Plan, pursuant to Rule 190

of the Texas Rules of Civil Procedure, and for cause of action Plaintiff would show the

Court and Jury:

1.

Plaintiff is an individual who resides at 917 Ann Street, Apartment 202, Dallas,

Dallas County, Texas 75223. The last 3 digits of his social security number are 858.

Defendant Khraish H. Khraish is an individual who may be served with process at

1119 Singleton, Dallas, Dallas County Texas, 75212-5217, or wherever he may be found.

Defendant HMK, Ltd. is a domestic limited partnership whose registered agent is

Defendant Khraish H. Khraish and may be served at 1119 Singleton, Dallas, Dallas

County Texas, 75212-5217.

FILED3/19/2015 9:05:12 AM

JOHN F. WARRENCOUNTY CLERK

DALLAS COUNTY

IL

At all times relevant herein, Defendant Khraish H. Khraish owned, operated,

and/or managed the property, Dallas City Block 1262, Block 18 and Lot 5 & 6, also

known as 917-921 Ann Street, Dallas, Texas 75223, and was responsible for the

operation, management, and maintenance of said property.

At all times relevant herein, Defendant HMK, Ltd. owned, operated, and/or

managed the property, Dallas City Block 1262, Block 18 and Lot 5 & 6, also known as

917-921 Ann Street, Dallas, Texas 75223, and was responsible for the operation,

management, and maintenance of said property.

On or about June 17, 2012, Plaintiff was a tenant in Defendants' property in

Apartment 202, 917 Ann Street, Dallas, Texas 75223. As a lawful tenant, Plaintiff was an

invitee on Defendant's premises and Defendant therefore owed Plaintiff the duty to

exercise ordinary care and to maintain the premises in a reasonably safe environment or

to warn Plaintiff of any potential hazards which might exist.

IV.

Plaintiff, while on Defendant's premises, sustained serious injuries proximately

caused by a dangerous condition which Defendant, his agents, servants and/or employees

knew or in-the exercise of ordinary care should have known existed.

Specifically, on June 17, 2012, Plaintiff was awakened by pain in the second toe

of his left foot. Plaintiff saw a rat run off after biting his toe. The rat ran to the kitchen

rabinet where there was a hole through the wall. Defendants failed to keep the property in

a safe and sanitary condition. This failure by Defendants created health and safety

problems for tenants, such as those suffered by Plaintiff. The health and safety problems

for Plaintiff included the unreasonably dangerous and foreseeable likelihood of suffering

a rat bite. The Defendant knew or should have known of this danger. Defendant, by

reasonable inspection, would have been able to detect and remove the danger.

V.

Without waiving prior claims, Plaintiff pleads that Defendant was negligent per se

in that it violated both the Dallas City Code and the Texas Property Code On the occasion

in question while Plaintiff was in the class of persons to be protected by said statutes and

ordinances.

Defendants Khraish H. Khraish and HMK, Ltd., as owner, operator, and/or

manager of said premises, were negligent per se in violating the Dallas City Code and

Texas Property Code pursuant to the following statutes.

A. Dallas City Code 27-11, in relevant part, provides:

"An owner shall protect the exterior surfaces of a structure that are subject to

decay by application of paint or other coating... maintain a structure intended for

human occupancy and a structure used as an accessory to a structure intended for

human occupancy in a weather-tight and water-tight condition..." "... repair

holes, cracks, breaks, and loose surface materials that are health or safety hazards

in or on floors, walls, and ceilings...eliminate rodents and vermin in or on the

land; and keep the interior of a structure free from insects, rodents, and vermin "

Dallas City Code 7A-18 also provides, An owner of private premises commits an

offense if he emits to accumulate any litter on the premises.

B. Texas Property Code 92.052 also provides that

"...a landlord shall make a diligent effort to repair or remedy a condition if the

tenant specifics the condition in a notice to the person to whom or to the place

where rent is normally paid the tenant is not delinquent in the payment of rent at

the time notice is given; and the condition: materially affects the physical health

or safety of an ordinary tenant. The tenant must provide written notice only if the

tenant's lease is in writing and requires written notice."

Here, written notice from the tenant was not required by the terms of the lease, and

Defendant had actual notice from the City of Dallas of the need for repair of his

apartment.

VI.

As a direct and proximate result of said incident, Plaintiff Jose Baez sustained

serious and painful injuries to his second toe of the left foot that was bitten by the rat,

including amputation. Plaintiff suffered great physical pain and mental anguish and in all

reasonable probability, he will continue to suffer in this manner for some time into the

future. These inju-ries have had a serious effect on Plaintiffs health and well-being and

have caused Plaintiff pain, discomfort and loss of physical capacity. As a result of the

nature and consequences of his injuries, Plaintiff has in the past suffered great physical

pain and mental anguish in the amount of $100,000. In all reasonable probability, he will

continue to suffer future physical pain and mental anguish in the amount of $100,000.

That Plaintiff has suffered past physical impairment in the amount of $25,000 and will in

the future suffer physical impairment in the amount of $5,000. Plaintiff has suffered past

disfigurement in the amount of $20,000 and will in the future disfigurement in the

amount of $20,000. As a result of the occurrence in question and of Defendant's aforesaid

negligence, it has been necessary for Plaintiff to have the services of a doctor, hospital

and medication in treatment of Plaintiffs said injuries. Such medical services, being necessary and the charges therefore the usual, reasonable and customary charges for the same or similar services in the county in which treatment was rendered.

To date, Plaintiff Jose Baez has incurred the following reasonable and necessary expenses, for which additional amount he sues herein:

JOSE BAEZ'S PAST MEDICAL EXPENSES: Baylor University Medical Center $29,465.39 Dallas Emergency Physicians $ 1,080.00 National Primary Care, P.A. $ 2,160.00 TOTAL $32,705.39

VII. By reason of all of the foregoing damages and injuries, Plaintiff has been

damaged in an amount of $302,705.39 within the jurisdictional limits of this. conrt.

REQUESTS FOR DISCLOSURE In accordance with Tex. IL Civ. P. 194, you are requested to disclose to Plaintiff

at the office of the undersigned counsel for Plaintiff, within fifty (50) days of service of these requests, the information or material described in Rule 194.

PLAINTIFF'S OBJECTION TO NON-LAWYER MEDIATOR In the unlikely event that this honorable Court refers this case to mediation, Plaintiff

would object to the appointment of a mediator who is not a licensed attorney.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be cited to

appear and answer herein and that upon final hearing hereof, Plaintiff have and recover

from Defendant, prejudgment interest as governed by the Texas Finance Code, and for all

damages in the amount of $302,705.39, costs of court, and for such other and further

relief at law and in equity as to which Plaintiff may be entitled.

Respectfully submitted,

ROLLE, BREELAND, RYAN, LANDAU WINGLER & HINDMAN

/s/ Mark Russ Ryan

MARK RUSS RYAN 2030 Main St. Suite 200 Dallas, Texas 75201 Telephone No. (214) 742-8897 Facsimile No. (214) 637-6872 TBC #17478300 [email protected] ATTORNEY FOR PLAINTIFF


The undersigned certifies that a true copy of the foregoing has been sent in a rdance with THE TEXAS RULES OF CIVIL PROCEDURE to Defendant on this day of March, 2015.

is/ Mark Russ Ryan

MARK RUSS RYAN


EXHIBIT B

DEFENDANTS TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT PAGE 1

CAUSE NO. CC-14-02577-D

JOSE BAEZ, Plaintiff, V. KHRAISH H. KHRAISH, Defendant.

IN THE COUNTY COURT

AT LAW NUMBER 4 DALLAS COUNTY, TEXAS

DEFENDANTS TRADITIONAL AND NO-EVIDENCE

MOTION FOR SUMMARY JUDGMENT

MAY IT PLEASE THE COURT:

COMES NOW Defendant, Khraish H. Khraish, and files Defendants Traditional and

No-Evidence Motion for Summary Judgment, and would show the Court as follows:

I. INTRODUCTION

1. Plaintiff is Jose Baez. (hereafter Baez or Plaintiff)

2. Defendant is Khraish H. Khraish. (hereafter Khraish or Defendant).

3. Plaintiff brought suit against Defendant for injuries Plaintiff allegedly suffered from a rat

bite on June 17, 2012.

4. Plaintiff alleged in his suit that Defendant was the owner, landlord or operator of the

residence where the rate bite occurred.

5. Defendant answered Plaintiffs suit, and denied the allegations.

6. Defendant contends that he was neither the owner, landlord nor operator of the property

where the alleged incident occurred; and therefore owed no duty to Plaintiff.

7. Defendant files this Motion for Traditional and No Evidence Summary Judgment in

regard to all of Plaintiffs allegations.

1

FILED2/26/2015 4:30:21 PM


DALLAS COUNTY


II. SUMMARY OF AGRUMENT

8. Plaintiff allegedly entered into a Residential Lease (hereafter the Lease) with HMK,

Ltd. (HMK, Ltd. is not a party to this lawsuit). At the time Plaintiff entered into the Lease with

HMK, Ltd. and at all times thereafter, Defendant was not the owner, operator or the landlord of

the residence. The Lease facially shows that the owner and lessor of the property was HMK,

Ltd. Defendant was not in privity of contract with Plaintiff, and therefore owed Plaintiff no duty.

Defendant cannot breach a duty he does not have. Furthermore, Defendant is not the cause in

fact or proximate cause of Plaintiffs alleged injuries. Defendant is entitled to summary

judgment against Plaintiff on its claim of negligence as a matter of law.

9. In addition, Plaintiff has provided no evidence that any alleged injuries were the result of

an animal bite or occurred on property owned or leased by Defendant. Defendant is entitled to

summary judgment against Plaintiff on its claim of negligence as a matter of law.

III. STATEMENT OF FACTS

10. The property located at 917 Ann Street, Apartment 202, Dallas, Texas 75223 (the

Property) where the alleged injury to Plaintiff occurred was sold by Defendant to HMK, Ltd.

The effective date of the sale of the Property to HMK, Ltd was January 1, 2010. Plaintiff entered

into the Lease with HMK, Ltd. for the Property on or about August 25, 2010. Defendant was not

a party to the Lease nor a landlord or operator of the Property. Additionally, under the terms of

the Lease, it was Plaintiff who was responsible for fumigating as required to rid the property of

insects and/or rodents. The alleged injury to Plaintiff occurred on or about June 17, 2012some

two and one half years after the sale of the Property from Defendant to HMK, Ltd.

2


IV. STANDARD OF REVIEW

11. The function of summary judgment is not to deprive litigants of the right to trial by jury,

but to eliminate patently unmeritorious claims and defenses. Gulbenkian v. Penn, 252 S.W.2d 929,

931 (Tex. 1952).

12. For a defendant as movant to prevail on summary judgment under rule 166a(c), it must

either (1) disprove at least one element of each of the plaintiffs theories of recovery or (2) plead

and conclusively establish each essential element of an affirmative defense, thereby rebutting the

plaintiffs cause of action. State v. Allied Mktg. Group, Inc., 949 S.W.2d 816, 819 (Tex. App.

Dallas 1997, writ denied). For a defendant moving for summary judgment on his counterclaims,

the burden of proof is the same as for a plaintiff moving for summary judgment on his cause of

action. Rabe v. Dillards, Inc., 214 S.W.3d 767, 767 (Tex. App. Dallas 2007). An issue is

conclusively established when the evidence is such that there is no room for ordinary minds to

differ as to the conclusion to be drawn from it. Triton Oil & Gas Corp. v. Marine Contractors &

Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).

13. The purpose of the noevidence summary judgment procedure is to pierce the pleadings

and evaluate the evidence to see if a trial is necessary. Benitz v. Gould Group, 27 S.W.3d 109,

112 (Tex. App. San Antonio 2000).

14. A noevidence summary judgment motion is only appropriate after an adequate time for

discovery. Tex. R. Civ. P. 166(a)(i). This does not mean that discovery must be complete, only

that an adequate time has passed. Specialty Retailers v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.

Houston 2000). Some factors that courts examine in determining whether there has been an

adequate time for discovery are the nature of the claim, the evidence necessary to controvert the

3


motions, the length of time the case was on file, and the amount of discovery already conducted.

Id. at 145.

15 Summary judgment is proper when there is no evidence of one or more essential elements

of a claim or defense for which an adverse party would have the burden of proof at trial. Tex. R.

Civ. P. 166a(i). A motion for summary judgment under Rule 166a(i) must challenge specific

elements of a non-movants claim for which the non-movant has the burden of proof at trial. Id.;

Callaghan Ranch v. Killam, 53 S.W.3d 1, 3 (Tex. App.San Antonio 2000, pet. Denied). When

a no-evidence motion challenges specific elements of a claim, the burden of proof is then

imposed on the non-movant. Id.; See Michael v. Dyke, 41 S.W.3d 746, 751-52 (Tex. App.

Corpus Christi 2001, no pet.). The non-movant must then present evidence that raises a triable

issue of fact on each element essential to his case. Esco Oil & Gas, Inc. v. Soon Pipe & Supply

Corp., 962 S.W.2d 193, 197 .3 (Tex. App. Houston 1998). A motion for no-evidence summary

judgment does not require supporting evidence. See Dyke, 41 S.W.3d at 751-52; Amouri v.

Southwest Toyota, 20 S.W.3d 165, 168 (Tex. App.Texarkana 2000, pet. denied).

V. SUMMARY JUDGMENT EVIDENCE

The following exhibits are attached hereto and incorporate herein to this motion:

EXHIBIT A LEASE EXECUTED AUGUST 25, 20101

EXHIBIT B AFFIDAVIT OF KHRAISH H. KHRAISH

1 Attached to Plaintiffs Responses to Defendants Request for Production dated December 1, 2014 is a copy of the alleged lease between Defendant (actually HMK, LTD) and Plaintiff. The lease is incorporated into this motion for summary judgment by reference as Exhibit A.

4


VI. ARGUMENT AND AUTHORITIES

A. NO EVIDENCE SUMMARY JUDGMENT

1. DEFENDANT IS ENTITLED TO A NO-EVIDENCE SUMMARY JUDGMENT AS A MATTER OF LAW WITH RESPECT TO PLAINTIFFS CLAIM OF NEGLIGENCE.

16. Defendant is entitled to a no-evidence summary judgment because Plaintiff cannot by

deposition, answers to interrogatories, admissions on file, or other admissible evidence,

demonstrate there is any evidence to support his claims for negligence of Defendant. To carry

Plaintiffs burden, Plaintiff must prove each of the following elements of his cause of action for

negligence: See Western Invs., Inc. v. Urena 162 S.W.3d 547, 550 (Tex. 2005) (elements 1-3).

a. The Defendant owed a legal duty to Plaintiff;

b. The Defendant breached the duty, and;

c. The breach proximately caused Plaintiffs injury.

However, Plaintiff cannot provide any evidence to support the elements (a) Defendant owed a

legal duty to Plaintiff; (b) Defendant breached the duty to Plaintiff; and (c) the alleged breach

proximately caused Plaintiff injury. Accordingly, Defendant is entitled to a no-evidence

summary judgment on Plaintiffs claims of negligence.

B. TRADITIONAL SUMMARY JUDGMENT

1. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW WITH RESPECT TO PLAINTIFFS CLAIM OF NEGLIGENCE.

17. Defendant is entitled to summary judgment because Defendant can show there is no issue

of material fact as to each of the essential elements of Plaintiffs action for negligence, and

Defendant is entitled to a summary judgment as a matter of law. To carry Plaintiffs burden,

Plaintiff must prove each of the following elements of his cause of action for negligence: See

Western Invs., Inc. v. Urena 162 S.W.3d 547, 550 (Tex. 2005) (elements 1-3).

a. The Defendant owed a legal duty to Plaintiff;

5


b. The Defendant breached the duty, and;

c. The breach proximately caused Plaintiffs injury.

A. DEFENDANT HAD NO LEGAL DUTY TO PLAINTIFF.

17. Defendant had no legal duty to Plaintiff. It is uncontroverted that the Lease is between

HMK, Ltd. and Plaintiff not Defendant and Plaintiff. See Exhibit A. Defendant was not the

owner, landlord or operator of the Property at the time of Plaintiffs alleged injury, see Exhibit

B. Only the lessor in privity with Plaintiff under the terms of the Lease had any duty to Plaintiff.

Defendant has never been a party to the Lease and therefore cannot have any duty under its

terms. Accordingly, Defendant is entitled to summary judgment in his favor against Defendants

claim of negligence as a matter of law.

B. DEFENDANT DID NOT BREACH ANY DUTY TO PLAINTIFF.

18. Defendant did not breach any duty to Plaintiff. As shown above, Defendant has never

been a party to the Lease and so has no duty to Plaintiff. It is axiomatic Defendant cannot breach

a duty he does not have. Accordingly, Defendant is entitled to summary judgment in his favor

against Defendants claim of negligence as a matter of law.

C. DEFENDANT DID NOT CAUSE PLAINTIFFS INJURY.

19. Defendants conduct is not an actual cause in fact or proximate cause of any injury to

Plaintiff. Accordingly, Defendant is entitled to summary judgment in his favor against

Defendants claim of negligence as a matter of law.

2. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW WITH RESPECT TO HIS VERIFIED DEFENSE HE IS NOT LIABLE IN THE CAPACITY SUED. A. DEFENDANT IS NOT LIABLE BECAUSE HE IS NOT THE OWNER OR LANDLORD OF THE PROPERTY ON WHICH PLAINTIFFS ALLEGED INJURY OCCURRED.

20. Defendant is not liable in the capacity sued because he is not the owner or landlord of the

Property on which Plaintiffs alleged injury occurred, see Exhibits A and B. As such Defendant

6


has no liability under the lease contract at issue, as shown above. Defendant has entered a

verified plea that he is not liable in the capacity sued, i.e. owner or landlord, see Texas Rule of

Civil Procedure 93.2, see also Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex. 1988).

Defendant has also demonstrated this fact by virtue of his affidavit. See Exhibit B.

Accordingly, Defendant is entitled to summary judgment in his favor on his defense that he is

not liable in the capacity sued as a matter of law.

B. DEFENDANT IS NOT LIABLE BECAUSE HE IS NOT THE OPERATOR OF THE PREMISES ON WHICH PLAINTIFFS ALLEGED INJURY OCCURRED.

Defendant is not liable in the capacity sued because he is not the operator of the premises

on which Plaintiffs alleged injury occurred, see Exhibits A and B. Defendant has no personal

control of the premises with respect to any condition of the premises at issue and therefore can

have no liability for any condition of the premises. Defendant has entered a verified plea that he

is not liable in the capacity sued, i.e. operator of the premises, see Texas Rule of Civil Procedure

93.2, see also Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex. 1988).2 Accordingly,

Defendant is entitled to summary judgment in his favor on his defense that he is not liable in the

capacity sued as a matter of law.

C. DEFENDANT IS NOT LIABLE BECAUSE PLAINTIFF WAS NOT AN INVITEE OF KHRAISH AT THE PREMISES ON WHICH PLAINTIFFS ALLEGED INJURY OCCURRED.

Defendant is not liable in the capacity sued because Plaintiff cannot show he is an invitee

of Defendant at the Property. Therefore, Plaintiff cannot show that Defendant had a duty to

know or should know of any unreasonably unsafe condition of the Property. As previously

shown, Defendant did not own the Property, was not the landlord and did not have a role in

operating the property. Therefore Plaintiffs negligence claim fails. Defendant has entered a

2 Defendant has also filed an affidavit stating that he is not the owner, the landlord or the operator of the property.

7


verified plea that he is not liable in the capacity sued, i.e. that Plaintiff was an invitee of

Defendant, see Texas Rule of Civil Procedure 93.2, see also Pledger v. Schoellkopf, 762 S.W.2d

145, 146 (Tex. 1988). Accordingly, Defendant is entitled to summary judgment in his favor on

his defense that he is not liable in the capacity sued as a matter of law.

VII. CONCLUSION

Defendant has established that no issue of material fact exists on any element of

Plaintiffs cause of action for negligence. Defendant had no legal duty to Plaintiff. Defendant

did not breach any legal duty to Plaintiff. Defendant is not the actual cause in fact or proximate

cause of Plaintiffs alleged injuries. Plaintiff has provided no evidence any alleged injuries are

the result of an animal bite or that any alleged injuries did in fact occur on the Property.

Defendant is entitled to traditional and no-evidence summary judgment in his favor against

Plaintiffs cause of action for negligence.

VIII. PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this

Honorable Court take judicial notice of the evidence attached to this motion; grant Defendants

motion in its entirety; grant Defendants full and final judgment in this case; award Defendant

damages and costs to which he is entitled; and that this Court grant the Defendant any and all

further relief, whether at law or in equity, to which Defendant may be justly entitled.

8


Respectfully submitted, JOHN H. CARNEY & ASSOCIATES By:


On this the 26th day of February, 2015, a copy of Defendants Traditional and No-

Evidence Motion for Summary Judgment was served in accordance with the Texas Rules of Civil

Procedure on the following counsel of record:

Mark Russ Ryan Michael J. Hindman Rolle, Breeland, Ryan, Landau, Wingler & Hindman 2030 Main Street, Suite 200 Dallas, Texas 75201

VIA: ____ CMRRR # ____ First Class Mail _X__ Facsimile to (214) 637-6872 ____ Hand-Delivery

/ Bernard E. Zwillenberg

/s/ John H. Carney

John H. Carney [email protected] State Bar No. 03832200

Bernard E. Zwillenberg [email protected] State Bar No. 22299020

5005 Greenville Avenue, Suite 200 Dallas, Texas 75206 (214) 368-8300 Telephone (214) 369-9979 Facsimile Attorneys for Defendant

9


EXHIBIT C


EXHIBIT D

CAUSE NO. CC-14-02577-D JOSE BAEZ,

Plaintiff,

v.

KHRAISH H. KHRAISH, And HMK, LTD.,

Defendants.

IN THE COUNTY COURT

AT LAW NO. 4

DALLAS COUNTY, TEXAS

PLAINTIFF'S NOTICE OF NONSUIT

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Plaintiff Jose Baez and pursuant to TEx. R. Qv. P. 162 & 163 files this

notice of nonsuit without prejudice in this cause against HMK, LTD, the only remaining

defendant.

Respectfully submitted,

ROLLE, BREELAND, R WING-LE EINDMA

N, LANDAU, P .0 , .

MICHAEL J. H F1 D A N State Bar No.: 24000 7 2030 Main Street, Suite 200 Dallas, Texas 75201 (214) 742-8897 (214) 637-6872 [facsimile] [email protected] ATTORNEY FOR PLAINTIFF

=Mt

PLAINTIFF'S NOTICE OF NONSUIT Page 1

FILED4/28/2015 4:35:14 PM


DALLAS COUNTY


The undersigned hereby certifies that a copy of the foregoing has been served on all parties / counsel of record in compliance with TEX. R. QV. P. 21 & 21a on this 28th day of April, 2015.

MICHA L J. HINDMAN

PLAINTIFF'S NOTICE OF NONSUIT Page 2

doc 5 baez v khraish def motion for summary judgment

Documents