Thursday, February 4, 2016

Trial court judge won't go look for new trial motion after granting default judgment


Motion for new trial complaining of non-service wasn't set for hearing and was overruled by operation of law. Appellate panel affirms denial, and lets the default judgment undisturbed. The obvious lesson: Make sure you get a hearing, and present your evidence before complaining on appeal that the trial court abused his or her discretion by not granting the requested post-judgent relief. 

R & G TRANSPORTATION, INC. A/K/A AND D/B/A R & G TRANSPORTATION, Appellant,
v.
FLEETMATICS, Appellee.

No. 01-14-00891-CV.
Court of Appeals of Texas, First District, Houston.
Opinion issued January 21, 2016. 
Panel consists of Justices Jennings, Keyes, and Bland.

MEMORANDUM OPINION

TERRY JENNINGS, Justice. 

Appellant, R & G Transportation, Inc., also known as and doing business as R & G Transportation ("R & G"), challenges the trial court's default judgment in favor of appellee, Fleetmatics, in its suit against R & G for breach of contract. In its sole issue, R & G contends that the trial court erred in not granting its motion for new trial.
We affirm.

Background

In its amended petition, Fleetmatics alleged that it entered into two agreements with R & G "for goods and/or services." According to Fleetmatics, it "fully performed all of its obligations" under the agreements, but R & G "failed and refused . . . to pay" Fleetmatics $16,468, as required by the agreements.
Fleetmatics also alleged:
R & G . . . failed to maintain a registered agent [in Texas] who can be served with reasonable diligence. Efforts were made to deliver the citation to GLASHANDA M. LEWIS, registered agent for service, but he did not make himself personally available for service at the registered office located at 3511 PINEMONT DR., STE C6, HOUSTON, TX 77018. . . . Due diligence has been used in an effort to obtain service of citation, to no avail, therefore, the Secretary of State of the State of Texas is [the] agent for service of process, according to Article 2.11B, Vernon's Annotated Texas Statutes, the Texas Business Corporation Act. Service of citation upon R & G . . . may be had by service upon the Secretary of State of the State of Texas . . . .
On May 1, 2014, the Secretary of State attempted to effect service via certified mail, return receipt requested, to R & G at 3511 Pinemont Dr., STE C6, Houston, Texas 77018. On May 27, 2014, the process was returned to the Secretary of State with the notation to "Return to Sender, Unclaimed, Unable To Forward."

On July 17, 2014, after the return had been on file with the clerk of the court for more than 10 days[1] and R & G had failed to appear and answer, the trial court entered a default judgment against R & G, holding it liable for payment of damages in the amount of $16,468, attorney's fees in the amount of $5,490, pre-and post-judgment interest, and costs.

On August 18, 2014, R & G filed a motion for new trial, asserting that it "did not receive notice of th[e] lawsuit, and therefore, could not file a response or make an appearance in th[e] matter." Further, it asserted that its "failure to answer was the result of accident or mistake, namely [that it] never received notice of [the] suit[,]" "a new trial w[ould] not cause delay or otherwise injure [Fleetmatics]," and "any failure to grant [R & G's] request for a new trial would violate [its] due process rights." No hearing was held on the motion, and it was overruled by operation of law.[2]

Standard of Review

We review the trial court's denial of a motion for new trial for an abuse of discretion. SeeDolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009)In re R.R., 209 S.W.3d 112, 114 (Tex. 2006). In other words, the court's ruling on the motion will not be disturbed on appeal absent a showing of an abuse of discretion. Strackbein v. Prewitt,671 S.W.2d 37, 38 (Tex. 1984). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding rules and principles. SeeGoode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997)Imkie v. Methodist Hosp., 326 S.W.3d 339, 344 (Tex. App.-Houston [1st Dist.] 2010, no pet.).

Motion for New Trial

In its sole issue, R & G argues that the trial court erred in not granting its motion for new trial because its failure to answer was due to "an accident or mistake," it has "a meritorious defense to [Fleetmatics'] breach of contract claim," granting the motion for new trial "would not have caused any delay or otherwise injured [Fleetmatics],"[3] and Fleetmatics "failed to file a Non — Military Affidavit before moving for final default judgment."[4]

Here, no hearing on R & G's motion for new trial was held. R & G, in its motion, did not request a hearing, and the record does not show that R & G attempted to have the motion set for a hearing. Instead, the motion for new trial was overruled by operation of law. See TEX. R. CIV. P. 329b(c).

Notably, "[w]hen a movant for new trial from a default judgment makes no effort to have [its] motion set for a hearing or otherwise to draw the trial court's attention to [its] motion, and the movant allows the motion to be overruled by operation of law, the trial court does not abuse its discretion in permitting [its] motion to be overruled by operation of law." James v. Comm'n for Lawyer Discipline, 310 S.W.3d 586, 593-94 (Tex. App.-Dallas 2010, no pet.)see also Fluty v. Simmons Co., 835 S.W.2d 664, 666-68 (Tex. App.-Dallas 1992, no writ) ("There is no abuse of discretion in the overruling of a motion for new trial by operation of law where the record [does not] show any attempt to obtain a timely hearing."); Shamrock Roofing Supply, Inc. v. Mercantile Nat'l Bank at Dall., 703 S.W.2d 356, 357-58 (Tex. App.-Dallas 1985, no writ) ("We are unwilling to hold that an abuse of discretion occurs when the defaulting defendant fails to call his motion to the judge's attention and allows it to be overruled by operation of law."); see also Pinole Valley Trucking, Inc. v. Tex. Dev. Co., No. 01-08-00599-CV, 2009 WL 1025750, at *4-5 (Tex. App.-Houston [1st Dist.] Apr. 16, 2009, no pet.) (mem. op.) (involving post-answer default judgment). This is because when a motion for new trial requires the exercise of discretion, a trial court must be afforded the opportunity to exercise that discretion before a court of appeals may hold that it was abused. Fluty, 835 S.W.2d at 666Shamrock,703 S.W.2d at 358 (explaining "[t]rial judges have a heavy load of trials and contested motions," "cannot be expected to examine sua sponte all papers filed in their courts," and "must rely on counsel to see that motions are set for hearing").

Because R & G made no effort to have its motion for new trial set for a hearing, failed to otherwise bring the motion to the trial court's attention, and allowed the motion to be overruled by operation of law, we hold that the trial court did not abuse its discretion in not granting the motion.
We overrule R & G's sole issue.

Conclusion

We affirm the judgment of the trial court. 

[1] See TEX. R. CIV. P. 107(h).
[2] See TEX. R. CIV. P. 329b(c).
[3] See Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939) (default judgment set aside if defendant proves: (1) failure to answer not intentional or result of conscious indifference, but rather due to accident or mistake; (2) motion for new trial sets up meritorious defense; and (3) motion shows granting new trial will not cause delay or injury to plaintiff).
[4] See 50 U.S.C. § 3931 (titled "Protection of [S]ervicemembers [A]gainst [D]efault [J]udgments"). 

Thursday, January 14, 2016

Fall into a hole in the ground, and it's a med-mal case, or it could be ... Crawl out, go to court, and get buried once more: Comment on Nicole Little v Riverside General Hospital Inc. (Tex.App. - Houston Jan 14, 2016)


News of the weird: You have to be a lawyer to make sense of this, and preferably a regular consumer of Texas Supreme Court juris(mal)prudence to truly appreciate the nuances.  

What is a health-care liability claim? -- Slippery slope is back in operation with grease pit variation on the perennial theme.  

Houston Court of Appeals Justice Marc W. Brown, writing for panel of three, blesses dismissal of premises liability lawsuit by a plaintiff who fell into a grease pit on hospital grounds because she did not file an expert report to explain how her precipitous descent into the netherworld was medical malpractice. 

The problem - you see - is that this personal injury plaintiff was a patient. And patients are held to a higher standard when it comes to proving a negligence claim. Falling into a pit that wasn't properly covered is not enough. Patients also have to jump through some hoops. Like filing expert reports. It's all for their own good, of course. The care providers owe it to them. 


The bitter end: Case dismissed. Defendants get attorney's fees, for good measure; -- to hold them harmless for the trouble of getting the complaint by the uppity injured patient quashed. How dare she sue a hospital!   
  
CALLING ALL SLIME-PIT EXPERTS WITH MD CREDENTIALS TO HELP THE COURT 
SORT OUT THE CARELESSNESS ISSUES  

Affirmed and Memorandum Opinion filed January 14, 2016. 

In The 
Fourteenth Court of Appeals
NO. 14-14-00797-CV

NICOLE LITTLE, Appellant
V.
RIVERSIDE GENERAL HOSPITAL INC., Appellee

On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2013-61281

M E M O R A N D U M O P I N I O N

Nicole Little appeals from the trial court’s dismissal of her suit against
Riverside General Hospital for injuries sustained from a fall on hospital grounds.

The trial court dismissed the suit under section 74.351(b) of the Texas Civil
Practice and Remedies Code, finding that Little failed to provide the hospital with
an expert report as required. In one issue, Little contends that the trial court erred
in dismissing her claim because it is not a “health care liability claim” as defined
by the Civil Practice and Remedies Code.

We hold that Little’s claim is substantively related to the hospital’s provision of
health care and, therefore, is a health care liability claim. We affirm.

Factual and Procedural Background

Appellant Nicole Little filed suit against appellee Riverside General Hospital
for injuries resulting from a fall into a grease pit on hospital grounds. The facts
surrounding the fall are undisputed. Little was an inpatient resident receiving
treatment for substance abuse at Riverside’s Houston Recovery Campus. At the
time of the incident, Little was participating in an informal cookout held outside on
the grounds of the hospital. Little noticed a child standing on a wooden pallet
covering a grease pit. Little approached the child to remove him from the pallet.
Before she could remove him, the child jumped off of the pallet, causing the pallet
to flip upwards and causing Little to fall into the pit. Because of the depth of the
pit, Little was unable to exit the pit by herself. The fire department responded to
the incident and lowered a ladder into the pit to help Little climb out to safety.
Little alleges that she suffered an injury to her ankle as well as severe mental
anguish.
Little filed suit under a premises liability theory, claiming that Riverside
owed a duty of care requiring it to inspect hospital grounds for any latent defects
and to make them safe or to give residents an adequate warning of the dangers
posed by these defects. In its answer, Riverside characterized Little’s claim as a
health care liability claim governed by the Texas Medical Liability Act (TMLA).
Riverside later filed a motion to dismiss under section 74.351(b) of the TMLA,
claiming that Little had failed to present Riverside with the expert report required
by that section of the Act.1
 After a hearing, the trial court granted Riverside’s
motion to dismiss. Little now appeals the dismissal of her case, arguing that
section 74.351 does not apply to this lawsuit because her claim is not a health care
liability claim.

Analysis

Little argues that her claim is not a health care liability claim within the
meaning of the TMLA because it alleges a breach of duty unrelated to Riverside’s
provision of health care. Ordinarily, we review a trial court’s order granting or
denying a section 74.351(b) motion to dismiss for abuse of discretion. Memorial
Hermann Hosp. Sys. v. Galvan, 434 S.W.3d 176, 179 (Tex. App.—Houston [14th
Dist.] 2014, pet. granted), rev’d on other grounds, No. 14-0410, 2015 WL
7791565, —S.W.3d— (Tex. 2015) (per curiam). However, because the issue in
this case requires us to interpret the statute to determine whether it extends to
Little’s claim, we review the trial court’s judgment de novo. Id.
The TMLA defines a “health care liability claim” as:
a cause of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from accepted
standards of medical care, or health care, or safety or professional or
administrative services directly related to health care, which
proximately results in injury to or death of a claimant, whether the
claimant’s claim or cause of action sounds in tort or contract.
Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (West 2015). According to
this definition, “there are three basic elements of a health care liability claim: (1) a

1 “In a health care liability claim, a claimant shall, not later than the 120th day after the
date each defendant’s original answer is filed, serve on that party or the party’s attorney one or
more expert reports, with a curriculum vitae of each expert listed in the report for each physician
or health care provider against whom a liability claim is asserted.” Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(a) (West 2015). 

physician or health care provider must be a defendant; (2) the claim or claims at
issue must concern treatment, lack of treatment, or a departure from the accepted
standards of medical care, or health care, or safety or professional or administrative
services directly related to health care; and (3) the defendant’s act or omission of
which the claimant complains allegedly must have been the proximate cause of
injury to the claimant.” Galvan, 434 S.W.3d at 179. The parties do not dispute
that Riverside is a health care provider under the statute. The only issue before us
is whether Riverside’s alleged breach of duty is a departure from safety standards
related to health care.

In its recent decision in Ross, the Texas Supreme Court held that, in a safety
standards-based claim against a health care provider, the standards allegedly
breached by the provider need not be “directly related to health care,” but they
must have a “substantive relationship” to the provision of health or medical care.2

Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015). Here, Little
insists that her claim is strictly one of premises liability, alleging a breach of duty
unrelated to the provision of health care. But even though Little has pleaded her
claim as one of premises liability, we must “consider the underlying nature of the
claim” when determining whether it is directly or substantively related to health
care. Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 394 (Tex. 2011).
Little’s premises liability claim assumes that the duty to inspect, make safe,
or warn arises only from Riverside’s status as the operator of the property and her

2 In Tex. West Oaks Hospital, LP v. Williams, the Texas Supreme Court held that, in the
definition of “health care liability claim” provided in section 74.001(a)(13), the phrase “directly
related to health care” modifies only the terms immediately before it—“professional or
administrative services”—but does not modify “safety.” 371 S.W.3d 171, 185–86 (Tex. 2012).
In Ross, the Court clarified its holding and ruled that, while “directly related to health care” did
not modify “safety,” there nonetheless must be some substantive relationship between the safety
standards that are alleged to have been breached and the provision of health care. 462 S.W.3d at
502–04. 

own status as an invitee on that property. We note that Riverside’s status as
Little’s health care provider also imposes on it a duty to maintain her safety, the
breach of which can be the crux of a health care liability claim under the TMLA.
See Ross, 462 S.W.3d at 505; Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d
842, 850–51 (Tex. 2005) (healthcare facilities have a different obligation to their
residents than non-treating premises owners do). “The pivotal issue in a safety
standards-based claim is whether the standards on which the claim is based
implicate the defendant’s duties as a health-care provider, including its duties to
provide for patient safety.” Ross, 462 S.W.3d at 505.
Relying on the Supreme Court’s decision in Loaisiga v. Cerda, Little argues
that the maintenance of the grease pit on hospital grounds is “wholly and
conclusively inconsistent with, and thus separable from” the rendition of health
care. 379 S.W.3d 248, 257 (Tex. 2012). However, Loaisiga is distinguishable
from the case at hand. Loaisiga involved actions by a health care provider that
were outside the scope of and not incident to the care that the provider’s patients
were seeking.3
 Id. Here, the residential care that Little sought necessarily required
that the hospital take action to ensure her safety at all times in which she was a

3 In Loaisiga, the patients were seeking treatment for sinus and flu-like symptoms. 379
S.W.3d at 253. During the course of the exams, the doctor groped the patients’ breasts. Id. The
Supreme Court concluded that this touching was inappropriate and not within the scope of the
treatment sought, meaning that the plaintiffs’ claims were not within the scope of the TMLA. Id.
at 257. The Court distinguished Loaisiga from a similar case, Vanderwerff, in which the plaintiff
filed suit after a chiropractic exam in which she alleged that the chiropractor inappropriately
touched her genitals. Id. at 256–57; Vanderwerff v. Beathard, 239 S.W.3d 406, 409 (Tex.
App.—Dallas 2007, no pet.). The Vanderwerff court held that the touching of the plaintiff’s
genitals could have been within the scope of the exam because the plaintiff was seeking care for
pain running from her knee to her upper thigh. 239 S.W.3d at 409. Because the touching
ostensibly could have been within the scope of the care requested, the court of appeals held that
the plaintiff’s claim was a health care liability claim. We conclude that Little’s case is more like
Vanderwerff than Loaisiga because the maintenance of safety on hospital grounds is certainly
within the scope of Little’s residential treatment program and thus is not separable from the
provision of her health care. 

patient at the facility. Protection of patient safety—including maintenance of
hospital grounds to prevent injury—is part and parcel of the provision of health
care, especially in the context of residential treatment. We find case law regarding
a health care liability claim in the residential nursing home context to be
illustrative. Little’s case is similar to Johnson, where the claim involved a resident
of a nursing home who was fatally injured when she was bitten by a brown recluse
spider. 344 S.W.3d at 393. Like Little, the deceased’s representative pleaded the
claim under a premises liability theory, alleging that the nursing home failed to
inspect the premises for pests. Id. at 393. The Texas Supreme Court held in
Johnson—and reiterated in Ross—that the claim was ultimately a health care
liability claim because it alleged a departure from the “fundamental patient care
required of a nursing home . . . to protect the health and safety of its residents.” Id.
at 394 (citing 40 Tex. Admin. Code §§ 19.1701, 19.401(b) (2015)); Ross, 462
S.W.3d at 502 (discussing Johnson as a case in which the patient’s negligence
claim was directly related to the provision of health care). 4

Substance abuse treatment centers like Riverside are required to adhere to
the same standard of care for their patients—a standard that includes the
maintenance of a safe environment. 25 Tex. Admin. Code § 448.211 (2015)
(Department of State Health Servs. Substance Abuse Treatment Standard of Care)
(requiring substance abuse treatment centers to provide an “appropriate, safe,
clean, and well-maintained environment”). Little’s allegation that Riverside failed
to make its grounds safe for its residents is an allegation that it did not comport

4 The Texas Administrative Code provides that a nursing home must provide “a safe,
functional, sanitary, and comfortable environment” for residents. 40 Tex. Admin. Code
§ 19.1701 (2015) (Tex. Dep’t of Aging and Disability Servs. Nursing Facility Quality of Life
Requirements). The Code also contains a “Statement of Resident Rights” that provides a right to
“safe, decent, and clean conditions” for nursing home residents. Id. § 19.401(b) (2015) (Tex.
Dep’t of Aging and Disability Servs. Nursing Facility Statement of Resident Rights). 

with the required standard of patient care. We conclude that the Little’s claim,
despite being pleaded in the language of premises liability, alleges a “violation[] of
safety standards directly related to the provision of health care,” which includes
protecting patients from injury on hospital premises. Ross, 462 S.W.3d at 502
(citing Johnson, 344 S.W.3d at 394–95).

Conclusion

Under Ross, Little’s claim is a health care liability claim and, as such, is
subject to the requirements set forth in section 74.351. We affirm the judgment of
the trial court dismissing Little’s claim for noncompliance with the TMLA.

/s/ Marc W. Brown

Justice

Panel consists of Justices Boyce, Busby, and Brown.










Sunday, October 25, 2015

Local law enforcement set to cash in on illegal game room proceeds through asset forfeiture


Game room bonanza to be tapped by law enforcement agencies 

To be sure, HPD and Harris County are not in the business of running gambling operations, not to mention illegal ones, but that does not mean that law enforcement cannot share in the profits from this particular kind of vice; - as a bounty for cracking down on it, as it were.

In a slew of civil forfeiture lawsuits filed last week, the County's District Attorney's Office seeks court approval to keep loads of cash and gold seized in raids on illegal gaming operations that the owners had stashed away in bank safe deposit boxes and other hiding places. Compared with the typical seizures of property in connection with criminal investigations, such as small-scale drug busts, the amounts are staggering. $313,023.03 in Cause No. 201563147 and $271,200.00 in Cause No. 201563133, plus 27 gold bars and 4 watches.




In personal injury cases, the amounts of damages, if quantified in the pleading at all, are not particularly meaningful because they are not liquidated. The dollar amount sought may be considered newsworthy in a high-profile case, but it is no more than the price tag that the plaintiff or the plaintiff's lawyers put on the injury, and the court or the jury will have to determine the amount, if any damages are awarded at all.

But in the case of forfeiture proceedings, the money is already in the hands of law-enforcement, and has been accounted for. The only issue is whether the authorities gets to keep it as "contraband" rather than having to return it to the people from which the assets were seized in the course of a criminal investigation culminating in a raid and/or arrest.

The forfeiture cases are filed by the District Attorney's Offices in the name of the State of Texas and therefore show the State as the Plaintiff.


Strangely, in these type of civil proceedings (albeit relating to criminal cases), the amount of money is used in lieu of the name of the defendant(s) in the case style. The individuals from whom the money or other assets were taken are identified in the body of the pleading, and in the sworn notice of seizure signed by an officer involved in the law enforcement operation. They may contest the seizure, but if they are guilty of the underlying crime, it may make little sense, assuming they even have the wherewithal to mount a legal challenge.

Forfeiture is governed by Chapter 59 of the Code of Criminal Procedure, but Harris County such cases are filed in civil district courts.


Because of its large size and caseload, Harris County has many district courts that divide the caseload among them by case type: criminal, family, juvenile, and nonfamily civil cases.








Monday, October 19, 2015

Memorial Hermann faces class-action accusing the nonprofit hospital system of fleecing ER patients without insurance by charging them astronomical rates

Memorial Hermann Hospital System does not only sue scores of patients over unpaid hospital bills, it is also charging emergency room patients a multiple of the rates paid by private insurers and government programs such as Medicare, according to a class-action petition filed last week in Harris County District Court. 


The pleading alleges that the rates charged are grossly excessive, and that they far exceed the reasonable value of the services provided. The lawsuit was filed on behalf of one former Memorial Hermann ER patient, who complains that her bill was excessive, and seeks class certification on behalf of other whose hospital bill was not covered by insurance, and who were similarly overcharged.
 
Memorial Hermann has a practice of suing patients with unpaid bills on "sworn account" (with bills attached that have all meaningful detail removed, ostensibly for privacy reasons), leaving patients sued for the cost of medical treatment (excessive or otherwise) virtually without recourse to challenge the reasonableness of the bills, especially if they cannot afford legal representation, and do not know how to fight a sworn-account suit and contest the reasonableness of the amounts printed on the hospital's billing statement. Additionally, the law firm that handles the non-profit hospital's debt collection litigation routinely requests and receives substantial attorney's fees.
           
The class-action seeks a declaratory judgment that Memorial Herman's billing practices for ER patients without insurance, -- i.e. self-pay patients -- are improper and excessive, and that the hospital system is only entitled to be paid for charges that are reasonable. The lawsuit also challenges the contracts that ER patients are forced to sign upon admission as meaningless because no information is provided about the billing rates to which the patients purportedly agree (making the price an "open term" in the contract), and that the charges are - in fact - not standard because the rates for other patients are much lower and are either set by the government or negotiated with private insurance providers, with different rates resulting depending on the particular payor and the deal negotiated with it.    

EXCERPTS FROM THE CLASS ACTION PETITION 



Cause No. 2015-61950, Nataliya Shahin, on behalf of herself and all others similarly situated, v, Memorial Hermann Health System, e-filed with the Harris County District Clerk on October 16, 2015, and assigned to the 333rd District Court.  





























Thursday, October 15, 2015

Contractor sues defunct Fish & The Knife sushi restaurant for cost of installing margarita machine


Contractor sues defunct sushi bar and restaurant 
alleging they failed to pony up   

In a lawsuit filed October 14, 2015 in Harris County District Court Eric Damshekan alleges that the Fish & The Knife Sushi Bar & Grill restaurant, formerly at 7801 Westheimer, did not pay his bill for installation of a margarita machine.


Damshekan states that he filed a contractor's lien in January 2015 for $2,467.00 and now seeks to foreclose the lien to collect the amount owed. He also requests attorney's fees and court costs. The Original Petition was signed by Adam W. Fomby with the Houston law firm FOMBY & ZARGHOUNI LLC. Public records show that Fish & The Knife, Inc. has forfeited its right to do business in Texas.


Damshekan filed the contractor's lien against the property and has named the property owner as a defendant in addition to the restaurant. According to HCAD data, the land is appraised at a value in excess of $2 mil.

A Latin American beef-centric concept -- Churrasca Brazilian Steakhouse -- has since replaced the ill-fated fish & knife sushi club at 7801 Westheimer.
 
Sample pleading from suit by contractor against restaurant over equipment installation

Cause No. 2015-61100; Eric Damshekan v Fish & The Knife Inc. d/b/a Fish & The Knife Sushi Bar & Grill, and Karia Y WM Houston Ltd; filed with the Harris County District Clerk 10/14/2015 and assigned to the 80th District Court.

FISH & KNIFE IN COURT

It is not the first lawsuit against the failed restaurant. In January 2015, CINTAS-R.U.S., L.P., filed suit against Fish & The Knife, Inc. on a textile rental services contract in county court, and later obtained a default judgment for $13,260.23 (most of which represented charges for the remainder of the contract term) and $2,500 in attorney's fees.

Default Judgment in lawsuit by linen service provider against restaurant

The hospitality services company attempted to have the judgment executed, but the effort was unsuccessful as the sushi operation on the corner of Westheimer and Stoney Brook had been shut down, and no assets were seized. Accordingly to the Constable's official report, the fish-and-knife signage was still on display.

Constable's return on execution of  judgment - unexecuted - nullo bono

Cause No. 1057339;  CINTAS RUS LP V FISH & KNIFE INC., Harris County Civil Court at Law No. 2.

Earlier, in July 2014, another contractor, International Hardwood Flooring LLC, sued both the restaurant and the property owner on an unpaid bill for flooring, which had also resulted in a mechanic's lien. That lawsuit was likewise filed in a county court at law and resulted in a summary judgment in favor of the contractor that also confirmed the lien and authorized foreclosure. The claim against the restaurant was dropped. The property owner satisfied the judgment and the contractor filed a release.

Example of release of judgment - satisfaction of judgment

Cause No. 1049629; International Hardwood Flooring, L.L.C. vs. Fish & The Knife, Inc and Karia Y WM Houston, Ltd., Harris County Court at Law No. 1.



Friday, October 9, 2015

Not your typical property tax protest - Chief Appraiser sues Valero over Appraisal Review Board's reduction of appraised value of oil company's property

Sands Stiefer, Chief Appraiser of the Harris County Appraisal District (HCAD) yesterday filed suit against Valero Refining Company of Texas, requesting that the order of the Appraisal Review Board reducing the appraised value of Valero's property for 2015 tax year, which the Board entered as a result of Valero's administrative protest, be set aside as too low. 


Stiefer v Valero Refining Company of Texas 

Acting in this official capacity, Stiefer complains about the Appraisal Review Board's reduction of the total appraised value of the subject property from $423,898,900 to $300,000,000, characterizing the adjusted value "far lower than the actual market value of the subject property as of January 1, 2015." 

"If allowed to stand," the pleading continues, "such value would permit the subject property to escape its fair share of the tax burden in Harris County, Texas, thereby increasing the tax burden on other taxpayers in the County." 

Stiefer asks the court for a judicial determination of value, and to increase the appraised value of the property on the appraisal roll.  

The petition was filed for Stiefer by Andrea Chan, an attorney with OLSEN & OLSEN, L.L.P., a law firm with offices at that Wortham Tower on Allen Parkway. 






Case info: Cause No. 2015-60014, Sands Stiefer, in his capacity as Chief Appraiser of the Harris County Appraisal District v. Valero Refining Company of Texas, filed 10/8/2015 with the Harris County District Clerk, and assigned to the 295th District Court.

THE SUBJECT PROPERTY: VALERY REFINERY 
AT 9701 MANCHESTER ST HOUSTON TX 77012 


HCAD ACCOUNT 0401980000012 Land and Improvements 

Breakdown by value of land and value of improvements 


 HCAD ACCOUNT 0401980000103 Pollution Control