ACCEPTED
03-14-00821-CV
4319264
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/27/2015 4:19:20 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00821-CV
_______________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS 2/27/2015 4:19:20 PM
JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
____________________________________________
DUONG NHU HA AND D&H RESTAURANT EQUIPMENT
Appellants,
v.
HUNAN RANCH CORPORATION
Appellee.
_______________________________________________
On Appeal from the 201st Judicial District
of Travis County, Texas
_______________________________________________
BRIEF OF APPELLANTS DUONG NHU HA AND D&H RESTAURANT
EQUIPMENT
_______________________________________________
VINSON & ELKINS LLP
Frank C. Brame
State Bar No. 24031874
2001 Ross Ave Suite 3700
Dallas, TX 75201-2975
Telephone: (214) 220-7818
Fax: (214) 999-7818
fbrame@velaw.com
LEAD COUNSEL FOR APPELLANTS
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellants: Duong Nhu Ha and D&H Restaurant
Equipment
Appellate Counsel for VINSON & ELKINS LLP
Appellants: Frank C. Brame
State Bar No. 24031874
2001 Ross Ave Suite 3700
Dallas, TX 75201-2975
Telephone: (214) 220-7818
Fax: (214) 999-7818
fbrame@velaw.com
Janice L. Ta
State Bar No. 24075138
Michelle Arishita
State Bar No. 24092048
2801 Via Fortuna, Suite 100
Austin, Texas 78746-7568
Telephone: (512) 578-8402
Fax: (512) 236-8239
jta@velaw.com
marishita@velaw.com
Appellee: Hunan Ranch Corporation
Trial and Appellate Counsel HAJJAR PETERS, LLP
for Appellee: Doran D. Peters
State Bar No. 24027615
Teri C. Baker
State Bar No. 24053131
3144 Bee Caves Road
Austin, Texas 78746
Telephone: (512) 637-4956
Fax: (512) 637-4958
dpeters@legalstrategy.com
tbaker@legalstrategy.com
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS......................................................................................... iii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT OF THE CASE..................................................................................1
STATEMENT ON ORAL ARGUMENT .................................................................2
STATEMENT OF ISSUES PRESENTED................................................................2
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF ARGUMENT .................................................................................6
ARGUMENT .............................................................................................................7
I. Introduction......................................................................................................7
II. Mr. Ha Has Satisfied the Preliminary Requirements for a Restricted
Appeal..............................................................................................................8
III. Because Hunan Ranch Failed to Enter Material Exhibits into the
Record, Including the Alleged Purchase Order and Evidence to
Support Its Damages, And Failed to Procure a Court Reporter’s
Record at the Default Judgment Proceeding, There Is Error on the
Face of the Record and The Court Should Remand for a New Trial. .............8
IV. There Is Error on the Face of the Record Because the Evidence to
Support Hunan Ranch’s Unliquidated Damages Claim Is Defective. ..........12
A. Hunan Ranch used an incorrect measure for damages (lost
sales) instead of the correct measure of damages (lost profits) in
calculating its unliquidated damages claim.........................................13
B. Hunan Ranch failed to prove that it was even profitable....................15
C. Hunan Ranch failed to prove any damages by competent
evidence and with reasonable certainty...............................................16
V. Because Hunan Ranch Failed to Prove a Causal Nexus Between the
Alleged Breach of Contract and the Claimed Damages, Error Is
Apparent on the Face of the Record and the Court Should Remand for
a New Trial. ...................................................................................................22
VI. Because Hunan Ranch Failed to Prove Its Unliquidated Damages, It
Cannot Recover Attorney’s Fees...................................................................26
CONCLUSION AND PRAYER .............................................................................27
iii
CERTIFICATE OF COMPLIANCE.......................................................................29
CERTIFICATE OF SERVICE ................................................................................29
iv
INDEX OF AUTHORITIES
Cases
Aetna Cas. & Sur. Co. v. Hill,
No. 05-91-01290-CV, 1992 WL 172384 (Tex. App.—Dallas July 21, 1992, no
writ) (mem. op., not designated for publication) .................................................20
Am. Nat’l Petroleum Co. v. Transcon. Gas Pipe Line Corp.,
798 S.W.2d 274 (Tex. 1990)................................................................................13
Atomic Fuel Extraction Corp. v. Slick’s Estate,
386 S.W.2d 180 (Tex. App.—San Antonio 1964, writ ref'd n.r.e.).....................16
Bain v. Bain,
No. 02-06-00215-CV, 2007 WL 174463 (Tex. App.—Fort Worth
Jan. 25, 2007, no pet.) (mem. op.) .......................................................................10
City of Beaumont v. Excavators & Constructors, Inc.,
870 S.W.2d 123 (Tex. App.—Beaumont 1993, writ denied) ........... 22, 23, 24, 25
Cox v. Cox,
298 S.W.3d 726 (Tex. App.—Austin 2009, no pet.) .............................................8
El Paso Mktg., LP v. Wolf Hollow I, LP,
383 S.W.3d 138 (Tex. 2012)................................................................................26
ERI Consulting Eng’rs, Inc. v. Swinnea,
318 S.W.3d 867 (Tex. 2010)......................................................................... 18, 19
Exel Transp. Servs., Inc. v. Aim High Logistics Servs., LLC,
323 S.W.3d 224 (Tex. App.—Dallas 2010, pet. denied).....................................27
Frank B. Hall & Co. v. Beach, Inc.,
733 S.W.2d 251 (Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.).................17
Golden Bear Distrib. Sys. of Tex., Inc. v. Chase Revel, Inc.,
708 F.2d 944 (5th Cir. 1983)................................................................................16
Green Int’l, Inc. v. Solis,
951 S.W.2d 384 (Tex. 1997)................................................................................27
Holt Atherton Indus., Inc. v. Heine,
835 S.W.2d 80 (Tex. 1992)....................................... 12, 13, 14, 16, 17, 21, 22, 23
Hunan Ranch Corp. v. JP Morgan Chase Bank,
No. D-1-GN-14-00470 (201st Dist. Ct., Travis County, Tex. Nov. 10, 2014) .....6
v
Ins. Co. of State of Pa. v. Lejeune,
297 S.W.3d 254 (Tex. 2009)..................................................................................7
Lefton v.Griffith,
136 S.W.3d 271 (Tex. App.—San Antonio 2004, no pet.)..................................18
M & A Tech., Inc. v. iValue Grp., Inc.,
295 S.W.3d 356 (Tex. App.—El Paso 2009, pet. denied) ...................................19
MCI Sales & Serv., Inc. v. Hinton,
329 S.W.3d 475 (Tex. 2010)................................................................................20
Milestone Operating, Inc. v. ExxonMobil Corp.,
346 S.W.3d 101 (Tex. App.—Houston [14th Dist.] 2011, pet. granted), rev'd on
other grounds, 388 S.W.3d 307 (Tex. 2012) .......................................... 18, 20, 23
Morgan v. Compugraphic Corp.,
675 S.W.2d 729 (Tex. 1984)......................................................................... 22, 23
Norman Commc’n v. Tex. Eastman Co.,
955 S.W.2d 269 (Tex. 1997)..................................................................................8
Orchid Software, Inc. v. Prentice-Hall, Inc,
804 S.W.2d 208, 210−211 (Tex. App.—Austin 1991, writ denied)……….......16
Robinson v. Robinson,
487 S.W.2d 713 (Tex. 1972)............................................................................9, 10
Rogers v. Rogers,
561 S.W.2d 172 (Tex. 1978)..................................................................... 9, 10, 11
Sherman Acquisition II LP v. Garcia,
229 S.W.3d 802 (Tex. App—Waco 2007, no pet.) .............................................12
Simon v. York Crane & Rigging Co., Inc.,
739 S.W.2d 793 (Tex. 1987)................................................................................10
State v. Harrell Ranch, Ltd.,
268 S.W.3d 247 (Tex. App.—Austin 2008, no pet. ) ..........................................14
Stone v. Talbert Operations, LLC,
No. 04-14-00008-CV, 2014 WL 7439931 (Tex. App.—San Antonio,
Dec. 31, 2014, no pet.) (mem. op.) ..................................................................9. 10
Sw. Battery Corp. v. Owen,
115 S.W.2d 1097 (Tex. 1938)....................................................................... 16, 19
Tex. Crushed Stone Co. v. Baker,
576 S.W.2d 894 (Tex. Civ. App.—Tyler 1979, no writ).....................................10
vi
Tex. Instruments v. Teletron Energy Mgmt., Inc.,
877 S.W.2d 276 (Tex. 1994)................................................................................19
Texaco, Inc. v. Phan,
137 S.W.3d 763 (Tex. App.—Houston [14th Dist.] 2004, no pet.).............. 21, 22
Thompson v. Thompson,
No. 02-13-00292-CV, 2014 WL 3865951 (Tex. App.—Fort Worth
Aug. 7, 2014, no pet.) (mem. op.)........................................................................10
Wunderlich Contracting Co. v. United States,
351 F.2d 956 (Ct. Cl. 1965) .................................................................................23
Zeno Digital Solutions, LLC v. K Griff Investigations,
No. 14-09-00473-CV, 2010 WL 3547708 (Tex. App.—Houston [14th Dist.]
Sept. 14, 2010, no pet.) ........................................................................................15
Statutes
Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 2013) .....................................26
Rules
Tex. R. App. P. 13.1.................................................................................................10
Tex. R. App. P. 26.1(c) ..............................................................................................7
Tex. R. App. P. 30......................................................................................................7
Tex. R. App. P. 39.1(d) ..............................................................................................2
Tex. R. Evid. 201 .....................................................................................................19
Appendix
Certified Record…………………………………………………………….Ex. 1
U.S. Census Bureau Statistics…………………………………………….. Ex. 2
vii
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Appellants DUONG NHU HA and D&H RESTAURANT EQUIPMENT
(collectively, “Mr. Ha” or “Appellants”) respectfully submit this brief in support of
their restricted appeal asking that the Court remand this case for a new trial.
Appellants respectfully show the following:
STATEMENT OF THE CASE
Nature of the Case: This is a restricted appeal of a no-answer default
judgment that was granted by the 201st District
Court of Travis County, Texas. See Certified Record
(“CR”) 9−11 (attached as Exhibit 1). On March 19,
2014, Appellee Hunan Ranch Corporation (“Hunan
Ranch” or “Appellee”) brought a breach of contract
action against Appellants arising out of Appellants’
alleged failure to install a commercial wok range.
CR 1−2.
Course of Proceedings: The Honorable Suzanne Covington, 201st Judicial
District, Travis County, appears to have conducted a
bench trial on liability and damages.1 Appellants
were not present at this hearing on final judgment,
which was not transcribed, and did not participate
thereafter. CR 9.
Trial Court’s Disposition: Appellee obtained a final no-answer default
judgment against Appellants on June 30, 2014. CR
9−11. The trial court awarded unliquidated damages
of $38,663.81; attorneys’ fees of $6,693.75; and pre-
and post-judgment interest. Id.
1
Appellants cannot verify the events at the hearing because Hunan Ranch failed to procure a
reporter’s record. See infra Part III.
1
STATEMENT ON ORAL ARGUMENT
Appellants respectfully request oral argument because this case raises
significant issues related to the factual and legal sufficiency of the evidence
presented by Appellees in obtaining a default judgment. Inclusion of oral
argument will aid the decisional process2 by clarifying at least the following legal
issue: whether a new trial is proper on a restricted appeal in which material
evidence is left out of the trial court record; there is no transcript to prove such
evidence was ever considered by the trial court in its decision; and, without that
evidence, Appellants cannot properly challenge the record below.3
STATEMENT OF ISSUES PRESENTED
I. Because Hunan Ranch Failed to Enter Material Exhibits into the Record,
Including the Alleged Purchase Order and Evidence to Support Its Damages,
and Failed to Procure a Reporter’s Record at the Default Judgment
Proceeding, There Is Error on the Face of the Record and the Court Should
Remand for a New Trial.
II. There is Error on the Face of the Record Because the Evidence to Support
Hunan Ranch’s Unliquidated Damages Claim is Defective.
III. Because Hunan Ranch Failed to Prove a Causal Nexus Between the Alleged
Breach of Contract and the Claimed Damages, Error Is Apparent on the Face
of the Record and the Court Should Remand for a New Trial.
IV. Because Hunan Ranch Failed to Prove Its Unliquidated Damages, It Cannot
Recover Attorneys’ Fees.
2
See Tex. R. App. P. 39.1(d).
3
In addition to the foregoing reasons, two of the attorneys representing Mr. Ha have less than 6-
years of experience practicing law and would appreciate the opportunity to argue before the
Court.
2
STATEMENT OF FACTS4
This is a restricted appeal from a no-answer default judgment arising from a
contract dispute about the installation of a commercial wok range.5 Appellant
Duong Nhu Ha is the sole proprietor of D&H Restaurant Equipment, a plumbing
and restaurant supply servicing company, based in Garland, Texas (a suburb of
Dallas). CR 1. Appellee operates the Hunan Ranch Restaurant based in Austin,
Texas. CR 1−2, 17. One of its directors and owners is Mr. John Chen. CR 17.
On November 24, 2013, Mr. Chen sent Mr. Ha a purchase order (“Purchase
Order”) for a commercial wok range (“new wok range”) to be installed by
December 26, 2013. CR 17−18. This Purchase Order, which purportedly forms
the basis of Appellees’ lawsuit and the trial court’s judgment, was never admitted
into evidence and is not part of the record in this case. See generally CR; CR
17−19. Nonetheless, it is undisputed that this ordinary Purchase Order would not
have contained a “time is of the essence” provision.
The parties later agreed to delay delivery so that the installation of the new
wok range would coincide with some anticipated renovations at the restaurant. CR
18. Hunan Ranch purportedly expected these renovations to last three days, from
January 6−9, 2014, during which time the restaurant would be closed. Id. During
4
Though Appellants assume liability solely for the purpose of this restricted appeal, Appellants
reserve the right in a future bill of equitable review and in a prospective new trial (if granted by
the Court) to challenge the many misrepresentations of the facts made by Appellees.
5
A commercial wok range is a large and high-powered open-burner range for use with restaurant
woks and for stir-frying. See CR 17−18.
3
these renovations, Mr. Chen asked third-party contractors to remove the still-
functioning old wok range in order to repair a wall; these contractors never
reinstalled the old wok range after the renovations were completed. See id. Hunan
Ranch purportedly kept its business closed for 8.5 days while waiting for the new
wok range. See id. Nonetheless, Mr. Ha, drove to Austin to reinstall Mr. Chen’s
old commercial wok range while the new wok range was still being refurbished.
Id.
Hunan Ranch filed its complaint on March 19, 2014. CR 1−3.
Approximately one week later, on the evening of Friday, March 28, 2014, Mr. Ha
made a trip from Dallas to Austin to deliver the new wok range. CR 18. He
worked overnight to install the new wok range so as not to interrupt Hunan
Ranch’s business. See CR 8, 18.
He completed the installation the next morning. Id. That morning, Mr.
Chen instructed his chef to serve breakfast to Mr. Ha. After Mr. Ha finished
breakfast, a service processor served Mr. Ha with the complaint. CR 1−8. Mr. Ha,
who does not speak or understand English well, did not realize he had been served.
Instead, he approached Mr. Chen and requested payment of the remaining $3,000
balance on the new wok range. Mr. Chen told him he could collect the remaining
balance by speaking with Hunan Ranch’s lawyer. Assuming this was an offer to
4
settle, Mr. Ha drove back to Dallas believing he would simply write off the
remaining balance as a loss to his business.
The trial court held a final judgment hearing on June 30, 2014. CR 9−11.
Hunan Ranch did not request a court reporter to transcribe the proceedings, nor
was a transcription made. The court entered default judgment for Hunan Ranch
and awarded unliquidated damages for lost sales of $38,663.81, an amount nearly
six times the total cost of the $6,500 new wok range. CR 9. Using “Sales
Reports” from October to December 2013, Hunan Ranch speculated that its
“average sales income per month . . . was $137,075.92 which is $4,469.86 per
day.” CR 19. These “Sales Reports” detailing Hunan Ranch’s alleged damages
were never entered into evidence and are not part of the record in this case. See
generally CR; CR 17−19. Based on these “Sales Reports,” Hunan Ranch alleges a
total of $37,993.81 of lost sales during the 8.5 days it closed its restaurant. CR 19.
In addition, Mr. Chen alleges the reinstallation of the old wok range resulted
in a gas leak that caused Hunan Ranch to issue “approximately $670 in voids and
credits.” Id. The trial court also awarded attorneys’ fees of $6,693.75, and pre-
and post-judgment interest to Hunan Ranch. See CR 9−10, 12−14.
Mr. Ha did not answer the complaint, attend the final judgment hearing, or
file any postjudgment motions because he did not know he was being sued. Mr.
Ha finally learned about the lawsuit in December 2014, after Hunan Ranch filed an
5
application for writ of garnishment and had his bank account frozen. See Hunan
Ranch Corp. v. JP Morgan Chase Bank, No. D-1-GN-14-00470 (201st Dist. Ct.,
Travis County, Tex. Nov. 10, 2014). When Mr. Ha learned of the lawsuit, he
promptly secured pro bono counsel and timely filed a notice of restricted appeal on
December 30, 2014.
SUMMARY OF ARGUMENT
This Court should remand the case for a new trial for at least the following
reasons. First, there is error on the face of the record because Hunan Ranch not
only failed to submit material evidence into the record, but also failed to procure a
court reporter’s record at the default judgment proceeding, making it impossible to
confirm whether these exhibits were actually considered by the trial court in
granting its default judgment. Second, there is error on the face of the record
because Hunan Ranch calculated its unliquidated damages based on an incorrect
standard (lost sales) rather than the correct standard (lost profits). Moreover, even
were one to assume that Hunan Ranch had used the proper measure of damages,
Hunan Ranch still failed to prove its damages claim with reasonable certainty
using objective evidence. Third, Hunan Ranch failed to show a causal nexus
between the alleged breach of contract and its unliquidated damages claim for lost
sales. Finally, Hunan Ranch cannot recover its attorneys’ fees because it failed to
prove its damages claim. Because of the significant errors on the face of the record
6
and the lack of sufficient evidence to support the default judgment, the Court
should remand the case for a new trial.
ARGUMENT
I. INTRODUCTION
This is a restricted appeal in which Appellee obtained a default judgment
against Mr. Ha, an individual who does not speak English well and did not know
that he had been sued, in an amount that exceeds his annual income and nearly his
entire net worth, based on a hearing that was not recorded, a contract that was
never entered into evidence, and insufficient evidence of unliquidated damages.
Because of the significant errors on the face of the record and the lack of sufficient
evidence to support the default judgment, the Court should remand this case for a
new trial.
In determining whether a party can prevail in a restricted appeal, Courts
must consider the following factors:
(1) [the party] filed notice of the restricted appeal within six months
after the judgment was signed; (2) it was a party to the underlying
lawsuit; (3) it did not participate in the hearing that resulted in the
judgment complained of and did not timely file any postjudgment
motions or requests for findings of fact and conclusions of law; and
(4) error is apparent on the face of the record.
Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009); see Tex. R.
App. P. 26.1(c), 30. For purposes of a restricted appeal, the face of the record
consists of all the papers before the trial court at the time judgment was rendered.
7
Cox v. Cox, 298 S.W.3d 726, 730 (Tex. App.—Austin 2009, no pet.). Review by
restricted appeal affords an appellant the same scope of review as an ordinary
appeal, a review of the entire case, with the limitation that error must appear on the
face of the record. Norman Commc’n v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997).
II. MR. HA HAS SATISFIED THE PRELIMINARY REQUIREMENTS FOR A
RESTRICTED APPEAL.
Mr. Ha has met the initial requirements to prevail on a restricted appeal: Mr.
Ha timely filed the notice of appeal on December 30, 2014, within six months after
the trial court signed its June 30, 2014 final judgment; he was a party to the
underlying suit; and he did not participate in the summary judgment hearing or file
any post-judgment motions or requests for findings of fact and conclusions of law.
III. BECAUSE HUNAN RANCH FAILED TO ENTER MATERIAL EXHIBITS INTO
THE RECORD, INCLUDING THE ALLEGED PURCHASE ORDER AND EVIDENCE
TO SUPPORT ITS DAMAGES, AND FAILED TO PROCURE A COURT
REPORTER’S RECORD AT THE DEFAULT JUDGMENT PROCEEDING, THERE
IS ERROR ON THE FACE OF THE RECORD AND THE COURT SHOULD
REMAND FOR A NEW TRIAL.
Mr. Ha also satisfies the fourth requirement to prevail on a restricted appeal
because there is error on the face of the record. Here, Hunan Ranch not only failed
to enter material exhibits into the record, including the contract and the evidence to
support the calculations for its unliquidated damages, but it also failed to procure a
court reporter’s record at the default judgment proceeding, making it impossible to
8
confirm whether these exhibits were actually considered by the court in entering its
default judgment.
The Texas Supreme Court has consistently held that “if an appellant
exercises due diligence and through no fault of his own is unable to obtain a proper
record of the evidence introduced, this may require a new trial where his right to
have the case reviewed on appeal can be preserved in no other way.” Rogers v.
Rogers, 561 S.W.2d 172, 173−74 (Tex. 1978) (quoting Robinson v. Robinson, 487
S.W.2d 713, 715 (Tex. 1972)). An appellant is not required to “agree with an
adversary upon the facts adduced at the trial or to rely on the unaided memory of
the trial judge who decided the merits of the case” in order to obtain a reporter’s
record of the events at a trial court proceeding. See Rogers, 561 S.W.2d at 173.
In a recent case under similar facts, the Fourth Court of Appeals remanded a
case to the trial court because no reporter’s record was taken. Stone v. Talbert
Operations, LLC, No. 04-14-00008-CV, 2014 WL 7439931 (Tex. App.—San
Antonio, Dec. 31, 2014, no pet.) (mem. op). In Stone, the plaintiff filed a petition
alleging breach of contract, fraud, and conversion. Id. at *1. The defendant did
not file an answer and default judgment was entered against him. Id. The
defendant subsequently filed a restricted appeal. Id. The court held “error [was]
apparent on the face of the record” because “no reporter’s record was taken of the
9
trial court’s evidentiary hearing resulting in the no-answer default judgment.” Id.
at *2.
Here, Appellants diligently requested a reporter’s record of the trial court’s
evidentiary hearing resulting in the no-answer default judgment, and the official
court reporter notified Appellants that she did not make one. As in Stone, there is
error apparent on the face of the record because no reporter’s record was taken of
the default judgment proceedings. Id.; see also Rogers, 561 S.W.2d at 173–74;
Robinson, 487 S.W.2d at 715; Thompson v. Thompson, No. 02-13-00292-CV, 2014
WL 3865951, at *1 (Tex. App.—Fort Worth Aug. 7, 2014, no pet.) (mem. op.).
Though it is true that a court may ordinarily presume that the evidence on
the record is sufficient to support the trial court’s judgment, see Simon v. York
Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987), this presumption
does not apply on direct review of a default judgment where no reporter’s record
was made through no fault of the appellant, see Tex. Crushed Stone Co. v. Baker,
576 S.W.2d 894, 896 (Tex. Civ. App.—Tyler 1979, no writ) (“Where the
appealing party . . . was not present and was not represented by counsel when the
testimony was taken, and later discovers that no record was made, the lack of a
record cannot reasonably be waived.”); Bain v. Bain, No. 02-06-00215-CV, 2007
WL 174463, at *3 (Tex. App.—Fort Worth Jan. 25, 2007, no pet.) (mem. op.)
(noting also that Texas Rule of Appellate Procedure 13.1 requires a court reporter
10
to attend and make a full record of the proceedings unless excused by agreement of
the parties).
This presumption should especially not apply here where the evidence on the
record is insufficient to support the trial court’s judgment. As evident from a
review of the record certified by the trial court, Hunan Ranch failed to enter into
the record the very Purchase Order forming the basis of this contract dispute. See
generally CR; CR 17−19. This Purchase Order was purportedly appended to the
Affidavit of John Chen (“Chen’s Affidavit”) as Exhibit A-1, but was never entered
into the record with that affidavit. See CR 17−19. Similarly, the “Sales Reports”
that comprise the sole evidence for Hunan Ranch’s unliquidated damages claim
were never entered into the record, even though they were purportedly attached to
Chen’s Affidavit as Exhibit A-3. Id. Both are material exhibits that should have
been considered by the trial court before entering default judgment.
Instead, Hunan Ranch’s failure to procure a reporter’s record prevents Mr.
Ha from obtaining any information regarding the actual evidence on liability and
damages considered at the hearing, without being forced to rely on his “adversary”
or on the “unaided memory of the trial judge.” Rogers, 561 S.W.2d at 173. As
such, Mr. Ha’s right to a proper appellate review, due to no fault on his part, can be
preserved only by a new trial on both liability and damages. See id.
11
IV. THERE IS ERROR ON THE FACE OF THE RECORD BECAUSE THE EVIDENCE
TO SUPPORT HUNAN RANCH’S UNLIQUIDATED DAMAGES CLAIM IS
DEFECTIVE.
The evidence on the face of the record is also insufficient to support the
judgment for unliquidated damages. On a restricted appeal for a default judgment,
“all allegations set forth in the petition are deemed admitted, except the amount of
unliquidated damages.” Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83
(Tex. 1992). Thus, even in a default judgment, the plaintiff must still prove
unliquidated damages with reasonable certainty. Id.
Whether damages are liquidated or unliquidated depends on the language of
the petition. Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 809 (Tex.
App—Waco 2007, no pet.). If the damages can be calculated from “factual, as
opposed to conclusory allegations in the petition” and an instrument in writing,
then the damages are liquidated. Id. However, if the damages cannot be calculated
from the facts in the petition then the damages are unliquidated, and the trial court
must hear evidence of those damages. Holt Atherton Indus., Inc., 835 S.W.2d at
83. Here, only unliquidated damages are at issue because Mr. Ha did subsequently
perform under the contract and install the new wok range. Hunan Ranch is
therefore required to prove its alleged damages because the face of the petition
claims only unliquidated damages, and, as Hunan Ranch admits, these “damages
have not yet been calculated.” CR 2.
12
Nonetheless, Hunan Ranch has failed to competently prove any unliquidated
damages, as required, for at least three reasons. First, Hunan Ranch used the
incorrect standard—lost sales—instead of the correct standard—lost profits—for
calculating damages on a breach of contract claim. Second, even had Hunan
Ranch properly alleged that it should have been awarded lost profits, it failed to
show that it was even profitable and that it was entitled to such a claim for
damages. Finally, Hunan Ranch’s sole evidence of its alleged damages is
defective and fails to prove such damages with the reasonable certainty necessary
to support a default judgment.
A. Hunan Ranch used an incorrect measure for damages (lost
sales) instead of the correct measure of damages (lost profits)
in calculating its unliquidated damages claim.
Hunan Ranch failed to use the correct measure of damages in calculating its
unliquidated damages. The measure of actual damages for a breach of contract is
the loss of the benefit of the bargain, which should put the plaintiff in the same
economic position he would have been in had the contract been performed. See
Am. Nat’l Petroleum Co. v. Transcon. Gas Pipe Line Corp., 798 S.W.2d 274, 278
(Tex. 1990). As such, Texas courts have consistently made clear that lost profits
and not lost revenue is the correct measure of damages in a breach of contract
case. Holt Atherton Indus., Inc., 835 S.W.2d at 83 n.1, 84 (holding that the
“correct measure of damages” is the income remaining after deducting expenses
13
and that “lost income is not the correct measure of damages”); State v. Harrell
Ranch, Ltd., 268 S.W.3d 247, 257 (Tex. App.—Austin 2008, no pet. ) (holding that
“[l]ost profits must be based not on gross revenues, but on net profits”). Lost
profits are calculated based on “the difference between a business’s total receipts
and all the expenses incurred in carrying on the business.” Harrell Ranch, Ltd.,
268 S.W.3d at 257.
Here, it is undisputed that Hunan Ranch improperly calculated damages
based on sales income, instead of lost profits. As Mr. Chen states in his affidavit,
Hunan Ranch’s damages are based on the “average sales income per month prior
to the removal of the old wok [range, which] was $137,075.92, [or] $4,469.86 per
day.” CR at 19 (emphasis added). This hypothetical sales income for the month of
January was apparently calculated based on the average total sales for the months
of October, November, and December in 2013. As discussed in Part III, Hunan
Ranch failed to provide sufficient evidence to prove even these sales.
Hunan Ranch also offered no evidence of expenses, if any, that were
deducted to arrive at a net profit calculation. Id. In order for the evidence of lost
profits to be sufficient “[t]here must be some showing that expenses were deducted
in arriving at the amount of net profits lost.” Harrell Ranch, Ltd., 268 S.W.3d at
257. For example, the Fourteenth Court of Appeals has held that a plaintiff’s
evidence of lost profit damages is insufficient if it does not provide evidence that it
14
deducted expenses, even if the plaintiff “argues that expenses were, in fact, taken
into account in calculating lost profits.” Zeno Digital Solutions, LLC v. K Griff
Investigations, No. 14-09-00473-CV, 2010 WL 3547708, at * 3 (Tex. App.—
Houston [14th Dist.] Sept. 14, 2010, no pet.).
Here, Chen’s Affidavit fails to account for important expenses incurred in
running a restaurant such as employee wages and benefits, food and beverage
costs, rent or mortgage, insurance expenses, property tax, utilities, waste removal
costs, equipment repairs, marketing and promotional expenses, and other operating
expenses. Because such expenses would have been incurred in the ordinary course
of business—whether or not there were an alleged breach of contract—Hunan
Ranch would receive a windfall if Appellants had to compensate it for expenses
unrelated to the alleged breach of contract.
Because lost profits and not lost sales are the proper measure of damages on
a breach of contract claim, Appellants respectfully request that the Court remand
the case for a new trial at least with respect to damages. See, e.g., Holt Atherton,
835 S.W.2d at 83 (remanding the case because evidence of damages was
insufficient).
B. Hunan Ranch failed to prove that it was even profitable.
Even had Hunan Ranch properly shown that it should have been awarded
lost profits, it still must show that it was profitable and therefore entitled to such a
15
claim for damages. In general, businesses lacking a history of profitability or
which have operated at a loss may not recover lost profits under Texas law. See
Golden Bear Distrib. Sys. of Tex., Inc. v. Chase Revel, Inc., 708 F.2d 944, 951 (5th
Cir. 1983) (reviewing Texas state law and stating that “Texas law permits the
recovery of the expected profits of a business only if ‘there was some data and
history of profits from an established business’”) (quoting Atomic Fuel Extraction
Corp. v. Slick’s Estate, 386 S.W.2d 180, 188 (Tex. App.—San Antonio 1964, writ
ref’d n.r.e.)). Although more recent cases have held that “the absence of a history
of profits does not, by itself, preclude a new business from recovering lost future
profits,” a business must still, at least, provide “other data . . . to show anticipated
profits to a reasonable certainty.” See Orchid Software, Inc. v. Prentice-Hall, Inc.,
804 S.W.2d 208, 210−211 (Tex. App.—Austin 1991, writ denied). Because
Hunan Ranch has provided no history of profitability or any “other data” to show
its profitability with reasonable certainty, it is not entitled to an award of lost
profits.
C. Hunan Ranch failed to prove any damages by competent
evidence and with reasonable certainty.
It has long been the rule in Texas that in order to recover lost profits, the
amount of the loss “must be shown by competent evidence with reasonable
certainty.” Sw. Battery Corp. v. Owen, 115 S.W.2d 1097, 1098 (Tex. 1938).
When the plaintiff in a default judgment fails to prove damages with reasonable
16
certainty, the proper remedy on appeal is to remand the case to the trial court for a
new trial. Holt Atherton Indus., 835 S.W.2d at 86. Without the objective data and
explanation of how the lost profits were calculated, a court “does not have any
basis for determining whether the damages were established with reasonable
certainty or were based on pure speculation.” Id. at 84. A court “cannot uphold an
award of damages based upon speculation.” Frank B. Hall & Co. v. Beach, Inc.,
733 S.W.2d 251, 259 (Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.).
Here, Mr. Chen’s unsubstantiated and conclusory affidavit is not competent
evidence that can establish Hunan Ranch’s damages with reasonable certainty.
Even assuming that Chen’s Affidavit was intended to adduce lost profits as
opposed to average sales per month, Hunan Ranch still failed to prove any
damages with reasonable certainty because Chen’s Affidavit (1) was not based on
objective information and (2) provides no evidence of how Hunan Ranch’s lost
profits were actually calculated.
1. Hunan Ranch’s damages claim was not based on
objective facts, figures, or data.
Hunan Ranch’s claim for damages is not based on competent evidence but
conclusory statements unsupported by objective facts, figures, or data. Courts
have long upheld the necessity of actual evidence to support an award of
unliquidated damages in a default judgment. See, e.g., Milestone Operating, Inc. v.
ExxonMobil Corp., 346 S.W.3d 101, 109−11 (Tex. App.—Houston [14th Dist.]
17
2011, pet. granted), rev’d on other grounds, 388 S.W.3d 307 (Tex. 2012) (finding
that conclusory assertions in an affidavit were insufficient to support awarded
damages in a default judgment); see also Lefton v.Griffith, 136 S.W.3d 271, 277
(Tex. App.—San Antonio 2004, no pet.) (reversing damage award because
affidavit testimony was conclusory). Although “[r]ecovery for lost profits does not
require that the loss be susceptible of exact calculation, . . . [a]s a minimum, [any]
opinions or estimates of lost profits must be based on objective facts, figures, or
data.” Holt Atherton Indus., 835 S.W.2d at 84. For example. in ERI Consulting
Engineers, Inc. v. Swinnea, 318 S.W.3d 867, 876−77 (Tex. 2010), the Supreme
Court of Texas held that evidence that consisted of “dozens of detailed invoices”
and testimony from the plaintiff’s in-house accountant as to the plaintiff’s net
profit margin was a “legally adequate” method for proving lost profits.
In contrast, here, Chen’s Affidavit makes a conclusory assertion that
“Plaintiff’s average sales income per month prior to the removal for the old wok
was $137,073.92, which is $4,439.86 per day. . . . Due to the delay in the delivery
of the new wok, Plaintiff suffered lost sales in the amount of $37,993.81.” CR 19.
These statements are unsubstantiated because, as discussed in Part III, the Sales
Reports that form the basis for the calculations are nowhere in the record.
Moreover, unlike the plaintiff in ERI Consulting Engineers, who offered detailed
invoices and testimony from an accountant, Hunan Ranch offers neither objective
18
documents nor factual testimony from an objective third-party. 318 S.W.3d at
876−77.
Any objective facts, figures, or data supporting an unliquidated damages
claim must also come from a “corresponding period of time not too remote” or
from “the business during the time for which recovery is sought.” Tex. Instruments
v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994) (quoting Sw.
Battery Corp. v. Owen, 115 S.W.2d at 1098−99). “Normally, when conducting a
lost profit analysis you look to past profits and adjust these numbers based on the
surrounding circumstances to determine what the lost profit for a certain time
period should be.” M & A Tech., Inc. v. iValue Grp., Inc., 295 S.W.3d 356, 366
(Tex. App.—El Paso 2009, pet. denied) (emphasis added). Here, Chen’s Affidavit
does not provide evidence that the months of October, November, and December
2013 (the months used for calculating the “average sales income”) should be
considered “corresponding periods” to January 2014 (the month of the alleged lost
sales). CR 19. In particular, Hunan Ranch fails to adduce whether sales in these
three months, which overlap with the holiday season and are usually the busiest
and most profitable months for sales in the restaurant industry, are corresponding
or representative of the sales typically made by Hunan Ranch in January, a post-
holiday month that is usually one of the least profitable months in the restaurant
19
industry.6 At a minimum, Hunan Ranch failed to adjust its average sales to
account for the seasonality of sales in the restaurant industry.
Chen’s Affidavit also fails to provide any evidence of the typical profit
margin for the restaurant. CR 17−19. Without any objective information to
substantiate his testimony, Chen’s statements regarding Hunan Ranch’s purported
sales income per day are merely conclusory. See, e.g., Milestone Operating, Inc.,
346 S.W.3d at 109−11 (finding conclusory assertions in an affidavit were
insufficient to support damages awarded in a default judgment). Finally, Chen’s
Affidavit contains no objective data to corroborate the claim that it is owed
“approximately $670.00 in voids and credits.” CR at 19. The Affidavit does not
explain what any such “voids and credits” are or how they were calculated. Id.
2. Chen’s Affidavit does not indicate how damages were
determined.
Even if Hunan Ranch based its estimate of lost profits on objective data, any
testimony offered to prove the lost profits must also indicate how the lost profits
6
According to the U.S. Census Bureau, average restaurant sales in 2011 to 2014 were typically
lowest in January and February and highest in the months of October, November, and December.
See Ex. 4, U.S. Census Bureau, Time Series/Trend Charts: Food Services and Drinking Places
U.S. Total Jan-2013 to Dec-2014 (available at http://tinyurl.com/nmpky9z). Appellants request
that the Court take judicial notice of these statistics from the U.S. Census Bureau because they
are “capable of accurate and ready determination” by resort to a source “whose accuracy cannot
reasonably be questioned.” See Tex. R. Evid. 201; see also MCI Sales & Serv., Inc. v. Hinton,
329 S.W.3d 475, 485 n. 7 (Tex. 2010) (taking judicial notice of a seatbelt usage study
commissioned by the U.S. Department of Transportation); Aetna Cas. & Sur. Co. v. Hill, No. 05-
91-01290-CV, 1992 WL 172384, at *2 (Tex. App.—Dallas July 21, 1992, no writ) (mem. op.,
not designated for publication) (holding that judicial notice of a life table published by National
Center for Health Statistics was proper).
20
were determined. For example, in Holt Atherton Industries, 835 S.W.2d at 84, the
court held that a plaintiff’s testimony of the total amount of lost profits without
explanation was “legally insufficient.”
In Texaco, Inc. v. Phan, 137 S.W.3d 763, 772 (Tex. App.—Houston [14th
Dist.] 2004, no pet.), the Fourteenth Court of Appeals held that an affidavit, which
stated that lost profits were calculated by using a profit margin from the previous
17-months, was insufficient to prove lost profit damages. The court held that the
plaintiffs failed to meet their burden to prove lost profits by submitting the
affidavit because the plaintiffs failed to define what “they meant by profit margin,”
and they did not “address expenses, whether to say that expenses were static or that
they rose and fell according to the volume of sales.” Id.
Nonetheless, the plaintiffs in Texaco at least presented some affidavit
testimony explaining that their lost profit damages were calculated based on their
profit margin from the previous 17-month period. Texaco, 137 S.W.3d at 771. In
contrast, Hunan Ranch has failed to even indicate, at a minimum, the method it
used to calculate damages. Chen’s Affidavit states simply that its average sales
income was “$137,075.92 [per month], which is $4,469.86 per day.” CR at 19.
From this affidavit, it is unclear whether expenses were deducted from total sales
or whether a percentage was multiplied to the expenses to calculate the estimated
lost profits. Given that the Texaco plaintiffs offered substantially more evidence
21
than Hunan Ranch, and yet that evidence was still held insufficient, it is clear that
Hunan Ranch’s evidence on damages is inadequate. Because Hunan Ranch failed
to prove damages with reasonable certainty, this Court should, at a minimum,
remand the case to the trial court for a new trial on damages. See Holt Atherton
Indus., 835 S.W.2d at 86 (remanding the case because evidence of damages was
insufficient).
V. BECAUSE HUNAN RANCH FAILED TO PROVE A CAUSAL NEXUS BETWEEN
THE ALLEGED BREACH OF CONTRACT AND THE CLAIMED DAMAGES,
ERROR IS APPARENT ON THE FACE OF THE RECORD AND THE COURT
SHOULD REMAND FOR A NEW TRIAL.
Hunan Ranch failed to carry its burden of proving a causal nexus between
Appellants’ conduct and its claimed damages of lost sales plus $670.00 in
purported “voids and credits.” A plaintiff must prove two causal nexuses—
(1) between the defendant’s conduct and the event sued upon and (2) between the
event sued upon and the plaintiff’s injury. Morgan v. Compugraphic Corp., 675
S.W.2d 729, 731 (Tex. 1984); see also City of Beaumont v. Excavators &
Constructors, Inc., 870 S.W.2d 123, 131−32 (Tex. App.—Beaumont 1993, writ
denied) (requiring proof of causal nexus in a breach of contract action). Although
“a default judgment admits that the defendant’s conduct caused the event upon
which the plaintiff’s suit is based” and thereby satisfies the first causal nexus, a
plaintiff in a default judgment case must still prove the second causal nexus by
“competent evidence.” Morgan, 675 S.W.2d at 732. “This is true because the
22
plaintiff is entitled to recover damages only for those injuries caused by the event
made the basis of suit; that the defendant has defaulted does not give the plaintiff
the right to recover for damages which did not arise from his cause of action.” Id.
In particular, when a plaintiff alleges that a defendant’s conduct resulted in a
delay and damages, the plaintiff must prove that the entire time period of the delay
resulted from the defendant’s conduct. See Holt Atherton Indus., 835 S.W.2d at 86
(holding the plaintiffs failed to prove they were entitled to recover lost profits for
the entire thirteen month period); see also City of Beaumont, 870 S.W.2d at 132
(quoting Wunderlich Contracting Co. v. United States, 351 F.2d 956, 969 (Ct. Cl.
1965) (holding that “[b]road generalities and inferences to the effect that
defendants must have caused some delay and damages because the contract took
. . . longer to complete than anticipated are not sufficient”).
For example, in Beaumont, the court held the plaintiffs failed to prove a
causal nexus between “the delays and hindrances (and the events connected
therewith) that were sued upon” and “the plaintiff’s money damages.” 870 S.W.2d
at 131. The court held that some of the plaintiff’s damages were caused—not by
the defendant—but by the plaintiff’s own actions. Id. at 127. For example, the
court pointed out that the plaintiff caused some of its own damages by “fail[ing] to
mitigate its costs and damages.” Id. Additionally, some of the claimed damages
were the result of “certain alleged inefficiencies,” caused by the plaintiff hiring its
23
own crew to complete work that had previously been subcontracted out. Id. at
126−27.
As in Beaumont, there is no causal nexus between Appellants’ conduct and
Hunan Ranch’s claimed damages of 8.5 days of lost sales. Hunan Ranch states
that under the purported terms of the Purchase Order, Appellants “agreed to
manufacture and install a new wok [range] . . . to replace the existing wok
[range].”7 CR at 17. Any such agreement contemplated only that Appellants
would manufacture and install a new wok range—it was unforesseable that the
contract would require appellants to reinstall an existing wok range inefficiently
removed by Hunan Ranch and its third-party contractors. CR at 17. Here, it was
clear that the old wok range was not removed because of any defects or problems
functioning (since this same wok range was subsequently reinstalled). CR at 18.
Rather, plaintiffs asked third-party contractors who were renovating the restaurant
to remove the old wok range, and these third-party contractors never reinstalled the
old wok range, partially causing the subsequent damages to plaintiff. See id.
Despite the fact that Hunan Ranch possessed a functioning old wok range,8
and despite the fact that Hunan Ranch had every opportunity to mitigate damages
7
The language of the Purchase Order cannot be verified because the Purchase Order was never
submitted into evidence. See supra Part III; CR at 17−19.
8
Notably, if a new trial is granted, Appellants intend to show that Chen’s Affidavit falsely
claims that on “January 16, 2014, [Appellants] delivered and installed the old wok [range].” CR
18 (emphasis added). Appellants, in fact, never “delivered” the old wok range because the old
24
by hiring a local contractor to reinstall this old wok range, Hunan Ranch chose to
wait 8.5 days—all the while losing purported sales of $4,469.86 per day—for Mr.
Ha to drive from Dallas to Austin and reinstall the old wok range that had been
inefficiently removed. See CR at 19.
Like the plaintiff in Beaumont, Hunan Ranch has only proved a causal nexus
between its own conduct and its claimed damages. 870 S.W.2d at 127, 132. Just
as the plaintiff in Beaumont caused some of its own damages through
inefficiencies and its failure to mitigate, Hunan Ranch similarly damaged itself
through its inefficient and premature removal of the still-functioning old wok range
and its failure to mitigate damages. See id. at 126−27. Hunan Ranch has therefore
not proved the required causal nexus between Appellants’ conduct and its claimed
damages.
Additionally, Hunan Ranch has not proved any causal nexus between its
claim for $670.00 in “voids and credits” and Appellants’ alleged breach of
contract. CR at 19. Chen’s Affidavit states these “voids and credits” were caused
by the “re-installation of the old wok [range which] led to a gas leak.” Id. Besides
this bare assertion, the Affidavit offers no explanation as to what such “voids and
credits” are or how they were connected to any actions by Appellants. Id. If
Hunan Ranch believed Appellants acted unreasonably and caused a gas leak that
wok range was uninstalled at the restaurant and remained in Hunan Ranch’s possession at the
restaurant until Mr. Ha reinstalled it.
25
led to any alleged “voids and credits,” then it should have brought a negligence
claim and not just a breach of contract claim; it cannot seek to recover damages for
such “voids and credits” under a breach of contract claim. See El Paso Mktg., LP
v. Wolf Hollow I, LP, 383 S.W.3d 138, 142−43 (Tex. 2012) (holding that “in
determining whether an action sounds in tort or contract,” a court will look to
whether the “gist” of the claim is that defendant “failed to act as a reasonable
[person] should have, which is the liability standard for negligence,” or that
defendant violated a duty imposed by contract). As Hunan Ranch has failed to
prove any causal nexus between the terms of the contract and the unliquidated
damages it now alleges, the Court should remand for a new trial.
VI. BECAUSE HUNAN RANCH FAILED TO PROVE ITS UNLIQUIDATED DAMAGES,
IT CANNOT RECOVER ATTORNEY’S FEES.
Hunan Ranch is not entitled to an award of attorneys’ fees because it has
failed to prove unliquidated damages in its breach of contract claim.9 Chapter 38
of the Texas Civil Practices and Remedies Code allows for recovery of attorney’s
fees in breach of contract cases: “A person may recover reasonable attorney’s fees
from an individual or corporation, in addition to the amount of a valid claim and
costs, if the claim is for . . . an oral or written contract.” Tex. Civ. Prac. & Rem.
Code Ann. § 38.001 (West 2013). However, to recover attorneys’ fees under this
9
See supra Parts III and IV.
26
statute, a party must do two things: (1) prevail on the breach of contract claim, and
(2) recover damages. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997).
If a court determines that a party has offered insufficient evidence to support
damages, then an award of attorneys’ fees is not proper. Exel Transp. Servs., Inc.
v. Aim High Logistics Servs., LLC, 323 S.W.3d 224, 234−35 (Tex. App.—Dallas
2010, pet. denied) (holding appellee could not recover attorneys’ fees when the
evidence of lost profit damages was insufficient to support the trial court’s damage
award). Because Hunan Ranch has offered legally and factually incompetent
evidence to support its claim for unliquidated damages, this Court should reverse
the trial court’s grant of $6,693.75 in attorneys’ fees and Appellee’s request for
prospective attorneys’ fees on appeal. See CR 9−10.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellants pray that this Court
reverse the trial court’s default judgment and remand this case for a new trial
consistent with the Court’s action. Appellants also request such other and further
relief to which they may be entitled.
27
Respectfully submitted,
VINSON & ELKINS LLP
By: /s/ Frank C. Brame
Frank C. Brame
State Bar No. 24031874
Trammell Crow Center
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201-2975
Telephone: (214) 220-7817
Fax: (214) 999-7818
fbrame@velaw.com
Janice L. Ta
State Bar No. 24075138
Michelle Arishita
State Bar No. 24092048
2801 Via Fortuna, Suite 100
Austin, Texas 78746-7568
Telephone: (512) 542-8512
Fax: (512) 236-8239
jta@velaw.com
marishita@velaw.com
ATTORNEYS FOR DEFENDANTS
AND APPELLANTS DUONG NHU
HA AND D&H RESTAURANT
EQUIPMENT
28
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing document, excluding the contents
excluded by Tex. R. App. P. 9.4(i)(1), contains approximately 6,335 words, in
compliance with Tex. R. App. P. 9.4(i)(2)(B).
/s/ Janice L. Ta
Janice L. Ta
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served via
electronic service on this, the 27th day of February, 2015, on the following
counsel:
Doran D. Peters
Teresa C. Baker
HAJJAR PETERS, LLP
3144 Bee Caves Road
Austin, Texas 78746
Telephone: (512) 637-4956
Fax: (512) 637-4958
dpeters@legalstrategy.com
tbaker@legalstrategy.com
/s/ Janice L. Ta
Janice L. Ta
29
APPENDIX
EXHIBIT 1
3/19/2014 10:43:19 AM
Amalie Rodriguez-Mendoza
District Clerk
Travis County
Cause No. D-1-GN-14-000826 D-1-GN-14-000826
HUNAN RANCH CORPORATION IN THE DISTRICT COURT
Plaintiffs
201ST
v. JUDICIAL DISTRICT
HA DUONG NHU and
D&H RESTAURANT EQUIPMENT
Defendants TRAVIS COUNTY, TEXAS
PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF THIS COURT:
Plaintiff Hunan Ranch Corporation files this Original Petition against Ha Duong Nhu and
D&H Restaurant Equipment (Defendants), and for cause of action would show the Court:
I - DISCOVERY CONTROL PLAN
1.01 Plaintiff intends for discovery to be conducted under TEXAS RULE OF CIVIL PROCEDURE
190.3 (Level II).
II - PARTIES
2.01 Plaintiff Hunan Ranch Corporation is a Texas corporation doing business in Travis
County, Texas.
2.02 Defendant Ha Duong Nhu (Nhu) is an individual that can be served with process at
his residence located at 2313 Crystal Creek Lane, Garland, Texas 75040.
2.03 D&H Restaurant Equipment (D&H) can be served with process by serving its owner
and representative, Ha Duong Nhu, at its business address located at 2313 Crystal Creek Lane,
Garland, Texas 75040.
2.04
r nd D&H will collectively be referred to herein as Defendants.
)47
PLAINTIFF'S ORIGINAL PETITION PAGE 1 OF 3
1
III - FACTS
3.01 Plaintiff and Defendants entered into an agreement whereby Defendants would
manufacture and install a commercial wok at Plaintiff's restaurant. This was to replace the existing
wok. All parties knew that the wok was critical to the operation of Plaintiff's restaurant. The parties
agreed that the wok would be completed and installed no later than December 26, 2013.
3.02 Defendants failed to timely complete the manufacture and installation of the wok.
IV - CAUSES OF ACTION
4.01 Breach of Contract: Plaintiff and Defendants entered into an agreement.
Defendants' failure to comply with the material terms of that agreement constitute a breach of
contract. Defendants' breach of contact directly and proximately caused damages to Plaintiff.
4.02 Although Plaintiffs damages have not yet been calculated, Plaintiff anticipates that at
trial it will seek monetary relief of $100,000 or less, but Plaintiff reserves the right to amend this
statement as more information becomes available. In no event does Plaintiff anticipate it will seek
monetary relief of more than $1,000,000.
V - CONDITIONS PRECEDENT
5.01 All conditions precedent to maintaining this suit have been performed or have
occurred.
VI - REQUEST FOR DISCLOSURE
6.01 Plaintiff requests that Defendants disclose, within 50 days of the service of this
request, the information or material described in TEXAS RULE OF CIVIL PROCEDURE 194.2.
VII - ATTORNEY FEES
.444.
7.01 ff is entitled to recover reasonable attorney's fees against Defendants pursuant
PLAINTIFF'S ORIGINAL PETITION PAGE 2 OF 3
2
to the TEX. CIV. PRAC. & REM. CODE §38.001 et seq.
VIII - PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff asks that Defendants be cited to appear
and answer, and that Plaintiffs have judgment for:
a. Damages within the minimal jurisdictional limits of this Court;
b. Costs of court and attorney fees;
c. Pre-judgment and post-judgment interest as allowed by law;
d. Such other and further relief in law and in equity to which Plaintiffs may show itself
to be justly entitled.
Respectfully Submitted,
HAJJAR SUTHERLAND & PETERS, LLP
1205 Rio Grande Street
Austin, Texas 78701
Telephone: (512) 637-4956
Facsimile: (512) 637-4958
By: /s/ Doran D. Peters
Doran D. Peters
dpetersghspwlegal.com
State Bar No. 24027615
ATTORNEY FOR PLAINTIFF
PLAINTIFF'S ORIGINAL PETITION PAGE 3 OF 3
3
CIVIL CASE INFORMATION SHEET
MAY ENTER CAUSE '# i COURT # IF ALREADY ASSIGNED E.G., FAMILY MOTION, AMENDED PETITION)
CAUSE NUMBER (FOR CLERK USE ONLY): COURT (FOR CLERK USE ONLY):
STYLED Hunan Ranch Corporation v Ha Dong Nhu and D&H Restaurant Equipment
A civil case information sheet must be completed and submitted when an original petition or application is filed to initiate a new civil, family law, probate, or mental
health case or when a post-judgment petition for modification or motion for enforcement is filed in a family law case. The information should be the best available at
the time of filing. This sheet, approved by the Texas Judicial Council, is intended to collect information that will be used for statistical purposes only. It neither replaces
nor supplements the filings or service of pleading or other documents as required by law or rule. The sheet does not constitute a discovery request, response, or
supplementation, and it is not admissible at trial.
1.Contact information for person completing case information sheet: Names of parties in case:
Plaintiff(s)/Petitioner(s):
le —Person or entity completing sheet is:
ttorneyfor Plaintiff/Petitioner
Name: Email: 1=IPro
/ Se Plaintiff Petitioner
Hunan Ranch Corporation Title IV-D Agency
Doran D Peters dpeterq@hqplegal corn
1=10ther:
Address: Telephone:
Defendant(s)/Respondent(s):
1205 Rio Grande Street 512-637-4956 Additional Parties in Child Support Case:
Ha Duong Nhu and
City/State/Zip: Fax: Custodial Parent:
D&H Restaurant Equipment
Austin, Texas 78701 512-637-4958
Non-Custodial Parent:
State Bar No:
Attach additional page as necessary to list all parties]
24027615 Presumed Father:
on behalf of Doran D.Peters
2. Indicate case type, or identify the most important issue in the case (select only 1):
CK CASE TYPE EXCEPT OTHER) FOR CLERK TO SELECT SUIT TYPE; SE SEC. 3 ROTE BELOW Civil Family Law
ost-judgment Actions
ontract Injury or Damage Real Prope arriage Relationship (non-Title IV-D)
Debt/Contract nAssault/Battery minent Domain/ lJAnnulment IFnforcement
EC onsumer/DTPA DConstruction Condemnation D Declare Marriage Void DVIodification—Custody
Ebebt/Contract Ebefamation ElPartition Divorce M
odification—Other
a raud/Misrepresentation MaJzractice ElQuiet Title ElWith Children tro
ElOther Debt/Contract: ilAccounting ElTrespass to Try Title EINo Children IFnforcement/Modification
ElLegal D Other Property: a
atemity
Foreclosure M edical aeciprocals (UIFSA)
UHome Equity—Expedited DOther Professional a
upport Order
0 0ther Foreclosure Liability:
Related to Criminal Matters
O Franchise
D
Other Family Law
DEnforce Foreign
karent-Child Relationship
surance Motor Vehicle Accident Expunction DAdoption/Adoption with
nndlord/Tenant ElPremises a udgment Nisi Judgment Termination
Non-Competition Product Liability Ek on-Disclosure ElHabeas Corpus OChild Protection
O Partnership a sbestos/Silica D Seizure/Forfeiture Ekame Change .._.
11Child Support
a ther Contract: ElOther Product Liability 0 Writ of Habeas Corpus— DProtective Order IjCustocly or Vita
List Product: Pre-indictment DRemoval of Disabilities .._.
11Gestationul Parenting
OPTION CK OTHER & ENTER 3-LETTER DOther: of Minority ..._.
ilGrandpareat Accesn s
SUIT TYPE FOR CLERK TO USE WHEN DOther Injury or Damage: D other: LIParentagetPah""
DOCKETING lUITemirnation
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Workers'Compensates
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00ther Employment: °reign Judgment they:
off i Witeilessilticrirthand and seal off office
Probate & Mental Health
Diax Appraisal rayttg/LViU /T. tost,.t "'tio”—‘-1:1Eruardianship—Adult
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OCertiorari LMaud T emporary Restraining Order/Injunction
OClass Action ❑
EIP0 ud T urnover
OPTION C; SECTION 3 PROCEDURES/REMEDIES IN BOLD MAY BE USED AS CASE OR SUIT TYPES. YOU MAY SPECIFY THAT ONE OF THESE PROCEDURES/REMEDIES BE USED AS A SUIT TYPE BY CHECKING IT AND
LEAVING THE CASE TYPE IN SECTION 2 BLANK. SELECTING A CASE TYPE IN SECTION 2 OVERRIDES ANY SELECTION IN SECTION 3. 4
CITATION
THE STATE OF TEXAS
CAUSE NO. D-1-GN-14-000826
HUNAN RANCH CORPORATION
tiff
vs. k°14.3
p‘stla
HA DUONG NHU AND D&H RESTAURANT EQUIPMENT .
0 1,tle 141
*.06 40000
000
TO: HA DUONG NHU
2313 CRYSTAL CREEK LANE
GARLAND, TEXAS 75040
Mai n
Defendant, in the above styled and numbered cause:
YOU HAVE BEEN SUED. You may employ an attorney. If you or your attorney do not file a written
answer with the clerk who issued this citation by 10:00 A.M. on the Monday next following the
expiration of twenty days after you were served this citation and petition, a default judgment may
be taken against you.
Attached is a copy of the ORIGINAL PETITION of the PLAINTIFF in the above styled and numbered
cause, which was filed on MARCH 19, 2014 in the 201ST JUDICIAL DISTRICT COURT of Travis County,
Austin, Texas.
ISSUED AND GIVEN UNDER MY HAND AND SEAL of said Court at office, March 19,_ 2014.,
REQUESTED BY:
DORAN DONALD PETERS
HAJJAR SUTHERLAND PETERS & WASHMON LLP
1205 RIO GRANDE STREET IA RODRIGUEZ-MENDOZ
AUSTIN, TX 78701 Travis County District Clerk
BUSINESS PHONE:(512)637-4956 FAX:(512)637-4958 Travis County Courthouse
1000 Guadalupe, P.O. Box 679003 (78767)
Austin, TX 78701
PREPARED BY: DIANA PARSONS
-- RETURN --
Came to hand on the day of at o'clock M., and
executed at within the County of
on the day of , at o'clock M.,
by delivering to the within named , each
in person, a true copy of this citation together with the LAWYER REFERAL SERVICE NOTICE
accompanying pleading, having first attached such copy of such citation to such copy of pleading
and endorsed on such copy of citation the date of delivery.
Service Fee: $
.„.0110000044iikff /ConstOle / Authorize rson
Sworn to and subscribed before me this the
By:
-° s
day of
t17 Name of Server
AUSTIN PROCESS, LLC
809 NUECES County, Texas
Notary Public, THE STATE OF TEXAS AUSTIN, TX 78701
D-1-GN-14-000826 SERVICE FEE NOT PAID P01 - 000018654
EPOriginal ETService Copy
5
AFFIDAVIT OF SERVICE
State of Texas County of Travis 201st Judicial District Court
Case Number: D-1-GN-14-000826
Plaintiff:
Hunan Ranch Corporation
vs.
Defendant:
Ha Duong Nhu and D&H Restaurant Equipment
For:
Najjar Sutherland Peters & Washmon, LLP
3144 Bee Cave Road
Austin, TX 78746
Received by Austin Process LLC on the 19th day of March, 2014 at 12:58 pm to be served on Ha Duong Nhu, 2313
Crystal Creek Lane, Garland, TX 75040.
I, Emmanuel F. Morales, being duly sworn, depose and say that on the 29th day of March, 2014 at 4:20 pm, I:
INDIVIDUALLY/PERSONALLY delivered a true and correct copy of the Citation and Plaintiffs Original Petition
with the date of service endorsed thereon by me, to: Ha Duong Nhu at the address of: 14900 Avery Ranch Blvd,
C-300, Austin, TX 78717, as an authorized agent of Austin Process, LLC, and informed said person of the
contents therein, in compliance with state statutes.
certify that I am over the age of 18, of sound mind, have no interest in the above action, and am a Certified
Process Server, in good standing, in the judicial circuit in which the process was delivered. The facts stated in this
affadavit are within my personal knowledge and are true and correct.
Subscribed and Sworn to before me on the 31st day of Emmanuel F. Morales
March, 14 by the affi o is personally known to SCH-10708, Exp, 12/31/16
Clerk Travis County,
Austin Process LLC
is a true and
15
809 Nueces
N & WitcPE.518L ppears of record in my Austin, TX 78701
office. Witness my hand and seal of office (512) 480-8071
.1.417f
Our Job Serial Number: MST-2014000964
ATE Ref: Hunan Ranch Corporation
VEW-001ThilitilAug. 09, 2018
By Deputy: Copyright ®1992-2011 Database Services, Inc. - Process Servers Toolbox V6.4t
6
CITATION
THE STATE OF TEXAS
CAUSE NO. D-1-GN-14-000826
HUNAN RANCH CORPORATION
I p
vs. eDistircALC•ow.iff
HA DUONG NHU AND D&H RESTAURANT EQUIPMENT i;;CeeftS
O C•01.0,t4
Oedit\
okltsvis
TO: D&H RESTAURANT EQUIPMENT
BY SERVING ITS OWNER AND REPRESTATIVE HA DUONG NHU
2313 CRYSTAL CREEK LANE
WI'Sk
GARLAND, TEXAS 75040
Defendant, in the above styled and numbered cause:
YOU HAVE BEEN SUED. You may employ an attorney. If you or your attorney do not file a written
answer with the clerk who issued this citation by 10:00 A.M. on the Monday next following the
expiration of twenty days after you were served this citation and petition, a default judgment may
be taken against you.
Attached is a copy of the ORIGINAL PETITION of the PLAINTIFF in the above styled and numbered
cause, which was filed on MARCH 19, 2014 in the 201ST JUDICIAL DISTRICT COURT of Travis County,
Austin, Texas.
ISSUED AND GIVEN UNDER MY HAND AND SEAL of said Court at office, March 19. 2014.,
REQUESTED BY:
DORAN DONALD PETERS
HAJJAR SUTHERLAND PETERS & WASHMON LLP
IA RODRIGUEZ-MENDOZ
zap
1205 RIO GRANDE STREET
AUSTIN, TX 78701 Travis County District Clerk
BUSINESS PHONE:(512)637-4956 FAX:(512)637-4958 Travis County Courthouse
1000 Guadalupe, P.O. Box 679003 (78767)
Austin, TX 78701
PREPARED BY: DIANA PARSONS
-- RETURN --
day of at o'clock M., and
Came to hand on the
executed at within the County of
on the day of , at o'clock M.,
, each
by delivering to the within named
in person, a true copy of this citation together with the LAWYER REFERAL SERVICE NOTICE
accompanying pleading, having first attached such copy of such citation to such copyof pleading
and endorsed on such copy of citation the date of delivery.
Service Fee: $
stable / Authorized Person
#C1""54S
Sworn to and subscribed before me this the
By:
AUSTIN PROCESS, LIG
day of 809 NUECES
Printed NanAlifirite,ft)(r 78701
County, Texas
Notary Public, THE STATE OF TEXAS
SERVICE FEE NOT PAID P01 - 000018655
D-1-GN-14-000826
0).4- FORtl- ®Service Copy
4,
- ...... .).R
i ., ....z
.i._,. .11/4.. ..,
7
AFFIDAVIT OF SERVICE
State of Texas County of Travis 201st Judicial District Court
Case Number: D-1-GN-14-000826
Plaintiff:
Hunan Ranch Corporation
vs.
Defendant:
Ha Duong Nhu and D&H Restaurant Equipment
For:
Najjar Sutherland Peters & Washmon, LLP
3144 Bee Cave Road
Austin, TX 78746
Received by Austin Process LLC on the 19th day of March, 2014 at 12:58 pm to be served on D&H Restaurant
Equipment by serving its Owner and Representative, Ha Duong Nhu, 2313 Crystal Creek Lanai, Garland, TX
75040.
I, Emmanuel F. Morales, being duly sworn, depose and say that on the 29th day of March, 2014 at 4:20 pm, I:
delivered to REGISTERED AGENT by delivering a true copy of the Citation and Plaintiffs Origipal Petition with
the date of service endorsed thereon by me, to: Ha Duong Nhu as Owner at the address of: 14900 Avery Ranch
Blvd, C-300, Austin, TX 78717 on behalf of D&H Restaurant Equipment, and informed said person of the
contents therein, in compliance with state statutes.
I certify that I am over the age of 18, of sound mind, have no interest in the above action, and am a Certified
Process Server, in good standing, in the judicial circuit in which the process was delivered. The facts stated in this
affadavit are within my personal knowledge and are true and correct.
Subscribed and Sworn to before me on the 31st day of Emmanuel F. Morales
March, 201$. the affia • is personally known to SCH-10708, Exp, 12/31/16
Clerk, Travis Courity, Austin Process LLC
at thisis_a_tand 809 Nueces
ppears of record in my Austin, TX 78701
office (512) 480-8071
• u• Our Job Serial Number: MST-2014000965
VailAtirg: Ref: Hunan Ranch Corporation
VOW
DJ STRICT CLERK
Copyright 1992-2011 Database Services, Inc. - Process Server's Toolbox V6.4t
By Deputy:
8
I er,ocutory None DC BK14182 PG1933
(Notice
Disp Filled in The D° Court
Disp code: T
Redact pgs:_
Clerttl
Cause No. D-1-GN-14-000826
Judge
HUNAN RANCH CORPORATION INTHE DISTRWLCOMLIMei
Plaintiff
v.
201ST JUDICIAL DISTRICT
HA DUONG NHU and
D&H RESTAURANT EQUIPMENT
Defendants TRAVIS COUNTY,TEXAS
FINAL JUDGMENT
On this day came to be heard the above-styled and numbered cause wherein Hunan Ranch
Corporation is plaintiff and Ha Duong Nhu and D&H Restaurant Equipment are defendants.
Defendants, although being duly and legally cited to appear and answer, failed to appear and answer,
and wholly made default. Citation was served according to law and returned to the clerk where it
remained on file for the time required by law.
Having considered the pleadings, evidence and arguments, the Court finds and concludes that
Hunan Ranch Corporation is entitled to the relief hereinafter given.
The Court FINDS defendants Ha Duong Nhu and D&H Restaurant Equipment, jointly and
severally, are liable and indebted to Flunan Ranch Corporation in the sums set forth below, and that
plaintiff should recover his reasonable attorney's fee against Defendants.
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that Hunan Ranch
Corporation have and recover from defendants Ha Duong Nhu and D&H Restaurant Equipment,
jointly and severally, damages in the total amount of $38,663.81.
IT IS FURTHER ORDERED that Hunan Ranch Corporation have and recover from
defendants Ha Duong Nhu and D&H Restaurant Equipment, jointly and severally, pre-judgment
interest at the rate of FIVE PERCENT (5%) simple interest on the amount of $38,663.81 since March
19, 2014 until the day before this judgment is signed.
I THER ORDERED that Hunan Ranch Corporation has judgment against defendants
1..04
Ha D D&H Restaurant Equipment, jointly and severally, for attorney's fees in the
FINAL JUDGMENT PAGE 1 OF 3
9
DC BK14182 PG1934
amount of $6,693.75 to compensate plaintiff for his attorney's fees in bringing this suit and obtaining
this judgment, which is a reasonable and necessary charge for such services.
IT IS FURTHER ORDERED that Hunan Ranch Corporation have and recover from
defendants Ha Duong Nhu and D&H Restaurant Equipment, jointly and severally, interest on the
amount of this judgment, including pre-judgment interest, attorney fees, and all damages. Interest
on this judgment is to be charged from the date of this judgment, in the amount of FIVE PERCENT
(5%), compounded annually.
IT IS FURTHER ORDERED that all costs of court spent or incurred in this cause are
adjudged and taxed against defendants Ha Duong Nhu and D&H Restaurant Equipment, jointly and
severally.
IT IS FURTHER ORDERED that should defendants pursue any appeal of any money
judgment rendered in this cause in favor of plaintiff, that plaintiff recover from defendants Ha Duong
Nhu and D&H Restaurant Equipment, jointly and severally, the following reasonable and necessary
attorney's fees and expenses for the following appellate steps and proceedings as follows:
a. Responding to and attending any hearings on any post-judgment Motions
$5,000
Responding to a brief in the Court of Appeals
$15,000
c. Preparation for oral argument before Court of Appeals and argument
$1,750
d. Responding to Motion for Rehearing before Court of Appeals, if any
$2,500
Responding to any Writ of Error to the Supreme Court
$7,500
Preparation for and argument before Supreme Court, if Writ granted
S 1,750
g.
Responding to any Motion for Rehearing filed with Supreme Court
$2,500
finally disposes of all parties and all claims and is appealable.
FINAL JUDGMENT PAGE 2 OF 3
10
DC BK14182 PG1935
Plaintiff is hereby allowed such writs and processes as may be necessary in the enforcement
and collection of this judgment.
All other relief not herein granted is hereby denied.
SIGNED on this the 30 day of kiN—k„ , 2014.
FINAL JUDGMENT PAGE 3 OF 3
11
DC BK14182 PG1936
Cause No. D-1-GN-14-000826
HUNAN RANCH CORPORATION IN THE DISTRICT COURT
Plaintiff
.
v
201ST JUDICIAL DISTRICT
HA DUONG NHU and
D&H RESTAURANT EQUIPMENT
Defendants TRAVIS COUNTY, TEXAS
STATE OF TEXAS
COUNTY OF TRAVIS
AFFIDAVIT OF DORAN D. PETERS
Before me, the undersigned notary, on this day, personally appeared Doran D. Peters, a
person whose identity is known to me. After I administered an oath to him, upon his oath, he said:
1. "My name is Doran D. Peters. I am capable of making this affidavit. The facts stated in this
affidavit are within my personal knowledge and are true and correct.
2. I am a partner at the law firm of HA J JAR SUTHERLAND & PETERS, LLP (my firm). I was hired as
legal counsel for Hunan Ranch Corporation, Plaintiff, to assist in his defense and prosecution of
claims in the above numbered and styled cause. I obtained my license to practice law in the State of
Texas in November 2000. I have continuously practiced law in Travis County, Texas, as well as
surrounding counties, in commercial and real property litigation matters.
3. I am familiar with the attorney's fees charged and expenses incurred in cases similar to this
one in Travis County, Texas. My firm charges $315.00 an hour for the time I work on Hunan Ranch
Corporation's case, which is my fee. My firm charges Hunan Ranch Corporation between $175 and
$315 per hour for the time spent by other attorney's in my firm working on this case. When a
paralegal or legal assistant performs services for clients, their time is billed at rates between S70 and
5140.00 per hour. 1 have reviewed the billing records for Hunan Ranch Corporation's account with
my fir
--
4. f I- -,n by Hunan Ranch Corporation of this firm precluded me from accepting other
emp consulted with Hunan Ranch Corporation, reviewed relevant documents,
41:
AFFIDAVIT .6 D. PETERS PAGE 1 OF 3
12
DC BK14182 PG1937
prepared and reviewed pleadings in this case, as well as rendered various other legal services in
Hunan Ranch Corporation's prosecution of this case.
5. It is my opinion that $5,165.25 is a reasonable sum for the necessary and reasonable
attorney's fees and associated expenses Hunan Ranch Corporation has incurred for my, and my
firm's, services in this case. This amount includes approximately 11.60 hours of attorney time, and
3.4 hours of Paralegal time. This amount also includes non-court expenses of $2059.75 which
mostly comprises fees associated with locating and serving defendant with the lawsuit, as well as
about $10 in fees to research the Texas Secretary of State records. Finally, this amount includes five
hours, which is the estimated time necessary to prepare documents related to obtaining a default
judgment, and attending court to do so.
6. Hunan Ranch Corporation agreed to reimburse the attorneys in this firm for their work on
this case on an hourly fee, at the rates stated above, and also agreed to pay costs incurred by my firm
in prosecuting and defending this case.
7. The fees charged by my firm are less than those fees customarily charged in this area for the
same or similar services for an attorney with the experience, reputation, and ability of the attorney
performing the services, considering the amount and type of controversy, the time limitations
imposed, the results obtained, and the nature and length of the relationship this firm and its
attorneys have had with Hunan Ranch Corporation.
8. Additionally, should any Defendant pursue any appeal of any money judgment rendered in
this cause in favor of Hunan Ranch Corporation, it is my opinion that a reasonable sum for the
necessary attorney's fees and expenses to be rendered for the following post-judgment steps and
proceedings are as follows:
a. Responding to and attending any hearings on any post-judgment Motions
$5,000
b. Responding to a brief in the Court of Appeals
$15,000
c. Preparation for oral argument before Court of Appeals and argument
$1,750
Responding to Motion for Rehearing before Court of Appeals, if any
$2,500
PAGE 2 OF 3
13
DC BK14182 PG1938
e. Responding to any Writ of Error to the Supreme Court
$7,500
Preparation for and argument before Supreme Court, if Writ granted
$1,750
Responding to any Motion for Rehearing filed with Supreme Court
g.
$2,500
FURTHER AFFIANT SAYETH NOT. "
DORAN D. PETERS
Subscribed and sworn to before me, the undersigned Notary Public, in and for the County of
Travis, this 011 day of ...a ,J„..-K , 2014.
V
Notary Public State of Texas
FRANCES
Notary Public, S_0 > of Texas
My Commission ,
July 01 20'4
PAGE 3 OF 3
14
DC BK14182 PG1939
Cause No. D-1-GN-14-000826
HUNAN RANCH CORPORATION INTHE DISTRICT COURT
Plaintiff
V. 201ST JUDICIAL DISTRICT
HA DUONG NHU and
D&H RESTAURANT EQUIPMENT
Defendants TRAVIS COUNTY,TEXAS
SOLDIERS' AND SAILORS' AFFIDAVIT
Before me, the undersigned notary, on this day, personally appeared Doran D. Peters, a
person whose identity is known to me. After I administered an oath to him, upon his oath, he said:
1. "My name is Doran D. Peters. I am capable of making this affidavit. The facts stated in this
affidavit are within my personal knowledge and are true and correct.
2. In compliance with the Soldiers' and Sailors' Relief Act, to my personal knowledge based
upon a review of records related to this case and my involvement in this case defendant Ha Duong
Nhu is not an infant, emancipated or incompetent person. Mr. Nhu operates a company that
manufactures and installs commercial woks in Garland, Texas and has done so for at least the last
four years. A review of the attached official printout from the United States Department of Defense
Manpower Data Center, which is fully incorporated herein, HA DUONG NHU, Defendant is not
a member of the Ai used Forces currently on active duty."
DORAN D. PETERS
__SWORN TO and SUBSCRIBED before me by Doran D. Peters on t the day of
V /' ,2014.
I
Notary Public State of Texas
=RANCES ROSALES
Notary Public, State of Texas
My Commission Expires
01. 2014
SOLDIERS' AND SAILORS' AFFIDAVIT PAGE 1 OF 1
15
BK14182 PG1940s as of : May-02-2014 07A8:47 AM
Department of Defense Manpower
SCRA 3.0
Status Report
Pursuant to Savicemem CivilAct
Last Name: NHU
First Name: HA
Middle Name: DUONG
Active Duty Status As Of: May-02-2014
:410r I'V‘474t,rtiateTA7WerglirAWNIS.M
1
On Active Duty On Active Duty Status Date--"filcieVVr - -gtomir Atvt,t.
Active Duty End Date Status iii,-Ssrt1RAMii.
i Service Component
Duty Start Date R
No NA
NA NA
This response reflects the individuals' active duty status based on the Active Duty Status Date
i.
issaWaiNISIO . h TA '4-4107Left Active Duty Within 367 Days of Active Duty Status Date 511S
5 tailltieltr
AaTtttMW'yLfiaog.r.r.5r,,w,.vz.,,o§wt
,Aitt • tr,7
Wilitrrro Active Duty End Date moss it geggomi . Status wit .,9pAgtwfwv, Service Component
Active Duty Start Date RigefiNdi
NA No NA
NA
the Active. Duty Status Date
This response reflects where the individual left active duty status within 367 days preceding
.•f
The Member or His/Her Unit Was Notified of a Future Call-Up to Active Duty on Active Duty Status Date i6POPSWW
m z.,iai „Ar. 114.,,. 44114'
014,41
gglx, Order Notification Start Date Order Notification End Date Status law
Service Component 'fie=r1,
NA
NA jipi, No
NA ••
active duty
This response reflects whether the individual or hisfher unit has•received early notification to report for
Upon searching the data banks of the Department of Defense Manpower Data Center, based on the information that you provided, the above is the status of
the individual on the active duty status date as to all branches of the Uniformed services (Army, Navy, Marine Corps, Air Force, NOAA, Public Health, and
Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty.
HOWEVER, WITHOUT A SOCIAL SECURITY NUMBER, THE DEPARTMENT OF DEFENSE MANPOWER DATA CENTER CANNOT AUTHORITATIVELY
ASSERT THAT THIS IS THE SAME INDIVIDUAL THAT YOUR QUERY REFERS TO. NAME AND DATE OF BIRTH ALONE DO NOT UNIQUELY
IDENTIFY AN INDIVIDUAL.
Mary M. Snavely-Dixon, Director
Department of Defense - Manpower Data Center
4800 Mark Center Drive, Suite 04E25
Arlington, VA 22350
16
DC BK14182 PG1941
Cause No. D-1-GN-14-0008 26
IN THE DISTRICT COURT
HUNAN RANCH CORPORATION
Plaintff
V,
201ST JUDICIAL DISTRICT
HA DUONG NHLI and
D&H RESTAURANT EQUIPMENT
TRAVIS COUNTY, TEXAS
Defendants
AFFIDAVIT OF JOHN CHEN
STATE OF TEXAS
COUNTY OF TRAVIS
Can this date, John Chen, personally appeared before me, the undersigned Notary Public,
and after being duly sworn, stated the following under oath:
"My name is John Chen ("Plaintiff"). I am over the age of 18 and I am fully competent to
1
make this affida qt. The statements contained in this affidavit are made based on my
personal knowledge. The facts set forth below and contained in the attached records are
true and correct, based upon my personal knowledge formed from my inv=olvement in this
case.
I am one of the directors and owners of Hunan Ranch Corporation. Hunan Ranch
Corporation is the owner of Hunan Ranch restaurant ("Plaintiff s restaurant") located at
14900 Avery Ranch Blvd. Austin, Texas 78717.
Plaintiff and Defendant entered into an agreement (attached hereto as Exhibit A-1) on or
3.
of the agreement, Defendants Ha Duong Nhu
about November 24, 2013, Under the
and D&H Restaurant Equipment (hereinafter-collectively referred to as "Defendants")
agreed to manufacture and install a new commercial wok (hereinafter referred to as "new
(hereinafter referred to
wok") at Plaintiff's restaurant. This was to replace the ex
All parties knew the new wok was critical to the operation of Plaintiff's
17
DC BK14182 PG1942
restaurant. The parties agreed that the wok would be completed and installed no later than
December 26, 2013.
On or about December 19, 2013, Plaintiff contacted Defendants to confirm the new wok
4.
would be ready for installation by December 26, 2013. During this conversation,
Defendants stated that there was a delay and the new wok would not he ready until January
8, 2014.
On or about January 4, 2014, Plaintiff again spoke with Defendants to confirm that the new
5.
wok would he ready for installation on January 8, 2014. During this conversation,
Defendants confirmed that the new wok would be delivered by January 8, 2014.
On January 6, 2014, Plaintiff's restaurant was closed for renovations, including installation
6.
of the new wok. Plaintiff expected to re-open Plaintiff's restaurant on January 9, 2014.
Defendants did not show up on January 8, 2014, as previously promised. Plaintiff contacted
Defendants concerning the new wok and was told that it would be ready on January 11,
2014.
Defendants did not deliver the new wok on January 11, 2014, as previously promised.
7.
Additionally, when Plaintiff attempted to contact Defendants on January 11, 2014, they did
not answer his calls. Defendants did not contact Plaintiff until. January 14, 2014, and at such
time reported that the new wok was still not ready. Due to Defendants failure to deliver
\VA installed.
and install the new wok, Plaintiff was forced to have the old
On January 16, 2014, Defendants delivered and installed the old wok. Plaintiff was able to
8.
reopen Plaintiff's restaurant for dinner on January 17, 2014.
correspondence requesting
On or about February 18, 2014, Plaintiff' sent Defendants
9.
(attached hereto as Exhibit
delivery and installation of the new wok by February 20, 2014
that Defendants' failure to
A-2). In this correspondence, Plaintiff further pointed out
f dollars in damages.
deliver and install the new wok caused the Plaintiff thousands o
The new wok was not delivered by Defendants until March 28, 2014,
Plaintiff' was expected to re-open the restaurant on January 9, 2014. Due to Defendants'
deliver and install the new wok, there was a delay of 8.5 days (January 9, 2014
18
DC BK14182 PG1943
through dinner on January 17, 2014) between the expected date of installation of the new
wok and the re-installation of the old wok,
Plaintiff's average sales income per month prior to the removal of the old wok was
12.
$137,075.92, which is s4,469.86 per day. Please see Plaintiff's Sales Reports from October
2013, November 2013, and December 2013 through December 31, 2013, attached hereto
as Exhibit A-3, Due to the delay in the delivery of the new wok, Plaintiff suffered lost sales
in the amount of $37,993.81,
Furthermore, the re-installation of the old wok led to a gas leak, which caused one of the
13.
woks not work properly. Due to one of the woks not working, Plaintiff was forced to give
approximately $670.00 in voids and credits.
Due to Defendants failure to deliver and install the new wok, Plaintiff suffered damages in
14.
the amount of $38,663.81.
Further affiant sayeth naught."
joliTn Chen
/ Owner, Hunan Ranch Corporation
X-47 day of
SWORN TO and SUBSCRIBED before me by John Chen on this, the
, 2014.
of Texas
Notary Public*State
JA CO3 81 or
votory
Mit
w Aug 4,,07
19
DC BK14182 PG1944
Cause No. D-1-GN-14-000826
HUNAN RANCH CORPORATION IN THE DISTRICT COURT
Plaintiff
201ST JUDICIAL DISTRICT
v.
HA DUONG NHU and
D&H RESTAURANT EQUIPMENT
Defendants TRAVIS COUNTY,TEXAS
CERTIFICATE OF LAST KNOWN ADDRESS
I hereby certify that the last known address of defendants Ha Duong Nhu and D&H
Restaurant Equipment is 2313 Crystal Creek Lane, Garland, Texas 75040.
Respectfully Certified and Submitted,
HAJ JAR SUTHERLAND & PETERS, LLP
3144 Bee Caves Road
Austin, Texas 78746
Telephone: (512) 637-4956
Facsimile: (512) 637-4958
By:
Doran D. Peri
State Bar No. 24027615
Teres.411113acer
I, VELVA L. PRICE, District Clerk, Tarilrle eg n Atrategy. corn
Texas, do hereby certify that this is a6ftxue3ando. 24053131
correct copy as sarrie appears itifTrikettlY51Fri* PLAINTIFF
office_ Witness my hand and seal of office
On
VELVA L. PRICE
DISTRICT CLERK
By Deputy:
PAGE 1 OF 1
CERTIFICATE OF LAST KNOWN ADDRESS
20
Amalia Rodriguez-Mendoza
District Clerk, Travis County
Travis County Courthouse Complex
P.O. Box 679003
Austin, Texas 78767
DATE: July 01, 2014
HA DUONG NHU AND D&H RESTAURANT EQUIPMENT
2313 CRYSTAL CREEK LANE
GARLAND, TX 75040
In accordance with the provisions of Rule 239a of the Texas Rule of
Civil Procedure, you are hereby notified that in Cause No. D-1-GN-14-
000826, in the 201ST JUDICIAL DISTRICT COURT of Travis County, Texas,
styled:
HUNAN RANCH CORPORATION
VS.
HA DUONG NHU AND D&H RESTAURANT EQUIPMENT
on JUNE 30, 2014, a DEFAULT JUDGMENT was taken in favor of:
HUNAN RANCH CORPORATION
and against
HA DUONG NHU AND D&H RESTAURANT EQUIPMENT
AmALTARVEIMuLzPaltIPPAiktrict Clerk, Travis County,
DistrictQerk
Texas, do hereby certify that this is a true and
correct copy as same appears of record in my
office_ Witness my hand and seal of office
On
wv
At
VELVA L. PRICE
K1I1
L61 - 00 DISTRICT CLERK D-1-GN-14-000826
By Deputy:
21
Amalia Rodriguez -Mendoza
District Clerk, Travis County
Travis County Courthouse Complex
P.O. Box 679003
Austin, Texas 78767
DATE: July 01, 2014
HA DUONG NHU AND D&H RESTAURANT EQUIPMENT
2313 CRYSTAL CREEK LANE
GARLAND, TX 75040
In accordance with the provisions of Rule 239a of the Texas Rule of
Civil Procedure, you are hereby notified that in Cause No. D-1-GN-14-
000826, in the 201ST JUDICIAL DISTRICT COURT of Travis County, Texas,
styled:
HUNAN RANCH CORPORATION
VS.
HA DUONG NHU AND D&H RESTAURANT EQUIPMENT
on JUNE 30, 2014, a DEFAULT JUDGMENT was taken in favor of:
HUNAN RANCH CORPORATION
and against
HA DUONG NHU AND D&H RESTAURANT EQUIPMENT
AmALARMIEUMUEzPIRMPPEVilstrict Clerk Travis County,
District Cilga,
do hereby certify that this is a true and
correct copy as same appears of record in rny
office. Witness my hand and seal of office
On
wv
At
VELVA L. PRICE
KAI I
DISTRICT CLERK D-1-GN-14-000826
By Deputy:
22
Amalie Rodriguez - Mendoza
District Clerk, Travis County
Travis County Courthouse Complex
P.O. Box 679003
Austin, Texas 78767
DATE: July 01, 2014
HUNAN RANCH CORPORATION
C/O DORAN DONALD PETERS
3144 BEE CAVE ROAD
AUSTIN, TX 78746
In accordance with the provisions of Rule 239a of the Texas Rule of
Civil Procedure, you are hereby notified that in Cause No. D-1-GN-14-
000826, in the 201ST JUDICIAL DISTRICT COURT of Travis County, Texas,
styled:
HUNAN RANCH CORPORATION
VS.
HA DUONG NHU AND D&H RESTAURANT EQUIPMENT
on JUNE 30, 2014, a DEFAULT JUDGMENT was taken in favor of:
HUNAN RANCH CORPORATION
and against
HA DUONG NHU AND D&H RESTAURANT EQUIPMENT
AmALIAIVAWAJU-PikitlE9Nstrict Clerk, Travis County,
District Clerk
Texas, do hereby certify that this is a true and
correct copy as same appears of record in my
office_ Witness my hand and seal of office
On
wv
VELVA L. PRICE
KALI
L61-00 DISTRICT CLERK D-1-GN-14-000826
By Deputy:
23
12/30/2014 6:13:36 PM
Amalie Rodriguez-Mendoza
District Clerk
Travis County
D-1-GN-14-000826
CAUSE NO. D-1-G-N-14-000826
HUNAN RANCH CORPORATION, § IN THE DISTRICT COURT OF
Plaintiff; §
§
v. § TRAVIS COUNTY, TEXAS
§
HA DUONG NHU and §
D&H RESTAURANT EQUIPMENT, §
Defendants. § 201ST JUDICIAL DISTRICT
NOTICE OF RESTRICTED APPEAL OF DEFENDANTS HA DUONG NHU
AND D&H RESTAURANT EQUIPMENT
Pursuant to TEXAS RULES OF APPELLATE PROCEDURE 25.1 and 26.1(c), Defandants Ha
Duong Nhul and D&H Restaurant Equipment (the "Defendants") desire to appeal from the final
judgment of default signed on June 30, 2014, in this case styled Hunan Ranch Corporation v. Ha
Duong Nhu and D&H Restaurant Equipment, Cause No. D-1-G-N-14-000826, in the 201st
Judicial District Court, Travis County, Texas. Appeal is taken to the Third Court of Appeals in
Austin, Texas.
Ha Duong Nhu and D&H Restaurant Equipment are Defendants in this lawsuit and are
thus affected by the trial court's judgment. Defendants, however, did not participate, either in
person or through their counsel, in the June 30, 2014, hearing that resulted in the court's final
judgment of default. Defendants have not filed any post-judgment motions, have not requested
any findings of fact or conclusions of law, and have not previously filed any notice of appeal.
1Defe ong Nhu Ha, and not Ha Duong Nhu as stated in the style of the case and throughout
Plainti rporation's petition and other documents in this case.
NOTICE OF RESTRICTED APPEAL PAGE 1 OF 3
24
Respectfully submitted,
VINSON & ELKINS
/s/ Janice L. Ta
Frank C. Brame
State Bar No. 24031874
Trammell Crow Center
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201-2975
Telephone: (214) 220-7817
Fax: (214) 999-7818
fbrame(a)velawcom
Janice L. Ta
State Bar No. 24075138
2801 Via Fortuna, Suite 100
Austin, Texas 78746-7568
Telephone: (512) 542-8512
Fax: (512) 236-8239
jta@velaw.corn
Attorneys for Defendants Ha Duong Nhu and
D&H Restaurant Equipment
NOTICE OF RESTRICTED APPEAL PAGE 2 OF 3
25
CERTIFICATE OF SERVICE
I certify that on this 30th day of December 2014, a true and correct copy of the above and
foregoing Notice of Restricted Appeal of Defendants Ha Duong Nhu and D&H Restaurant
Equipment was served on Plaintiff Hunan Ranch Corporation's counsel of record via electronic
service and e-mail in accordance with the Texas Rules of Civil Procedure as follows:
Doran D. Peters
HAMAR PETERS, LLP
3144 Bee Caves Road
Austin, Texas 78746
Telephone: (512) 637-4956
Fax: (512) 637-4958
dpeters@lcgalstrategy.com
Attorney for Plaintiff
/s/ Janice L. Ta
Janice L. Ta
I, VELVA L. PRICE, District Clerk Travis County,
Texas, do hereby certify that this is a true and
correct copy as sarrie appears of record in my
office_ Witness my hand and seal of office
On
VELVA L. PRICE
US 3220745 DISTRICT CLERK
By Deputy:
NOTICE OF RESTRICTED APPEAL PAGE 3 OF 3
26
EXHIBIT 2
Business and Industry: Time Series / Trend Charts Page 1 of 2
You are here: Census.gov › Business & Industry › Time Series / Trend Charts
TIME SERIES / TREND CHARTS
Please follow the numbers in order.
1
Select the report/survey from which you wish to retrieve data:
Monthly Retail Trade and Food Services
2
Select a date range:
Start: 2011 End: 2014
3
Select Industry or Category:
722: Food Services and Drinking Places
4
Select one Item :
Sales - Monthly
5
Select Geographical Level:
U.S. Total
Select as available:
Seasonally Adjusted
Not Seasonally Adjusted
Show Estimates of Sampling Variability
GET DATA
Download all data for this report/survey Save this search
Release Date:
February 12, 2015
For the Monthly Retail Trade Survey, all current month estimates are preliminary estimates, which will be superseded
in following months by revised estimates.
For information on the reliability and use of the data, including important notes on estimation and sampling variance,
seasonal adjustment, measures of sampling variability, and other information pertinent to this economic indicator, go
to the Monthly and Annual Retail Trade website, which provides time-series Excel files for Sales [XLS, 184kb], and
Inventories and Inventories/Sales Ratios [XLS, 368kb] data.
Estimated measures of sampling variability for totals are expressed as coefficients of variation (CV). Standard errors
(SE) are provided for month-to-month change and ratio estimates.
Estimated measures of sampling variability are based on data not adjusted for seasonal variation, and should be used
when drawing inferences about both adjusted and not adjusted estimates.
Inventories are only available for the following industries (defined in Box 3 above): 44000, 4400A, 441, 4423X, 444,
445, 448, 452, 4521.
NA = Not available.
(S) = Suppressed.
The Y-axis for the line charts may be truncated to prevent flattening of the lines or to present the complete range of
data.
http://www.census.gov/econ/currentdata/dbsearch?program=MRTS&startYear=2011&end... 2/27/2015
Business and Industry: Time Series / Trend Charts Page 2 of 2
Source: Monthly Retail Trade and Food Services (Definitions)
722: Food Services and Drinking Places: U.S. Total — Not Seasonally Adjusted Sales - Monthly [Millions of
Dollars]
TXTXLS-VXLS-HBar ChartLine Chart
Year Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
2011 36,868 37,308 41,946 41,684 42,935 41,983 43,239 42,355 41,369 42,420 39,756 42,950
2012 39,740 41,054 45,792 43,915 45,616 44,988 44,586 45,002 43,069 43,572 42,428 45,130
2013 41,613 41,257 47,284 45,663 47,113 45,139 45,186 46,557 43,321 45,589 44,862 46,075
2014 42,580 42,524 48,997 47,329 50,570 47,488 48,309 49,719 46,610 49,602 47,167 50,317
[PDF] or denotes a file in Adobe’s Portable Document Format. To view the file, you will need the Adobe® Reader®
available free from Adobe. [Excel] or the letters [xls] indicate a document is in the Microsoft® Excel® Spreadsheet
Format (XLS). To view the file, you will need the Microsoft® Excel® Viewer available for free from Microsoft®. This
symbol indicates a link to a non-government web site. Our linking to these sites does not constitute an endorsement
of any products, services or the information found on them. Once you link to another site you are subject to the
policies of the new site.
Source: U.S. Census Bureau | Business & Industry | sssd.econ.data@census.gov | Last Revised: March 26, 2014
http://www.census.gov/econ/currentdata/dbsearch?program=MRTS&startYear=2011&end... 2/27/2015