ACCEPTED
01-14-00204-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/28/2015 3:14:15 PM
CHRISTOPHER PRINE
CLERK
CAUSE NO. 01-14-00204-CV
__________________________________________________________
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE HOUSTON [FIRST] COURT OF 7/28/2015 3:14:15 PM
APPEALS
CHRISTOPHER A. PRINE
Clerk
__________________________________________________________
On Appeal from the 269th Judicial District Court Harris County
Cause No. 2011-16459
__________________________________________________________
PHONG TRINH, APPELLANT
V.
FATHA ELMI AND MED SOLUTIONS PHARMACY, INC., APPELLEES
__________________________________________________________
APPELLANT’S REPLY TO MOTION FOR RECONSIDERATION
__________________________________________________________
Paul Simon
State Bar No. 24003276
psimon@shmsfirm.com
Rachel Berkley
State Bar No. 24082684
rberkley@shmsfirm.com
SIMON HERBERT & MCCLELLAND, LLP
3411 Richmond Avenue, Suite 400
Houston, Texas 77046
(713) 987-7100 (Main)
(713) 987-7120 (Fax)
TABLE OF CONTENTS
REPLY ......................................................................................................................1
CERTIFICATE OF SERVICE ..............................................................................5
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TABLE OF AUTHORITIES
Cases
American Recreational Markets General Agency, Inc. v. Hawkins,
846 S.W.2d 476 (Tex. App.—Houston [14th Dist.] 1993, no writ) ......................2
Callejo v. Brazos Elec. Power Coop., 755 S.W.2d 73 (Tex. 1988) ..........................2
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ..........................................2, 3
First State Bank v. Keilman, 851 S.W.2d at 914
(Tex. App.—Austin 1993), writ denied .................................................................2
HCAD v. Riverway Holdings, L.P., 2011 WL 529466
(Tex. App.—Houston [14th Dist.] 2011, pet. denied) ...........................................3
Hunter v. Ford Motor Co., 305 S.W.3d 202
(Tex. App.—Waco 2009, no pet.) .........................................................................3
Morton v. Johnston, 1998 WL 713679
(Tex. App.—Houston [1st Dist.] Aug. 20, 1998, no pet.) .....................................3
Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195
(Tex. 2004) .............................................................................................................1
National Plan Admins., Inc. v. Nat’l Health Ins. Co.,
150 S.W.3d 718 (Tex. App.—Austin 2004) ..........................................................2
National Plan Admins., Inc. v. Nat’l Health Ins. Co.,
235 S.W.3d 695 (Tex. 2007)..................................................................................2
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REPLY
Appellees’ Response essentially makes the main point in Trinh’s Motion for
Reconsideration. Not because of what it says, but because of what it doesn’t. Its
brief cites nothing which would have allowed the jury, after it found Appellees
breached the contract, to award damages zero Trinh based on Trinh’s alleged
failure to perform. And for good reason: the law in Texas is well-settled that, once
one party breaches a contract, the other party is excused from further performance.1
Furthermore, Appellees did not ask the trial court to instruct the jury on
Trinh’s alleged failure to perform the contract, and they do not now challenge the
jury’s finding that they breached the contract. More importantly insofar as Trinh’s
―main point‖ is concerned, there is nothing which suggests Trinh’s performance
was due before Appellees’ breach.2 Accordingly, there is no evidence upon which
the jury could have concluded that Trinh failed to perform any of his obligations
under the parties’ agreement.
1
Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004).
2
The evidence Appellees point to does not suggest Trinh was required to pay $30,000 before
Appellees’ breach, and at the end of that line of cross-examination, Trinh testified that the parties agreed
he was not required to pay more than $10,000 until after the parties signed a written agreement. R.R. Vol.
3, 53: 10–25. This testimony is corroborated by Mitzi Rivero, the attorney Appellees hired to memorialize
the parties’ agreement. Her contemporaneous notes from her initial meeting with Elmi and Trinh show
that she planned to draft a promissory note, secured by Trinh’s stock, which Elmi would hold until Trinh
paid 100% of the total $30,000 buy-in. R.R., Vol. 3: 225:16 – 227:21. See also Exhibit 13, R.R., Vol. 2:
12–19. Rivero’s trial testimony was consistent with her contemporaneous notes from that initial meeting.
R.R. Vol. 3, 228:22 – 229:2. But, before Rivero drafted these agreements, Elmi told her to stop working
on them, and shortly after that, she ousted Trinh. Appellees did not controvert this evidence. Hence, the
jury could not have found Trinh was required to complete his buy-in after Appellees’ breach.
And, because Appellees did not plead or prove any failure by Trinh to
perform any aspect of the agreement, and the fact that the evidence of damages
could have been—but was not—controverted, the jury was not free to ignore the
range of damages to which Trinh’s expert testified. So, Appellees distract from the
main point and argue Trinh ―attacks the prior precedents,‖ when that simply is not
true.
Whether American Recreational3 was correctly decided based on evidence
not supplied in that opinion or wrongly decided is not relevant to this appeal. What
is relevant is that none of the cases cited in the Opinion hold that a jury may ―leap
outside the evidence.‖ Rather, the law is settled that juries must decide cases on the
evidence presented (and reasonable inferences drawn from that evidence), and
when it comes to damages, it must award those damages when the evidence could
have been readily controverted but was not,4 particularly when, as here, the
evidence of damages required expert testimony.5 Yet, this jury awarded no
3
American Recreational Mrkts. Gen. Agency, Inc. v. Hawkins, 846 S.W.2d 476 (Tex. App.—
Houston [14th Dist.] 1993, no writ).
4
City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005); Callejo v. Brazos Elec. Power Coop.,
755 S.W.2d 73, 75–76 (Tex. 1988); First State Bank v. Keilman, 851 S.W.2d 914 (Tex. App.—Austin
1993, writ denied); National Plan Admins., Inc. v. Nat’l Health Ins. Co., 150 S.W.3d 718, 740 (Tex.
App.—Austin 2004), rev’d on other grounds, 235 S.W.3d 695 (Tex. 2007).
5
HCAD v. Riverway Holdings, L.P., 2011 WL 529466, *4 (Tex. App.—Houston [14th Dist.] 2011,
pet. denied); see also Hunter v. Ford Motor Co., 305 S.W.3d 202, 206 (Tex. App.—Waco 2009, no pet.)
(quoting extensively from City of Keller, 168 S.W.3d at 819–20); Morton v. Johnston, 1998 WL 713679,
*5 (Tex. App.—Houston [1st Dist.] Aug. 20, 1998, no pet.).
-2-
damages even though the undisputed evidence proved Trinh suffered actual
economic damages.
Appellees chose to defend a single issue—liability—and lost 12 to zero. The
only way around the problem Appellees now face is to misrepresent the state of the
evidence presented to the jury. But, what is clear is Appellees cite nothing where
they plead Trinh’s failure to perform (such as a defense or a condition precedent)
and nothing in the record where they presented any evidence in support of that
position (which, incidentally, they did not raise in their appellate brief).6
Accordingly, because the evidence of damages is undisputed, this Court
must reverse and render judgment for Trinh on damages at the lower range of
$554,168. Alternatively, it should reverse and remand for a new trial on damages.
If this Court agrees and renders judgment in favor of Trinh on damages, then this
Court should likewise render on the issue of Trinh’s attorney’s fees. But, to be
perfectly clear, Trinh concedes that, if this Court does not modify its opinion on
damages, then the issue of Trinh’s legal fees must be retried in light of the
reasonableness of the award.
6
The jury found that the parties agreed that Trinh was a 40% owner in the Pharmacy. The jury’s
finding of no damages necessarily means it ignored the undisputed evidence that the Pharmacy’s value
increased after Appellees ousted Trinh. The Pharmacy’s value was evidenced by the undisputed testimony
that just months after Elmi ousted Trinh, she re-sold 10% of the Pharmacy to Ken Taylor for double what
Trinh agreed to pay for his share. R.R., Vol. 7, pt. 2, 84 (Elmi Dep., April 13, 2012, 268:24 – 269:19);
338 (Taylor Dep., Oct. 11, 2013, 9:20-23); 86 (Elmi Dep., April 13, 2012, 276:18 – 277:2). Additionally,
the evidence is undisputed that Elmi took 100% of the distributions from the Pharmacy, despite the jury’s
finding that Trinh was a 40% owner of the Pharmacy. R.R., Vol. 3, 33:18 – 34:3; 100:20–22, 101:8–24,
102:3 – 103:10, 103:14 – 104:6, 104:12–24, 105:16 – 106:1, 106:9-21; 170:22 – 172:23, and 192:9–19.
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Respectfully submitted,
SIMON HERBERT & MCCLELLAND, LLP
By: /s/ Paul Simon
Paul Simon
State Bar No. 24003276
Rachel Berkley
State Bar No. 24082684
3411 Richmond Ave., Suite 400
Houston, Texas 77098
Telephone: (713) 987-7100
Telecopy: (713) 987-7120
ATTORNEYS FOR APPELLANT
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CERTIFICATE OF SERVICE
I hereby certify that, on July 28, 2015, a copy of the foregoing was delivered
in a manner prescribed by the Texas Rules of Appellate Procedure to:
Via Facsimile: (713) 783-0787
Scott Khoa Bui
Bui & Nhan, PLLC
3921 Ocee
Houston, Texas 77063
/s/ Paul Simon
Paul Simon
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