ACCEPTED
01-15-00681-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/25/2015 8:38:06 AM
CHRISTOPHER PRINE
CLERK
CASE NO. 01-15-00681-CV
IN THE FIRST COURT OF APPEALS
AT HOUSTON, TEXAS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
CHI TRUC HOANG 11/25/2015 8:38:06 AM
Appellant CHRISTOPHER A. PRINE
Clerk
vs.
TREVOR GILBERT AND JORJA GILBERT
Appellees
Appealed from the 334TH Court of Appeals
of Harris County, Texas
APPELLANT CHI TRUC HOANG’S BRIEF
Mynde S. Eisen
State Bar No. 06503950
Law Office of Mynde S. Eisen, P.C.
P. O. Box 630749
Houston, Texas 77263
(713) 266-2955
(281) 343-1089
wyndeeisen@sbcglobal.net
Gary Cerasuolo
State Bar No. 00789927
Smith & Cerasuolo, LLP
7500 San Felipe, Suite 410
Houston, Texas 77063
(713) 787-0003
(713) 782-6785 (fax)
gary.cerasuolo@sbcglobal.net
ATTORNEYS FOR APPELLANT
CHI TRUC HOANG
APPELLANT REQUESTS ORAL ARGUMENT
CASE NO. 01-15-00681
IN THE FIRST COURT OF APPEALS
AT HOUSTON, TEXAS
CHI TRUC HOANG
Appellant
vs.
TREVOR GILBERT AND JORJA GILBERT
Appellees
Appealed from the 334TH Court of Appeals
of Harris County, Texas
APPELLANT CHI TRUC HOANG’S BRIEF
IDENTITY OF PARTIES & COUNSEL
Appellant: Chi Truc Hong
Appellant’s Counsel: Mynde S. Eisen
State Bar No. 06503950
Law Office of Mynde S. Eisen
P.O. Box 630749
Houston, Texas 77263
(713) 266-2955
(281) 343-1089 (fax)
email: wyndeeisen@sbcglobal.net
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Gary Cerasuolo
State Bar No. 00789927
Smith & Cerasuolo, LLP
7500 San Felipe, Suite 410
Houston, Texas 77063
(713) 787-0003
(713) 782-6785 (fax)
gary.cerasuolo@sbcglobal.net
Appellees: Trevor Gilbert and Jorja Gilbert
Appellee’s Counsel: Dana LeJune
State Bar No. 12188250
6526 Washington Avenue, Suite 300
Houston, Texas 77007
(713) 942-9898
(713) 942-9899 (fax)
dlejune@triallawyers.net
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TABLE OF CONTENTS
IDENTITY OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT ON ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
I. The District Court Erred in Granting Appellees’ JNOV and
Awarding Hoang Nothing in Contravention of the Jury
Verdict (Issue No. 1 Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Claims Against Hoang were Subject to the
Release and Hold Harmless Provision of the
Acceptance Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1. Hoang is a Third Party Beneficiary to
the Acceptance Agreement . . . . . . . . . . . . . . . . . . . . . . 13
2. Appellees Waived Any Argument that
Hoang is Not Protected by the Release
and Hold Harmless Provisions of the
Acceptance Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 14
B. Attorney’s Fees are Damages Under General Hold
Harmless Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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C. Appellees’ Argument that Hoang Cannot Recover
Attorney’s Fees Under Tex. Civ. Prac. & Rem. Code
§38.001 is Misplaced and Not Relevant . . . . . . . . . . . . . . . . . 19
D. The Jury Determined Reasonableness of Attorney’s
Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
E. The Express Negligence Doctrine Does Not Preclude
Enforcement of the Hold Harmless Provision . . . . . . . . . . . . 20
1. The Express Negligence Doctrine Is
Not Applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2. Appellees’ Waived Any Arguments
that the Hold Harmless Clause Was Not
Conspicuous or Did Not Provide Fair
Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
II. The Trial Court Erred by Refusing to Submit Hoang’s Question
on Breach of Contract Damages (Issue No. 2 Restated) . . . . . . . . . . 23
A. Hoang Properly Submitted Her Breach of Contract
Damage Question and the Court’s Refusal To
Submit It to the Jury was Error . . . . . . . . . . . . . . . . . . . . . . . . 25
B. Hoang’s Attorney’s Fees as Damages is a Deemed
Finding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
III. The District Court Erred in Failing to Award Attorney’s
Fees under the Declaratory Judgment Act (Issue No. 3
Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
A. Hoang was entitled to Attorney’s Fees under Tex.
Civ. Prac. & Rem. Code §37.009 . . . . . . . . . . . . . . . . . . . . . . 30
B. Hoang’s Declaratory Judgment Action was Properly
Pled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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C. An award of Attorney’s Fees to Hoang is Equitable
and Just . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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INDEX OF AUTHORITIES
Cases
Adams v. First Nat'l Bank of Bells/Savoy
154 S.W.3d 859 (Tex. App.-Dallas 2005, no pet.) . . . . . . . . . . . . . . . . . . 31
Approach Resources I, L.P. v. Clayton
360 S.W.3d 632 (Tex. App.–El Paso 2012, no writ) . . . . . . . . . . . . . . . . .34
AVCO Corp., Textron Lycoming Reciprocating Engine Div.of
AVCO Corp. v. Interstate Southwest, Ltd.
251 S.W.3d 632 (Tex. App.–Houston [14 Dist.] 2007, writ denied) . . 37-38
Bocquet v. Herring
972 S.W.2d 19 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31, 34
Cap Rock Elec. Co-op., Inc. v. Texas Utilities Elec. Co.
874 S.W.2d 92 (Tex. App. – El Paso 1994, no pet.) . . . . . . . . . . . . . . . . . . 34
Chubb Lloyds Ins. Co. of Texas v. Andrew's Restoration, Inc.
323 S.W.3d 564 (Tex. App.–Dallas,2010) aff’d in part,
rev’d in part 364 S.W.3d 817 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . 26
Crimson Exploration, Inc., v. Intermarket Management, LLC.
341 S.W.3d 432, (Tex. Civ. App.–Houston [1st Dist]
2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15, 18, 19
Cruz v Andrews Restoration, Inc.
364 S.W.3d 817 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Dallas Mkt Ctr. Dev. Co. v Liedeker
958 S.W. 2d 382 (Tex. 1987) overruled on other grounds
46 S.W.3d 829 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
DiGiuseppe v Lawler
269 S.W.3d 588 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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District Judges of Collin County v. Commissioners Court of Collin County
677 S.W.2d 743 (Tex. App.—Dallas 1984, writ ref'd n.r.e.) . . . . . . . . . . . 33
Dresser Industries, Inc. v. Page Petroleum, Inc.
853 S.W.2d 505 (Tex. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21, 22, 23
Ellis v. Woods
453 S.W.2d 509 (Tex. Civ. App.—El Paso 1970, no writ) . . . . . . . . . . . . . 22
Ethyl Corp. v. Daniel Constr. Co.
725 S.W.2d 705 (Tex.1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Flagship Hotel, Ltd. v. City of Galveston
117 S.W.3d 552 (Tex. Civ. App-Texarkana 2003, writ denied) . . . . . . . 31
Fort Bend Cty. Drainage Dist. v. Sbrusch
818 S.W.2d 392 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Frost v. Sun Oil Co. (Delaware)
560 S.W.2d 467 (Tex. Civ. App.—Houston [1st Dist.]
1977, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Garcia v. Sky Climber, Inc.
470 S.W.2d 261(Tex. Civ. App.–Houston [1st Dist]
1971, writ ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 16, 17, 18
Gulf States Utilities Co. v. Low 28
79 S.W.3d 561 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
Hartman v. Sirgo Operating, Inc.
863 S.W.2d 764 (Tex.App.-El Paso 1993, writ denied) . . . . . . . . . . . . . . . 32
Housing Authority of the City of Harlingen v. Valdez
841 S.W.2d 860 (Tex.App.—Corpus Christi 1992, writ denied) . . . . . . . . 33
James v. Hitchcock Indep. School Dist.
742 S.W.2d 701 (Tex. App.—Houston [1st Dist.] 1987, writ denied) . 32-33
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In the Interest of JFC, ABC, & MBC
96 S.W.3d 256 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Johnson v. Johnson
869 S.W.2d 490 (Tex.App.-Eastland 1993, writ denied) . . . . . . . . . . . . . . 27
Keystone Equity Management v Thoen
30 S.W.2d 339 (Tex. App-Dallas, 1987, no writ) . . . . . . . . . . . . . . . . . . . . 16
Little Rock Furniture Mfg. Co. v. Dunn
148 Tex. 197, 222 S.W.2d 985 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Mancorp., Inc., v. Culpepper
802 S.W.2d 226 (Tex. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Mem’l Med Ctr. of E. Tex v Keszler
943 S.W.2d 433 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Monical & Powell, Inc. v. Bechtel Corporation
404 S.W.2d 911 (Tex. Civ. App-Eastland 1966,
writ ref’d n.r.e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18
Ohio Oil Company v Smith
365 S.W.2d 621 (Tex. 1963) . . . . . . . . . . . . . . . . . . . . . . . 10, 16, 17, 18, 21
Owen Elec. Supply, Inc. v. Brite Day Constr., Inc.
821 S.W.2d 283 (Tex. App.—Houston [1st Dist.] 1991,writ denied) . . . . 34
Patch v. Amoco Oil Co.
845 F.2d 571 (5th Cir.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
Purvis Oil Corp. v. Hillin
890 S.W.2d 931 (Tex. App.–El Paso 1994, no pet.) . . . . . . . . . . . . . . . . . . 34
Ridge Oil Company, Inc. v Guinn Investments, Inc.
148 S.W.3d. 143 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 34
Salinas v. Rafati
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948 S.W.2d 286 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Schlumberger Technology Corp. v. Swanson
959 S.W.2d 171 (Tex.1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Shearson Lehman Hutton, Inc. v. Tucker
806 S.W.2d 914 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.) . . . . 29
Spencer v. Eagle Star Ins., Co.
876 S.W.2d 154 (Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Stark v. Benckenstein
156 S.W.3d 112 (Tex. App.–Beaumont 2004, pet. denied) . . . . . . . . . . . . 32
State Farm Life Ins. Co., v. Beaston
907 S.W.2d 430 (Tex. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Tamez v Southwestern Motor Transport, Inc.
155 S.W.3d 564 (Tex. App-San Antonio 2004, no pet.) . . . . . . . . . . . . . . . 14
T. J. Kline, Inc. v DAG Management, Inc.
1995 WL500298 (Tex. App.-Dallas 1995, no writ) . . . . . . . . . . . . . . . . . . 16
Tri v J.T.T.,
162 S.W.2d 552 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Torrington Co. v Stutzman,
46 S.W.3d 829 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Vera v. North Star Dodge Sales, Inc.
989 S.W.2d 13 (Tex. App.–San Antonio1998, no pet.) . . . . . . . . . . . . . . . 23
Washington v. Reliable Life Ins. Co.
581 S.W.2d 153 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-x-
Wilson v. Remmel Cattle Co.
542 S.W.2d 938 (Tex. App.-Amarillo 1976, writ ref'd n.r.e.) . . . . . . . . . . 29
Womble v. Atkins
160 Tex. 363, 331 S.W.2d 294 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Statutes
Tex. Civ. Prac. & Rem. Code § 37.001 et seq . . . . . . . . . . . . . . . . . . . . . . . . 1,9, 31
Tex. Civ. Prac. & Rem. Code § 37.004(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Tex. Civ. Prac. & Rem. Code §37.009 . . . . . . . . . . . . . . . . . . . . . vi, 11, 30, 33, 38
Tex. Civ. Prac. & Rem. Code §38.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . v, 15, 19
Rules
Tex. R. App. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Tex. R. App. P. 39.1(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tex. R. Civ. P. 276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Tex. R. Civ. P. 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15, 28
Tex. R. Civ. P. 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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STATEMENT OF THE CASE
The appeal in this case involves the narrow issue of whether the District Court
erred by granting Appellees Trevor Gilbert’s and Jorja Gilbert’s (collectively
“Appellees” or “Gilbert”) Motion for Judgment Non Obstante Verdicto (the “JNOV”)
after the jury awarded Appellant Chi Truc Hoang (“Hoang” or “Appellant”) $230,000
damages in the form of attorney’s fees for breach of a hold harmless agreement. The
jury returned its verdict finding (1) that Hoang was not liable to Appellees for any of
the Appellees’ claims against Hoang and (2) that Appellees breached the hold
harmless agreement. The jury then awarded Hoang $230,000 for her attorney’s fees
which she incurred as damages under the hold harmless agreement. Appellees then
filed their JNOV. Appellees’ argument in the JNOV centered solely on the issue that
no separate jury issue was submitted for damages and attorney’s fees were not
recoverable as damages. Hoang filed her response opposing the JNOV since
Appellees were not entitled to judgment as a matter of law because attorney’s fees are
damages under hold harmless indemnity agreements. Alternatively, Hoang argued
that since the jury found a breach of the hold harmless agreement and found
reasonable attorney’s fees, she was entitled to attorney’s fees under her claims
pursuant to Tex. Civ. Prac. & Rem. Code §37.001 et seq (the “Texas Declaratory
-1-
Judgment Act”). The Trial Court granted the JNOV and entered a take nothing
judgment in favor of Appellees. It is from this judgement that Hoang appeals.
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STATEMENT OF ORAL ARGUMENT
The Court should grant oral argument for the following reasons:
a. Oral argument would give the Court a more complete
understanding of the facts presented in this appeal. Tex. R.
App. P. 39.1(c).
b. Oral argument would allow the Court to better analyze the
complicated legal issues presented in this appeal. Tex. R. App. P.
39.1(c).
c. Oral argument would significantly aid the Court in deciding this
case.
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ISSUES PRESENTED FOR REVIEW
ISSUE NO. 1
THE DISTRICT COURT ERRED IN GRANTING APPELLEES’
JNOV AND AWARDING HOANG NOTHING IN
CONTRAVENTION OF THE JURY VERDICT
ISSUE NO. 2
THE DISTRICT COURT ERRED IN REFUSING TO SUBMIT
HOANG’S QUESTION ON DAMAGES TO THE JURY
ISSUE NO. 3
THE DISTRICT COURT ERRED IN FAILING TO AWARD
ATTORNEY’S FEES UNDER THE DECLARATORY JUDGMENT
ACT
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STATEMENT OF FACTS
Appellees brought suit against Hoang. Anh Van Dang and Hong Bich Chau
(collectively “Chau” or “Seller”) for violations of the Deceptive Trade Practices Act,
fraud, statutory fraud and civil conspiracy to commit fraud arising out of the purchase
of a piece of property in Harris County, Texas (the “Property”). CR 105-107. Chau
was the seller of the Property and Hoang was the real estate agent for the Seller. CR
23-31, RR 35-37.
Appellees’ claims against Hoang centered solely on the argument that Hoang
failed to disclose and/or misrepresented material information about the condition of
the Property which Appellees claim Hoang had gained from her knowledge as the real
estate agent for the Seller. CR 105-107. Hoang brought counterclaims for (1) breach
of a hold harmless agreement that was signed by Appellees at closing which was part
of the Acceptance of Title and Closing Agreements (“Acceptance Agreement”) and
(2) for a declaratory judgment seeking to establish that the hold harmless provision
in the Acceptance Agreement released Hoang from any liability. CR 156-165.
Appellees do not dispute signing the Acceptance Agreement. The Acceptance
Agreement clearly stated that Appellees “acknowledge that neither the Real Estate
Agent(s) or Broker(s) . . . have made any warranties or representations as to the
condition of the above referenced property . . . and accordingly the undersigned
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Purchasers release and hold them harmless from any and all liability in regard to
the same.” SCR at 266.
Since the breach of the hold harmless agreement was the act of Appellees suing
Hoang, the only damages that Hoang could claim in her counterclaims were the her
costs to defend herself against the actions of the Appellants who had agreed to hold
her harmless under the Acceptance Agreement. These damages constituted her
attorney’s fees. CSR at 266. RR 41-42, RR11.
The case was tried to a jury in November 2014. At the jury charge conference,
Hoang requested and submitted a standard form breach of contract question, a
standard form breach of contract damages question, and a standard form reasonable
and necessary attorney’s fees question, all from the Texas Pattern Jury Charge. Due
to the fact that Appellees had sued Hoang for fraud, Hoang’s questions were
conditioned upon the jury’s finding that Hoang was not liable to Appellees on any of
their causes of action against her. Because Hoang’s breach of contract question was
conditioned on findings of no liability by Hoang, the only damages arising from the
hold harmless obligation were attorney’s fees.
The Trial Court submitted the conditioned breach of contract question and the
reasonable and necessary attorney’s fees question to the jury, but refused to submit the
breach of contract damages question. The Trial Court refused the submission of the
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breach of contract damage question because the only damages, if any, arising from the
hold harmless obligation were Hoang’s cost of defense, i.e. her attorney’s fees.
Therefore, the Trial Court concluded that a question on the amount of reasonable and
necessary attorney’s fees was sufficient to establish Hoang’s damages. CR 306-339;
RR Vol.3 at 5, Vol. 4 at 15:16. Hoang’s counsel objected on the record to the Trial
Court’s refusal to submit the contract damages question. RR Vol. 3 at 53. The Trial
Court overruled the objection for the reason that the attorney’s fee question submitted
would cover the damages for the breach of contract cause of action damages. CR 406;
RR Vol3 at 53; RR Vol. 4 at 15-16. The Trial Court property submitted the question
as to whether the Appellees breached the Acceptance Agreement with respect to
Hoang. CR 421-22.
The case was submitted to the jury on November 20, 2014 without the breach
of contract damages question for Hoang. The jury found:
a. Hoang did not engage in any false, misleading or deceptive act or
practice that Appellees relied upon to their detriment and that was
a producing cause of damage to them; and
b. Hoang did not engage in any unconscionable action or course of
action that was a producing cause to Appellees; and
c. Hoang did not commit fraud against Appellees; and
d. Hoang did not commit statutory fraud against Appellees and
e. Hoang was not part of a conspiracy to commit fraud;
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f. Appellees breached the agreement to release and hold Hoang
harmless.
CR 409-413, 418, 421. However, the jury did find that the Seller had committed
fraud and awarded Appellees in excess of 1.2 million in damages against the Seller.
CR 409-413, 415-417, 420
Based on finding that Hoang had not committed any wrongdoing, the jury then
answered the questions approved by the Court with respect to Hoang’s counterclaims
against the Appellees. The Jury found that Appellees failed to comply with the release
and hold harmless agreement. CR 421. The jury also found that a reasonable fee
necessary for the services of Hoang’s attorney was $230,000.00. CR 422.
On November 25, 2014, Appellants filed their JNOV seeking to overrule the
findings of the jury and proposing to award Hoang nothing. CR 436-444. Hoang
filed her response on December 11, 2014. CR 484-499. Appellees’ argument in the
JNOV centered solely on the issue that no separate jury issue was submitted for
damages and attorney’s fees were not recoverable as damages. Hoang filed her
response opposing the JNOV since Appellees were not entitled to judgment as a
matter of law because attorney’s fees are damages under a hold harmless agreement.
Alternatively, Appellees argued that because the jury found a breach of the hold
harmless agreement and found reasonable attorney’s fees, she was entitled to
attorney’s fees under her claims pursuant to Tex. Civ. Prac. & Rem. Code §37.001 et
-8-
seq (the “Texas Declaratory Judgment Act”). On May 11, 2015, this Court entered a
judgment overruling the Jury’s findings and entering a Judgment awarding a take
nothing in favor of Appellants against Hoang. CR 501; CR 507-08.
Hoang filed her Motion for New Trial on June 9, 2011 which was overruled by
operation of law. Hoang filed her Notice of appeal. CR 509-510.
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SUMMARY OF ARGUMENT
The Trial Court improperly granted Appellees’ JNOV because Appellees were
not entitled to recover as a matter of law because Hoang’s attorney’s fees which the
jury found constituted damages. Under hold harmless agreements, a party can recover
her costs of defending the lawsuit as damages. See Crimson Exploration v.
Intermarket Management, LLC, 341 S.W.3d 432 (Tex. Civ. App.-Houston [1st Dist.]
2010, no pet.). Attorney’s fees and expenses are recoverable under general “hold
harmless” indemnity agreements even though they do not expressly provide for legal
fees and expenses. See Ohio Oil Co. v. Smith, 365 S.W.2d 621, 623 (Tex. 1963);
Garcia v. Sky Climber, Inc., 470 S.W.2d 261, 269-70 (Tex. Civ. App.-Houston [1st
Dist.], writ ref’d). Since the only damages incurred by Hoang could be her attorney’s
fees, the submission of the attorney’s fee questions and the jury’s finding was proper.
Therefore, Hoang was entitled to the judgment against Appellees for the $230,000 as
found by the jury.
Alternatively, if the Court finds that a separate damages was necessary, the
Court erred in not submitting the question to the jury over Hoang’s objection. The
Trial Court found the separate damages question to be duplicative and refused to
submit it to the jury. Since Hoang did submit a jury question on contract damages and
the Court refused the submission, the issue that attorney’s fees are damages is a
“deemed finding” and the Court can enter a finding as such. See Tex. R. Civ. P. 279.
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The Trial Court also abused its discretion by not granting Hoang her attorney’s
fees under Tex. Civ. Prac. & Rem. Code §37.009. Hoang properly pled her cause of
action under Tex. Civ. Prac. & Rem. Code §37.009. The jury found the reasonable and
necessary attorney’s fees incurred by Hoang were $230,000. The fees were equitable
and just in light of the circumstances of this case. Appellees, through counsel in
closing argument, admitted that they had brought suit in this case against at least two
other parties, whom they did not believed did anything wrong, but had insurance or
were a source of funds for the lawsuit. Hoang was sued for exactly the same reason.
Appellee’s and Appellees’ counsel’s conduct of suing innocent people just to fund
their lawsuit justifies the award of attorney’s fees under the equitable and just
standard. Further, Appellees’ signing of a hold harmless agreement and then initiating
suit against the very party that they agreed to hold harmless justifies attorney’s fees
under the equitable and just standard. Furthermore, Appellees were awarded in excess
of $1,2 million in damages , including treble damages for which they now own a
judgment against the Seller for that amount. The award of attorneys’ fees as damages
against Appellees will not impose the same type of financial burden on Appellees as
in the typical case of a since losing plaintiff and a single prevailing defendant. Under
these circumstances, the award of attorneys fees to Hoang under Tex. Civ. Prac. &
Rem. Code §39.001 is just and equitable and the Court erred in not doing so.
-11-
ARGUMENT AND AUTHORITIES
I. THE DISTRICT COURT ERRED IN GRANTING APPELLEES’ JNOV
AND AWARDING HOANG NOTHING IN CONTRAVENTION OF THE
JURY VERDICT (Issue No. 1 Restated)
A motion for judgment notwithstanding the verdict should not be granted by a
court unless a directed verdict would have been proper. Tex. R. Civ. P. 301. See Fort
Bend Cty Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). A motion for
judgment notwithstanding the verdict cannot be granted unless the evidence is
conclusive, and one party is entitled to recovery as a matter of law. Mancorp., Inc. v.
Culpepper, 802 S.W.2d 226, 227-28 (Tex. 1990). Appellees were not entitled to
judgment as a matter of law in contravention of the damages awarded by the jury.
Furthermore, a jury’s answers to a question should only be disregarded if (1) the jury
question was improperly submitted, (2) even though properly submitted the jury
question was rendered immaterial by other findings, or (3) the findings cannot change
the effect of the verdict. See Salinas v Rafati, 948 S.W.2d 286, 288 (Tex. 1997);
Spencer v. Eagle Star Ins., Co., 876 S.W.2d 154, 157 (Tex. 1994).
As shown below, Appellees cannot show that the question upon whch the jury
found in favor of Hoang was improperly submitted. The primary argument raised by
Appellees in their JNOV was the assertion that there was not a separate question of
actual damages, apart from the findings on attorney’s fees submitted to the jury and
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that attorney’s fees are not recoverable as damages. Appellees never raised this
objection at the charge conference, nor did they challenge the attorney’s fees question
as submitted. Even if they had raised this objection, as shown below, the question on
damages was properly submitted. Alternatively, to the extent the question on damages
was not properly submitted, this Court can either award damages based on the deemed
findings or remand the case to the Trial Court solely to make a determination
regarding the proper damages to be awarded as a result of Appellees’ breach of the
hold harmless provision.
A. Claims Against Hoang were Subject to the Release and Hold
Harmless Provision of the Acceptance Agreement.
1. Hoang is a Third Party Beneficiary to the Acceptance Agreement
The Acceptance Agreement, which was agreed to and signed by Appellees at
closing stated that Appellees “acknowledge that neither the Real Estate Agent(s) or
Broker(s) . . . have made any warranties or representations as to the condition of the
above referenced property, or as to the requirements of the parties under their contract
of sale, and accordingly the undersigned Purchasers release and hold harmless from
any and all liability in regard to the same”. SCR at 266.
Under Texas law, releases are effective against named parties to the release or
parties described with such particularity that their identity is not in doubt.
Mem’l Med Ctr. of E. Tex v. Keszler, 943 S.W.2d 433, 434 (Tex. 1997)(Emphasis
-13-
added.) In this case, it is undisputed that Hoang was the real estate agent for the
Chau, the Seller and that Appellees were aware at all times that Hoang was the real
estate agent for Chau. Indeed, Appellees claims in this lawsuit relate to alleged failure
to disclose and/or misrepresentations to Appellees by Hoang and the Seller. Because
Hoang’s identity was never in doubt, Hoang was protected by the release and hold
harmless agreement in the Acceptance Agreement.
Furthermore, a release agreement, valid on its face is a complete bar to any
action based on matters covered by the release, unless the release is set aside. Tamez
v. Southwestern Motor Transport, Inc., 155 S.W.3d 564, 569-71 (Tex. App-San
Antonio 2004, no pet.) Hoang is a third party beneficiary who suffered actual
damages in having to defend against a suit in which Appellees had clearly agreed to
release and hold Hoang harmless.
2. Appellees Waived Any Argument that Hoang is Not Protected by the
Release and Hold Harmless Provisions of the Acceptance Agreement
Finally, any argument by the Appellees that Hoang was not protected by the
release and hold harmless provisions of the Acceptance Agreement were waived by
Appellees. Appellees neither submitted, nor requested the subnmission of any
questions on whether an agreement existed between them and Hoang with respect to
the release and hold harmless obligations. Failure to submit a jury issue waives the
argument. Tex. R. Civ. P. 279; Washington v. Reliable Life Ins. Co., 581 S.W.2d 153,
-14-
156-157 (Tex. 1979). By their failure to submit any issue, Appellees have waived this
argument.
B. Attorney’s Fees are Damages Under General Hold Harmless
Agreements
Appellees argued that Hoang cannot recover attorney’s fees as damages and that
attorney’s fees are not damages under Tex. Civ. Prac. & Rem. Code §38.001. Hoang
disagrees that the attorney’s fees cannot be recovered as damages in circumstances
that exist in the present case. Furthermore, Hoang was not seeking her attorney’s fees
under under Tex. Civ. Prac. & Rem. Code §38.001, but rather Hoang was seeking
her attorney’s fees as damages for breach of a hold harmless agreement. Under the
hold harmless agreement and circumstances in the present case, the only damages
Hoang could have sustained was her cost of defending the lawsuit, i.e. her attorney’s
fees which are recoverable as damages under Texas law. Therefore, Texas courts have
held that attorney’s fees are awarded as damages under “hold harmless” indemnity
provisions and are not awarded under §38.001. See Crimson Exploration, Inc. 341
S.W.3d at 446.
Under Texas law, an indemnitee may recover the expenses of litigating an
indemnified claim. Monical & Powell, Inc. v. Bechtel Corporation, 404 S.W.2d 911,
914 (Tex. Civ. App-Eastland, 1966, writ ref’d n.r.e); T.J. Kline, Inc. v. DAG
Management, Inc. 1995 WL500298 at 3 (Tex. App.-Dallas 1995, no writ); Keystone
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Equity Management v Thoen, 30 S.W.2d 339, 340 (Tex. App-Dallas, 1987, no writ).
Attorney’s fees and court costs are recoverable under general “hold harmless”
indemnity agreements even though they do not expressly provide indemnity for legal
fees or expenses. Ohio Oil Co., 365 S.W.2d at 623; Garcia, 470S.W.2d 261, 269-70
(Tex. Civ. App-Houston [1st Dist] 1971, writ ref’d). Otherwise an indemnitee would
not be fully protected. Monical & Powell, Inc. 404 S.W.2d at 914; T.J. Kline, 1995
WL500298 at 3.
In Ohio Oil, the Texas Supreme Court reviewed the following two indemnity
provisions:
“15. OHIO INDEMNIFIED:
Ohio shall not be liable or responsible for and Contractor shall save and
hold harmless Ohio from and against any and all claims and damages of
every kind, for injury to or death of any person or persons and for all
damage to loss of property, arising out of or attributed, directly or
indirectly, to the operations of Contractor hereunder. Contractor shall
likewise indemnify Ohio for any or all injury or damage to property
belonging to Ohio for any or all injury or damage to property belonging
to Ohio, arising out of or in connection with or resulting from any and
all acts or omissions of Contractor hereunder.
17. STATUTES TO BE COMPLIED WITH:
(a) Contractor agrees to comply with the Workmen’s
Compensation Act of the State of New Mexico and to pay or cause to be
paid all compensation, medical or hospital bills which may become due
or payable thereunder, and to protect and indemnify Ohio from and
against any and all liability by reason of injury of employees of
Contractor. Contractor shall furnish Ohio with a certificate from the
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State Agency charged with the administration of the Workmen’s
Compensation Act evidencing Contractor’s compliance therewith.
Ohio Oil Co., 365 S.W.2d at 623. The Supreme Court affirmed the trial court’s
decision that the indemnitor was liable for both damages and legal fees and expenses
under these indemnity provisions. Ohio Oil Co., 365 S.W.2d at 623-24. The Court
held that when the indemnitor has agreed to save and hold harmless the indemnitee
from liability for any and all claims and damages, the indemnitee is entitled to recover
from the indemnitor all reasonable expenses incurred in defending the claim asserted
against him. Ohio Oil Co., 365 S.W.2d at 627-28.
Similarly in Garcia, the Court examined the following indemnity provisions.’
3. The lessee [Texas Concrete Silo] . . . agrees. . . to pay all claims and
damages arising from defects in the machinery and equipment . . .
5. . . . lessee agrees to hold . . . [Sky Climber] . . . harmless from any
claim of whatsoever kind or nature. . . This hold harmless agreement
shall encompass any claims arising from either or both personal injury
and property damage . . .
Garcia, 470 S.W.2d at 269. The Garcia court held that these general provisions
including indemnity for legal fees and expenses incurred by the indemnitee. See also
Monical & Powell, 404 S.W.2d at 914 (court held that indemnitee may recover against
the indemnitor for all reasonable expenses in settling the claim against indemnitee).
In the present case, under the Acceptance Agreement, Appellees agreed to hold
harmless Hoang from any liability in regard to claims arising from any alleged
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warranties or representations as to the condition of the subject property. SCR 226.
The claims asserted against Hoang by the Appellees specifically related to purported
warranties and representations by Hoang regarding the condition of the subject
property. CR at 105-107. Therefore, Hoang is entitled to recover her costs and
expenses associated with defending the lawsuit under the hold harmless agreement
which the jury found that Appellees breached. See Ohio Oil Co., 365 S.W. 2d at 627-
78; Garcia 470 S.W.2d at 261; See also Patch v. Amoco Oil Co., 845 F.2d 571, 573
(5th Cir.1988) (indemnitee would not be held “harmless” where it was not found
negligent by jury unless entitled to recover costs of litigation); Monical & Powell, 404
S.W.2d at 914; Crimson Exploration Inc. 341 S.W.2d at 446. (parties are not
precluded from recovering their defense expenses.
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C. Appellees’ Argument that Hoang Cannot Recover Attorney’s Fees
Under Tex. Civ. Prac. & Rem. Code §38.001 is Misplaced and Not
Relevant
Appellees contend that Hoang cannot recover attorney’s fees as damages under
Tex. Civ. Prac. & Rem. Code §38.001. Despite Appellees’ contention, Hoang was not
seeking the attorney’s fees under Tex. Civ. Prac. & Rem. Code §38.001. Hoang was
seeking her damages under the hold harmless agreement.
Attorney’s fees consitute damages under hold harmless agreements. They are
not awarded under Tex. Civ. Prac. & Rem. Code §38.001. Crimson Exploration,
341 S.W.3d at 446. An indemnitee is not required to prove monetary damages
beyond attorney’s fees in order to recover its actual attorney’s fees.
Therefore, Appellees’ contention that Hoang is not entitled to recover her
attorney’ss fees under Tex. Civ. Prac. & Rem. Code §38.001 is inapplicable and not
relevant.
D. The Jury Determined Reasonableness of Attorney’s Fees
Once the jury found that Appellees breached the Acceptance Agreement, Hoang
became entitled to recover her attorney’s fees. Crimson Exploration, 341 S.W.3d at
444 (citing Patch v Amoco Oil Co., 845 F.2d 571, 573 (5th Cir. 1988)). Because
attorney’s fees are within the control of the party seeking indemnification, they are
subject to the reasonablenss test. Id.
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In this case, reasonableness was submitted to the jury and the jury found that
Hoang’s reasonable attorney’s fees were $230,000. CR 421-422. Therefore, Hoang
is entitled to recover $230,000 from Appellees.
E. The Express Negligence Doctrine Does Not Preclude Enforcement of
the Hold Harmless Provision
1. The Express Negligence Doctrine Is Not Applicable
Appellees raised the argument that the hold harmless agreement was not
conspicuous, did not provide fair notice and could not be used to limit Hoang’s
liability for her own negligence. Not only did Appellees waive this defense, but the
express negligence doctrine is not applicable.
If, an indemnity agreement or hold harmless agreement seeks to limit a party’s
liability for its own negligence, the party attempting to limit its liability must give fair
notice and the clause should be conspicuousness. See Dresser Industries, Inc. v. Page
Petroleum, Inc., 853 S.W.2d 505, 507–09 (Tex.1993). Under the express negligence
doctrine, a party who wishes to contractually shift risk from itself for the
consequences of its future negligence must specifically express that intent within the
four corners of an agreement. See Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705,
707–08 (Tex.1987); Dresser Industries, Inc., 853 S.W.2d at 508. Stated generally, the
express negligence doctrine provides that contracts will not be construed so as to
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indemnify a person against his own negligence unless such intention is expressed in
specific terms. Ohio Oil Co., 365 S.W.2d at 624.
Fair notice requirements to indemnity agreements and releases only apply when
such exculpatory agreements are utilized to relieve a party of liability for its own
negligence in advance. Dresser Industries, Inc., 853 S.W.2d at 508. In the present
case, Hoang was not attempting to shift liability for her own negligence. She is not
seeking indemnity for the consequences of her own negligence. No claims of
negligence were brought against Hoang by Appellees or any third parties. No third
parties are seeking any claims against the Appellees that are attributable to the conduct
of Hoang, nor is Hoang seeking to be indemnified for any such claims by any third
parties. Further, Hoang is a third party beneficiary to the Acceptance Agreement.
There was no attempt to shift liability and there is no indemnification for “the
consequences” of a party’s own negligence.
Hoang is seeking recovery due to the conduct of the Appellees who signed the
hold harmless agreement agreeing to indemnify Hoang. Hoang is not utilizing the
hold harmless language to relieve herself from liability for her own negligence,
instead she is utilizing the agreement/release to impose liability upon the Appellees
for their own conduct and breach by their refusal to honor the hold harmless
agreement.
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2. Appellees’ Waived Any Arguments that the Hold Harmless Clause
Was Not Conspicuous or Did Not Provide Fair Notice.
Further, Appellees have waived any argument that the hold harmless clause was
not conspicuous or did not provide fair notice because they never pled this defense nor
presented any evidence.
When a release is interposed and established as a bar against the plaintiff's
action, the plaintiff must plead and obtain findings on any fact issues that will avoid
or invalidate the release. Dresser Industries, Inc. 821 S.W.2d 359, 364-365; Womble
v. Atkins, 160 Tex. 363, 331 S.W.2d 294, 296 (1960); Ellis v. Woods, 453 S.W.2d 509,
510 (Tex. Civ. App.—El Paso 1970, no writ).
In Dresser, the Defendant pled and established the release as an affirmative
defense and obtained a finding that the plaintiff’s representative had the authority to
bind plaintiff to the agreement. Consequently, plaintiff had the burden of obtaining
any finding that would avoid the effect of the release. Since plaintiff did not obtain
a finding that the provision was not conspicuous enough to give fair notice, the
plaintiff waived any defenses that it may have had to the release’s enforcement.
Dresser Industries, Inc, 281 S.W.2d at 364-365.
In the present case Hoang obtained a finding that the Appellees breached the
release. CR 421-22. Appellees did not obtain any finding that the release was not
conspicuous to give fair notice. Further, Appellees did not raise objections with the
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Court to challenge the conspicuousness of the release language or with respect to any
other provision of the agreement. RR Vol. 3 at 48-55. Having made no argument
regarding conspicuousness at trial, Appellees’ arguments as to conspicuous are
waived. See Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 15-17
(Tex.App.–San Antonio,1998, no pet.). See also Tex. R. App. P. 33.1(a).
II. THE TRIAL COURT ERRED BY REFUSING TO SUBMIT HOANG’S
QUESTION ON BREACH OF CONTRACT DAMAGES (Issue No. 2
Restated)
In the case at hand, Appellees agreed to release and hold Hoang harmless
from any and all claims pertaining to the condition of the Property. A “release,” or
“hold harmless agreement,” is a contractual agreement whereby one party assumes
liability inherent in a situation thereby relieving the other party of responsibility.
Dresser Industries, Inc., 853 S.W.2d at 508 (Tex. 1993). Appellees do not dispute
signing the Acceptance Agreement.
Despite Appellees’ agreement to release and hold Hoang harmless and despite
accepting responsibility for any liability pertaining to the condition of the property,
Appellees nevertheless filed suit against Hoang seeking to impose the liability on
Hoang for the condition of the property. This was a clear breach of the terms and
conditions of the Acceptance Agreement by the Appellees. As a direct result of
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Appellees bringing suit against Hoang, Hoang incurred damages in the form of
defense costs in having to defend against Appellees’ claims. RR Vol. 3 at 9-11.
Hoang properly brought and was allowed to bring a claim for breach of contract
by the Appellees for violating the terms and conditions of the Acceptance Agreement.
CR 156-165. Hoang provided evidence at trial on the fees incurred in having to
defend against the suit as a result of Appellees’ violation and breach and was cross
examined on the fees incurred. At the charge conference, Hoang submitted jury
questions on whether the Appellees violated the Acceptance Agreement and what sum
of damages would Hoang be owed as a result of their breach. CR 306-339. The Court
inquired as to the whether the defense costs incurred by Hoang were the actual
damages she was seeking and Hoang concurred that her damages were her costs of
defense. Vol 3 at 53, Vol. 4 at 15-16. The Trial Court found the separate breach of
contract damage question to be duplicative of the attorney’s fees question which was
included in the proposed charge. Therefore, the Trial Court concluded that the
attorney’s fees question would provide for defenses costs as damages. RR Vol.. 3 at
53, Vol 4 at 15-16. However, by accepting Appellees’ JNOV arguments and refusing
to award Hoang damages in accordance with the Jury’s findings, the Trial Court is
now implying that the attorney’s fees question was not sufficient, and that there
should have been a separate breach of contract damage question. Therefore, the Trial
-24-
Court erred in improperly removing and refusing to submit the actual breach of
contract damage question submitted by Hoang in her proposed charge and by failing
to include said question in the final jury charge despite Hoang’s requests to do so.
A. Hoang Properly Submitted Her Breach of Contract Damage Question and
the Court’s Refusal To Submit It to the Jury was Error
A party is entitled to attorney’s fees if it prevails on a cause of action for which
attorney’s fees are recoverable. State Farm Life Ins. Co., v. Beaston, 907 S.W.2d 430,
437 (Tex. 1995). Hoang properly submitted a breach of contract claim for which
attorney’s fees were recoverable. Hoang properly submitted a breach of contract
damage question and an attorney’s fees question as part of her breach of contract
claim. The Court erred in failing to include the damages question, despite including
the attorney’s fees question which awarded the same damages being sought by Hoang
for her actual damages.
It is undisputed that the jury made a finding that the Appellees violated the
Acceptance Agreement thereby entitling Hoang to damages and attorney’s fees.
Appellees’ counsel cross examined Hoang and her attorney with respect to the defense
costs incurred and the jury properly awarded a value based on the evidence presented.
RR Vol. 13 at 9-11. The court erred in failing to include the breach of contract
damage question and has committed further error by failing to accept the findings by
the jury.
-25-
Appellees raised the argument that the award of attorney’s fees to Hoang was
improper because there was no separate findings of actual damages other than
attorney’s fees awarded to Hoang. However, Hoang did submit a jury question on
breach of contract damages and the Court refused the submission, stating since the
only damages that Hoang incurred were the costs of defense, i.e. her attorney’s fees;
therefore, a separate breach of contract damage question was not necessary. RR Vol.
3 at 53, Vol. 4 at 15-16. If such refusal, as shown below, is not a deemed finding, it
would be reversible error. By requesting the question and the Court refusing it on the
record, Hoang preserved the error. See Dallas Mkt Ctr. Dev. Co. v Liedeker, 958 S.W.
2d 382, 386-387 (Tex. 1987) overruled on other grounds Torrington Co. v Stutzman,
46 S.W.3d 829 (Tex. 2000). (Error can be preserved by court stating on the record that
the jury question is refused).
When a trial court omits a jury question, the party who relies on that question
must tender that question in writing in substantially correct form and obtain a ruling
in order to preserve error. Chubb Lloyds Ins. Co. of Texas v. Andrew's Restoration,
Inc., 323 S.W.3d 564, 584 (Tex. App.–Dallas, 2010) aff’d in part, rev’d in part Cruz
v Andrews Restoration, Inc. 364 S.W.3d 817 (Tex. 2012). See Tex. R. Civ. P. 276 See
also Johnson v. Johnson, 869 S.W.2d 490, 492 (Tex. App.-Eastland 1993, writ
denied).
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An oral ruling by a court on a written request will suffice “when the court's
refusal is otherwise clear from the record.” Liedeker, 958 S.W.2d at 387. In Liedeker,
the record reflected that the appellant submitted written requests to the trial judge, the
judge said he would sign them later, and through inadvertence the judge never signed
them. The Supreme court held that the trial court's “statements on the record clearly
preserved [appellant]'s complaint.” Liedeker, 58 S.W.2d at 387.
Similarly, in the present case, Hoang court specifically asked for her actual
breach of contract damage question. CR 318-319, 330-331 The Court refused the
submission stating that since the only damages that Hoang was seeking was her
attorney’s fees, such question was not necessary. RR Vol. 3 at 53, Vol. 4 at 15-16.
The Court did not submit the question, and inadvertently forgot to sign the question
presented to it by Hoang’s counsel. Therefore, Hoang’s question on damages was
preserved.
B. Hoang’s Attorney’s Fees as Damages is a Deemed Finding
Since Hoang did submit a separate question as to breach of contract damages
to the Trial Court, and the Trial Court refused the submission of such question, and
Appellees never objected to the submission of the attorney’s fees and the breach of
contract/release questions, the issue that attorney’s fees are damages is a “deemed
finding. This Court can enter a finding as such.
-27-
Tex. R. Civ. P. 279 provides that when a ground of recovery or defense consists
of more than one element, if one or more of such elements necessary to sustain such
ground of recovery or defense, and necessarily referable thereto, are submitted to and
found by the jury, and one or more of such elements are omitted from the charge,
without request or objection, and there is factually sufficient evidence to support a
finding thereon, the trial court, at any time before the judgment is rendered, can make
and file written findings on such omitted element or elements in support of the
judgment. If no such written findings are made, such omitted element or elements
shall be deemed found by the court in such manner as to support the judgment. Tex.
R. Civ. P. 279.
It is undisputed that the jury awarded Hoang her reasonable and necessary
attorneys’s fees in the sum of $230,000.00. CR 422. The Trial Court could have made
a written finding that such attorney’s fees constituted Hoang’s damages. Even if no
such written findings are made, such omitted element or elements shall be deemed
found by the Trial Court in such manner as to support the judgment. See Gulf States
Utilities Co. v. Low, 79 S.W.3d 561, 564-66 (Tex. 2002).
In Low, the Texas Supreme Court held that “when an incomplete theory is
submitted without complaint, the parties are deemed to have waived a jury trial on the
omitted issue and to have agreed to submit the issue to the trial court. Low, 79 S.W.3d
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at 564. See, e.g., Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 925
(Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.); Wilson v. Remmel Cattle Co., 542
S.W.2d 938, 942 (Tex.App.-Amarillo 1976, writ ref'd n.r.e.); see also Little Rock
Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991 (1949)(holding that
petitioner who did not object to improperly conditioned submission waived right to
a jury answer on the unanswered issue, and the issue must be deemed as having been
answered by the court in such manner as to support the judgment).
More importantly, Appellees against who the issue would be deemed, had an
opportunity to object to the submission of the two jury questions without the damage
question. Appellees did not object. They cannot now complain that the damage
issue was missing since they did not object prior to the submission of such issues. See
DiGiuseppe v Lawler, 269 S.W.3d 588, 599 (Tex. 2008).
If one or more elements is omitted from the charge, then the omitted element
must be deemed found by the trial court in a manner that supports its judgment Tri v.
J.T.T., 162 S.W.2d 552, 558 (Tex. 2005). See also, In the Interest of JFC, ABC, &
MBC, 96 S.W.3d 256, 262-63 (Tex. 2002).
Since Hoang submitted the proper jury question and the jury found the
reasonable and necessary fees, the issue of attorney’s fees as damages is a deemed
-29-
finding and the Trial Court should have entered the judgment in favor of Hoang for
the $230,000.
III. THE DISTRICT COURT ERRED IN FAILING TO AWARD
ATTORNEY’S FEES UNDER THE DECLARATORY JUDGMENT ACT
(Issue No. 3 Restated)
A. Hoang was entitled to Attorney’s Fees under Tex. Civ. Prac. & Rem. Code
§37.009
Hoang brought a cause of action under the Texas Declaratory Judgment Act
(the “Declaratory Judgment Act”) to determine that Appellants had released Hoang
under the hold harmless agreement in the Acceptance Agreement. A court may award
costs and reasonable and necessary attorney’s fees which are equitable and just. Tex.
Civ. Prac. & Rem. Code §37.009. The Court had the discretion to award attorney’s
fees under the Texas Declaratory Judgment Act. Bocquet v. Herring, 972 S.W.2d 19,
20 (Tex. 1998).
The Declaratory Judgment Act imposes four limitations on the Court’s
discretion; 1) that the fees are reasonable; 2) that the fees are necessary; 3) that the
fees are equitable and 4) that the fees are just. The first two limitations, reasonable
and necessary are fact issues which should be decided by the trier of the fact and the
second two limitations, fair and equitable are legal issues that are matters of law to
be decided by the Court. Ridge Oil Company, Inc. v Guinn Investments, Inc.; 148
S.W.3d. 143, 161 (Tex. 2003); Bocquet, 972 S.W.2d at 21.
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In the present case, the Court submitted the issue of reasonable and necessary
fees to the jury to decide. CR 421-422. The jury handed down a verdict that the
reasonable and necessary attorney’s fees for the services of Hoang’s attorney’s was
$230,000. CR 422.
B. Hoang’s Declaratory Judgment Action was Properly Pled
In the present case, Hoang brought an action under Tex. Civ. Prac. & Rem.
Code §37.001 et seq., seeking a declaration that Appellees released Hoang under the
hold harmless agreement in the Acceptance Agreement. The Declaratory Judgment
action was not filed solely as a means to recover attorney’s fees as Appellees argue.
Only when a party brings a declaratory judgment action by way of a counterclaim or
amended petition and the declaratory judgment involves only issues already raised by
the original claim, does Appellees’ argument prevail. See Adams v. First Nat'l Bank
of Bells/Savoy, 154 S.W.3d 859, 873 (Tex.App.-Dallas 2005, no pet.); Flagship Hotel,
Ltd. v. City of Galveston, 117 S.W.3d 552, 556 (Tex. Civ. App-Texarkana 2003, writ
denied). This was simply was not the case in the present case.
Appellees brought claims against Hoang for violations of the Texas Trade
Practices Act, fraud, statutory fraud and conspiracy to commit fraud. Hoang brought
counterclaims for breach of contract, promissory estoppel and an action under the
declaratory judgment act seeking a declaration for interpretation of the Acceptance
-31-
Agreement that Appellees had released Hoang. CR 156-165. Hoang’s counterclaims
under the Declaratory Judgment Act were distinct and separate claims from
Appellees’ claims. Any party may sue and seek a judicial determination of contractual
rights. Stark v. Benckenstein,156 S.W.3d 112, 116 (Tex. App.–Beaumont, 2004, pet.
denied); Hartman v. Sirgo Operating, Inc., 863 S.W.2d 764, 767 (Tex. App.-El Paso
1993, writ denied). A release constitutes a contract. Schlumberger Technology Corp.
v. Swanson, 959 S.W.2d 171, 178 (Tex.1997). Hoang was entitled to request a
determination of questions of construction or validity arising under the Acceptance
Agreement and to obtain a declaration of rights, status, or other legal relations
thereunder. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a); Hartman, 863
S.W.2d at 767.
Appellees’ raised the argument that Appellant’s pleadings were insufficient
which was simply a red herring. There is no particular type of pleading required for
causes of action under the Declaratory Judgments Act. James v. Hitchcock Indep.
School Dist., 742 S.W.2d 701, 704 (Tex. App.—Houston [1st Dist.] 1987, writ
denied). Moreover, pleadings under the Declaratory Judgment Act are to be liberally
construed. Frost v. Sun Oil Co. (Delaware), 560 S.W.2d 467, 473 (Tex. Civ.
App.—Houston [1st Dist.] 1977, no writ). Hoang’s Fifth Amended Answer and
Counter-claim clearly articulated Hoang’s claim for declaratory judgment and her
-32-
rights to attorney’s fees under the Declaratory Judgment Act. See CR 156-165. It is
not necessary for a party moving for attorney's fees in a declaratory judgment action
to specify the statutory authority for such an award in the motion, so long as the party
pled for attorney's fees. Purvis Oil Corp. v. Hillin, 890 S.W2d 931, 939 (Tex. App.-El
Paso 1994, no pet.) See also Cap Rock Elec. Co-Op, Inc. v. Texas Utilities Elec. Co.,
874 S.W.2d 92, 102 (Tex. App. – El Paso 1994, no pet.); Housing Authority of the
City of Harlingen v. Valdez, 841 S.W.2d 860, 868 (Tex. App.—Corpus Christi 1992,
writ denied): District Judges of Collin County v. Commissioners Court of Collin
County, 677 S.W.2d 743, 746 (Tex. App.—Dallas 1984, writ ref'd n.r.e.).
In Purvis Oil Corp, Hillin pled for attorney's fees in its amended answer.
Similarly, Hoang pled for attorney’s fees under §37.009 in her pleadings. Since it was
properly plead, the Court has the discretion to award Hoang her attorney’s fees. See
Purvis Oil, 890 S.W.2d at 939.
-33-
C. An award of Attorney’s Fees to Hoang is Equitable and Just
Equitable and just are questions of law for the Court to decide. Bocquet, 972
S.W.2d at 21. Whether the fees are equitable and just depends, “not on direct proof,
but on the concept of fairness, in light of all the circumstances of the case.” Approach
Resources I, L.P. v. Clayton, 360 S.W.3d 632, 639-640 (Tex.App.–El Paso 2012, no
writ). See also Ridge Oil Co., 148 S.W.3d at 162. The award of attorney’s fees is
within the sound discretion of the court. See Purvis Oil Corp. 890 S.W.2d at 938
citing Cap Rock Elec. Co-op., Inc., 874 S.W. 2d at 101 (an award of attorney's fees
rests in the sound discretion of the trial court, and its judgment will not be reversed
on appeal without a clear showing of abuse of discretion); See also Owen Elec.
Supply, Inc. v. Brite Day Constr., Inc., 821 S.W.2d 283, 288 (Tex. App.—Houston
[1st Dist.] 1991, writ denied).
The Trial Court abused his discretion because under the circumstances and facts
of this case, awarding Hoang her attorney’s fees in this case is equitable and just. The
testimony solicited by the Appellees’ counsel was that Hoang’s attorney’s fees were
equal or close to what he was asking the jury to award him in his case in chief.1
There was no great disparity in the amounts being sought by Hoang. The jury found
1
The jury awarded Appellees’ attorney $205,000 for attorney’s fees and appellate
attorney’s fees of $41,000 and $25,000 making a total award to Appellees’ attorney of $271,000.
C$R 407-427.
-34-
the fees to be reasonable and necessary. As shown below, Hoang only incurred the
fees because, despite having little or no evidence against Hoang, Appellees persisted
in bringing claims against Hoang all the way through trial, despite executing the hold
harmless agreement. Appellees initiated the lawsuit against Hoang based upon alleged
claims of fraud and statutory fraud which were basically frivolous. Appellees,
throughout the trial, presented no evidence to support their allegations. This was
confirmed by the jury findings. Appellees admitted that there had been no
representations or misrepresentations to them by Hoang, having never spoken to her
except to exchange pleasantries at closing. No independent evidence of any of
Appellees’ allegations against Hoang existed, yet Appellees forced her to defend
herself for the better part of three (3) years against their unfounded allegations.
Moreover, Appellees testified throughout the trial that they brought suit against
at least two other parties, Grace Inspection Homes, Inc. and Michael Nguyen, whom
they did not believe did anything wrong, but had insurance or were a source of funds
for the lawsuit. Appellees own attorney admitted in his closing arguments that the
jury should not hold his clients responsible for his advise to sue parties for the sole
purpose that they had were sources of income, not because they were liable in any
manner. RR Vol. 3A 12.
-35-
Appellees although they do not willingly admit it, sued Hoang for exactly the
same reason. Appellees sued Hoang in hopes of getting a judgment that they could
then take against the Texas Real Estate Trust fund, not because they really believed
that she misled them or had knowledge of any of the water damage. Appellees did not
have any knowledge of anything that Hoang knew until several months into the case
when she unequivocally testified that she had no knowledge of any of the alleged
water damage that had occurred when the Seller owned the house. Hoang consistently
took the position that she had no knowledge of any water damage and the jury founder
her to be credible. RR Vol. 2 at 20-21, 30, 37-39. Appellees and Appellees’
counsel’s conduct of suing innocent people just to fund their lawsuit justifies the
award of attorney’s fees under the equitable and just standard. See RR Vol.3A 12.
Despite having executed and willingly entered into the Acceptance Agreement at
closing which contained the release and hold harmless agreement, Appellees persisted
in bringing claims against Hoang. Appellant’s actions cost Hoang at least
$230,000.00 in legal fees as the cost of defense. RR Vol. 15, Ex. 16.
Further, an award of damages against the Appellees will not impose the same
type of financial burden on them or give rise to the same equities as it would in a
typical case involving a single losing plaintiff and single prevailing defendant. In this
case, despite losing on all jury questions involving Hoang, Appellees obtained a
-36-
judgment in excess of $1,200,000, against Chau, the Seller of the subject property.
Having prevailed against Chau, the practical net effect of entering judgment in favor
of Appellee for her attorney's fees would merely reduce Appellees’ collection rights
from approximately $1,200,000 to approximately $1,000,000, after netting out
Hoang’s attorney's fees of $230,000. On the other hand, failing to award Hoang her
attorney's fees leaves her with an attorney's fees obligation of $230,000, despite
favorable jury findings on all causes of action and despite having committed no
wrongdoing and having been released and indemnified by Appellees. Finally, the $1.2
million plus judgment arose from the purchase of a home by Appellees from
defendant Chau for approximately $145,000. CR 31. Appellees' judgment against
Chau included additional damages under the Texas Deceptive Trade Practices Act
which constitute a windfall to Appellees. Awarding Hoang’s out of pocket attorney's
fees against a windfall judgment in favor of Appellees is the only fair and equitable
result.
The jury, as the trier of fact, did not find Hoang guilty of any wrong doing.
More importantly, the jury through their answer affirmed that Appellees not only
agreed to hold Hoang harmless, but actually failed to do so. Awarding Hoang her
attorney’s’ fees’, based on the jury's fact findings, is “equitable and just.” See AVCO
Corp., Textron Lycoming Reciprocating Engine Div. of AVCO Corp. v. Interstate
-37-
Southwest, Ltd., 251 S.W.3d 632, 670 (Tex. App.–Houston [14 Dist.], 2007, writ
denied). Since the jury had found that the attorney’s fees were necessary and
reasonable and the evidence was such that Hoang was released by Appellees, the Trial
Judge abused his discretion by not awarding Hoang her attorney’s fees under Tex.
Civ. Prac. & Rem. Code §37.009.
CONCLUSION AND PRAYER
The Trial Court erred in granting Appellee’s Judgement Non Obstante Verdicto.
Hoang is entitled to recover her attorney’s fees of $230,000 for breach of the hold
harmless agreement. Hoang respectfully requests this Court reverse the judgment of
the trial court and render judgment in her favor for $230,000.00 plus post judgment
interest as allowed by law. Alternatively, this Court should remand the sole issue of
Hoang’s damages under the hold harmless agreement.
Respectfully submitted,
LAW OFFICE OF MYNDE S. EISEN, P.C.
By /s/ Mynde S. Eisen
Mynde S. Eisen
State Bar No. 06503950
P. O. Box 630749
Houston, Texas 77263
(713) 266-2955
(281) 343-1089
wyndeeisen@sbcglobal.net
-38-
and
Gary Cerasuolo
State Bar No. 00789927
Smith & Cerasuolo, LLP
7500 San Felipe, Suite 410
Houston, Texas 77063
(713) 787-0003
gary.cerasuolo@sbcglobal.net
ATTORNEYS FOR APPELLANT
CHI TRUC HOANG
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Appellant’s Brief has been
served on all parties in interest as listed below by ecf transmission and/or by facsimile
and/or by depositing the same in the U.S. mail, certified mail, return receipt requested
on this 25th day of November, 2015.
/s/ Mynde S. Eisen
Dana LaJune
Dana LeJune & Associates
6526 Washington Avenue, Suite 300
Houston, Texas 77007
-39-
CASE NO. 01-15-00681-CV
IN THE FIRST COURT OF APPEALS
AT HOUSTON, TEXAS
CHI TRUC HOANG
Appellant
vs.
TREVOR GILBERT AND JORJA GILBERT
Appellees
Appealed from the 334TH Court of Appeals
of Harris County, Texas
APPELLANT CHI TRUC HOANG’S APPENDIX
Mynde S. Eisen
State Bar No. 06503950
Law Office of Mynde S. Eisen, P.C.
P. O. Box 630749
Houston, Texas 77263
(713) 266-2955
(281) 343-1089
wyndeeisen@sbcglobal.net
Gary Cerasuolo
State Bar No. 00789927
Smith & Cerasuolo, LLP
7500 San Felipe, Suite 410
Houston, Texas 77063
(713) 787-0003
(713) 782-6785 (fax)
gary.cerasuolo@sbcglobal.net
ATTORNEYS FOR APPELLANT
CHI TRUC HOANG
APPELLANT REQUESTS ORAL ARGUMENT
TABLE OF CONTENTS
Tab no. Document Record Cite
1. Trial Court Judgment CR 507-508
2. Order Granting JNOV CR 501
3. Jury Verdict CR 407-427
4. Acceptance of Title
and Closing Agreements SCR 226-228
5. Tex. Civ. Prac. & Rem. Code § 37.001 et seq
6. Hoang’s Proposed Jury Charge 306-339
7. Motion for JNOV CR 434-444
8. Response to JNOV CR 484-499
TABN0.1
.; -
..
Cause No. 201l·S8137A
TREVOR GILBERT and JORJA GILBERT § IN THE DISTRICT COURT
§
~ § HARRIS COUNTY, TE X A S
§
HONG BICH CHAU, et al. § 334rn JUDICIAL DISTRICT
FINAL JUDGMENT
On the l Jl 11 day ofNovember, 2014, Cause No. 2011-58137 was called to trial. All parties
appeared in person and through their attorneys and announced ready for trial. A jury consisting
of twelve good and lawful jurors was duly impaneled and the case proceeded to trial. Testimony
was taken from witnesses and documents were received into evidence. At the conclusion of the
evidence and after all parties rested and closed, the Court prepared its written charge to the jury,
reading of the questions was waived by the parties but the first three pages of the charge were
read to the jury. The jury reached its verdict on November 20, 2014, and found no fraud or
deceptive trade practices on the part of Defendant Chi True Hoang ("Hoang"). The jury also
reached a verdict awarding Chi True Hoang $230,000 against Plaintiffs Trevor Gilbert and Jorga
Gilbert ("Plaintiffs"). On December 12, 2012, this Court entered its order severing all actions
between Plaintiffs and Defendant Hoang into the above-numbered cause. Plaintiffs filed a
Motion for Judgment Non Obstante Veredicto, which was granted by this Court on April 20,
2015. It is, therefore:
ORDERED, ADJUDGED A~D DECREED that Trevor and Jorja Gilbert recover
nothing against Chi True Hoang on their claims against her. It is, further,
ORDERED, ADJUDGED AND DECREED that Chi True Hoang recover nothing
against Trevor Gilbert or Jorja Gilbert. It is, further, FILED
Chrla Dania/
Dl•trlct Clerk
MAY 11 2015
nma:_"ti:ima"&:;::::-=,-.-
Hania Coun.ty. T•••
By;_ _ _ _a;;;;;;;;;---...c;;
l>ep•ly 507§~
ORDERED that all costs of court are adjudged against the party incurring the same, in
light of the mutual take-nothing awards being entered herein. It is, further,
ORDERED that this Judgment adjudicates all claims between Plaintiffs Trevor and
Jorga Gilbert and Defendant Chi True Hoang. All relief not specifically granted herein is hereby
DENIED.
SIGNED this // 14 day of--=-/t(-'--J-1------ 2015.
2
508
TABN0.2
Cause No. 2011-58137A "'
f.t,009.
TREVOR GILBERT and JORJA GILBERT §
§
IN THE DISTRICT COURT
"=>f1 ~x
v. § HARRIS COUNTY, TEXAS
§
HONG BICH CHAU, et al. § 334rn JUDICIAL DISTRICT
ORDER ON TREVOR AND JORJA GILBERT'S MOTION FOR
JUDGMENT NON OBSTANTE VEREDICTO
CAME ON TO BE HEARD Plaintiffs Trevor and Jorja Gilbert's Motion for Judgment
Non Obs/ante Veredicto ("the Motion").
Based upon the submissions and arguments of the.parties, the Court is of the opinion that
the Motion is meritorious and should be GRANTED. It is, therefore,
ORDERED that the Plaintiffs' Motion for Judgment Non Obstante Veredicto is hereby
GRANTED. Plaintiffs are hereby directed to file and set for submission or oral hearing a
proposed Final Judgment respecting the claims between Plaintiffs and Chi True Hoang in this
severed cause number within seven (7) days .
SIGNEDthis
AA.....,.d.-=-=:.._.;,_
2o.(ta dayof-Lr--F . _ _ _ _ _ 2015.
501
TABN0.3
,_ ., .
Ii· .-
4\ •
2011-58137A I Court: 334
CAUSE NO, 2011-58137
ORIGINAL
TREVOR GtLBl<:RT and JORJA GILBERT § IN THE DISTRICT COURT OF 1,\
§
,.. § HARRIS COUNTY, TEX A S
§
HONG BICH CHAU, AHN VAN DANG §
"•• CHI TRUC HOANG and MICHAEL §
~
TRUONG NGUYEN 3341hJUDICIAL DISTRrlr
§ b J .!,
Chl'/11 "'-~ l)
CHARGE OF THE COURT tit,1,1oif:f'"'
h •rh Nov
MEMBERS OF THE JURY: 'hll~O 20/t
~~~
After the closing arguments, you will go 10 1hc jury room to decide the case, ar
""*i ..,~~
questions that are attached and reach a verdict. You may discuss the case with other jurors"~ ly
when you are all together in the jury room.
Remember my previous inslrnctions: Do not discuss the case. with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or conduct
any research. Do not look up any words in dictionaries or on the lnternel. Do not post
information about the case. on the Internet. Do not share any special knowledge or experience
with the other Jurors. Do not use your phone or any other electronic device during your
deliberation$ for any reason.
Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during dellberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your mJtes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.
You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from ycm. I will make sure your notes arc
kept in a safe, secure location and not disclosed to anyone. After you complete your
deliberations, the bailiff will collect your notes. When you are released from jury duty, the bailiff
will promptly destroy your notes so that nobody can read what you wrote.
Here arc the instructions for answering the questions.
l. Do not let bias, prejudice, or sympathy play any part in your decision.
2. Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not
admitted in the courtroom.
3.. You are to make up your own minds about the facts. Yoti arc the sole judges of
the credibility of the witnesses and the weight to give their testimony. But on matters of
law, you must follow all of my instructions.
407
,.
4. If my instructions use a word in a way that is different from its ordinary meaning,
use the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question
or answer is not important.
6. Answer "Yes" or "No" to all .questions unless you are told otherwise. A "Yes"
answer must be based on a preponderance of the evidence. Whenever a question requires
an answer other than "Yes" or "No," your answer m11st be based on a preponderance ol9("".
the evidenc7 u"'-i....- ().) ~ ,.~i.u_ 1,._,,..fn,,o&,... ~
1
The term "preponderance of the evidence" means the greater weight of credible
evidence presented in this case. If you do not find that a preponderance of the evidence supports
a "Yes" answer, then answer ''No." A preponderance of the evidence is not measured by the
number of witnesses or by lhe number of documents admitted in evidence. For a fact to be
proved by a preponderance of the evidence, you must find th.e fact is more likely 1rue than not
true.
A fact may be establii;hed by direct evidence or by circumstantial evidence or both. A
tact is established by direct evidence when proved by documentary evidence or by witnesses
who saw the act done or heard the words spoken. A fact is established by circumstantial evidence
when it may be fairly and reasonably inferred from other facts proved.
7. Do not decide who you think should win before you answer the questions and
then just answer the questions to match your decision. Answer eacl1 question carefully
wilhout considering who will win. Do not discuss or consider the effcet your answers will
have.
8. Do not answer questions by drawing straws or by any method of chance,
9. Some questions might ask you for a dollar amount. Do not agree in advance to
decide on a dollar amount by adding up each juror's amount and then figuring the
average.
I 0. Do not trade your answers. For example, do not say: "I will answer this question
your way if you answer another question my way."
11. Unless otherwise instructed, the answers to the que.~tions must be based on the
decision of at least IO of the 12 jurors. The same IO jurors must agree on every answer.
Do not agree to be bound by a vote of anything less than l Ojurors, even if it would be a
majority.
lf you do not follow these instmctions, you will be guilty of juror misconduct, and I
m.ight have to order a new trial and start this process over again. This would waste your time and
the parties' money, and would require the taxpayers of this county to pay for another trial. If a
juror breaks any of these rules, tell that person to stop and repon it to me immediately.
Depending upon your answers to this Charge, there may be a need to take brief,
additional testimony and for you to deliberate upon additional questions after you have
completed your initial deliberalions.
2
408
QUESTION NO. 1
Did any of the persons named below engage in any false, misleading, or deceptive act or
practice that Trevor and Jorja Gilbert relied on to their detriment and that was a producing cause
of damages to them?
"Producing cause" means a cause that was a substantial factor in
bringing about the damages, if any, and without which the damages would
not have occurred. There may be more than one producing cause.
"False, misleading, or deceptive act or practice" means any of the
following:
1. Representing that real estate had or would have characteristics that
it did not have; or
2. Representing that real estate is or will be of a particular quality if it
was of another; or
3. Failing to disclose information about real estate that was known at
the time of the transaction with the intention to induce the Trevor
and Jorja Gilbert into a transaction they otherwise would not have
entered into if the information had been disclosed.
Answer "Yes" or "No" for each of the following:
a. Ahn Van Dang
Answer: _ _...<'I_,~=-<-
b. Hong Bich Chau
Answer: _ _7'.'.,_e.,."'~~
c. Chi True Hoang
Answer: A/0
3
409
QUESTION NO. 2
Did any of the persons named below engage in any unconscionable action or course of
action that was a producing cause of damages, if any, to Trevor and Jorja Gilbert?
"An unconscionable action or course of action" is an act or practice that,
to a consumer's detriment, takes advantage of the lack of knowledge, ability,
experience, or capacity of the consumer to a grossly unfair degree.
Answer "Yes" or "No" for each of the following:
a. Ahn Van Dang
Answer: Ye7
b. Hong Bich Chau
Answer: le e5
c. Chi True Hoang
Answer: ///0
4
410
Answer Question No. 3 for any of the persons named below only if you answered "Yes" with
respect to that person in either Question No. J or Question No. 2. Otherwise, do not answer the
following question.
QUESTION NO. 3
Did any of the persons named below engage in the conduct that you found in response to
Question Nos. 1 or 2, above, knowingly or intentionally'?
"Knowingly" means actual awareness, at the time of the conduct, of the
falsity, deception, or unfairness of the conduct in question. Actual
awareness may be inferred where objective manifestations indicate that a
person acted with actual awareness.
"Intentionally" means actual awareness of the falsity, deception, or
unfairness of the conduct in question, coupled with the specific intent that
the consumer act in detrimental reliance on the falsity or deception.
Specific intent may be inferred where objective mamfestations indicate
that a person acted intentionally, or may be inferred from facts showing
that the person acted with such flagrant disregard of prudent and fair
business practices that the person should be treated as having acted
intentionally.
In answering this question, consider only the conduct that you have found was a
producing cause of damages to Trevor and Jorja Gilbert.
Answer "Yes" or "No" for each of the following persons, if and as applicable:
Knowingly Intentionally
a. Ahn Van Dang Answer: 'r:'L .P Answer: 4-'es.
b. Hong Bich Chau Answer: '{e.!, Answer; 'r',!;t
c. Chi True Hoang Answer: &/A Answer: &!/A-
5
411
QUESTION NO. 4
Did any of the persons named below commit fraud against Trevor and Jorja Gilbert?
You are instructed that fraud occurs when -
a. a person voluntarily discloses partial infonnation but fails to
disclose the whole truth, or makes a partial disclosure and conveys
a false impression;
b. the party knows that the other party is ignorant of the fact and does
not have an equal opportunity to discover the truth;
c. the party intends to induce the other party to take some action by
failing to disclose the fact; and
d. the other party suffers injury as a result of acting without
knowledge of the undisclosed fact.
You are further instructed that fraud also occurs when -
a. a party makes a material misrepresentation;
b. the misrepresentation is made with knowledge of its falsity or
made recklessly without any knowledge of the truth and as a
positive assertion;
c. the misrepresentation is made with the intention that it should be
acted on by the other party; and
4 the other party relies on the misrepresentation and thereby suffers
injury.
0Ji\)
~-
"Misrepresentation" means a false statement of fact.
Answer "Yes" or "No" for each of the following:
a. Ahn Van Dang
Answer: 4"1!! 5
b. Hong Bich Chau
Answer: 4-'e 7
c. Chi True Hoang
Answer: -~M~=O__
6
412
QUESTION NO. 5
Did any of the persons named below commit statutory fraud against Trevor and Jorja
Gilbert?
You are instructed that statutory fraud occurs when -
a. there is a false representation of a past or existing material fact;
b. the false representation is made to a person for the purpose of
inducing that person to enter into a contract, and;
c. the false representation is relied on by that person in entering into
that contract.
Answer "Yes" or "No" for each of the following:
a. Ahn Van Dang
Answer: t/e_j
b. Hong Bich Chau
Answer: 'l-e- !>
c. Chi True Hoang
Answer: A)t)
7
413
If you answered "Yes" to either Question Nos. 1, 2, 4 or 5 for more than one of those named
below, then answer the following question. Otherwise, do not answer the following question.
Assign percentages of responsibility only to those you found caused or contributed to cause the
occurrence in response to Question Nos. 1, 2, 4 or 5. The percentages you find must total 100
percent. The percentages must be expressed in whole numbers. The percentage of responsibility
attributable to a person or product is not necessarily measured by the number of acts, omissions,
or product defects found. The percentage attributable to any one need not be the same percentage
attributed to that one in answering another question.
QUESTION NO. 6
For each person you found caused or contributed to cause the damages, if any, to Trevor
and Jorja Gilbert, find the percentage ofresponsibility attributable to each:
1. Ahn Van Dang Go %
2. Hong Bich Chau 50 %
3. Chi True Hoang 0 %
4. Trevor Gilbert (;) %
5. Jorja Gilbert 0 %
6. Grace Home Inspection Services CJ %
7. Michael Nguyen 0 %
8
414
.
•
If your answer to Question Nos. I, 2, 4 or 5 was "Yes" for any party, then answer the following
question. Otherwise, do not answer the following question.
QUESTION NO. 7
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Trevor and Jorja Gilbert for their damages, if any, that resulted from such conduct?
In answering questions about damages, answer each question separately.
Do not increase or reduce the amount in one answer because of your
answer lo any other question about damages. Do not speculate about what
any party's ultimate recovery may or may not be. Any recovery will be
determined by the court when it applies the law to your answers at the
time of judgment. Do not add any amount for interest on damages, if any.
You shall not award any sum of money on any element if you have
otherwise, under some other element, awarded a sum of money for the
same loss. That is, do not compensate twice for the same loss, if any.
Do not include in your answer any amount that you find Trevor and Jorja
Gilbert could have avoided by the exercise of reasonable care.
Answer in dollars and cents for damages, if any:
1. The reasonable and necessary cost to repair Trevor and Jorga Gilbert's home.
Consider the reasonable cost in Harris County, Texas, to restore the River Garden
house to the condition it was in immediately before any of the water damaging
events, if any, that occurred on or before October 2, 2009.
Answer:$ ts-o,' oao.. ae,
2. The loss of use of the home in the past.
Consider the reasonable value of the use of a home in the same class as the home
in question.
Answer:$ S41 O oc. Oo
3. Trevor Gilbert's mental anguish in the past:
Answer:$ I
I c,o, ot:,o. oc
$
9
415
..
•
4. Trevor Gilbert's mental anguish in the future:
Answer:$
5. Jorja Gilbert's mental anguish in the past:
Answer:$
6. Jorja Gilbert's mental anguish in the future:
Answer:$
10
416
If you answered any part of Question No. 7 by inserting a dollar amount for any of the persons
named below, then answer the following question for any corresponding person(s) named below.
Otherwise, do not answer the following question.
QUESTION NO. 8
What sum of money, if any, in addition to actual damages, should be awarded to Trevor
and Jorja Gilbert because the conduct was committed knowingly?
Answer with an amount in dollars for each of the following:
a. Ahn Van Dang
Answer:$ 'IJzP, ooo. oo
b. Hong Bich Chau
Answer: $ L/£0 CIOO. O-'
c. Chi True Hoang
Answer: $ ,&/A-
11
417
Answer Question No. 9 for any of the persons named below only if you answered "Yes" with
respect to that person in either Question Nos. 1, 2, 4 or 5. Otherwise, do not answer the fqllowing
question.
QUESTION NO. 9
Were any of the persons named below part of a conspiracy that damaged Trevor and Jorja
Gilbert?
To be part of a conspiracy, one of the persons named below and another
person or persons must have had actual knowledge of, agreed to, and
intended a common objective or course of action that resulted in the
damages to Trevor and Jorja Gilbert. One or more persons involved in the
conspiracy must have performed some act or acts to further the
conspiracy.
Answer "Yes" or "No" for each of the following:
a. Ahn Van Dang
Answer: r"e ::,,
b. Hong Bich Chau
Answer: l/g
c. Chi True Hoang
Answer: A/,/A-
12
418
If you unanimously answered "Yes" to Question No. 5, then answer the following question.
Otherwise, do not answer the following question.
QUESTION NO. 10
Did any of the persons named below have actual awareness of the falsity of the
representation that you found to be fraud in Question No. 5, above?
You are instructed that actual awareness may be inferred where objective
manifestations indicate a person acted with actual awareness.
Answer "Yes" or "No" for each of the following:
a. Ahn Van Dang
Answer:
b. Hong Bich Chau
Answer:
c. Chi True Hoang
Answer:
13
419
Answer Question No. 11 for any of the persons named below only if you answered "Yes" with
respect to that person in either Question Nos. I, 2 or 5. Otherwise, do not answer the following
question.
QUESTION NO. 11
What is a reasonable fee for the necessary services of Trevor and Jorja Gilbert's attorney,
stated in dollars and cents?
Answer with an amount for each of the following:
I. For representation in the trial court.
Answer: $ 2.c:> S-1 OCJ!c7,t?i!>
•
2. For representation through appeal to the court of appeals.
Answer: $ fl? c>Pe. pe>
3. For representation through oral argument and the completion of proceedings in the
Supreme Court of Texas.
Answer:$ Z.s,, oo&>. o&>
14
420
Do not answer Question No. 12 if you answered "Yes" to either Question No. 4(c) or 5(c).
Otherwise, you should answer Question No. 12.
QUESTION NO. 12
Did Trevor and Jorja Gilbert fail to comply with the agreement to release and hold
harmless Chi True Hoang?
Answer "Yes" or "No":
ANSWER:
15
421
4 • i
Answer Question No. 13 only if you answered "Yes" to Question No. 12. Otherwise, do not answer
the following question.
QUESTION NO. 13
What is a reasonable fee for the necessary services of Chi True Hoang's attorney, stated
in dollars and cents?
Answer with an amount for each of the following:
I. For representation in the trial court.
Answer: $ 'J. ? o, t:?t>~. ,:,,:,
2. For representation through appeal to the court of appeals.
Answer: $ ·
Answer Question No. 16 only if you answered "Yes" to Question Nos. 4 or 5, and you were
unanimous in your answer to the question or questions. Otherwise, do not answer Question No.
16.
To answer "Yes" to the following question, your answer must be unanimous. You may answer
"No" to the following question only upon a vote of ten or more jurors. Otherwise, you must not
answer the following question.
QUESTION NO. 16
Do you find by clear and convincing evidence that the harm to Trevor and Jorja Gilbert
resulted from malice attributable to Chi Tn1c Hoang?
"Cleat and convincing evidence" means the measure or degree of proof
that produces a firm belief or conviction of the truth of the allegatfons
sought to be established.
''Malice" means:
a. a specific intent by Chi True Hoang to cause substantial injury to
Trevor and Jorja Gilbert; or
b. an act or omission by Chi True Hoang ••
(i) which when viewed objectively from the standpoint of Chi True
Hoa11g at the time of its occurrence involved an extreme degree
of risk, considering the probability and magnitude ofthe potential
harm to others; and
(ii) of which Chi True Hoang had actual, subjective awareness of
the risk involved, but nevertheless proceeded with conscious
indifference to the rights, safety, or welfare of others.
Answer "Yes" or "No":
ANSWER:
19
425
' ,. ..
When you go into the jury room to answer the questions, the first thing you will need to do is
choose a presiding juror.
PRESIDING JUROR
The presiding juror has these duties:
a. Read the complete charge aloud.
b. Preside over your deliberations. This means the presiding juror will manage the
discussions, and see that you follow the instructions.
c. Give written questions or comments to the bailiff who will give them to the judge.
d. Write down the answers you agree on.
e. Get the signatures for the verdict certificate.
f. Notify the bailiff that you have reached a verdict
Do you understand the duties of the presiding juror? If you do not, please tell me now.
lNSTRUCTIONS FOR SIGNlNG THE VERDICT CERTIFICATE
I. Unless otherwise instructed, you may answer the questions on a vote of IO jurors.
The same IO jurors must agree on every answer in the charge. This means you cannot
have one group of 10 jurors agree on one answer and a different group of 10 jurors
agree on another answer.
2. If 10 jurors agree on every answer, those IO jurors sign the verdict.
If 11 jurors agree on every answer, those 11 jurors sign the verdict.
If all 12 of you agree on every answer, you are unanimous and only the presiding
juror signs the verdict
3. All jurors should deliberate on every question. You may end up with all 12 of you
agreeing on some answers, while only IO or 11 of you agree on other answers. But
when you sign the verdict, only those IO who agree on every answer will sign the
verdict.
Do you understand these instructions? lf you do not, pleas
20
426
r... ,
VERDICT CERTIFICATE
Check one:
Our verdict is unanimous. All twelve ofus have agreed to each and every answer.
The presiding juror has signed the certificate for all 12 ofus.
Signature of Presiding Juror Printed name of Presiding Juror
Out verdict is not unanimous. Eleven of us have agreed to each and every answer
and have signed the certificate below
Our verdict is not unanimous. Ten ofus have agreed to each and every answer
and have signed the certificate below
NAME PRINTED
1. ::$ "-"ret4 @('U*-'5-
2.
3.
4.
5.
6.
7.
8.
9.
10.
l l.
21
427
TABN0.4
ACCEPTANCE OF TITLE AND CLOSING AGREKMENTS
li'ldclit_y Na1fonal Tith! lns:urnnc.e Cnmtitrn~ (:\Wing Onto: _ _,l.._Q'--,[,_lf"l-'o.,_'j~-
GFNo.
Hct Lcgnl Dc~crlpUon _ _ _ _ · - - - - - - - - - - - - -
Ouye.r's Numi:.: S\l:fl!.\" Nr.m~s) Seller•.~ Mnme; Seller Nnin.e{.Y)
R~CEIPT OF COMMITM!.N'f
'Th.e. undcrsi.g11ed Purcha~ets do hereby icknowlc:d~e recrlp! Qr~,• Owm:, Title Policy Cu;nm!hntnl in lh:i!
1.ift\C\llll o\'?i ~ Qr, _,.: and a C-(Jpy ot' lhc i11stn.m1t:ms which ll\'idence rhe i:i,:c~ptions indh:1:ned in
said Owner Tl( e Policy Commitment .a11d opprove Uti:; s1111'\e (irreqm:~lcd).
1·11e u11di=rsigncd Purchasers f'urthtr acknowledge 1he r&ceipt of copies or the tlos1r.g dci..iments, lncludlng
1he closing !il'l1tmenl.
n,e undi:rs!gncd Purcha,ers acknowledge ri:cetp1 ofa copy of 1htsur11r.y of the. above propel'l)l l'lnd 11ccept
the son,.e. s1.1bjcct to l\(l}' 1111J all e11,en1ents, right of Wily,, 45rlcroacltmi::111s, confli.cls, discrepllncies and hns>rovemenis
shawn thereon and her.eby relci15i, end agree. io 1e.ve e.1,d h,i.!..S FID'tLl'l'V NATlONA\... TITLE lf'ISUnA.NCt
COMPANY harmless, from any ond a[I casts, da1,u1gc6 and eKpense.$' in 111y w11y arising from the i,.x.btcncc of the
aforemcn1iom::d er"1cro8chmen1(5) lncJudlng 1 bot nc,1 llmite& to, court cosfs end attorney's ftes.
rh~ undi,rsigned Pu1·chssi:.(s fortki:.r nckr,owledgc. th&li un!c::J:i lh~)' ~lee~ j1t writing or othcrwi,i:: by lni1i11llng
at the end of this para3r11ph 1 qr fail or r,;(u.se to pay lhe premium pre,c:ribed by the Texns Dc.}).a1·1m1rn1 oflniurance.
Yf>\\f Owners.. P.o,l~y of Tl1le \nsur~11ce, llem 2, S1;tieclule 8 1u to nny :es rna)' b11 based on nn eslimnte or actual taxe, From the prcviou:t year on ihe. abo'l!e rei(erei,c~
prtJpe~t-y. Should the aetu.at ta'K tiii.il·ee. f'()r lh't yee..r pn)ra\~d ~uo'ie ll) be d\fl'eu:n\11t1m\\ing. in the micess:ity for
adjus1ment, lhe undersigned 11gree and consent 'tn n1Rke fl[lpropri.ne !ldjl!If~ems ttel\vecn th;;mielvt:.~ nni;I
flDELlT\' NAT{ONAL TlTLE:; l('(SURANCE COMPANY shall have na responsibi.Ji1y ln this re-.gard.
S-elh:r recQgnfzes their respO:\Sibiti!y ro,
alt laKcs prior 10 1he Osie oi cioiung the sub;eei 1ransacrion.
ShOl,jfd it develop at a later dare, chst taxes 01her thBn 1hose collec1ii:d 111 clog/11& are du~ for \)rioryears,Sell¢r atrees.
10 make full se11le1nent lo fANV From any 11nd all e.clions !h~t n1ay arjse (lue to stop paymeni ofchec-ln from selll'IL' to lender, NSP
che.cks of seller1o lender, or ini1cc1.1ra1e loan infurrnation provided m fl DELITY NATIONAL TITLR
INSURANCE COMPANY.
. RESPA !?TSCLOSUR~ NOTICE
Th~· rllrlci1v1ne 111m1i,1 111111 iu 1,n111~tilo,n&"'vtnml br Tht l~rlll l!:11111, St1lll!.mt1li rrot~t!u,·~1 Ad ur 1\\74
(ll ll,S,C,l61Jl-uu11.) (ILESL'A)
This is to give-you riari«thnt f'IOEk-ltV NATlONi\l.. TJTL.E INSURANCE COMPANY ("Fld"elhy") t1nd
FIDEL.ITV NATIONAL. TITLE tHSURA.NCE. COMPANY, (1'Ti1le") h·as abusine1s relotionshir, with Fidelity
Na1ionol lnform1uio11 $olu1ions 1 /nt. l"FNIS") AND ITS SU8SI DlARI ES. fiile and Fideli1,i are owoed IOOo/., bY
Pidclil)' N,11titJmtl FinaJJciaf, Inc, ("f1NF"), which 11:Jsq Qwn, 80o/4' orFNIS, FNIS OWllS IOOo/, qfNali1J1111) T11:k.Ne1i
lhe stnleme1'1 !lt:,vlce provider to wh·1c'h you have been rer;:irred. 9ecousc otflds. ,.,1a11011shlp, thi,: ret~rtl'il may
provide Fidefitv or FNF with a fimmcia\ or other beni::fi!, The estimated charge for lhi: purch!lscd 11x iil!Onnation
will be s_, _, You arc not required to o.,;e NotiQt1al TeKNeJ 11s a condhion r1;1r 1he elo.slng or the real ts11ui:
!f8nsnction u11 lhe 5i1l;jco1 property. Ttiere. are rrequemly 011,et sertfemenl 1S-ervice ptc'lliders available with slmllnr
,e,,ices. YOU ARE FREE TO SHOP A ROI.IND TO OETllRMU-lE THAT YOU ARE RECEIVING THE BEST
TAX: INFORMATION SERVICE ANO 'l'HE BEST !\AiE FOR 1'HlS SERVICE. If you da l\Ol acquix~ o.ceeptoablc:.
ad ve.lorem uu1. informatlOI\ yo11rself1 and \ltlliz:ic 1helnformotion provided by Nalii;:mal TexNct1 you afc
at:knowh:1dgins b sigr,ing this Agree1nen1 lllal J/We hlwe rend lhis RESPA discloune. stl!tem~n1, 11nd llndusrand chal
FIVELlTV NATIONAL TITLE INSURANCg COMPANY i::1 feFerrin.g me/11s-to pvn1h-a,se 1he 1tb0Ye de.niribed
seulemel\t Mr'r'ice ,l\nd n1ny receive a flnnncial or 01her benefit t'IS the result of rhis (eferral. •
HQMe WAR(!ANJIES ANO RESIDlr.NTlt',LSltRVICltCCNTBACTS
FIP&L.ITV NATIONAL TITL..€' INSUP.ANCI! COMl'ANY dOe$11of sell, promote ur prncurc. hQme
wnrtenlies or rc,idt:n~i1tt :scrviti: co(llr,c:ts 1md es:5uro1c1110 lieblH1y or re!lporislbilit.Y in regard to the s11.me. Home
w(lrranties and tcsidemia.l service 1,ontr1cfs ee.nnQ1 be :i:ceLited U!llil e.fter the: clo.s-ing is complch~1 then the: pu~Euutr
and sellet n1usl send a comple1e-•pplication to the warranty Qr residc111ial se lru.r,~1n:1lon,
C:0.MPLJANC£ AG BEEM E:NT
'rhe undcrsl~ntid llgft:ti l~ cumpl~ with !lll provlslon$ of !he l'C!.I e~ta[e <:on1rpc1, Lender 1~ c(o.sin,g
l!1s1_n1i;tlo11s:. or n1hcr dQcumt?nls ex_ccu1ed In conn-e.c1ion wi1h d1'5 ~losit)i of chis 1r1msac!lou, Tb-, u11di!rslgm:U
lurther agree 10 fully CQ.Oper.111.:. adJUJt, and cun-1:i:t any trrors orii.S Civil P111cticl! ~ntl Rcm\!llie:i; Cude, C.:huplcr 171 lbr S\aLc luw clui1t1!i,
P~n will b1: ~uvcrT11:d b)' lc)l::i.:i L11w Knd, t1:t
ipplkab!e 1 P-ed~ral Li!..w.
lUtQl\lPT OF COPJF.S
Thu untlcr.,,;igncd parli..i.s tid:-nowled~,o tl1nt we have receivedi:opic~ or all cl,e d('lc1.1ment1 slan\ld l,y u, ar lhe
closing. ri:lntin; ro ti,, f't·i:i11er1y d~~erihed above,
ou~ 10 spll¢e: r.::~1r!c1ions .i,nd the =~B~~~=~• ioi
268
TABN0.5
§ 37.001. Definition, TX CIV PRAC & REM§ 37.001
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code(Refs & Annas)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs & Annas)
V.T.C.A., Civil Practice & Remedies Code§ 37.001
§ 37.001. Definition
Currentness
In this chapter, "person" means an individual, partnership, joint-stock company, unincorporated association or society, or
municipal or other corporation of any character.
Credits
Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. 1, 1985.
Editors' Notes
RESEARCH REFERENCES
Forms
Texas Jurisprudence Pleading & Practice Forms 2d Ed § I :2, Checklist-- Drafting Petition to Establish Rights to Abandoned
Property at Common Law.
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 1:3, Petition--For Declaratory Judgment Establishing Ownership of
Abandoned Personal Property--By Holder--Against Former Owner.
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 68:3, Petition--To Enjoin Enforcement ofStatute--Denial of Equal
Rights.
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91:1, Overview.
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91 :4, Subject Matter for Relief.
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91:6, Parties.
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 12:28, Petition--Application for Injunction--Wrongful Diversion of
Water Onto Plaintiffs Property.
Texas Jurisprudence Pleading & Practice Fonns 2d Ed § 170:6, Actions to Quiet Title.
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 186:3, Ripeness and Mootness.
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 189:5, Actions Involving Party Walls.
Texa_s Jurisprudence Pleading & Practice Forms 2d Ed § 189:8, Petition--Against Adjoining Landowner--For Declaratory
Judgrnent--To Determine Rights in Wall and for Restraining Order and Injunction.
Texas Jurisprudence Pleading & Practice Forms 2d Ed § 196:7, Prayer for Relief.
Texas Jurisprudence Pleading & Practice Forms 2d Ed § 208:9, Petition--By Unsuccessful Bidder--For Injunctive and
Declaratory Relief Compelling County to Award Contract to Plaintiff.
Texas Jurisprudence Pleading & Practice Fonns 2d Ed§ 209:1, Introductory Comments.
Texas Jurisprudence Pleading & Practice Forms 2d Ed § 215 :7, Petition--Declaration of Validity of Election of Church Officer.
Texas Jurisprudence Pleading & Practice Forms 2d Ed § 215:8, Petition--Injunction Against Use of Name of Religious
Association by Another.
'NestlawNexr © 2015 Thomson Reuters. No clairn to original U.S. Government Works.
§ 37.002. Short Title, Construction, Interpretation, TX CIV PRAC & REM§ 37.002
·--·------------------
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs &Annas)
Title 2, Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs &Annas)
V.T.CA., Civil Practice & Remedies Code§ 37.002
§ 37.002. Short Title, Construction, Interpretation
Currentness
(a) This chapter may be cited as the Uniform Declaratory Judgments Act.
(b) This chapter is remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights,
status, and other legal relations; and it is to be liberally constmed and administered,
(c) This chapter shall be so interpreted and constmed as to effectuate its general purpose to make uniform the law of those states
that enact it and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments
and decrees.
Credits
Acts 1985, 69th Leg,, ch, 959, § I, eff Sept. I, 1985,
Notes of Decisions (245)
V, T. C, A., Civil Practice & Remedies Code§ 37,002, TX CIV PRAC & REM§ 37,002
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works,
§ 37.003. Power of Courts to Render Judgment; Form and Effect, TX CIV PRAC & REM ...
·~~~~~~~~~~~~~~~~~~~
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs &Annas)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs &Annas)
V.T.C.A., Civil Practice & Remedies Code§ 37.003
§ 37.003. Power of Courts to Render Judgment; Form and Effect
Currentness
(a) A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further
relief is or could be claimed. An action or proceeding is not open to objection on the ground that a declaratory judgment or
decree is prayed for.
(b) The declaration may be either affirmative or negative in form and effect, and the declaration has the force and effect of
a final judgment or decree.
(c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the exercise of the general powers conferred in
this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy
or remove an uncertainty.
Credits
Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.
Editors' Notes
LAW REVIEW COMMENTARIES
Annual survey of Texas law:
Declaratory judgments. John McElhaney, 24 Sw.L.J. 196 (1970).
Declaratory judgments from the Texas Court of Criminal Appeals. 21 S.Tex.L.J. 310 (1980).
Declaratory judgments in Texas: Mandatory or discretionary? Robert W. Calvert, 14 St.Mary's L.J. I (1982).
Declaratory judgments under Model State Administrative Procedure Acts. Daniel J. Gifford, 13 Hous.L.Rev. 825 (1976).
Texa.s Administrative Procedure and Texas Register Act since 1976--Selected problems. Honorable Bob E. Shannon and James
B. Ewbank, II, 33 Baylor L.Rev. 393 (1981).
LIBRARY REFERENCES
2014 Main Volume
2014 Main Volume
Declaratory Judgment 11=3, 383.
Westla.wNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 37.004. Subject Matter of Relief, TX CIV PRAG & REM§ 37.004
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs & Annos)
V.T.C.A., Civil Practice & Remedies Code§ 37.004
§ 37.004. Subject Matter of Relief
Effective: June 15, 2007
Currentness
(a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or
other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question
of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of
rights, status, or other legal relations thereunder.
(b) A contract may be construed either before or after there has been a breach.
(c) Notwithstanding Section 22.001, Property Code, a person described by Subsection (a) may obtain a determination under
this chapter when the sole issue concerning title to real property is the determination of the proper boundary line between
adjoining properties.
Credits
Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985. Amended by Acts 2007, 80th Leg., ch. 305, § I, eff. June 15, 2007.
Editors' Notes
LAW REVIEW COMMENTARIES
Annual survey of Texas law: Family law: Parent & child. Linda B. Thomas and Ardita L. Vick, 61 SMU L.Rev. 819 (2008).
Annual survey of Texas law; Oil, gas, and mineral law. Richard F. Brown, 60 SMU L.Rev. 1189 (2007).
A miry bog part II: UDJA and APA declaratory judgment actions and agency statements made outside a contested case hearing
regarding the meaning of the law. Ron Beal, 59 Baylor L.Rev 267 (2007).
Recent developments in fifth circuit business torts jurisprudence. Sofia Adrogue, 44 Tex. Tech L. Rev. 565 (2012).
LIBRARY REFERENCES
2014 Main Volume
2014 Main Volume
Declaratory Judgment w->81.
2014 Main Volume
Westtav1Next' © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 37.005. Declarations Relating to Trust or Estate, TX CIV PRAC & REM§ 37.005
·~~--~~~~~~~~--~~~·~~~
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs &Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs & Annos)
V.T.C.A., Civil Practice & Remedies Code§ 37.005
§ 37.005. Declarations Relating to Trust or Estate
Currentness
A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee,
guardian, other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust or of the
estate of a decedent, an infant, mentally incapacitated person, or insolvent may have a declaration of rights or legal relations
in respect to the trust or estate:
(1) to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others;
(2) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity;
(3) to determine any question arising in the administration of the trust or estate, including questions of construction of wills
and other writings; or
(4) to determine rights or legal relations of an independent executor or independent administrator regarding fiduciary fees
and the settling of accounts.
Credits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 3.08(a), eff. Sept. 1, 1987;
Acts 1999, 76th Leg., ch. 855, § 10, eff. Sept. 1, 1999.
Notes of Decisions (55)
V. T. C. A., Civil Practice & Remedies Code§ 37.005, TX CJV PRAC & REM§ 37.005
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 37.006. Parties, TX CIV PRAC & REM§ 37.006
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs & Annos)
V.T.C.A., Civil Practice & Remedies Code§ 37.006
§ 37.006. Parties
Currentness
(a) When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must
be made parties. A declaration does not prejudice the rights of a person not a party to the proceeding.
(b) In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party
and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of
the state must also be served with a copy of the proceeding and is entitled to be heard.
Credits
Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.
Editors' Notes
LIBRARY REFERENCES
2014 Main Volume
2014 Main Volume
Declaratory Judgment <>"',291 to 306.
2014 Main Volume
C.J.S. Declaratory Judgments§§ 133 to 147.
RESEARCH REFERENCES
2015 Electronic Update
ALRLibrary
71 ALR 2nd 723, Construction, Application, and Effect of§ 11 of the Uniform Dedaratory Judgments Act that All Persons
Who Have or Claim Any Interest Which Would be Affected by the Declaration Shall be Made Parties.
110 ALR 817, Joinder of Causes of Action and Parties in Suit Under Declaratory Judgment Act.
142 ALR 8, Application of Declaratory Judgment Acts to Questions in Respect of Insurance Policies.
WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 37.007. Jury Trial, TX CIV PRAC & REM§ 37.007
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annas)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs & Annas)
V.T.C.A., Civil Practice & Remedies Code§ 37.007
§ 37.007. Jury Trial
Currentness
If a proceeding under this chapter involves the detennination of an issue of fact, the issue may be tried and determined in the
same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.
Credits
Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.
Editors' Notes
LIBRARY REFERENCES
2014 Main Volume
2014 Main Volume
Declaratory Judgment ;,a,,368.
2014 Main Volume
C.J.S. Declaratory Judgments§§ 164 to 165.
RESEARCH REFERENCES
2015 Electronic Update
Encyclopedias
TX Jur. 3d Declaratory Relief§ 13, Deeds.
TX Jur. 3d Declaratory Relief§ 29, Jury Trial.
Forms
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91 :9, Trial.
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91:14, Checklist--Matters to Consider in Drafting Cause of Action
Seeking Declaratory Judgment Under UDJA.
WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 37.008. Court Refusal to Render, TX CIV PRAC & REM§ 37.008
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs & Annos)
V.T.C.A., Civil Practice & Remedies Code § 37.008
§ 37.008. Court Refusal to Render
Currentness
The court may refuse to render or enter a declaratory judgment or decree if the judgment or decree would not terminate the
uncertainty or controversy giving rise to the proceeding.
Credits
Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.
Editors' Notes
LIBRARY REFERENCES
2014 Main Volume
2014 Main Volume
J)eclaratory Judgment @=5, 8.
2014 Main Volume
C.J.S. Declaratory Judgments §§ 11 to 13.
RESEARCH REFERENCES
2015 Electronic Update
ALRLibrary
87 ALR 1205, Declaration of Rights or Declaratory Judgments.
Encyclopedias
TX Jur. 3d Declaratory Relief§ 8, Discretion of Court.
TX Jur. 3d Declaratory Relief§ 17, Jurisdiction.
Forms
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91 :3, Power of Courts Under UDJA.
Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91 :55, Answer--Allegation--Plea to Jurisdiction--Declaration Would
Not Terminate Controversy--Another Action Involving Same Parties and Issues Pending.
W€stlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 37.009. Costs, TX CIV PRAC & REM§ 37.009
·--------
'? ;l KeyCite Yellow Flag ~ Negative Treatment
Proposed Legislation
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs &Annos)
V.T.C.A., Civil Practice & Remedies Code§ 37.009
§ 37.009. Costs
Currentness
1
In any proceeding under this chapter, the court may award costs and reasonable and necessary attomey s fees as are equitable
and just.
Credits
Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.
Editors' Notes
LAW REVIEW COMMENTARIES
Annual Survey of Texas Law:
A judicial and economic analysis of attorney's fees in trust litigation and the resulting inequitable treatment of trust beneficiaries.
Charles Epps Ipock, 43 St. Mary's L.J. 855 (2012).
Resolving attorneys' fees in Texas business litigation. Ralph I. Miller, Angela C. Wennihan, 56 SMU L.Rev. 1115 (2003),
RESEARCH REFERENCES
2015 Electronic Update
ALRLibrary
87 ALR 3rd 429, Insured's Right to Recover Attorneys' Fees Incurred in Declaratory Judgment Action to Determine Existence
of Coverage Under Liability Policy.
98 ALR 1264, Act or Default of Officer or Employee Covered by Fidelity Bond or Insurance.
Encyclopedias
TX Jur. 3d Declaratory Relief§ 5, Justiciable Controversy.
TX Jur. 3d Declaratory Relief§ 7, Effect of Existence of Another Adequate Remedy.
TX Jur. 3d Declaratory Relief§ 8, Discretion of Court.
TX Jur. 3d Declaratory Relief§ 9, Where Action Pending.
TX Jur. 3d Declaratory Relief§ 27, Counterclaims.
TX Jur. 3d Declaratory Relief§ 31, Costs and Attorney's Fees.
TX Jur. 3d Declaratory Relief§ 33, Review.
Westl,wl"Nexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 37.010. Review, TX CIV PRAC & REM§ 37.010
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annas)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs &Annas)
V.T.C.A., Civil Practice & Remedies Code§ 37.010
§ 37.010. Review
Currentness
All orders, judgments, and decrees under this chapter may be reviewed as other orders, judgments, and decrees.
Credits
Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.
Notes of Decisions (64)
V. T. C. A., Civil Practice & Remedies Code§ 37.010, TX CIV PRAC & REM§ 37.010
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Docun1ent © 2015 Thomson Reuters. No claim to oliginal U.S. Government Works.
WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 37.011. Supplemental Relief, TX CIV PRAC & REM§ 37.011
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annas)
Title 2. Trial, Judgment, and Appeal
Subtitle C. Judgments
Chapter 37. Declaratory Judgments (Refs & Annas)
V.T.C.A., Civil Practice & Remedies Code§ 37.011
§ 37.011. Supplemental Relief
Currentness
Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application must be
by petition to a court having jurisdiction to grant the relief. If the application is deemed sufficient, the court shall, on reasonable
notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why
further relief should not be granted forthwith.
Credits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Notes of Decisions (23)
V. T. C. A., Civil Practice & Remedies Code§ 37.01 l, TX CIV PRAC & REM§ 37.011
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.
TABN0.6
10/20/2014 2:00:00 PM
Chris Daniel - DiStrict Clerk
Harris County
2011-58137A I Court: 334
NO. 201 l-=58137
TREVOR GILBERT AND JORJA GILBERT § IN THE DISTRICT COURT
Plaintiffs §
§
vs. § OF HARRIS COUNTY, TEXAS
§
HONG BICH CHAU, ET AL §
Defendant § 334rn JUDICIAL DISTRICT
DEFENDANT CHI TRUC HOANG'$ PROPOSED JURY CHARGE
Defendant and Counter-Plaintiff Chi True Hoang's Proposed Jury Charge is attached.
Respectfully submitted,
LAW OFFICE OF MYNDE S. EISEN, P.C.
'li.:=.J. . J.
By:~-~_,._~~~~~~~~~
e;...;.
Mynde S. Eisen
State Bar No. 06503950
P.O. Box 630749
Houston, Texas 77263
(713) 266-2955
(713) 266-3008 (fax)
email: wyndeeisen@sbcglobal.net
ATTORNEYS FOR DEFENDANT AND
COUNTER-PLAINTIFF
CHI TRUC HOANG
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served on
all pal'ties ofrecord through their attorneys as listed below hand delivel'y on this 201~ day of October,
2014.
Mynde S. Eisen
DanaLeJune Michael Truong Nguyen
6525 Washington Avenue, Suite 300 3514 Shadow Spring Court
Houston, Texas 77007 Houston, Texas 77082
Craig Welscher
Alex Weatherford
The Welscher Law Fim1
1111 North Loop West, Suite 702
Houston, Texas 77008
306
QUESTION NO._
Did any ofthe parties named below engage in any false, misleading, or deceptive act or practice that
Trevor Gilbert and Jorja Gilbert rdied on to their detriment and that was a producing cause of
damages to them?
"Pmducing cause" or "Proximate cause" means a cause that was a substantial factor in
bringing about the damages, ifany, and without which the damages would not have occurred. There
may be more than one producing cause. 1
"False, misleading, or deceptive act or practice" means any of the following:
I. Representing that goods had or would have characteristics that they did not have;2 or
2. Failing to disclose information about gaods that was known at the time of the
transaction with the intention to induce Trevor Gilbert and Jorja Gilbert into a
transaction they would not have entered into if the information had been disclosed; 3
or
3. Representing that goods are or will be of aparticular quality if they were of another;
or representing that good or services are ofa particular standard, quality or grade, or
that goods are of a pa1ticula1· syle or model when they are of another4
"Goods" means tangible chattels or real property purchased or leased for use"5
Answer "Yes" or "No for each
Ahn (''Andy")Van Dang Answer:-------
Hong Bich Chau Answer: _______
Chi True Hoang Answer: - - - - - - -
Granted:
Refused:'---------
Modified as Follows:_ _ _ _ _ _ _ _ _ _ _ and Given.
Exception Allowed: _ _ _ _ _ _ _ __
JUDGE PRESID1NG
1
PJC 102.1; Fort/Motor Co. v l.edesma, 242 S.W.3d 32, 46(Tex. 2007); Prude11/1a/ l11s111•u1,ce Co. o[Ame1•ioa ,,
Jeberso11Associates, Ud S% S.W.2d 156, 161 ('re.. JV95)
'PJC 102.2; iex. l)us. & Comm. Code *1746(b)(5).
'PJC 102.5; Tex Jlus. & Comm. Code § I 746(h)(24).
'PJC I02.3 Tex. llus. & Comm. Code § I 746(b)(7).
-2-
307
QUESTION NO._
Did any of the parties named below engage in any unconscionable action or course of action that was
a pmducing cause of damage, if any, to Trevor Gilbert and Jorja Gilbert.
"Producing cause" or "Proximate cause" means a cat1se that was a substantial factor in
bringing about the damages, if any, and without which the damages would not have occurred. There
may be more than one producing cause. 6
"Unconscionable action or course of action" means an act or practice which to a consumer's
detriment takes advantage of the lack of knowledge, ability, experience or capacity of the consumer
to a grossly unfair degree.7
Answer "Yes" or "No" for each
Ahn ("Andy") Van Dang: Answer: ______
Hong Bich Chau Answer:------
Chi Trnc Hoang Answer: ______
Granted: _ _ _ _ _ _ _ __
Refused:._ _ _ _ _ _ __
Modified as Follows:_ _ _ _ _ _ _ _ _ _ _ and Given.
Exception Allowed: ______________
JUDGE PRESIDING
'PJC 102.7; Ford Motor Co. v lede.,ma, 242 S. W.Jd 32, 46 (Tex. 2007); Prnde11fia/ l11sm·ance Co. ofAmerica v
Jejftrso11Associa/-,, Lid 896S.W.2d 156, 161 (Tex. 1995)
'PJC 102.7; Tex Bus. & Comm. Code§ 17.45(5).
-3-
308
If your answer to Question was ''Yes" for any party, Chen answer the following questio.n.
Otherwise, do not answer the following 11uestion.
QUESTION~-
Did the parties named below engage in any such conduct knowingly or intentionally?
"Knowingly" means actual awareness, at the time of the conduct, of tbe falsity, deception, or
unfairness of the conduct in question. Actual awareness ma, be inferred where objective
manifestations indicate that a person acted with actual awareness.
"Intentionally" means actual awareness of the falsity, deception, or unfairness of tlie conduct in
question, or actual awareness of the conduct constituting a .faUure to comply with a warranty,
coupled with the specific illtent that the consumer act in detrimental reliance on the falsity 01·
deception. Specific intent may be inferred where ob,jective manifestations indicate that a person acted
intentionally.'
In answering this question, consider only the conduct that you have found was.a producing cause of
damages to Trevor and Jorja Gilbe11.
Answer "Yes" or "No" for each.
Knowingly: lntentionally:10
Ahn "Andy" Van Dang: Answer;- - - - - Answer;_ _ _ __
Hong Bich Chau: Answer: _ _ _ __ Answer:-----
Chi Tmc Hoang: Answer: ----- Answer: _ _ _ __
Granted:_________
Refused;_ _ _ _ _ _ __
Modified as Follows:.____________ and Given.
Exception Allowed:._________
JUDGE PRESIDING
'PIC I02.2l;To,. B\ls, & Com. Code *J7.4S{9)
'PJC 102.21; See .~puncer v. Eagle Stai• lnsuro11ce Co. ofAmerim, 876 S.W.2d 154, IS7 (Tex.
1994); Brown v. Amf.l'ica11 Transfer & Storage Co., 601 S. W.2d 93 l, 937 (Tex. 1980),"
''The difference between "knowledge" and "intent" is that under "intent" the defendant
specifically intended that the consumer net in detrimental reliance. Compare DTPA § 17.45(9) with
§ 17.45(13). A finding that the defendant acted knowingly allows discrebona1y trebling only of economic
damages under the DTPA, whereas a finding .of intentional conduct allows discretionary trebling of both
economic and mental anguish damages. DTPA §17.SO(b)(l). If both economic damages and mental
anguish damages are sought, the consumer may choose to submit sepur11te questions on the defendant's
knowledge and i11tent, or 11 single question on intent.
-4-
309
QUESTION NO._
Did any of the parties below commit fraud against Trevor Gilbert and Jorja Gilbert?
Fraud occurs when:
a. a party makes a misrepresentation of a material fact, and
b. the misrepresentation is made with knowledge of its falsity or made recklessly
without any knowledge of the truth and as a positive assertion, and
c. the misrepresentation is made with the intention that it should be acted on by the
other party, and
d. the other party acts in reliance on the misrepresentation and thereby suffers injury."
"Misrepresentation" means a false statement of fact. 12
Answer "Yes" or "No" for each.
Ahn "Andy" Van Dang Answer: _ _ _ _ _ _ __
Hong Bich Chau Answer:--------
Chi Tmc Hoang Answer:--------
Granted:_ _ _ _ _ _ _ __
Refused: _ _ _ _ _ _ _~
Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ and Given.
Exception Allowed:_ _ _ _ _ _ _ _ _ _ _ _ __
JUDGE PRESIDING
11 PJC105.1; PJC I05.2;See Johns0t1 v Brewer & Pr1iJ'T11x. v. Ables, 914 S.W.2d712, 717 (Tex.App. -Austin 1996, writ
denied); HECI Exploration Co. 11. Ch{imr Gas Co., 843 S.W.2d 622, 638 (Tex.App. -Austin
1992, write denied); see also BHP Pe1roleum Co. v. Millan{, 800 S.W,2d 838. 841
(Tex.1990); Abor v. Black, 695 S.W.2d 564, 566 (Tex. 1985); Heritage Life v. Heritage
Group f/oldi11g, 751 S.W.2d 229, 235 (Tex. App. - Dallas 1988, writ denied); John Chezik
Buick v. Friendly Chevrolet, 749 S.W.2d 591, 594 (Tex.App. -Dallas 1988. writ denied.). A
declaratory judgment cannot be used solely as a vehicle for attomey's fees. See, e.g., Ables,
914 S.W.2d at 717; HECI, 843 S.W.2d at 638. This is the general rule which applies when a
defendant tiles a declaratory-judgment counterclaim that presents no new issues except to
Pago8of II
441
recover attorney's fees. /1alls Cmmty \I, Perkins, 798 S.W.2d 868. 871 (Tex.App.-Fort
Worth 1990, no wril). The counter-plaintiff must make an independent claim for affi1mative
relief. BHP Petroleum Co. v. Millatd. 800 S.W.2d 838. 840-41 (Tex.1990). To state a claim
for affirmative relief, a defensive pleading must assert. a cause of action independent of the
claims already asserted by the plaintiff. i.e.. the defendant could recover benefits.
compensation. or relief. even if the plaintiff abandoned its cause of action. Id. For example,
in suits asse11ing breaches of contracts or deeds, where declaratory counterclaims seeking
construction of such instruments may constitute claims for affimmtive relief because, in
contrast to a "one-time occurrence" giving rise to the plaintiff's suit, they concern the
partjes' ongoing and future relationship. Id.
21. Hoang did not seek any affimiative relief for her claim of breach of contract for which she
basis her declaratory Judgment. She has not made a claim to recover benefits. nor does she
seek compensation or relief from the alleged breach. There is nothing in the language of this
clause that concerns any on-going relationship between the Plaintiffs and Hoang. In fact,
Hoang is not even a pm1y to the agreement in the first place. TI1is is boilerplate language
which does not specifically name the defendant.
22. In filing for a declaratory judgment on her breach of contract claim, the Defend.ant Hoang is
requesling just that: a declaration that the Plaintiffs btcachoo their contract. There are no
damages sought. As stated previously, Defendant Hoang did not present any evidence of
damages attributable to this alleged breach. mid the jury did 1101 find any such damages.
23. While the jury did find that the Plaintiffs breached the clause lo release m1d hold harmless
the Defendant Hoang - and may be entiUed to a judgment on this basis - this declaratory
Page 9 of J l
442
judgment cannot be used as a vehicle for the Defendant Hoang to recover attorney's fees in
the absence of claimed or proven damages.
VI.
CONCLUSION
24. Hoang cannot collect a judgment for any award of attorney's fees the jury may have found
"reasonable." Hoang did not recover any damages from her breach of contract claim;
produced no evidence of consideration for the Gilberts' promise to hold hannless unnamed
realtors; did not properly allocate her attorney's fees; and she caimot use a declaratory
judgment solely as a vehicle to recover attorney's fees.
25. Plaintiffs respectively move the Comt for a JNOV regarding any possible award of
attorney's fees, and request the Court Order the Defendant Hoang to take nothing against the
Gilberts.
Respectfully submitted,
Dana A. LeJune
SBN: 12188250
6525 Washington Avenue
Suite 300
Houston, Texas 77007
713-942-9898 (Main)
713-942-9899 (Fax)
\ dl\'.i1mi;,~> 1:rialla'YYers.nel (Email)
ATTORNEY FOR PLAINTIFFS
TREVOR AND JORJA GILBERT
Page 10 of 11
443
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of !he foregoing instrument was forwarded on
this the 25th day of November, 2014, to all counsel of record, pursuant to the Texas Rules of Civil
Procedure, to all attorneys of record.
Dana A. LeJune
Page 11 of 11
444
TAB NO. 8
115/2015 4 :54 :19 PM
Chris Daniel · Dis\rtct Clerk Harris County
Envelope No. 3656033
By: DAVIA FORD
Filed: 115/2015 4:54:19 PM
NO. 2011 58137A
TREVOR GILBERT AND JORJA GlLBERT § IN THE DISTRICT COURT
Plaintiffs §
§
vs. § OF HARRIS COUNTY, TEXAS
HONG BlCH CHAU, ET AL
Defendant
*
§
§ 334m JUDICIAL DISTRICT
DEFENDANT AND COUNTER-PLAINTIFF CHI TRUC HOANG'S
SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION .FOR JUDGMENT
AND RESPONSE TO PLAINTIFFS' AND COUNTER·DEFENDANTS'
MOTION FOR JUDGMENT NON OBSTANTE VEIIDlCTO
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant and Co,mter-PlaintiffChi Tl'uc Hoang("Hoang") and files this
supplemental bdefin support of her pending Motion for Entry of Judgment (''Judgment Motion")
and in support of her response to Plaintiffs; Trevor and Jmja Gilbel't's (''Plaintiffs") pendingMotion
for Judgment Non-Obstane Verdicto ("NOV"). In support of her motion for entry of judgment and
in further response and opposition to Plaintiffs' JNOV, Hoang rnspectfully shows the court as
follows:
BACKGROUND
1. Plaintiff brought claims against Hoang for violations under the Texas Deceptive
Trade Practice Act., for fraud, statutory fraud and conspiracy to commit fraud.
2. Hoang brought counter-claims against Plaintiffs for damages and attorney fees under
the Texas Declaratory Judgment Act and for breach of contract based upon the hold harmless
agreement in the Acceptance of Title and Closing Agreements (the "Acceptance Agreement"). The
Acceptance Agreement was signed by Plaintiffs specifically to hold Defendants harmless from the
exact type offrivilous claims that were alleged against Hoang by Plaintiffs.
484
3. After 7 full days of trial, the case was submitted to the jury. The Court submitted
Hoang's questions as to whether Plaintiffs' breached the Acceptance Agreement.
4. Hoang specifically requested a specific damage question, but the Court refused the
submission stating that since the only damages were in the nature of attorneys fees, the question on
Hoang' s attorneys fees was sufficient.
5. The jury subsequently rendered its verdict A tiue and correct copy of the Jury
Verdict is attached hereto as Exhibit "A".
6. The Jury specifically found that:
a. Hoang did not engage in any false, misleading or deceptive act or practice
that Plaintiffs relied upon to their detriment and that was a producing cause
of damage to them; and
b. Hoang did not engage in any unconscionable action or course of action that
was a producing cause to Plaintiffs; and
c. Hoang did not commit fraud against Plaintiffs; and
d. Hoang did not commit statutory fraud against Plaintiff; and
e. Hoang was not part of a conspiracy to commit fraud;
7. The Jury specifically found tliat Plaintiff filed to comply with release and hold
harmless agreement. This jury quesiion was predicated upon no findings on any type ofwrong-doing
by Hoang. Since Hoang did not engage in any wrong doing and the jury expressly found such, the
express negligence doctrine does not apply to the hold hamiless agreement.
8. The jury also found that a reasonable fee necessary for the services of Hoang's
attorneys was $230,000.00.
9. On November 25, 2014 Plaintiffs filed the JNOV.
10. Hoang filed her Judgment Motion on November 26, 2014.
-2-
485
11. After an initial hearing on both Motions, this Court requested additional briefing: on
1) what would constitute "fair and equitable" under the Texas Declaratory Judgment Act, 2) whether
attorneys fees' can be damages for a breach of the hold hamiless agreement, and 3) whether the hold
harmless agreement needed to be conspicuo11s.
ARGUMENTS & AUTHORITIES
I. The Court has discretion to awal'd Iloang her attorneys' fe~s under Tex. Ci\/. Prac. &
Rem. Code Ann. §37.009
A. Awarding Hoang attorneys fees under §37.009 is equitable and Just
12. Under the Texas Declaratmy Judgment Act ("the Declaratmy Judgment Act"), a
court may award costs and reasonable and necessary attorney's t'ees as which are equitable and just.
Tex. Civ. Prac. & Rem. Code § 37.009. Under the Declaratmy Judgment Act, the Court lias the
discretion to award attorneys fees. Bocq11e1 v. Herring, 972 S.W.2d 19, 20 (Tex.1998)
13. The Declaratory Judgment Act imposes four limitations on the Court's discretion:;
I) that the fees are reasonable; 2) that the fees are necessary; 3) that the fees are equitable and 4) that
the fees are just. The first two limitations, reasonable and necessary are fact issues which should
be decided by the trier of the fact and the second two limitations, fair and equitable are legal issues
that are matters oflaw to be decided by the Court. Ridge Oil Company, /11t', Vs Guin11 /11vestme111s,
Im:.; 148 S.W.3d. 143, 161 (Tex. 2003); Bocquet, 972 S.W.2d at 21.
14. In tJ1e present case, the Cornt submitted the issue of reasonable and necessary to the
jury to decide. The jury handed down a verdict that the reasonable and necessary attorneys fees for
tl1e services of Hoang's attorneys was $230,000. See Exhibit" A", Question 13 at p.16. Therefore,
this Court must now decide if the attorneys fees being sought by Hoallg are equitable and just.
IS. Equitable and just are questions oflaw for the Court to decide. Bocquer, 972 S. W.2d
at 21. Whether the fees are equitable al\d just depends, "not on direct prooi', but on the concept of
-3-
486
fairness, in light of all the circumstances of the case." Appmm:h Uesmm:e.f I, l.P. 1•. Clayton. 360
S.W.3d 632, 639-640 (Tex.App.-El Paso, 2012, no writ). See also Ridge Oil Co., l48 S.W.3d at
162. 111e award of attomeys fees is within the sound discretion of the Court. See Purvis Oil C017J.
v. flillin, 890 S.W.2d 931, 938 (Tex. App.-EI Paso, 1994), citing Cap Hock Elec. Co-op., Inc. v.
Texas Utilities Elec. Co., 874 S.W.2d 92, 101 (Tex. App. -El Paso 1994) (an award of attorney's
fees rests in the sound discretion of the trial court., and its judgment will not be reversed on appeal
without a clear showing of abuse of discretion); See also Owen Elec. Supply. Inc. v. Brite Day
Constr.. Inc., 821 S.W.2d 283, 288 (Tex.App.-Houston [lst Dist] 1991, writ denied).
16. Awarding Hoang her attorneys foes in this case is equitable and just The testimony
solicited by the Plaintiffs' counsel was that Hoang's attorneys fees were equal or close to what he
was asking the jury to award him in his casein chief. 1 There was no great dispa!'ity in the amounts
being sought by Hoang. The jury found the fees to be reasonable and necessary. As shown below,
Hoang only incurred the fees because, despite having little or no evidence against Hoang, Plaintiffs
had persisted in bringing the claims against her all the way through trial, despite executing the hold
harmless agreement.
17. Plaintiffs initiated the lawsuit against Hoang based upon frivilous claims of alleged
fraud and statutory fraud. Plaintiffs, through trial, had essentially no evidence to support their
allegations. This was confirmed by the ju1y findings. See Ex. A. The only evidence presented by
P)aintiffs against Hoang was theinconsistenttestimony ofaco-defendantAndy Dang, whom the jury
found not credible. Plaintiffs admitted that there had been no representations or misrepresentations
to them by Hoang, having never spoken to her except to exchange pleasantries at closing. No
'The jury awarded Plaintiff's attorney $205,000 for attorneys fees and appellate attorneys
fees of $41,000 and $25,000 making a total award to Plaintiffs' attorney of$271,000. See Ex. A
-4.
487
independent evidence of any of Plaintiffsallegations against Hoang existed, yet Plaintiffs forced her
to defend herself for the better pa11 of three (3) years against their unfounded allegations.
18. Moreover, Plaintiffs testified throughout the trial that they brought suit against at
least two other parties, Grace Inspection Homes, Inc. and Michael Nguyen, whom they did not
believe did anything wrong, but had insurance or were a source of funds for the lawsuit. Plaintiffs'
own attorney admitted in his closing arguments that the jury should not hold his clients 1·esponsible
for his advise to sue parties for the sole purpose that they had were sources ofincome, not because
they were liable in any manner.
19. Plaintiffs, although they do not willingly admit it, sued Hoang for exactly the same
reason. Plaintiffs sued Hoang in hopes of getting a judgment that they could then take against the
Texas Real Estate Tn1st fund, not because they really believed that she misled them or had
knowledge of any of the water damage. Plaintiffs' did not have any knowledge of anythh1g that
Hoang knew until several months into the case when Dang testified inconsistently that he did or
didn't tell her about the water damage in his deposition. By this time, tliey had already sued Hoang.
Hoang consistently took the position that she had no knowledge. of any water damage and the Jury
founder her to be credible. Plaintiffs' and Plaintiffs' counsels' conduct of suing innocent people just
to fund their lawsuit justifies the award of attorneys fees under the equitable and just standard.
20. Further, despite having executed and willingly entered into the Acceptance
Agreement at closing which contained the release and hold harmless agreement, Plaintiffs persisted
in bringing claims against Hoang. Plaintiffs' actions cost .Hoang at least $210,000.00 in legal fees
as the cost of defonse. 2
2lnfact, by bringing the JNOV, Plaintiffs are continuing to cost Hoang attorneys fees,
Although the jury did not find any appellate fees, this Cou11 can. award the same under the same
standards as set forth in this brief. Hoang should be entitled to additional attorneys fees of not
-5-
488
21. The ju1y, as the trier of fact, did not find Hoang guilty of any wrong doing. More
importantly, the Jury through their answer afiirmed that Plaintiffs not only agreed to hold Hoang
harmless, but actually failed to do so. Awarding Hoang her attorneys' fees', based on the jury's
fact findings, is "equitable and just." See AVCO C0171.. Textron Lycoming Reciprocali11g E'ngine
Div. ofAVCO Corp. v. lnwrstate Somlzwest, /,rd., 251 S.WJd 632, 670 (Tex,App.~Bouston [14
Dist.],2007).
B. Hoang's Declaratory Judgment Action was P1·operly Pied
22. In the present case, Hoang brought an action under Tex. Civ. Prac. & Rem. Code
§37.001 et seq., seeking a declaration that Plaintiffs released Hoang under the hold hannless
agreement in the Acceptance Agreement. The Declaratory Judgment action was not filed solely as
a means to recover attorneys fees as Plaintiff argue. Only when a party brings a declaratory
judgment action by way of a counterclaim or amended petition and the declaratory judgment
involves only issues already raised by the original claim, does Plaintiffs' argument prevail. See
Adams v. First Nat'( Bank tlf Bells/Savoy, 154 S.W.3d 859, 873 (Tex.App.·Dallas 2005, no pet.);
Flagship Hotel, ltd., 117 S.W.3d 552, 556 (Tex. Civ. App-Texarkana 2003 writ denied). This was
simply not the case in the present case.
23. Plaintiffs had brought claims against Hoang tbr violations of the Texas Trade
Practices Act, fraud, statutory fraud and conspiracy to commit fraud. Hoang brought counterclaims
for breach ofcontrnct, promissory estoppel and action underthe declarato1y judgment act seeking
a declaration for interpretation of the Acceptance Agreement that Plaintiffs had released Hoang.
less than $25,000 for the post judgment appeals to the Court of appeals and $25,000 if a writ to
the Supreme Court is applied for and $25,000 if such writ is granted.
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Hoang's counterclaims under the Declaratory Judgment Act were distinct and separate from
Plaintiffs' claims.
24. Any party may sue for the breach alld seek a judicial determination of contractual
rights. Stal'k v. 8e11cke11st,!it1, 156 S.W.3d 112, 116 (Tex.App.-Beaumont, 2004); Hart11u111 v. Sirgo
Operating, Inc., 863 S.W.2d 764, 767 (Tex.App.-El Paso 1993, writ denied). A release constitutes
a contract. Schlumberger Technology Co,yJ. ,,. Swan.1·m1, 959 S.W.2d 171, 178 (Tex.1997). Hoang
was entitled to request a determination of questions of constrnction or validity arising under the
Acceptance Agreement and to obtain a declaration of rights, status, or other legal relations
thereunder. See Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a)(Vemon 1997); Haitman, 863
S.W.2d at 767.
25. Plaintiffs' argum ems that Hoang' s pleadings were insuffici enti s also improper. There
is no particular type of pleading required for the Declaratory Judgments Act. James v. Hitchcock
hu/ep. School Dist., 742 S.W.2d 701, 704 (Tex. App.-Houston [1st Dist.] 1987, writ denied).
Moreover, pleadings under the Declaratory Judgment Act are to be liberally constn.1ed. Frost v. Sun
Oil Co., 560 S.W.2d 467, 473 (Tex,Civ.App.-Houston [lstDist.] 1977, no writ). Defendant's Fifth
Amended Answer and Counter-claim clearly mticulated Hoang's claim for Declaratory Judgment
and her rights to fees under Declaratory Judgment. See Fifth Amended Answer and Counter-claim,
attached hereto as Exhibit "B". It is not necessary for a party moving for attorney's fees in a
declaratory judgment action to specify the statutory authority for such an award in the motion, so
long as the party pied for attorney's fees. Purvis Oil, 890 S. W2d at 939; See also Cap Rock, 874
S. W.2d at 102; flortsing Aitthority elf the City of Harlingen v. Valdez, 841 S.W.2d 860, 868
(Tex.App.-Corpus Christi 1992, writ denied): District Judges ofCollin Cm11uy v. Commi.uS Christi 1991, writdism'd w.o.j.); Wilson v.
Renzmel Cattle Co., 542 S.W .2d 938, 942 (Tex.App.-Amarillo 1976, writ ref'd n.r.e. ); see also Little
Rock Furniture Mfg. Co. v. Du1111, 148 Tex. 197, 222 S.W.2d 985,991 (l949)(holdingthatpetitioner
who did not object to improperly conditioned submission waived light to a jury answer on the
unanswered issue, and the issue must be deemed as having been answered by the court in such
manner as to support the judgment).
41. More importantly, Plaintiffs, against who tl1e issue would be deemed, had an
opportunity to object to the submission of the two jury questions without the damage question.
Plaintiffs did not object. They cannot now complain that the damage issue was missing since they
did not object prior to the submission of such issues. See DiGuesppe v Lawler, 269 S.W.3d 588, 599
(Tex. 2008).
42. If one or more elements is omitted from the charge, then the omitted element must
be deemed found by the trial court in a manner that supports its judgment. Chon Tri v J. T. T., 162
S.W.2d 552, 558 (Tex. 2005). See also, J.F.C., 96 S.W.3d 256, 262,63 (Tex. 2002).
43. Since Hoang submitted the proper jury question and the jury found the reasonable
and necessary fees, the issue of attorneys fees as damages is a deemed finding and the Court should
enter the judgment.
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B. 'fbe Express Negligence Doctl'ine ls Not Applicable
44. If an indemnity agreement or hold harmless agreement seeks to limit a party's
liability for its own negligence, then the party attempting to limit is liability must give fair notice
and the clause should be conspicuousness. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853
S.W.2d 505, 507-09 (Tex.l993). Under the express negligence doctline, a party who wishes to
contractually shift risk from itself for the consequences of its future negligence must specifically
express that intent within the four corners of an agreement. See Ethyl Coq1. v. Daniel Constr. Co.,
725 S. W.2d 705, 707-08 (Tex.1987); Dresser Indus .• Inc.• 853 S.W .2d at 508.
45. Fairnotice requirements to indemnity agreements and releases only apply when such
exculpatory agreements are utilized to relieve a party of liability for its own negligence in adva11ce.
Dresser, 853 S.W.2d at 508. In the present case, Hoang was not attempting to shift liability for her
own negligence. She is not seeking indemnity for the consequences of her own negligence. No
claims of negligence were brought against Hoang by Pla.intiffs or any third parties. No third patties
are seeking any claims against the Plaintiffs that are attributable to the conduct of Hoang, nor is
Hoang seeking to be indemnified for any such claims by any third parties. Further, Hoang is a third
party beneficiary to the Acceptance Agreement. There was no attempt to shift liability and there is
no indemnific.ation for "the consequences" of a party's own negligence.
46. Hoang is seeki ngrecovery due to the conduct of the Plaintiffs. Hoang is not utilizing;
the hold harmless language to relieve herself from liability for her own negligence, instead she is
utilizing the agreement/release to impose liability upon the Plaintiffs for their own conduct and
breach in b1inging their claims against Hoang.
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496
C. Plaitttiffs' Wah'ed Any Arguments that the Hold Harmless Clause Was Not
Conspicuous or Did Not Provide Fair Notice.
47. When a release is interposed and established as a bar againstthe plaintiff's action, the
plaintiff must plead and obtain findings on any fact issues that will avoid or invalidate the release.
Dre.~ser l11d11s1rie,1·, Inc. 821 S.W.2d 359, 364-365; Womble v. Atkins, 160 Tex. 363, 331 S.W.2d
294, 296 (1960); Eilis v. Woods, 453 S.W.2d 509, 510 (Tex.Civ.App.-EI Paso I 970, no writ).
48. In Dresser, the Defendant pied and established the release as an affomative defense
and obtained a finding that the plaintiffs representative had the authority to bind plaintiff to the
agreement. Consequently, plaintiff had the burden of obtaining any finding that would avoid the
effect of the release. Since plaintiff did not obtain a finding that the provision was not conspicuous
enough to give fair notice, the plaintiff waived any defenses that it may have had to the release's
enforcement. Dresser Industries, Inc, 281 S.W.2d at 364-365.
49. In the present case Hoang obtained a finding that the Plaintiffs failed breached the
release. Plaintiffs did not obtain any finding that the release was not conspicuous to give fair notice.
50. Further, Plaintiffs did not raise objections with the Court to challenge the
conspicuousness of the release language or with respect to any other provision of the agreement,
Having made no ar1,,1.1ment regarding conspicuousness at trial, Plaintiffs arguments as to conspicuous
are waived. See Vcm1 v. North Swr Dodgl! Sales, l11c., 989 S.W.2d 13, 15-17 {Tex.App.-San
Antonio, 1998). See also Tex. R. App. P. 33.1 (a).
CONCLUSION
51. Hoang is entitled to recover her attorneys fees under the Tex. Civ. Prac. & Rem. Code
§37.009 because the jury found the fees to be reasonable and necessary and such fees would be
equitable and just. Hoang was merely a victim ofPlaintiffs' own litigation and conduct and the jury
found 110 wrong-doing by Hoang that would have released Plaintiffs from the hold harmless
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agreement. The only protection that Hoang would be afforded under the hold harmless agreement
would be the award of her attorneys fees.
52. Alternatively, Hoang is entitled tot he cost of her defense, i.e. her attorneys' fees as
the indemnitee under the hold harmless agreement. This court does not need to even address
recovery of the fees under §38.001 et. seq.
WHEREFORE PREMISES CONSIDERED, Defendant and Counter-plaintiff Chi Tmc
Hoang requests that this Court enter the proposed judgment submitted by Hoang, deny Plaintiffs
JNOV and for such other and further relief to which she may be entitled.
Respectfully submitted,
LAW OFFICE OF MYNDE S. EISEN, P.C.
By: -~.!.""iF=A,=...:::J.,_.,,,.,e=;'="1_ _ _ _ __
~eS.Eisen
State Bar No. 06503950
P.O. Box 630749
Houston, Texas 77263
(713) 266-2955
(713)266-3008 fax
Email: wvndeel se.n(al shed obal. net
ATTORNEY FOR DEFENDANT AND COUNTER-
PLAINTIFF CHI TRUC HOANG
CERTIFICATE OF SERVICE
I hereby cettify that the foregoing has been served on all parties in interest as listed below
by depositing the same in the U.S. mail, regular mail, postage prepaid and/or certified mall on this
511! day of January, 2015.
~t.~
Isl ~ynde S. Eisen
Mynde S. Eisen
DanaLeJune
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Attorney at Law
6525 Washington Avenue, Suite 300
Houston, Texas 77007
Craig Welsch er
Nicholas Martinez
The Welscher Law Finn
1111 North Loop West, Suite 702
Houston, Texas 77008
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499