Chi Truc Hoang v. Trevor Gilbert and Jorja Gilbert

Opinion

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

-ii- 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

-iii- 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

-iv- 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

-v- C. An award of Attorney’s Fees to Hoang is Equitable and Just . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

-vi- 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

-vii- 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

-viii- 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

-ix- 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

-xi- 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.

-2- 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.

-3- 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

-4- 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

-5- 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

-6- 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;

-7- 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.

-9- 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.

-10- 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

-12- 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 -15- 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

-16- 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

-17- 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.

-18- 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.

-19- 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

-20- 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.

-21- 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

-22- 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

-23- 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).

-26- 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

-28- 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. -30- 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.

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: $ ·

3. For representation through oral argument and the completion of proceedings in the Supreme Court of Texas. Answer:$ ~

16 422 i

Answer Question No. 14 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. 14.

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. 14

Do you find by clear and convincing evidence that the harm to Trevor and Jorja Gilbert resl.l!ted from malice attributable to Ahn Van Dang?

"Clear and convincing evidence" means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.

"Malice" means:

a. a specific intent by Ahn Van Dang to cause substantial injury to Trevor and Jorja Gilbert; or

b. an act or omission by Ahn Van Dang··

(i) which when viewed objectively from the standpoint of Ahn Van Dang at the time of its occurrence involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(ii) of which Ahn Van Dang 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:

17 423 j • • Answer Question No. 15 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. 15.

To answer "Yes" to the following question, your answer must be unanimous, You may answer "No" to the following question only upon a vote often or more jurors. Otherwise, you must not answer the following question.

QUESTION NO. 15

Do you find by clear and convincing evidence that the harm to Trevor and Jorja Gilbert resulted from malice attributable to Hong Bich Chau?

"Clear and convincing evidence'' means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.

"Malice" means:

a. a specific intent by Hong Bich Chau to cause substantial injury to Trevor and Jorja Gilbert; or

b. an act or omission by Hong Bich Chau --

(i) which when viewed objectively from the standpoint of Hong Bich Chau at the time of its occurrence involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(ii) of which Hong Bich Chau 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:

18 424 1 • > 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

WAI YER QF INSPECTION The undersigned Purc:hosers do hereby W?,lve hupection by fi'IDtLt1'Y NATIONAL 1'11'L~ INSUl'tANCE COMPANY of such property and atcc:pr llleir Owru;r 'Tille lnrnmnt:e Policy subject to 1hc rights of the pru·1 in in posstnion.

~FFm,v11'of PQ.SSESSIOtl. The undersigned Sellers h11.ve sold and conveyed 10 tlu~ undersigntd Purchast:r!I. the prOpertY reterenced above, S~ch sate has been -closed and Selle,, ecknowlcdge full receipt of the sitle prh:c tmd ~cknowledge rhe Purchaser$ P! 1he owoers ofs~id p(opcrty rmd rue encitled IQ pQS.S:ession lhc:reof. It' Sc.l\.i:.o:s. fa\l lo ~alli\\e on or bt:fora l!'lid ~ate: Purc:hiueu ma}' pur.stie lhei< rCmcdil!.~-81\tl rights ccecrding tu f11w. We reque:;c! F'rO&LiiY NATIONAL.TITLE ,NSUA.ANCll: COMIJANV to file t"cnrecord che Deed and 1Jthe'i' pYr.pe~\ r:.\iiled lo lht: transaction, and to pay 1he. s11,1ers the 11.ntounl or money dlje 1hen1 i11d to oiherwi~e fully dlsbune all f\Jnds out of the U.Brt.\1Bllt!on 1 and it is. ur1derstood lh'lll said PID[i:Ll'l'Y MATIOL'IAL TJTL!l: lNSURANCE COMPANY shall 1101 be h~ld responsible In tiny mann~rby reason ofSelle1·1 nmlai.uing. \n po!-,.llB&ion.

A.CCEPTANCll P, PROPllR'l'V Tile unde,sigm1d Putc:hasers h11V1 lnspec1ed seir:t 9rope1;ty ~et$Ont.ll) 1;1.ndfor ll\t~uih ptofoninna\s which 1bey hnvc selected. The re,ulrs ofchc insptcrions havebce1, ,~11sraetor}' 10 them and tttey actepr lhe property in its pre~enr c.ondition. All r.epuirs required ti) t,c made under lht terms (Jflhe PurchGse Contrac~ hilvc bte11 Ulti5foc1orlly comp\c111d, · The: un((er,i.~m1d Purcl1a5ers acknowledge lhat neilhar th.e Real E$lill8 Agenits}, or 8rok.ef{5}, or FIOELlTV NATIONAL 1'11'L.E INSURANCE. COMPANY hfl

No~ w\,-h,,\\\nding 'lll'l)I prov\s1tmls:) t:~nt111ni;:d in ~ny-othl!( written 11gieomll-nl belween $elli:r and Puroh11sers.. lhcs undetslgned Purt:h!sers t111d Sc:llers. or 1he obQve ni:reninted property acknowledge rhel tht:y have bel!!I\ a

The underSigncd egree thet if lhe Contraot or agreemerit cFthe parties requires proration ot'lhet1111cs. lhen. Che pror11trcn i:rFh•>: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 f

Purchase( tecO)tllizes their resi)onsihitily for i:urrent ye11rjs tn:

PA YOff AGllEEM~NT

We !he 1111dcfsi2,ned Sellel'(t' do liereby acknowtedge 1hn1 Jhe payoff 111r1;1rmiitlon {lofln batiln-;e, reserve 11ccounl infornrn:tion, la!e cherg_u 1 inler~si, etc} relative ro the referenced lonn(-i;) pllid 1is part of 1'1fs closing wn!l p;'oVi~l:ld to FIDEl.l'l'Y NATIONAL TITLt INSURANCE COMPANY by the Li:nder(s)nnd 1h111 FIDE.l.l'l'Y NATIONAi.. TJTLE tNSUR.ANC-t COMPANY doe.snot guaranlea nor can 1h~y be held II-able IOr the accuracy ot' seid htfor·rnatioo. · The undersigned does heri::by a111horize. le.11dl!.r 1o·deduct from t1is. inipouod/reservt: 111::count any nddhiomtl ~mount ni:icesnry 10 pay in foll the rcrercnced loan; Qnd thg und~tsigrted fo11her agcees that ,;hoold lender refuse ro mnke 5uch ded~tton fro1n lt\c ~mpOUC\dlrcs~s"c ac.c1;1.u1,~ or o;;00\1lt \he Qn\t.nte \ri i1.mh 6CC1)\111\ nti\ bt !iuffici,:n\, 1hen 1he unde1•sianed will immediately dcllvet' !he n:qutred 11ddillon111 r~nds 10 FIDELITY NATIONAL ilTLE lNSURANCE COMPANY. 1'h~ Uridel'Signed Iurther,egrccs to hold ho.fmlen PIDELITV NATIONA.LTITLR INSURA~CE COMJ>ANV 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 or

bRPIJ'AATlOf!l All claim!!, r.!i!1pu1c;i;, or com,\l~et·slcs be1ween thD under.;igne.d pani!s a!'lil Fidclily ...,.;i.tinnal Tide lll~ura11i:.e Company _and/or ilY HL\1Jmt:y:,11md repre:s~11ratlve1, Including, but r.n1 lit11lti:.d tn, 1~QJO •rith\,g ii.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

h'I \ht even\ »it undr:nlcned nteds eop\es ofll1e doG<1,rnetns in l'til!: future, lhey must be obtnl11cd from third p:;r1iL;$, 1;11ch tu a lender or oti1er pr(l..-idcr involved In 1his tn1n:u11:tion.

THIS l)OC{.JMf.NT RLPRi!:Sl::N'1'S TJ4£ FltfALAOR!iEMI:N1 IJEt\V&EN THE UNDERStO~ED ,\ND f)DQ·LJ'l'Y t:(ATJQffA.l. Tl'l'Lr. 1NSUR~:~ (:QM.rf:.NV C:ONCERNlNG 1'Kt Mi.lTE.RS ti.DD1\r£SEt\:flEI\'t'.lN hNO MA'i NOT 'BE CON1R.AD1CTP..0 JJV &YIDENCE01' l'IUOR,CONT:tMPORANEOtJS, ORSUBSl:X,JU£:NT0RAL A.OR&&M&NTS OF'rllE PARTl.E:S, 'l'HER&ARJ::.NO U~WRIT'T2N ORAl~AORRF.l't'f'RNtS,·WA~RAr,i:1•11:,.; OH. 1t£1"k'P.SF.NTATlONS atTWEEN 'tllK PAWl'll?:S, NO E.XPR&SS OR JMPLIED AGREEMSNT, Wi\RRI\NTY, Rl::PRES.F.N'fATION OR WAIVER CONCERNING Tflt MAITERSAIJPltt:aSt':U .Ht:R&JN Mi\ Y'Bt MAO~ 0.V ANY o~~t'C'E~. AGP.NT OR EM}'LOVl.tE OF lilDf,l lJY NA t"IUNAI. ·nrLg IN$UR,ANC\t COMPANY. WlTHOllT TtlE Wlll'l'r'.EN CONStNT Ql"THE BOA~D 0:F lllREC:TOI\S DF'l"HB COMl"/1,.NV.

runcHAS~fl(S), r.,.,u!Cd 11.i, ..,__a,r or_..,Oc.a!m>=~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 & Pr1i

"PJC 105.JA; See Trenholm v Ratcliff. 646 S.W.2d 927, 930 (Tex. 1983). 310 -5- QUESTION NO._ Did any of the parties below commit statutory fraud against Trevor Gilbert and Jorja Gilbert? 13

"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. false representation is relied upon by that person in entering into that contract. 14

Answer "Yes" or "No" for each:

Ahn "Andy" Van Dang Answer:-------- Hong Bich Chau Answer:-------- Chi True Hoang Answer: _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC 105.7

"PJC 105.8 311 -6- If you unanimously answered "Yes" to Question __, then answer the following question. Otherwise do not answer the following question.

QUESTION NO. _ _

Did any ofthe following parties have actual awareness of the falsity ofthe representation you found to be fraud in Question _ _?

Actual awareness may be inferred where objective manifestations indicated a person acted with actual awareness.' 5

Answer "Yes" or "No" for each.

Ahn "Andy" Van Dang Answer:-------- Hong Bich Chau Answer:-------- Chi True Hoang Answer:--------

JUDGE PRESIDING

"PJC !05.11 312 -7- If you have answered Question_ or Question_ or Question_ "Yes," then answer the following question. Otherwise, do not answer the following question.

QUESTION_

Was Ahn " Andy" Van Dang part of a conspiracy that damaged Trevor and Jorja Gilbert?

To be part of a conspiracy Ahn Van Dang and another person or persons must have had actual knowledge of and agreed to, and intended to have a common objective or course of action that resulted in 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. 16

Answer Yes or No

Answer: ----

Granted:_ _ _ _ _ _ _ __ Refused: _ _ _ _ _ _ _ __

Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ and Given.

Exception Allowed:_ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC 109. l 313 -8- If you have answered Question_ or Question_ or Question_ "Yes," then answer the following question. Otherwise, do not answer the following question.

QUESTION_ Was Hong Bich Chau part of a conspiracy that damaged Trevor and Jorja Gilbert?

To be part of a conspiracy Hong Bich Chau and another person or persons must have had actual knowledge of and agreed to, and intended to have a common objective or course of action that resulted in 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. 17

Answer Yes or No

Answer: ----

Granted: _ _ _ _ _ _ _ __

Refused: _ _ _ _ _ _ __

Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ and Given.

Exception Allowed:. _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC109. l 314 -9- If you have answered Question_ or Question _or Question_ "Yes," then answer the following question. Otherwise, do not answer the following question.

QUESTION_

Was Chi True Hoang part ofa conspiracy that damaged Trevor and Jorja Gilbert?

To be part of a conspiracy Chi True Hoang and another person or persons must have had actual knowledge of and agreed to, and intended to have a common objective or course of action that resulted in 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. ' 8

Answer Yes or No

Answer: - - - -

Granted: ~-------- Refused: _ _ _ _ _ _ _ __

Modified as Follows:, _ _ _ _ _ _ _ _ _ _ _ _ and Given.

Exception Allowed: _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC 109.1 315 -10- QUESTION NO. _ _

Did Jorja Gilbert waive her claims against Chi True Hoang?

"Waiver" means an intentional surrenderofa known right orintentional conduct inconsistent with claiming the right. 19

Answer "Yes" or "No."

Answer:------

Granted: _ _ _ _ _ _ _ __

Refused: _ _ _ _ _ _ _ __

Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ _ and Given.

Exception Allowed: _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC 101.24; Unilcd S1a1es Fidelily & G1wra11/y Co. v Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex. 1971); See also Gage v Langford, 582 S. W. 2d 203, 207 (Te<. Civ. App.-Halland 1979, writ rcrd n.r.e.}

316 -11- QUESTION_

Did Trevor Gilbert waive his claims against Chi True Hoang? "Waiver" means an intentional surrender of a known right or intentional conduct inconsistent with claiming the right. 21 Answer "Yes" or "No."

Answer:-------

Granted: _ _ _ _ _ _ _ __ Refused:, _ _ _ _ _ _ _ __

Modified as Follows: ____________ and Given. Exception Allowed: _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC 101.24: U11ited Stales Fidelity & G,mranty Co. v Bimco Iron & Mela/ Corp., 464 S.W.2d 353, 357 (Te,. 1971); See also Gage v umgford, 582 S. W. 2d 203, 207 (Tex. Civ. App.-Eatland 1979, writ refd n.r.e.) 317 -12- QUESTION NO. _ _ Did Trevor Gilbert, Jorga Gilbert and Hong Bich Chau agree to hold Chi True Hoang harmless in the Acceptance of Title and Closing Agrcement?22

Answer "Yes'' or "No" for each.

Jorga Gilbert Answer:- - - - - -

Trevor Gilbert Answer:- - - - - - -

Answer: Granted:._ _ _ _ _ _ _ __

Refused: _ _ _ _ _ _ _ __

Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ and Given. Exception Allowed: _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJCIOI.I 318 -13- QUESTION NO. _ __

Did Trevor Gilbert and Jorga Gilbert fail to comply with the agreement to hold Chi True Hoang harmless in the Acceptance of Title and Closing Agreement?"

Answer "Yes" or "No" for each:

Jorga Gilbert Answer:- - - - - - -

Trevor Gilbert Answer:- - - - - - -

Granted:_ _ _ _ _ _ _ __

Refused: _ _ _ _ _ _ __

Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ and Given.

Exception Allowed: _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC10l.l 319 -14- QUESTION_ Did Chi True Hoang substantially rely to her detriment on the promise to hold her harmless by Trevor Gilbert and Jorja Gilbert as set forth in the Acceptance of Title and Closing Agreement, if any, ans was this reliance foreseeable by Trevor Gilbert and Jorga Gilbert.24 Answer Yes or No for each: Jorga Gilbert Answer:------- Trevor Gilbert Answer:- - - - - - -

Granted: _ _ _ _ _ _ _ __ Refused: _ _ _ _ _ _ _ __

Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ and Given. Exception Allowed:, _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJCIOl.41 320 -15- If you answered "Yes" to Question __, or Question _ , or Question ____j then answer the following question. Otherwise, do not answer the following question. QUESTION NO.

What sum of money of money, if any, if paid now in cash would fairly and reasonably compensate Trevor Gilbert and Jorja Gilbert for their damages, if any that resulted from the conduct of Ahn "Andy"Van Dang?2' Consider the following elements of damages, if any, and none other. "Economic damage" means compensatory damages of pecuniary loss, including costs of repair and replacement. The terrn does not include exemplary damages ordamages for physical pain and mental anguish, loss of consortium, disfigurement, physical impainnent, or loss of companionship and society. 2~ Do not include in your answer any amount thatyoufind Trevor Gilbert and/or Trevor Gilbert could have avoided by the exercise of reasonable care." In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because of your answer to any other question about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any recovery wUJ be determined by the court when it applies the law to your answers at the time ofjudgment. Do not add any amount for interest on damages, if any.

Answer separately in dollars and cents for damages, if any The reasonable and necessary cost to repair Trevor and Jorja Gilbert's home, if any: Answer: _ _ _ _ __

Trevor Gilbert's mental anguish, if any, in the past

Answer:------ Trevor Gilbert's mental anguish, if any, that, in reasonable probability, he will sustain in the futm•e Answer: _ _ _ _ __

Jorja Gilbert's mental anguish, if any, in the past

Answer:------

"PJC 115.9; 115.JO

"PJC llS.10; Tex. bus. & Comm. code§ 17.45(11).

"PJC 101.41

-16-

321 Jorja Gilbert's mental anguish, if imy, that, in reasonable probability, she will sustain in the future

Answer:------

Granted:. _ _ _ _ _ _ _ __

Refused:.~-------~ Modified as Follows:. _ _ _ _ _ _ _ _ _ _ _ _ and Given. Exception Allowed: _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

-17-

322 If you answered "Yes" to Questions_, Question_, and Question _for mote than one of those named below, then answer the following question. Otherwise do not answer the following question. QUESTION NO, _ _

Assign percentages of responsibility only to those you found caused or contributed to cause the damages and hann. The percentages you find must total I 00 percent. The percentages must be expressed in whole numbers. The percentage of responsibilift attributable to any one is not necessarily measured by the number of acts or omissions found. 2 For each person you found caused or contributed to cause the harm or damages to Trevor Gilbert, fmd the percentage of responsibility attributable to each: 1. Hong Bich Chau - - - - - -% 2. Ahn "Andy"Van Dang % - - - - - - .% 3. Trevor Gilbert - -----% ______ 4. Jorj a Gilbert 5. Imeldia Adams ______ % 6. Michael Nguyen - - - - - -% 7. Chi True Hoang ------ %

For each person you found caused or contributed to cause the harm or damages to Jorja Gilbert, find the percentage ofresponsibility attributable to each: 1. Hong Bich Chau % - - - - - - .% 2. Ahn "Andy" Van Dang - - - - - - .% 3. Trevor Gilbert ______ 4. Jorj a Gilbert ______ % 5. Imeldia Adams ______ % 6. Michael Nguyen ______% ______ % 7. Chi True Hoang

Granted:_ _ _ _ _ _ _ __ Refused:. _ _ _ _ _ _ __

Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ and Given. Exception Allowed: _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESTDING

"PJCl 15,36

-18-

323 lfyou answered "Yes" to Question __, or Question_, or Question __, then answer the following question. Otherwise, do not answer the following question. QUESTION NO.

What sum of money of money, if any, if paid now in cash would fairly and reasonably compensate Trevor Gilbert and Jorja Gilbert for their damages, if any that resulted from the conduct of Hong Bich Chau? Consider the following elements of damages, if any, and none other. "Economic damage" means compensatory damages of pecuniary loss, including costs of repair and replacement. The tenn does not include exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society.Z9 Do not include in your answer any amountthat youfmd Trevor Gilbert and/or Trevor Gilbert could have avoided by the exercise of reasonable care. 30 In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because of your answer to 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 Iawto your answers at the time ofjudgment. Do not add any amount for interest on damages, if any.

Answer separately in dollars and cents for damages, if any The reasonable and necessary .cost to repair Trevor and Jorja Gilbert's home, if any: Answer; ------ Trevor Gilbert's mental anguish, if any, in the past.

Answer;----- Trevor Gilbert's mental anguish, if any, that, inreasonable probability, he will sustain in the future Answer: _ _ _ _ __

Jorja Gilbert's mental anguish, if any, in the past Answer: _ _ _ __

'°PJC fl5.9; 115.10; Tex. bus. & Comm. code§ 17.45(11)

•10f'JC !Ol.41

-19-

324 Jorja Gilbert's mental anguish, if any, that, in reasonable probability, she will sustain in the future Answer: _ _ _ _ __

Granted:. _ _ _ _ _ _ _ __ Refused: _ _ _ _ _ _ _ __

Modified as Follows:. _ _ _ _ _ _ _ _ _ _ _ and Given. Exception Allowed: _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

-20-

325 If you answered "Yes" to Questions _, Question _, and Question _for more than one of those named below, then answer the following question. Otherwise do not answer the following question. QUESTION NO. __

Assign percentages of responsibility only to those you found caused or contributed to cause the damages and harm. The percentages you find must total I 00 percent. The percentages must be expressed in whole numbers. The pe1·centage of responsibilifr attributable to any one is not necessarily measured by the number of acts or omissions found.' For each person you found caused or contributed to cause the harm or damages to Trevor Gilbert, find the percentage of responsibility attributable to each: 1. Hong Bich Chau % 2. Ahn "Andy"Van Dang % 3. Trevor Gilbert % 4. Jorja Gilbert % 5. Imeldia Adams % 6. Michael Nguyen % 7. Chi True Hoang % 8. Clay Collins %

For each person you found caused or contributed to cause the hann or damages to Jorja Gilbert, find the percentage of responsibility attributable to each: 1. Hong Bich Chau - - - - - -% 2. Alm "Andy" Van Dang - - - - - -% 3. Trevor Gilbert ------%% 4. Jorja Gilbert - 5. Imeldia Adams _- -_ __ -_ -_-% 6. Michael Nguyen _ _ _ _ _ _% 7. Chi True Hoang ______ %

Granted:,_ _ _ _ _ _ _ __

Refused: --------- Modified as Follows:_ _ _ _ _ _ _ _ _ _ _ and Given. Exception Allowed;_ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC I 15.36

-21-

326 If you answered "Yes" to Question __, or Question ___, or Question , then answer the following question. Otherwise, do not answer the following question. - - QUESTION NO.

What sum of money of money, if any, if paid now in cash would fairly and reasonably compensate Trevor Gilbert and Jorja Gilbert for their damages, if any that resulted from the conduct of Chi True Hoang? Consider the following elements of damttgcs, if any, and none other. "Economic damage" means compensatory damages of pecuniary loss, including costs of repair and replacement. The term does not include exemplary damages or damages for physical pain and mental anguish, loss . of consortium, disfigurement, physicul impairment, or loss of companionship and society. 32 Do not include in your answer any ilffiount that you find Trevor Gilbert and/or Trevor Gilbert could have avoided by the exercise of reasonable care.33 In answering questions about damages, answer each question separately. Do not increase or reduce the amount in. one answer because ofyour answer to 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 ofjudgment. Do not add any amount for interest on damages, if any.

Answer separately in dollars and cents for damages, if any The reasonable and necessary cost to repair Trevor and Jorja Gilbert's home, if any: Answer: _ _ _ _ __

Trevor Gilbert's mental anguish, ifa.ny, in the past Answer: _ _ _ _ __

Trevor Gilbert• s mental anguish, ifany, that, in reasonabfo probability, he will sustain in the future

Answer:------ Jorja Gilbert's mental anguish, if any, in the past Answer: _ _ _ __

"PJC 115.\l; 115. IO; Tex. bus. & Comm. code§ 17.45(1 I).

"PJCIOl.41.

-22-

327 Jorja Gilbert's mental anguish, if any, that, in reasonable probability, she will sustain in the future

Answer:------

Granted:, _ _ _ _ _ _ _ __

Refused:, _ _ _ _ _ _ _ _~

Modified as Follows:,_ _ _ _ _ _ _ _ _ _ _ and Given.

Exception Allowed:._ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

-23-

328 Ifyou answered "Yes" to Questions _, Question_, and Question _for more than one of those named below, then answer the fol lowing question. Otherwise do not answer !he following question. QUESTION NO._ _

Assign percentages ofresponsibility only to those you found caused or contributed to cause the damages and harm. The percentages you find must total I 00 percent. The percentages must be expressed in whole numbers, The percentage of responsibili~ attributable to any one is not necessarily measured by the number of acts or omissions found. 3 For each person you found caused or contributed to cause the harm or damages to Trevor Gilbert, find the percentage of responsibility attributable to each: I. Hong Bich Chau ______% 2. Ahn "Andy" Van Dang ______% 3. Trevor Gilbert _ _ _ _ _ _% 4. Jorja Gilbert ------ % 5. Imeldia Adams ------ % 6. Michael Nguyen ------ % 7. Chi True Hoang ------ %

For each person you found. caused or contributed to cause the harm or damages to Jorja Gilbert, find the percentage of responsibility attributable to each: I. Hong Bich Chau % 2. Ahn "Andy" Van Dang % 3. Trevor Gilbert % 4. Jorj a Gilbert % 5. Imeldia Adams % 6. Michael Nguyen % 7. Chi True Hoang %

Granted: _ _ _ _ _ _ _ __ Refused:, _ _ _ _ _ _ _ __ Modified as follows: _ _ _ _ _ _ _ _ _ _ _ and Given. Exception Allowed: _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"1 l~.36

-24-

329 lfyou answered "Yes" then answer the following question. Otherwise do not answer the following question. QUESTION NO. _ _ What sum of money, if any, if paid not in cash would fairly and reasonably compensate Chi True Hoan§ for her damages, if any, that resulted from Trevor Gilbert's and Jorga Gilbert's failure to comply?' Consider the following elements, if any, of the following: Amount of damages, if any, awarded against Chi True !Ionag in Question _ and Question Do not add any amount for interest on damages, if any. Answer separately in dollars and cents for damages, if any. a. Trevor Gilbert Answer:- - - - - - - -

b. Jorja Gilbert

Granted:_ _ _ _ _ _ _ __ Refused: _ _ _ _ _ _ _ __

Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ and Given. Exception Allowed:_ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC 115.3

-25-

330 QUESTION_ What sum of money, if any, if paid now in cash, would fairly and reasonab1x compensate Chi True Hoang for her damages, if any, that resulted from her reliance on the promise • by the following Consider the following elements, if any, of the following: Amount of damages, if any, awarded against Chi True Honag in Question _ and Question__ Do not add any amount for interest on damages, if any.

Answer separately in dollars and cents for damages, if any. a. Trevor Gilbert Answer:- - - - - - - -

b. Jorja Gilbert

Answer:-------

Granted: _ _ _ _ _ _ _ __ Refused: _ _ _ _ _ _ _ __ Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ and Given. Eii;ception AJlowed:_ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC 110.5

-26-

331 QUESTION _ _ What is a reasonable fee for the necessary services of Chi True Hoang's attorney in this case, stated in dollars and cents?37

Answer in Dollars and Cents, If any:

a. For preparation and representation in the trial court

Answer: - - - - - - -

b. For representation through appeal to the Court of Appeals

Answer: - - - - - - - c. For representation at the petition for review stage in the Supreme Court of Texas

Answer:-------- d. For representation at the merits briefing state in the Supreme Court of Texas

Answer: - - - - - - - c. Forrepresentation through oral argument and completion of the proceedings in the Supreme Court of Texas.

Answer:-------

Granted: _ _ _ _ _ _ _ __

Refused: _ _ _ _ _ _ _ __

Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ and Given. Exception Allowed: _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC 115.4 7

-27-

332 Answetthe following question only if you answered "Yes to Question_as to Hong Bich Chau. Otherwise, do not answer the following question. To Answer "Yes'' to any part of the following question, your answer must be unanimous. You may answer "No" to any part of the following question only upon a vote often or more jurors. Otherwise, you must not answer that pait of the following question. QUESTION NO. _ _ Do you find byckar and convincin evidence that the harin to Trevor Gilbert or Jorj11 Gilbe1t resulted from malice of Hong Bich Chau?8' ''Clear and convincing evidence" means the measure or degree of proof that produces a firm belief or conviction of the tmth of the allegations soughtto be established. "Malice means- I, A specific intent by Hong Bich Chau to cause substantial injury to Trevor Gilbett and Jorja Gilbert 2. An act omission by Hong Bich Chau a. which when viewed objectively from the standpoint of Hong Bich Chau at the time ofits occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to .others; and b. of which Hong Bich Chau has actual, subjective awareness of the risk involved, but nevertheless proceeds with conccious indifference to the rights, safety or welfare of others.

Granted:._ _ _ _ _ _ _ __ Refused: _________ Modified as Follows: and Given. Exception Allowed: _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC 115.39A

-28-

333 Answer the following question only if you answered "Yes to Question_ as to Anh "Andy" Van Dang Otherwise, do not answer the following question. To Answer "Yes" to any part of the following question, your answer must be unanimous. You may answer "No"to any part of the following question only upon a vote often or more jurors. Otherwise, you must not answer that part of the following question. QUESTION NO._ Do you find by clear and convincing evidence that the harm to Trevor Gilbert or Jo~ja Gilbert resulted from malice of Anh "Andy" Van Dang?'° "Clear and convincing evidence" means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be establi.shed. "Malice means- l. A specific intent by Anh "Andy" Van Dang to cause substantial injury to Trevor Gilbert and Jorja Gilbert 2. An act omission by Ahn "Andy'' Van Dang a. which when viewed objectively from the standpoint of Ahn "Andy" Van Dang at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential.harm to others; and b. of which Alm "Andy" Van Dang has actual, subjective awareness of the risk involved, but nevertheless proceeds with conccious indifference to the rights, safety or welfare of others.

Granted:._ _ _ _ _ _ _ __ Refused:_ _ _ _ _ _ _ __ Modified as Follows: and Given. Exception Allowed:. _ _ _ _ _ _ _ __

JUDGE PRESIDING

"PJC l 15.39A

-29-

334 Answer the following question only if you answered "Yes to Question _ as to Chi True Hoang. Otherwise, do not answer the following question.

To Answer "Yes" to any part of the following question, your answer must be unanimous. You may answer "No" to any part of the following question only upon a vote often or more jurors. Otherwise, you must not answer that part of the following question. QUESTION NO. _ _

Do you find by clear and convincing evidence that the harm to Trevor Gilbert or Jorja Gilbert resulted from malice of Chi True Hoang40

"Clear and convincing evidence" means the measure or degree ofproof that produces a firm belief or conviction of the truth of the allegations sought to be established. "Malice means-

I. A specific intent by Chi True Hoang to cause substantial injury to Trevor Gi lbett and JorjaGilbert 2. An act omission by Chi True Hoang

a. which when viewed objectively from the standpoint ofChi True Hoang at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and b. of which Chi True Hoang has actual, subjective awareness of the risk involved, but nevertheless proceeds with conccious indifference to the rights, safety or welfare of others.

Granted:._ _ _ _ _ _ _ __ Refuscd:,---=--=------ Modified as Follows: and Given. Exception Allowed:_ _ _ _ _ _ _ __

JUDGE PRESIDfNG

"PJC l 15.39A

-30-

335 PROPOSED QUESTIONS ON EXEMPLARY DAMAGES IF COMPENSATORY DAMAGES ARE PROVED AN]) PLAINTIFFS ARE ENTITLE]) TO TRIAL ON THESE ISSUES

-31- 336 Answer the following question regarding a defendant only if you have unanimously answered ''Yes" to Question_ regarding that Defendant. Otherwise do not answer the following question regarding that Defendant.

You must unanimously agree on the amount of any award of exemplary damages.

QUESTION NO._ What sum of money if any, if paid in cash should be assessed against Hong Bich Chau and awarded to 'frevor Gilbert and Jorja Gilbert as exemplary damages, if any, for the conduct found in response to Question _ _?

"Exemplary damages" means an amount that you may in your discretion award asa penalty or by way of punishment.

Factors to consider in awarding exemplary damages, if any, are __

I. The nature of the wrong

2. The character of the conduct involved

3. The degree of culpability of Hong Bich Chau

4. The situation and sensibilities of the parties concerned

5. The extent to which such conduct offends a public sense of justice and propriety.

6. The net worth of Hong Bich Chau.

Answer in dollars and cents, if any.

Granted:_ _ _ _ _ _ _ __

Refused: _ _ _ _ _ _ _ __

Modified as Follows:_ _ _ _ _ _ _ _ _ _ _ and Given. Exception Allowed:_ _ _ _ _ _ _ _ _ _ _ _ __

-32- 337 Answer the following question regarding a defendant only if you have unanimously answered "Yes" to Question_regarding that Defendant. Otherwise do not answer the following question regarding that Defendant. You must unanimously agree on the amount of any award of exemplary damages. QUESTION NO._ What sum of money if any, if paid in cash should be assessed against Ahn" Andy" Van Dang and awarded to Trevot· Gilbert and Jorja Gilbert as exemplary damages, ifany, for the conduct found in response to Question _ _?

"Exemplary damages" means an amount that you may in your discretion award as a penalty or by way of punishment. Factors to consider in awarding exemplary damages, if any, are __ 1. The nature of the wrong 2. The character of the conduct involved 3. The degree of culpability of Ahn "Andy" Van Dang 4. The. situation and sensibilities of the parties concerned 5. The extent to which such conduct offends a public sense of justice and propriety. 6. The net worth of Ahn "Andy" Van Dang.

Answer in dollars and cents, if any.

Granted: _ _ _ _ _ _ _ __ Refused:. _ _ _ _ _ _ __

Modified as Follows:. _ _ _ _ _ _ _ _ _ _ _ and Give11. Exception Allowed: _ _ _ _ _ _ _ _ _ _ _ _ __

-33-

338 Answer the following question rega!'ding a defendant only if you have unanimously answered "Yes" to Question_regardingthat Defendant. Othe1wisedo not answer the following question regarding that Defendant.

You must unanimously agree on the amount of any award of exemplary damages. QUESTION NO._ What sum of money if any, if paid in cash should be assessed against the Chi True Hoang and awarded to Trevor Gilbert and Jorja Gilbert as exemplary damages, ifany, for the conduct found in response to Question _ _? "Exemplary damages" means an amount that you may in your discretion award as a penalty or by way of punishment. Factors to consider in awarding exemplary damages, if any, are - ~ I. The nature of the wrong 2. The character of the conduct involved 3. The degree of culpability of Chi True Hoang 4. The situation and sensibilities of the parties concerned 5. The extent to which such conduct offends a public sense of justice and propriety. 6. The net worth of Chi True Hoang

Answer in dollars and cents, if any.

Granted:, _ _ _ _ _ _ _ __

Refused:~------- Modified as Follows: _ _ _ _ _ _ _ _ _ _ _ and Given. Exception Allowed:,_ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

-34- 339 TAB NO. 7 11/25/2014 3:05:01 PM Chris Daniel · Dis\lict Cler~ Harris coun\y Envelope No. 3298897 2011-58137A I Court: 334 By: DANIELLE JIMENEZ Filed: 11125/2014 3:05:01 PM

NO. 2011-58137

TREVOR GILBERT AND § IN THE DISTRICT COURT OF JORJA GILBERT § § HARRIS COUNTY, TEXAS vs. § § HONG BICH CHAU, ET AL § 334TH JUDICIAL DISTRICT

PLAINTIFFS' MOTION f'OR JUDGMENT NON OBSTANTE VEIIDICTO

This is Trevor and Jorga Gilbert's (collectively, "the Gilberts" or "Plaintiffs") Motion for

Judgment Non Obstante Verdicto (JNOV) as to Defendant Chi T1uc Hoang's ("Defendant Hoang'')

award ofattomey's fees.

I. FACTS

I. Plaintiffs sued Defendant Hoang for violations of the Deceptive Trade Practices Act, fraud,

slatutoty fraud, and civil conspiracy.

2. Defendant Hoang answered and raised defenses of failure to mitigate damages, assumption

of the risk, release and waiver, but also br0t1ght a counterclaim for breach of contract,

promissory estoppel at common law and sought declaratory relief. All these defenses and

the counterclaim were based upon one sentence in a document prepared by the title

company entitled "Acceptance of Title and Closing Agreements." The sentence recited

hold harmless language, and although was signed by tl1e Gilberts and tl1e seller/defendants,

Ahn Van Dan and Hong Bich Chau (collectively "Chau Defendants") at the closing of the

real estate tl'ansaction, it was not signed or authorized by the third party realtors 01· their

supervising broke!'s.

Page I of 11

434 3. On November 20, 2014. a jury awarded to the Gilberts what can only be deemed a large

verdict against the Chau Defendants for $1,384,000 for knowingly and intentionally

violating the DTPA, and for common law fraud, and statutory fraud. However, the jury did

not find the listing/selling realtor of the Chau Defendants (Hoang) liable under any of the

Gilberts' causes of action. The jury further answered "Yes" to whether the Gilberts failed to

comply with an agreement lo release and hold the realtors and their brokers, including

Defendant Hoang, hrumless. The jury also dete1mined that $230,000.00 was a reasonable

fee for necessary legal services ofHoang's attorney.

4. The Gilberts now move the Court for a judgment notwithstanding the verdict regarding the

recoverability of attorney's fees of the Hoang's lawyer, as there was never any claim for

recovery of (nor did she disclose or prove) any damages as a result of the Gilberts' alleged

breach of contract. Additionally, there was no evidence of consideration to the Gilberts for

their promise. Further, Hoang's Counsel did not properly allocate her attorney's fees

between the time spent defending against the Gilberts' claims and that incurred for the

counterclaim. Finally, Hoang cannot use a declru:atory judgment solely as a vehicle to

recover attorney's foes.

Page2of 11

435 II. DEFENDANT HOANG DID NOT SEEK- NOR RECOVER-DAMAGES

5. To obtain an award of attorney's fees under Section 38.001 of the Civil Practice and

Remedies Code, a party must (1) prevail on a cause of action for which attorney's fees are

recoverable, and (2) recover damages. State Fann Life I,1s. Co. v. Beaston, 907 S.W.2d 430,

437 (Tex.1995); See also Rodg,!ts v. RAB lnvestnutnts, Ltd., 816 S.W.2d 543, 551

(Tex.App. -Dallas 1991, 110 writ), A party mu.st satisfy tlte two re(Juirements to recover

attorney's fees. See State at 437.

6. Here, Defendant Hoang presented neither pleadings nor a shl'ed of evidencc upon which she

might have independently recovered actual damages as a result ol' any lrrcach of contract by

the Gilbe1ts. Likewise (and due to the lack of pleading and. proof), the jury did not award

any actual or even "nominal" damages to Hoang. Jn her Fourth Amended Answer and

Counte!'claim. HoUllg filed a counterclaim fo1· breach of contract, promissmy estoppel, and

plead fol' n declaratory judgment based on one sentence in the Acceptance Title and Closing

Document. ln this claim, Defendant Hoang claimed, "As a result of the Counter-Defendants

breach of their hold haimless agreement. Counter-Plaintiff has been damaged in an amount

of not less than $50,000.00." This is the only time Hoang ever mentioned any damages

suffered, and despite this, she proved-up no specific instance of ham1 caused by the

Plaintiffs' alleged breach, and she made no claim for actual damages whatsoever.

7. l11roughout the entire three year litigation Hoang foiled lo plead or prove any specific

damage she suffered as a result of the alleged breach of contract. Although she served six

(6) separate sets of disclosures, Hoang never set forth any damages she suffered or incun-ed

Page3of 11

436 caused by or even due to Gilberts' alleged breach of contract, nor did she ever disclose any

specific monetmy value of such damages. Hoang only pied recove1y of teasonablc and

necessary attorney's fees. Additionally, throughout trial Hoang presented no testimonial or

documentary evidence of how, and by what amount, the alleged breach damaged her. Again,

the only evidence of a dollar amount of anything lhal was presented was of attorney's fees

allegedly incu!'red.

8. In Green Intern., Inc. v. Solis, although the jury found that Solis failed to comply with the

Woodville Subcontract, !he Jury awmded zero damages to Green for this breach. Because

Green failed 10 recover damages on its breach of co11tract claim. Green was not entitled to

recover attorney's fees under Section 38.001. Green int'/, J11c. v. So{ls, 951 S.W.2d 384, 390

(Tex.1997).

9. Hoang did not even present evidence of nominal damages from which to attach an award of

attorney's fees. The law requires a counter-plaintiff to recover some damages in order to be

awarded attorney's fees. "If the law were otherwise, it would follow that it is available for

virtually every debtor, heing sued for the nonpayment ol' a contractual obligation to pay. to

file a 'counterclaim' asse11ing that he has sustained a 'loss' in the amount being sued for by

his creditor, and if the debtor is SLtccessful in defeating 1U1y part of the claim, lie is entitled lo

attorney's fees as an adjunct to his counterclaim." rrr Commercial Fin Co171. v. Riehn, 796

S.W.2d 248. 256 (Tex.App. - Dallas 1990, no writ).

10. 1n sumnuu·y, because Defendant Hoang did not present evidence of damages resulting from

her breach of contract claim. Section 38.001 of the Texas Civil Practices and Remedies

Code;, does not allow recove1y of attorney's fees.

Page4of 11

437 III. NO CONSIDERATION BETWEEN THE GILBERTS AND DEFENDANT HOANG

lL To prove ru1 action for breach of contract. a plaintiff must establish the existence of im

enforceable contract. Advanwge Physical Therapy. Inc. v. Cruse, 165 S.W.3d 21. 24

(Tex.App.-Houstoo [ 14ili Dist.] 2005, no pet.). The elements of an enforceable contt·uct aJ'e:

(1) an offer; (2) an acceptance in suict compliance with the terms of the offer; (3) a meeting

of the minds; (4) a communication that each pm1y consented to the terms of the contract; (5)

execution and delivery of the contract with an intent ii become mutual and binding on both

pal'lies; Md (6) consideration. Id. Generally, 11 contract must be supported by consideration

to be enforceable. McClemon v. Dynegy. Inc., 347 S.W. 315, 335 (Tex.App.-Houston [14th

Dist.J 2011, no pel.) (citing Alex Shuslwnojf Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644,

659 (Tex.2006)). Consideration consists of either a benefit to the promisor or a detiiment lo

the promise. See Roark v. S1allwo11h Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex.1991). I! is

a present exchange bargained for in relu111 for a promise. Id. ft may consist of some 1ight,

interest, or profit, or benefit that accrues to one party, or, alternatively, of some forbeai·Mce,

loss or responsibility that is undertaken or incurred by the other party. Angelou v. African

Overseas Union, 33 S.W.3d 269, 280 (Tex.App.-Houston [14u1 Dist.] 2000, no pet);

Westergnm v. Natio11al Pmperty Holdings, LP., 409 S.W.3d 110, 130 (Tex.App.-Houston

[14'11 Dist.], 2013). But the bollom line is th:it there must be some consideration.

12. Here. there was no evidence presented al trial (or any stage oflitigation) which established

consideration passing from the Plaintiffs to the Defendant Hoang. Additionally. there is no

evidence of an offer, acceptance, 01· a meeting ol' the minds. The Gilbe11s merely signed the

Page5of II

438 Acceptance of Title and Closing Document: concerning the Chau Defendants only. Hoang

never signed the document, nor was she a party to it.

13. The Acceptance Agreement stated: "The undersigned Purchasers acknowledge that neither

the Real Estate Agent(s), or Broker(s) or FIDELITY NATIONAL TITLE INSURANCE

COMPANY have made any watrnnties or representations as lo the condition of the above

referenced prope1ty, or as to the requirements of the parties under their contract of sale, a:nd

accordingly, the undersigned Purchasers release and hold them hamlless from any and all

liability in regard to the same." See Exhibit A. Hoang based her breach of contract claim on

this boilerplate language which did not specifically name the sellers' realtor, Chi True

Hoang, in a contrnct fo1· which Defendant Hoang was not a party, and gave no

considel'ation.

14. Additionally, even if Hoang had been a party to this agreement, and there was proper

consideration for the Gilberts' promise, this clause was a contract of adhesion. That is, the

Gilbe1ts were required to execute this document ill 01·der to pw·chase the home. Texas law

defines an adhesion contract as a contract in which one party has absolutely no bargaining

power or ability to change the contract terms. See /11 re H.E. Butt Groce1y Co.• 17 S.W.3d

360, 370-71 (Tex.App.-Houston [14d' Dist.] 2000. orig. proceeding). Here, the Plaintiffs had

no opportunity to negotiate this provision, or negotiate an alternative one. This language was

placed in the middle of literally hundreds of pages of legal documents, and not pointed out

to the Gilbe11s. TI1e Gilberts cmmot be held liable for signing such an agreement which was

not discussed nor negotiated between any patties at closing - least of all. lhe Plaintiffs or

Defendant Hoang.

Page 6 of ll

439 15. As a maUer of law, lhe Plainliffs cannot be held liable for filing suit against Defendant

Hoang for violations of the DTPA and fraud, which may have violated such a contract of

adhesion.

IV. COUNSEL FOR HOANG FAILED TO ALLOCATE FEES

16. l11e general rule is that attorney's fees must be segregated between those services rendered

for prosecuting a suit, and fees for services renderoo in defense of a claim against a

defendant. Hannes v. Arklatex Corp .. 615 S.W.2d 177, 180 (Tex,1981). One claiming

attorney's fees has the burden of proof to segregate those recoverable from an opponent

ti·om those which are not. Natural Gas Clearinghouse v. Midgard Energy Co., I 13 S.W.3d

400, 416-17 (Tex.App.-Amarillo 2003, pet. denied); Hmska v. First State Bank, 747 S.W.2d

783, 785 (Tex. 1988).

17. For the Defendant Hoang to recover attorney's fees, she must distinguish between the fees

incurred while defending against the Plaintiffs' claims of fraud and violations of the DTPA

from those incurred in pursuing her claim for breach of contract. Defendant Hoang did not

allocate or otherwise segregate her fees in this regard. The law requires her to introduce

evidence to show what portion of the attorney's fees was applicable to the counterclaim fol'

hreach of contract. Instead, she submitted to the jury, one lump sum, commingling all fees

incull'ed for the defense of the Gilberts' claims, and the breach of contract/counterclaim

cause or action. There was no evidence by which the jury could apportion the atto111ey's fees

between the defense and the prosecution of the countet•claim.

18. As a matter of fact, Hoang did not file her counterclaims for breach of contract and

Page7of II

440 promissory esloppel until March 1. 2013. Clearly. all fees incu1Tcd prior lo lhis dale go

towards defending ngainst the Plaintiffs' claims of fraud and violntions of the OTPA.

Tirns. even if the Court were to take over the jury's fact-finding duti.es at this point in the

case (which would be improper). all fees incurred prior to Mmch 1, 2013 would not be

recoverable.

19. lf Hoang could recover attorney's fees (despite the fact that she did not present evidence of

damages for the alleged breach of contract), she cannot he awarded the amount found by the

jury because she failed to distinguish which fees m·e ac!uulJy recoverable in prosecution of

the counlerclaim.

v. HOANG'S DECLARATORY JUDGMENT SOUGHT NO AFFRIMATIVE RELIEF

20. A declaratory judgment is not appropriate when a controversy is already pending, and the

declaratory judgment simply answers the claims and asks for no relief outside the scope of

the main suit. Univ. (>J'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. -6-

489 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.

Court o.f Collin County, 617 S. W.2d 743, 746 (Tex.App.-Dallas 1984, writ ret'd n.r.e.).

-7-

490 26. In Pun,is Oil, Hillin pied forattomey's fees in its amended answer. Similarly, Hoang

pied for attorneys fees under §37.009 in her pleadings. See Ex. B. Since it was properly plead, the

Court has the discretion to award Hoang her attorneys' fees. See Purvis Oil, 890 S.W.2d at 939.

II. Hoang is Also Entitle to Attorneys Fees as Damages for .Breach of the Hold Harmless Agreement

27. Although the Court can award the attorneys fees under §37.009, and does not need

to reach the question as to whether Hoang is entitled to the $230,000 as damages under her breach

of contract action, this Court requested briefing on the issue.

A. Damages in the Form of Attorneys Fees Are Proper under Hold Harmless Agreements

1. Hoang Can Recover Attorneys Fees as Damages

28. Plaintiffs argue that Hoang catmotrecover attorneys fees as damages under §38.00 l.

However, Hoang disagrees that the attorneys' fees cannot be damages and does not necessarily seek

them under §3 8.00 I. Hoang was seeking her damages for breach of a hold harm less agreement. As

such, the only damages Hoang could have sustained was her cost of defending the lawsuit, i.e. her

attorneys' fees which are recoverable 11nder Texas law.

29. Texas law is clear that an indemnitee may recover the expenses of litigating an

indemnified claim ifindemnity arises either under law or under a contract. Monica/ & Powell, Inc.

V Becluel Corporation, 404 S.W.2d 911, 914 (Tex Civ. App-Eastland, 1966, wtitret"d n.r.e); Kline

v DAG Ma11agemem, Inc. 1995 WL500298 at 3 (Tex. App.-Dallas 1995, no writ); Ke),stmw Equity

Ma11age111elll v Thom, 30 S.W.2d 339, 340 (Tex. App-Dallas, 1987, no writ). Unless the hold

harmleS$ contract protects Hoang from the attorneys fees and costs that she incurred, then she will

be fully protected, indemnified and saved ham1less. Mo11ical & Powell, Inc. V Bechtel C017Joratio11,

-8-

491 404 S.W.2d 911, 914 (Tex. Civ. App-Eastland, 1966, w1it rerd 11.r.e); T.J. Kline. 404 S.W.2d at

914.

30. In T.J. Kline, the indemt1ity contract provided that the appellants hold harmless the

appellees from any and all losses and expenses out o(or in connection with injmies sustained or

alleged to have been sustained by reason of performance of the work under the subcontract. 1'.J.

Kline, 404 S.W.2d at 9 I4. The Court held that the indemniteemay recover against the indemnitor

for all reasonable expenses in settling the claim agai11stthe indemnitee. T,J, Kline, 404 S.W.2d at

914 dring Ohio Oil Compa11y v Smith, 365 S.W.2d62 l, 627 (Tex. 1963). In Garcia v. S/.,y Climber,

hie., 470 S.W.2d 261, 269-70 (Tex. Civ. App.-Houston [ls Dist] 1971, wlitrefd), the Court held

that attorney's fees and court costs are recoverable under general "hold harmless" indemnity

agreements.

31. Similarly in the present case, Plaintiffs under the Acceptance Agreement agreed to

hold harmless Hoang from any claims brought regarding the condition of the property. Despite this

agreement, Plaintiffs, brought such claims against Hoang themselves. Not only is it equitable and

just to award Hoang her attorneys fees under §37.009, Hoang would be entitled to recover her costs

and expenses under the hold harmless agreement which the jury found that Plaintiffs breached. See

Ex. A. See 'J'.J. Kli11e, 404 S.W.2d at 914. See also Crimson Exploration, Inc., v. lntermarket

Management, LLC., 341 S.W.3d 432, (Tex. Civ. App. -Houston [ 1st Dist], 20 I0) (patties are not

precluded from recovering their defense expenses); Garcia v Sky Climber, Inc., 470 S.W.2d 261

(Tex. Civ. App-Houston [l" Dist.] 1971, wlit refd n.r.e.); Patch v. Amoco Oil Co., 845 F.2d 571,

573 (5th Cir.1988) (indemnitee would not be held "hannless" where it was not found negligent by

jury unless entitled to recover costs of litigation).

-9-

492 32. Under hold harn1less agreements, attorneys fees are awarded as damages nad not

under §38..00 I. See Crimson Exploration, 341 S.W.3d at 446.

2. Ho11ngProperly Submitted her damage question 11nd the Court's refusal to submit it to the jury was error

33. Plaintiffs further argue that attorney's fees to Hoang are improper becaL1sethere was

no separate findings of actual damages other than the attorneys fees' awarded to Hoang. However,

Hoang did submit a jury question on damages and the Court refused the submission, stating since

the only damages that Hoang incun·ed were the costs of defense, i.e. her attorneys fees, therefore a

separate damage question was not necessary. 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 as preserved the error. See D{d/as Mkr Ctr. Dev. Co. v Uedeker, 958 S. W. 2d 382,

386-387 (Tex. 1987) overruled on other f1ro1mds Torringto11 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).

34. 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 lns. Co. of Texas v. Andrew's Restoration, lnc., 323 S.W.3d 564, 584

(Tex.App.-Dallas,20 JO) qf}"d in pan. rev ',I in part Cruz v Andrews Restoration. Inc. 364 S.@.3d

817 (Tex. 2012). See Tex.R. Civ. P. 276 See also .lohnson v. .lolm.wm. 869 S.W.2d 490, 492

(Tex.App.-Eastland 1993, writ denied).

35. 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 3S7. Ill Liedeker, the record reflected

that the appellant submitted written requests to the tial judge, the judge said he would sign them

later, and through inadvertence the judge never signed them. The Supreme court held that the trial

-JO-

493 court's "statements on the record clearly prese1ved [appellant]'s complaint.'' Liedeke,; 58 S.W.2d

at 387. 36. Similarly, in the present case, Hoang court specifically asked for her actual damage

question. The Court refused the submission stating that since the only damages that Hoang were

seeking were her attorneys fees, such question was not necessary. The Court did not submit the

question, and inadvettently forgot to sign the question presented to it by Hoang's counsel.

Therefore, Hoang's question on damages was preserved.

3.. lloang's Attorneys .Fees as Damages is a Deemed Finding

37. Since Hoang did submit a separate question as to damages to this Court, and the

Court refused the submission of such question, and Plaintiff never objected to the submission of the

attorneys' fees and the breach ofcontract/release questions, the issue that attorneys fees are damages

is a "deemed finding. This Court can enter a finding as such, 3S. Tex. R. Civ. P. 279 provides that when a ground of recovery or defense consists of

more than one element, ifone or more of such elements necessary to sustain such ground of recovery

or defense, and necessarily referable thereto, are submitted to and fo,mdby 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 befol'e the judgment is rendered, can make and file written findit1gs 011 such omitted element or elements in support of the

judgment. lfno 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.

39. Itis undisputed that tl1ejury awarded Hoang her reasonable and necessaiy fees in the

sum of$230,000.00. The Court can make a written finding that such attorneys fees constituted the

damages. Even if no such written findings are made, such omitted element or elements shall be

-I 1-

494 deemed found by the court in such manner as to support the judgment. See Gu((S1ates Utilities Co.

v. Low, 79 S.W.3d 561, 564-66 (Tex. 2002). 40. In Low, the Court held that "when an incomplete theory is submitted withot1t

complaint, the parties are deemed to have waived a jury trial on the omitted issue and to have a.greed

to submit the issue to the trial court. Low, 79 S.W.3d at 564. See, e.g., Shearson Lehman Ht.urcm,

Inc. v. Tucker, 806 S.W.2d 914, 925 (Tex.App.-Coq>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.

-12-

495 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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497 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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498 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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