Phong Trinh v. Fatha Elmi and Med Solutions Pharmacy, Inc.

Court of Appeals of Texas·Decided July 28, 2015·No. 01-14-00204-CV·Published

Opinion

ACCEPTED 01-14-00204-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 7/28/2015 3:14:15 PM CHRISTOPHER PRINE CLERK

CAUSE NO. 01-14-00204-CV

FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE HOUSTON [FIRST] COURT OF 7/28/2015 3:14:15 PM APPEALS CHRISTOPHER A. PRINE Clerk

On Appeal from the 269th Judicial District Court Harris County Cause No. 2011-16459

PHONG TRINH, APPELLANT

V.

FATHA ELMI AND MED SOLUTIONS PHARMACY, INC., APPELLEES

APPELLANT’S REPLY TO MOTION FOR RECONSIDERATION

Paul Simon State Bar No. 24003276 psimon@shmsfirm.com Rachel Berkley State Bar No. 24082684 rberkley@shmsfirm.com SIMON HERBERT & MCCLELLAND, LLP 3411 Richmond Avenue, Suite 400 Houston, Texas 77046 (713) 987-7100 (Main) (713) 987-7120 (Fax)

TABLE OF CONTENTS

REPLY ......................................................................................................................1

CERTIFICATE OF SERVICE ..............................................................................5

- ii -

TABLE OF AUTHORITIES

Cases American Recreational Markets General Agency, Inc. v. Hawkins, 846 S.W.2d 476 (Tex. App.—Houston [14th Dist.] 1993, no writ) ......................2

Callejo v. Brazos Elec. Power Coop., 755 S.W.2d 73 (Tex. 1988) ..........................2

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ..........................................2, 3

First State Bank v. Keilman, 851 S.W.2d at 914 (Tex. App.—Austin 1993), writ denied .................................................................2

HCAD v. Riverway Holdings, L.P., 2011 WL 529466 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) ...........................................3

Hunter v. Ford Motor Co., 305 S.W.3d 202 (Tex. App.—Waco 2009, no pet.) .........................................................................3

Morton v. Johnston, 1998 WL 713679 (Tex. App.—Houston [1st Dist.] Aug. 20, 1998, no pet.) .....................................3

Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) .............................................................................................................1

National Plan Admins., Inc. v. Nat’l Health Ins. Co., 150 S.W.3d 718 (Tex. App.—Austin 2004) ..........................................................2

National Plan Admins., Inc. v. Nat’l Health Ins. Co., 235 S.W.3d 695 (Tex. 2007)..................................................................................2

- iii -

REPLY Appellees’ Response essentially makes the main point in Trinh’s Motion for

Reconsideration. Not because of what it says, but because of what it doesn’t. Its

brief cites nothing which would have allowed the jury, after it found Appellees

breached the contract, to award damages zero Trinh based on Trinh’s alleged

failure to perform. And for good reason: the law in Texas is well-settled that, once

one party breaches a contract, the other party is excused from further performance.1

Furthermore, Appellees did not ask the trial court to instruct the jury on

Trinh’s alleged failure to perform the contract, and they do not now challenge the

jury’s finding that they breached the contract. More importantly insofar as Trinh’s

―main point‖ is concerned, there is nothing which suggests Trinh’s performance

was due before Appellees’ breach.2 Accordingly, there is no evidence upon which

the jury could have concluded that Trinh failed to perform any of his obligations

under the parties’ agreement.

1 Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004).

2 The evidence Appellees point to does not suggest Trinh was required to pay $30,000 before Appellees’ breach, and at the end of that line of cross-examination, Trinh testified that the parties agreed he was not required to pay more than $10,000 until after the parties signed a written agreement. R.R. Vol. 3, 53: 10–25. This testimony is corroborated by Mitzi Rivero, the attorney Appellees hired to memorialize the parties’ agreement. Her contemporaneous notes from her initial meeting with Elmi and Trinh show that she planned to draft a promissory note, secured by Trinh’s stock, which Elmi would hold until Trinh paid 100% of the total $30,000 buy-in. R.R., Vol. 3: 225:16 – 227:21. See also Exhibit 13, R.R., Vol. 2: 12–19. Rivero’s trial testimony was consistent with her contemporaneous notes from that initial meeting. R.R. Vol. 3, 228:22 – 229:2. But, before Rivero drafted these agreements, Elmi told her to stop working on them, and shortly after that, she ousted Trinh. Appellees did not controvert this evidence. Hence, the jury could not have found Trinh was required to complete his buy-in after Appellees’ breach.

And, because Appellees did not plead or prove any failure by Trinh to

perform any aspect of the agreement, and the fact that the evidence of damages

could have been—but was not—controverted, the jury was not free to ignore the

range of damages to which Trinh’s expert testified. So, Appellees distract from the

main point and argue Trinh ―attacks the prior precedents,‖ when that simply is not

true.

Whether American Recreational3 was correctly decided based on evidence

not supplied in that opinion or wrongly decided is not relevant to this appeal. What

is relevant is that none of the cases cited in the Opinion hold that a jury may ―leap

outside the evidence.‖ Rather, the law is settled that juries must decide cases on the

evidence presented (and reasonable inferences drawn from that evidence), and

when it comes to damages, it must award those damages when the evidence could

have been readily controverted but was not,4 particularly when, as here, the

evidence of damages required expert testimony.5 Yet, this jury awarded no

3 American Recreational Mrkts. Gen. Agency, Inc. v. Hawkins, 846 S.W.2d 476 (Tex. App.—

Houston [14th Dist.] 1993, no writ).

4 City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005); Callejo v. Brazos Elec. Power Coop., 755 S.W.2d 73, 75–76 (Tex. 1988); First State Bank v. Keilman, 851 S.W.2d 914 (Tex. App.—Austin 1993, writ denied); National Plan Admins., Inc. v. Nat’l Health Ins. Co., 150 S.W.3d 718, 740 (Tex. App.—Austin 2004), rev’d on other grounds, 235 S.W.3d 695 (Tex. 2007).

5 HCAD v. Riverway Holdings, L.P., 2011 WL 529466, *4 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); see also Hunter v. Ford Motor Co., 305 S.W.3d 202, 206 (Tex. App.—Waco 2009, no pet.) (quoting extensively from City of Keller, 168 S.W.3d at 819–20); Morton v. Johnston, 1998 WL 713679, *5 (Tex. App.—Houston [1st Dist.] Aug. 20, 1998, no pet.).

damages even though the undisputed evidence proved Trinh suffered actual

economic damages.

Appellees chose to defend a single issue—liability—and lost 12 to zero. The

only way around the problem Appellees now face is to misrepresent the state of the

evidence presented to the jury. But, what is clear is Appellees cite nothing where

they plead Trinh’s failure to perform (such as a defense or a condition precedent)

and nothing in the record where they presented any evidence in support of that

position (which, incidentally, they did not raise in their appellate brief).6

Accordingly, because the evidence of damages is undisputed, this Court

must reverse and render judgment for Trinh on damages at the lower range of

$554,168. Alternatively, it should reverse and remand for a new trial on damages.

If this Court agrees and renders judgment in favor of Trinh on damages, then this

Court should likewise render on the issue of Trinh’s attorney’s fees. But, to be

perfectly clear, Trinh concedes that, if this Court does not modify its opinion on

damages, then the issue of Trinh’s legal fees must be retried in light of the

reasonableness of the award.

Free access — add to your briefcase to read the full text and ask questions with AI