                                                                                    ACCEPTED
                                                                                01-14-00204-CV
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           6/10/2015 7:02:25 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                    CAUSE NO. 01-14-00204-CV

  __________________________________________________________
                                                     FILED IN
                                                     1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
         IN THE HOUSTON [FIRST] COURT OF             6/10/2015 7:02:25 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 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

I.      PROCEDURAL AND FACTAUL BACKGROUND ..................................... 1

II.     SUMMARY OF THE ARGUMENT .................................................................... 1

III.    ARGUMENT & AUTHORITIES.......................................................................... 3

        A.       The Court May Not Look Outside the Record to Harmonize a
                 Verdict. ................................................................................................................ 3
        B.       The Memorandum Opinion Did Not Address Those Cases
                 Holding that a Jury May Not Award No Damages When Expert
                 Testimony on Damages is Uncontroverted. ............................................ 7

IV.     CONCLUSION & PRAYER ................................................................................. 14

CERTIFICATE OF SERVICE......................................................................................... 15




                                                                - 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).....................13

Callejo v. Brazos Elec. Power Coop., 755 S.W.2d 73 (Tex. 1988) ..........................8

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ..........................................7, 9

Cooper v. Lyon Financial Services, Inc., 65 S.W.3d 197
 (Tex. App.—Houston [14th Dist.] 2001, no pet.) ................................................12

Davis v. Davison, 905 S.W.2d 789
 (Tex. App.—Beaumont 1995, no writ) ..................................................................8

First State Bank v. Keilman, 851 S.W.2d 914
  (Tex. App.—Austin 1993, writ denied) .................................................................8

Flowers v. Flowers, 407 S.W.3d 452
  (Tex. App.—Houston [14th Dist.] 2013, no pet.) ..................................................5

Guillory v. Boykins, 442 S.W.3d 682
 (Tex. App.—Houston [1st Dist.] 2014, no pet.) .....................................................5

HCAD v. Sigmore Corp., 2008 WL 921073
 (Tex. App.—Houston [1st Dist.] 2008, no pet.) .....................................................8

HCAD v. Riverway Holdings, L.P., 2011 WL 529466
 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)............................................9

Hill v. Clayton, 827 S.W.2d 570
 (Tex. App.—Corpus Christi 1992, no writ) .......................................................8, 9

Houston Med. Testing Servs., Inc. v. Mintzer, 417 S.W.3d 691
 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ..............................................3, 4

Hunter v. Ford Motor Co., 305 S.W.3d 202
 (Tex. App.—Waco 2009, no pet.) ..........................................................................9


                                                  - iii -
Little Rock Furniture Mfg. Co. v. Dunn,
  148 Tex. 197, 222 S.W.2d 985 (1949) ...................................................................4

McGee v. Thomas, 508 S.W.2d 191
 (Tex. Civ. App.—Amarillo 1974, writ ref’d n.r.e.)................................................8

Moore v. Moore, 383 S.W.3d 190
 (Tex. App.—Dallas 2012, pet. denied) ..................................................................8

Morton v. Johnston, 1998 WL 713679
 (Tex. App.—Houston [1st Dist.] Aug. 20, 1998, no pet.) ......................................9

Mustang Pipeline Co. v. Driver Pipeline Co.,
 134 S.W.3d 195 (Tex. 2004) ..............................................................................2, 6

National Plan Admins., Inc. v. Nat’l Health Ins. Co.,
 150 S.W.3d 718 (Tex. App.—Austin 2004)...........................................................8

National Plan Admins., Inc. v. Nat’l Health Ins. Co.,
 235 S.W.3d 695 (Tex. 2007). .................................................................................8

Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995) ...........................................9

Rice Food Mkts., Inc. v. Ramirez, 59 S.W.3d 726
  (Tex. App.—Amarillo 2001, no pet.) .....................................................................3

Russell v. Hankerson, 771 S.W.2d 650
 (Tex. App.—Corpus Christi 1989, writ denied).....................................................8

Wang v. Gonzalez, 2013 WL 174576
 (Tex. App.—Houston [1st Dist.] 2013, no pet.) .....................................................9

Other

Texas Pattern Jury Charges, Business Consumer Insurance Employment,
  comment to PJC 101.2 (2012) ................................................................................6

Texas Pattern Jury Charges, Business Consumer Insurance Employment,
  PJC 101.6 (2012) ....................................................................................................7



                                                         - iv -
TO THE HONORABLE JUSTICES:

       Appellant, Phong Trinh (“Trinh”), files this Motion for Reconsideration (the

“Motion”) and, in support thereof, shows the following:

       Trinh files this Motion to raise issues that either were not addressed or were

incorrectly decided by the Memorandum Opinion, including that it failed to follow,

or otherwise distinguish, precedent holding juries may not disregard uncontroverted

testimony by a qualified expert establishing damages or attorney’s fees.

          I.       PROCEDURAL AND FACTAUL BACKGROUND
       On May 28, 2015, a panel of this Court issued an opinion affirming in part,

and reversing and remanding in part, the trial court’s judgment. This Motion asks

the Court to reconsider its holding that the jury did not have to award Trinh

undisputed damages and attorney’s fees on his breach of contract claim.

                  II.     SUMMARY OF THE ARGUMENT
       This lawsuit involved whether Trinh formed an agreement with Fatha Elmi

(“Elmi”) and Med Solution, Inc. (the “Pharmacy”) to be a 40% owner in the

Pharmacy, and whether Appellees breached that agreement. The jury found

Appellees agreed “Trinh would own a 40% interest in the Pharmacy,” and also that

Appellees failed to comply with the agreement.1




   1
       C.R. at 666–67.
       But, the trial court entered a judgment, based on the jury’s verdict, awarding

Trinh neither attorney’s fees nor contract damages.2 In affirming, this Court

“harmonized” the jury’s answers by concluding “the jury could have determined that

there was an agreement and that Elmi breached the agreement but that Trinh was not

entitled to damages because he did not perform his obligations under the

agreement.”3 The problem with this harmonization is that Appellees never argued—

much less presented the jury with evidence—that Trinh failed to perform his

obligations. Indeed, when one party materially breaches a contract, the other party

is excused from further performance and may sue for breach.4

       And, in reaching its ultimate conclusion, this Court did not address the cases

which hold that a jury may not disregard uncontroverted expert testimony as to

damages, it reached outside of the evidence, the arguments Appellees made at trial,

and the issues presented to the jury. The zero-damages finding means the Pharmacy

is literally worthless, and that is against at least the great weight and preponderance

of the evidence, because Elmi sold a portion of Trinh’s interest for $15,000 shortly

after Appellees’ breach. Trinh therefore asks the Court to reconsider and render

judgment for Trinh on his breach-of-contract damages and attorney’s fees.


   2
       C.R. at 668.
   3
       Mem. Op. at 8.
   4
       Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004).

                                            -2-
                       III.    ARGUMENT & AUTHORITIES

A.       The Court May Not Look Outside the Record to Harmonize a Verdict.
         In harmonizing a jury verdict, an appellate court may examine the record to

ascertain the jury’s intent, but it cannot speculate about what the jury intended in

reaching a particular verdict or create certainty out of jury findings that are

ambiguous or in conflict.5 For example, if a verdict separately labels different

amounts of damages in accordance with the question presented, the verdict may be

“harmonized” by adding the separate amounts to arrive at a total damages figure.6

But, a party cannot appeal an issue for which it has not preserved error.7

         In Mintzer, a jury found a contract existed, but it found no breach and awarded

no quantum meruit damages.8 Appellant argued these findings meant the contract

could not have required consideration (because it was undisputed no payment was

made), and thus was not a contract to bar a quantum meruit recovery.9 The court held




     5
       Houston Med. Testing Servs., Inc. v. Mintzer, 417 S.W.3d 691, 696 (Tex. App.—Houston
[14th Dist.] 2013, no pet.).
     6
         Rice Food Mkts., Inc. v. Ramirez, 59 S.W.3d 726, 733 (Tex. App.—Amarillo 2001, no
pet.).
     7
       Houston Med. Testing Servs., Inc. v. Mintzer, 417 S.W.3d 691, 697 (Tex. App.—Houston
[14th Dist.] 2013, no pet.).
     8
         Mintzer, 417 S.W.3d at 694.
     9
         Id. at 696.

                                            -3-
that, because the issue of whether the contract was supported by consideration was

not argued in the trial court, it was not preserved for appellate court review.10

        Similarly, Appellees never argued that Trinh failed to perform his obligations

under their contract. Instead, they only argued no contract was formed. Indeed, in

their Brief, Appellees argue only the jury could have found the contract was never

consummated, not that Trinh failed to perform his obligations under it. Thus, this

Court cannot “harmonize” the jury’s finding of breach but no damages on the theory

that “the jury could have found that a partnership was never created because Trinh

did not perform his obligations under the agreement,”11 because Appellees never

raised that issue, and thus, it was not preserved for appeal. And, that kind of

harmonization not only would create a fatal conflict with the verdict,12 but also, and

as importantly, the Memorandum Opinion notes that “the jury was never asked about

Trinh’s concomitant obligations under the agreement.”13




   10
        Id. at 697.
   11
        Mem. Op. at 8.
   12
       Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949) (“To require
a judgment entered on a verdict containing conflicting answers to be set aside, the conflict between
the answers must be such that one answer would establish a cause of action or defense, while the
other would destroy it. . . . ‘The test in such [a] case is, whether taking the finding alone in the one
instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other,
judgment should be entered in favor of the defendant.’” (citations omitted).
   13
        Mem. Op. at 8.

                                                 -4-
        Indeed, the jury was not asked about Trinh’s concomitant obligations, i.e., his

payment obligations, because Appellees never argued Trinh failed to perform his

end of the bargain. Appellees did not plead breach, argue breach, or present any

evidence of breach, and they did not request a breach question in the charge as to

Trinh. Likewise, Appellees did not plead failure of conditions precedent, present any

evidence of that, or request an instruction or definition on that issue. Indeed, the

undisputed evidence was that Trinh was not supposed to pay the final $20,000 until

after the parties reduced their agreement to writing.14

        A judgment must conform to the pleadings, unless the issue is tried by express

or implied consent, in which case, they will be treated as if they had been pled.15

But, trial by consent is intended to cover only the exceptional case in which it clearly

appears from the entire record that the parties tried the unpleaded issue; it is not

meant to establish a general rule of practice and should be applied with care.16 In

determining whether the issue was tried by consent, courts scrutinize the record for

evidence of trial of the issue.17 Here, the issue of Trinh’s failure to perform his

obligations under the contract was not tried by consent.


   14
        R.R., Vol. 3, 28:6–12, 47:23 – 48:2.
   15
        Flowers v. Flowers, 407 S.W.3d 452, 457 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
   16
        Guillory v. Boykins, 442 S.W.3d 682, 690 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
   17
        Flowers, 407 S.W.3d at 459.

                                               -5-
        Instead, Appellees made it abundantly clear that their sole argument was that

the parties never formed an agreement, which was clearly stated by Appellees’

counsel in his opening statement:

        My opposing counsel has just completed his opening statement, and his
        focus almost entirely was on damages. I’m here to represent to you, the
        jury panel in this case, that this case is not about damages. This case is
        about -- and it’s only about whether or not these parties entered into
        an enforceable agreement to operate a pharmacy called Med Solutions
        Pharmacy. We say absolutely not.18

        Appellees reiterated this point in their closing argument, asking the jury to

“answer the Question 1 ‘No.’ There is no -- Mr. Trinh was not a partner with either

Fatha Elmi or with the pharmacy.”19

        Only if both parties allege the other party breached may a court ask the breach-

of-contract question disjunctively, together with an appropriate instruction directing

the jury to decide which party materially breached first.20 Thus, if Appellees alleged

Trinh’s failure to pay $20,000 constituted a breach, then the jury would have been

asked to decide which party materially breached the contract first.


   18
        R.R., Vol. 2, 133:14–21 (emphasis added).
   19
         R.R., Vol. 4, 58:21-23. It is unsurprising the jury rejected Appellees’ sole defense,
inasmuch as the jury heard audio recording of an in-person conversation with Trinh and Elmi. In
it, Elmi admitted that she and Trinh formed a partnership, but she claimed she no longer wanted
him in the business. While that may be a partner’s right in an at-will partnership, the ousted partner
is entitled to his share of the business’s worth, plus his share of the business’s distributions until
such time as his interest is repurchased.
   20
       Texas Pattern Jury Charges, Business Consumer Insurance Employment, comment to PJC
101.2 (2012); Mustang Pipeline, 134 S.W.3d at 200.

                                                -6-
          Similarly, if, by arguing that the agreement was never “consummated,”

Appellees mean that the $20,000 was a condition precedent to their performance of

the contract, Appellees were required to plead and present evidence in support of

that issue. But, Appellees never pleaded failure of conditions precedent, they

presented no evidence in support of that, and they did not ask for an instruction to

be included with the charge.21

          In short, Appellees never pleaded breach or failure of a condition precedent,

and they presented no evidence in support of either. Thus, the verdict cannot be

“harmonized” by finding Trinh failed to perform his obligations, and the Court

should grant this motion and reverse and render judgment awarding Trinh damages

and attorney’s fees for his breach of contract claim.

B.        The Memorandum Opinion Did Not Address Those Cases Holding that a
          Jury May Not Award No Damages When Expert Testimony on Damages
          is Uncontroverted.
          Texas law is clear that a jury cannot ignore undisputed testimony that is clear,

positive, direct, otherwise credible, free from contradictions and inconsistencies, and

could have been readily controverted, but was not controverted. 22 When a precise

     21
          Texas Pattern Jury Charges, Business Consumer Insurance Employment, PJC 101.6
(2012).
     22
        City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005). This Court reversed on the
issue of Trinh’s attorney’s fees. While that issue was remanded for consideration of “the amount
involved and the results obtained,” the same basic rationale that required the jury to find some
amount of fees (where the testimony was uncontroverted) also applies to the uncontroverted
evidence of damages under a Keller analysis.

                                             -7-
method for assessing damages is presented, the jury may not arbitrarily assess an

amount that is more or less than that which is supported by the evidence.23 Thus, a

jury may not “pull figures out of a hat;” rather, it must have a rational basis for its

calculation.24 So, while a jury has discretion to affix the precise amount of damages,

its award must be within the range of values put into evidence. In short, it cannot

“leap outside that evidence;” if it does, its verdict must be overturned.25

        This well-settled rule has been applied in different contexts. For example, in

personal injury cases, if a jury found liability and was presented with uncontroverted

evidence of the plaintiff’s medical bills, an award less than that amount must be

reversed.26 This Court has applied this rule to appraisals and attorney’s fees.27



   23
       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).
   24
        Keilman, 851 S.W.2d at 930.
   25
       Callejo v. Brazos Elec. Power Coop., 755 S.W.2d 73, 75–76 (Tex. 1988); cf. Moore v.
Moore, 383 S.W.3d 190, 197–98 (Tex. App.—Dallas 2012, pet. denied) (affirming judgment
where fact finder placed value in-between business valuation ranges offered by experts).
   26
        See Davis v. Davison, 905 S.W.2d 789, 791 (Tex. App.—Beaumont 1995, no writ)
(reversing award of zero damages because plaintiff’s uncontroverted evidence of medical bills
established objective evidence); Hill v. Clayton, 827 S.W.2d 570, 574 (Tex. App.—Corpus Christi
1992, no writ) (reversing award of one-third amount of uncontroverted medical expenses); cf.
Russell v. Hankerson, 771 S.W.2d 650, 653 (Tex. App.—Corpus Christi 1989, writ denied)
(reversing award of zero damages of uncontroverted medical expenses because finding was against
great weight and preponderance of the evidence); McGee v. Thomas, 508 S.W.2d 191, 191–92
(Tex. Civ. App.—Amarillo 1974, writ ref’d n.r.e.) (same).
   27
        HCAD v. Sigmore Corp., 2008 WL 921073, at *1 (Tex. App.—Houston [1st Dist.] 2008,
no pet.) (reversing where jury placed value of furniture, fixtures and equipment below range of
                                             -8-
        This is so because “the jury cannot ignore the undisputed facts and arbitrarily

fix an amount that is neither authorized nor supported by the evidence.”28 While this

rule has some limits, those limits do not apply when the evidence could have been

readily controverted but was not. So, for example, if a plaintiff offered undisputed

testimony of his mental anguish, a jury need not award that amount, because that

kind of evidence is subjective and cannot be readily controverted.29

        Furthermore, uncontroverted expert testimony is binding where the subject

matter is one for experts alone.30 Expert testimony was required here because the

subject-matter of the damages in this case was beyond the jury’s experience and

knowledge,31 because the evidence consists of thousands of transactions requiring

professional judgments as to each using GAAP and professional standards.

        Appellees could have controverted Appellant’s damages methodologies or

calculations by, e.g., retaining an expert to contradict Appellant’s expert, or




values testified to by parties’ respective experts); Wang v. Gonzalez, 2013 WL 174576 (Tex.
App.—Houston [1st Dist.] 2013, no pet.) (attorney’s fees).
   28
        Hill, 827 S.W.2d at 574.
   29
        Parkway Co. v. Woodruff, 901 S.W.2d 434, 442 (Tex. 1995).
   30
       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).
   31
        Morton v. Johnston, 1998 WL 713679, *5 (Tex. App.—Houston [1st Dist.] Aug. 20, 1998,
no pet.).

                                            -9-
presenting evidence or testimony that the Pharmacy was not profitable at all or at

least not as profitable as Appellant claimed. Appellees chose not to.

        Instead, Elmi admitted she regularly took distributions from the Pharmacy

after ousting Trinh,32 a fact Trinh’s expert confirmed.33 Moreover, the jury saw

evidence Elmi’s current partner in the Pharmacy, Ken Taylor (“Taylor”), to whom

she sold a 10% interest, receives “10% of whatever—after we pay everybody.”34

This sale occurred January 31, 2011,35 shortly after Appellees breached their

agreement with Trinh.36 Taylor paid $15,000 for his 10% of the Pharmacy, and Elmi

admitted that this was a better deal than the one she had with Trinh.37

        Taylor confirmed these facts.38 This is at least some evidence that Trinh made

a good investment, also known as his damages. Appellees do not dispute either the

fact that the Pharmacy was profitable or the fact that it had value, and they did not



   32
       R.R., Vol. 3, 100:20–22, 101:8–24, 102:3 – 103:10, 103:14 – 104:6, 104:12–24, 105:16 –
106:1, and 106:9-21.
   33
        R.R., Vol. 3, 170:22 – 172:23, 192:9–19.
   34
        R.R., Vol. 7, pt. 2, 84 (Elmi Dep., April 13, 2012, 268:24 – 269:19).
   35
        R.R. Vol. 7, pt. 2, 338 (Taylor Dep., Oct. 11, 2013, 9:20-23).
   36
        R.R., Vol. 7, pt. 2, 86 (Elmi Dep., April 13, 2012, 276:23 – 277:2).
   37
      R.R., Vol. 7, pt. 2, 86 (Elmi Dep., April 13, 2012, 276:18–22). Trinh’s agreement was that
he would pay $30,000 for a 40% interest; thus, just on this evidence, Trinh’s share of the Pharmacy
was worth twice what he paid for it, i.e., damages of $30,000.
   38
        R.R. Vol. 7, pt. 2, 338 (Taylor Dep., Oct. 11, 2013, 74:8–12).

                                               - 10 -
dispute Trinh’s evidence of its profitability or its value. Accordingly, the jury was

not free to disregard this evidence and award nothing for damages.

        Nor can it be said that the jury could have found Trinh had no damages

because he received distributions from the Pharmacy or because his interest in it was

reacquired, because there is no evidence to support either. Indeed, it was also

undisputed that, after his receipt of the October 2010 distribution, Trinh received no

more distributions and Appellees refused to buy-out Trinh’s 40% interest in the

Pharmacy.39 By finding Appellees breached the partnership agreement but awarding

zero damages for that breach, the jury impermissibly disregarded uncontroverted

expert testimony (which could have been readily controverted). But, the jury also

disregarded Elmi’s testimony that the Pharmacy was profitable, that she sold a 10%

interest in it to Taylor for proportionately more than she received from Trinh (shortly

after Appellees’ breach), that Trinh received no distributions after October, and that

his shares were never repurchased by Appellees.

        Also, this Court did not address those cases which require an award of

damages when expert testimony is required and uncontroverted, as was true here.40




   39
        R.R., Vol. 3, 33:18 – 34:3.
   40
       Appellees did not cross-examine Trinh’s damages expert on his methodologies, data
analysis, professional judgments, or bottom-line conclusions; and they did not cross-examine
Trinh’s attorney’s fees expert at all.

                                           - 11 -
Rather, it cited two cases for the proposition that a jury’s finding of liability does not

necessitate an award of damages.41

        These cases are inapposite. Moreover, they do not overturn or contradict the

law that juries cannot “leap outside the evidence” in awarding, or not awarding

damages, when that evidence was readily controvertible but was not controverted.

They are also distinguishable from the present case.

        In Cooper v. Lyon Financial Services, Inc.,42 a cosmetic surgeon brought a

DTPA claim against a creditor that leased a laser to him. The surgeon sought

damages for the full amount of the lease, or alternatively, the nonrefundable deposit

he paid.43 At trial, the surgeon did not specify any amounts he paid in relation to

leasing the laser, only as to the laser’s personal value.44 Evidence was presented that

the purchase price of the laser exceeded the lease price.45 The jury found that the

creditor violated the DTPA but awarded no damages.46 On appeal, the court held

“there was more than a scintilla of evidence to support the jury’s implicit finding the


   41
        Mem. Op. at 8.
   42
       Cooper v. Lyon Financial Services, Inc., 65 S.W.3d 197 (Tex. App.—Houston [14th Dist.]
2001, no pet.).
   43
        Id. at 204.
   44
        Id. at 202, 204.
   45
        Id. at 204.
   46
        Id. at 202.

                                           - 12 -
value of the laser [the surgeon] received equaled or exceed[ed] the purchase price”

and that the surgeon’s damages were zero.47

        The other case cited is American Recreational Markets General Agency, Inc.

v. Hawkins.48 The problem with Hawkins is it does not address the state of the

evidence on damages, if that evidence was controverted, what it was based on, or

whether it required expert testimony to support it.

        Here, Appellees did not cross-examine Trinh’s damages expert’s bottom-line

conclusions or his professional judgments on the transactions he analyzed, and they

did not present an alternative calculation or amount contradicting Trinh’s model.49

Moreover, Elmi admitted she received distributions that Trinh did not and she sold

a share of Trinh’s 40% interest in the Pharmacy to another party just months after

ousting Trinh. Where, in Cooper, there was some evidence to support a finding of

zero damages, the same cannot be said in this case. The jury was not free to

disregard Liner’s testimony, and it could have only awarded an amount within the



   47
        Id. at 204.
   48
     American Recreational Markets General Agency, Inc. v. Hawkins, 846 S.W.2d 476 (Tex.
App.—Houston [14th Dist.] 1993, no writ).
   49
       If Appellees presented evidence that the value of the Pharmacy was only $50,000 and Elmi
received no “net distributions,” then they would have conceded that Trinh would have been entitled
to $20,000 in damages, i.e., 40% of $50,000, based on the jury’s finding that Appellees breached
the agreement. Had the jury awarded zero damages on that record, this Court would have been
required to render judgment awarding Trinh at least $20,000. It is unfathomable that Appellees
could achieve a better result by failing to controvert Trinh’s expert testimony on damages.

                                              - 13 -
range testified to. A finding of zero damages is at least against the great weight and

preponderance of the evidence and a new trial should be ordered on damages and

attorney’s fees if this Court does not render judgment in favor of Trinh.

                    IV.       CONCLUSION & PRAYER
      The jury’s verdict cannot properly be harmonized by finding Trinh failed to

perform his obligations under the contract or that his failure to pay any additional

amounts to Appellees was a failure of a condition precedent, because those issues

were not pleaded and no evidence was presented to the jury that Trinh had to do

anything before Appellees breached the contract.

      Juries are supposed to resolve contested issues. Where uncontroverted expert

testimony is required to prove damages, or where objective testimony as to damages

could have been controverted but was not, a jury is not free to disregard that

testimony. In this case, that means the jury should have awarded damages within the

range established by the evidence. Because Appellees did not contest damages, the

jury was required to award Trinh damages of at least $554,168, and based on that

award, to award Trinh attorney’s fees of at least $227,084.

      Trinh therefore asks this Court to grant his Motion for Reconsideration,

reverse the judgment, and render judgment for Trinh of $554,168 in damages and




                                        - 14 -
$227,084 in fees.50 Alternatively, Trinh asks this Court to grant his Motion for

Reconsideration and remand for a new trial on damages and attorney’s fees because

the judgment is against the great weight and preponderance of the credible evidence.

                                         Respectfully submitted,

                                         SIMON HERBERT & MCCLELLAND, LLP

                                         By: /s/ Paul Simon
                                                Paul Simon
                                                State Bar No. 24003276
                                                Rachel Berkley
                                                State Bar No. 24082684
                                         3411 Richmond Ave., Suite 400
                                         Houston, Texas 77098
                                         Telephone: (713) 987-7100
                                         Telecopy: (713) 987-7120

                                         ATTORNEYS FOR APPELLANT

                             CERTIFICATE OF SERVICE

      I hereby certify that, on June 10, 2015, a copy of the foregoing was delivered
in a manner prescribed by the Texas Rules of Civil Procedure to:

        Via Facsimile: (713) 783-0787
        Scott Bui
        Bui & Nhan, PLLC
        3921 Ocee
        Houston, Texas 77063

                                                       /s/ Paul Simon
                                                       Paul Simon


   50
        These are the low-end of Trinh’s expert-supported damages model. If this Court grants this
Motion, it should also reverse and render, or alternatively reverse and remand for new trial, the
issue of Trinh’s attorney’s fees based on his breach-of-contract claim.

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