                                                                                  ACCEPTED
                                                                              01-15-00352-CV
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                         7/29/2015 1:38:52 PM
                                                                        CHRISTOPHER PRINE
                                                                                       CLERK

               NO. 1-15-00352-CV

       ______________________________
                                                             FILED IN
                                                      1st COURT OF APPEALS
                  IN THE                                  HOUSTON, TEXAS
          FIRST COURT OF APPEALS                      7/29/2015 1:38:52 PM
            AT HOUSTON, TEXAS                         CHRISTOPHER A. PRINE
                                                              Clerk
       ______________________________


PHAP V. NGUYEN, ANDY NGO, and DUNG T. VU,
                            Appellants

                        VS.

         MANH HOANG and DUNG LE,
                           Appellees

       ______________________________


  Appealed from the 55th Judicial District Court of
              Harris County, Texas

       ______________________________

            APPELLANTS’ BRIEF
       ______________________________


                              TOM RORIE
                              State Bar No. 17238000
                              210 North Street
                              Nacogdoches, TX 75961
                              (936) 559-1188
                              FAX (936) 559-0099

                              ATTORNEY FOR APPELLANTS



      ORAL ARGUMENT REQUESTED
                         IDENTITY OF PARTIES AND COUNSEL

       In accordance with Rule 38.1(a) of the TEXAS RULES OF APPELLATE PROCEDURE , Appellants
Phap V. Nguyen, Andy Ngo, and Dung T. Vu provide the following list of all parties, and the names
and addresses of all counsel:

Appellants:           Phap V. Nguyen
                      Andy Ngo
                      Dung T. Vu

Counsel:              Tom Rorie
                      Attorney at Law
                      210 North Street
                      Nacogdoches, TX 75961
                      (936) 559-1188
                      FAX (936) 559-0099
                      Email: trorie@sbcglobal.net

Appellees:            Manh Hoang
                      Dung Le

Counsel:              Scott K. Bui
                      Robert B. Pham
                      Bui, Pham & Nhan, PLLC
                      3921 Ocee
                      Houston, TX 77063
                      (713) 783-2466
                      FAX (713) 783-0787
                      email: sbui@buinhanlaw.com




                                               ii
                                                    TABLE OF CONTENTS

                                                                                                                                Page
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

Points of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

           Point of Error No. 1:

                      There is insufficient evidence as a matter of law to establish a partnership
                      between the parties; therefore, there is no liability for breach of a partnership
                      agreement.

           Point of Error No. 2:

                      The evidence is legally insufficient to establish that appellants breached a
                      contract with appellees.

           Point of Error No. 3:

                       The evidence is insufficient to show any damages for breach of a
                       partnership agreement.

           Point of Error No. 4:

                      The evidence is insufficient to show any damages for breach of a contract.

           Point of Error No. 5:

                      The trial court erred in awarding judgment for damages for both breach
                      of a partnership agreement and breach of contract when both causes of
                      action arose from the same facts or events.



                                                            iii
          Point of Error No. 6:

                     The evidence is insufficient to establish any liability by Appellee Dung Vu
                     because there is insufficient evidence that she engaged in any conduct for
                     which Appellees complain.

Arguments and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Point of Error No. 1 Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

          Receipt or Right to Receive a Share of Profits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

          Expression of Intent to Be Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

          Right to Control the Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

          Sharing or Agreeing to Share in Any Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

          Contributing or Agreeing to Contribute Money or Property to the Business . . . . . . . . . 14

          Summary: The Totality of the Evidence Shows that Appellees were not
          Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Point of Error No. 2 Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Point of Error No. 3 Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Point of Error No. 4 Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

          Payment of 20% of Net Profits to Appellants a Breach of a Partnership
          Agreement or Contract? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

          Is Withholding Money from a Distribution of Profits to pay Federal Taxes a
          Breach of a Partnership Agreement Or Contract? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

          Was It a Breach of a Partnership Agreement or Breach of Contract to Divide
          Proceeds between Appellant Le and Tuan Ngo Rather than Pay All the Proceeds
          to Appellee Le? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Point of Error No. 5 Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24



                                                           iv
Point of Error No. 6 Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28




                                                             v
                                                 INDEX OF AUTHORITIES

Cases                                                                                                                                    Page

Baldwin v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
586 S.W.2d 624 (Tex.Civ.App.–Tyler 1979), reversed on other grounds 611 S.W.2d 611
(Tex.1980)

Big Easy Cajun Corp. v. Dallas Galleria Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
293 S.W.3d 345 (Tex.App.–Dallas 2009, pet.rev.den’d.)

Black Lake Pipe Line Company v. Union Construction Company . . . . . . . . . . . . . . . . . . . . . . . 19
538 S.W.2d 80 (Tex. 1976)

Brown v. Keel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2012 Tex.App. LEXIS 1854 (Tex.App.–Houston [1st] 2012, no writ hist.)

Cintrin Holdings, LLC v. Minnis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2013 Tex.App. LEXIS 5723 (Tex.App.–Houston [14th] 2013, pet.rev.den’d.)

Crown Life Ins. v. Casteel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
22 S.W.3d 378 (Tex. 2000)

Gannon v. Baker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
830 S.W.2d 706 (Tex.App.–Houston (1st] 1992, writ den’d)

Greenberg Traurig, LLP v. National American Insurance Company . . . . . . . . . . . . . . . . . . . . . 23
448 S.W.3d 115 (Tex.App.–Houston [14th] 2014)

Guerrero v. Salinas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2006 Tex.App. LEXIS 8562 (Tex.App.–Corpus Christi 2006, no pet.)

Hoss v. Alardin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
338 S.W.3d 635 (Tex.App.–Dallas 2011, no pet.)

Ingram v. Deere . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6,7,8,9
288 S.W.3d 886 (Tex. 2009)

Knowles v. Wright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
288 S.W.3d 136 (Tex.App.–Houston [1st] 2009, pet.rev.dism’d.)

Malone v. Patel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
397 S.W.3d 658 (Tex.App.–Houston [1st] 2012, pet.rev.den’d.)


                                                            vi
Murphy v. Canion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
797 S.W.2d 944 (Tex.App.–Houston [14th] 1990, no writ hist.)

Murphy v. Seabarge, Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25
868 S.W.2d 929 (Tex.App.–Houston [14th] 1994, aff’d.)

Prime Prods, Inc. v. S.S.I. Plastics, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
97 S.W.3d 631 (Tex.App.–Houston [1st] 2002, pet. denied)

Rankin v. Naftalis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
557 S.W.3d 940 (Tex.1977)

Reagan v. Lyberger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
156 S.W.3d 925, 928 (Tex.App.–Dallas 2005, no pet.)

Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mt. Ranch, Inc. . . . . . . . . . . . . . . 23
2014 Tex.App. LEXIS 13417 (Tex.App.–San Antonio 2014, rev’d. in part; aff’d. as
modified)

Sewing v. Bowman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,7,10
371 S.W.3d 321 (Tex.App.–Houston [1st] 2012, pet.rev.dism’d.)

Southern County Mutual Insurance Company v. First Bank & Trust . . . . . . . . . . . . . . . . . . . . . 24
750 S.W.2d 170 (Tex. 1988)

Stewart Title Guaranty Co. v. Sterling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
822 S.W.2d 1 (Tex. 1991)

Tierra Sol Joint Venture v. City of El Paso . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
155 S.W.3d 503 (Tex.App.–El Paso 2004, pet.den’d.)

Truly v. Austin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
744 S.W.2d 934 (Tex. 1988)

Vortt Exploration Company v. Chevron . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
787 S.W.2d 942 (Tex. 1990)

Westside Wrecker Service v. Skafi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,7
361 S.W.3d 153 (Tex.App.–Houston [1st] 2011, pet.rev.den’d.)




                                                           vii
Codes, Rules and Statutes                                                                                                                    Page

TEXAS BUSINESS ORGANIZATION CODE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Texas Deceptive Trade Practices Act, TEXAS BUSINESS AND COMMERCE CODE § 17.41,
et. seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

TEXAS FAMILY CODE § 3.201(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

TEXAS FAMILY CODE § 3.201(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Texas Revised Partnership Act (now repealed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6

TEXAS RULE OF APPELLATE PROCEDURE 9.4(i)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

TEXAS RULES OF APPELLATE PROCEDURE , Rule 38.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii




                                                             viii
                                 STATEMENT OF THE CASE


       Appellees brought suit contending that Appellants had breached a partnership agreement with

them, had breached a contract with them, and had committed fraud. They sought actual damages

for the breaches of the partnership agreement and contract, and exemplary damages as well.

       At the close of Appellee’s evidence Appellants moved for an instructed verdict on the

following claims :

       1.      Those against Appellant Dung Vu for the reason that there was no evidence that she

               had participated in any decision about which Appellees complained, that she made

               any representation, withheld any information, or assumed any duty to them;

       2.      Those based on a theory of partnership because there was no evidence of an

               agreement to share losses or of joint management and control;

       3.      Those based on a theory of fraud because there was no evidence of any representation

               by Appellants that was false.

The trial judge granted the motion as to the fraud theory, but otherwise denied the motion. (RR Vol.

151-163).

       In the Court’s Charge Conference Appellants objected the charge as follows:

       1.      Again objected to submitting the issues as to Appellant Dung Vu because of a lack

               of any evidence that she participated in any decision that Appellees complained of;

       2.      Objected to the submission of a damages issue for breach of partnership because

               there is no evidence of the value of the partnership;

       3.      Objected to the submission of partnership issues without an adequate definition of



                                         ix
              what constitutes “control.”

       The jury found that a partnership existed and that Appellants had breached a duty of loyalty.

It awarded damages to both Appellees for breach of that duty. The jury also found a breach of

contract and awarded damages for that breach. The jury did not award exemplary damages.

       After return of the jury verdict Appellants filed motions to disregard jury findings and for a

judgment notwithstanding the jury verdict. That motion was denied. The court signed a judgment

for both Appellees for the damages found by the jury and for pre-judgment interest.

       Appellants then filed a motion for new trial, which was denied. This appeal followed.




                                          x
                                       STATEMENT OF FACTS


        All the parties to this case are members of Vietnamese families who have a strong sense of

family and a tradition of helping each other. Appellants were interested in some type of business in

which they could prosper through diligent work, and learned through friends that one could make

a living by owning and operating a chicken farm, raising chickens for a chicken producer. They

worked on chicken farms to learn the business, and then decided to go into business themselves.

        Appellants learned of a farm in Georgia which was for sale. They were approved as a grower

by the chicken producer which provided the chickens for the farm, Sanderson Farms.1

        With a grower contract in hand Appellants were able to secure a loan to purchase the farm

they found. But they needed additional funding. So they contacted Appellees and other family

members and offered them the opportunity to invest in exchange for the right to receive a

proportionate part of any profits made.

        Appellee Manh Hoang invested $80,000. Appellee Dung Le, together with her live-in

boyfriend Tuan Ngo, invested $50,000.               Other family members invested as did Appellants

themselves. Appellants secured a loan from a bank in their names only for approximately one and

one-half million dollars.

        With the needed funds in hand Appellants then closed on the purchase of the Georgia chicken

farm and Sanderson placed chickens on the farm. Appellants and Appellant Nguyen’s family all

lived in what was referred to as a “garage.” The farm had only six chicken houses which limited its

income, and times were hard. Appellant Vu, the wife of Appellant Nguyen, worked in her design


        1
         The Reporter’s Record refers to the producer as “Anderson Farms,” but the correct name is Sanderson
Farms, and that name will used in this brief.

                                               xi
business in New Orleans and helped pay the expenses of the farm with her income. Appellants were

paying themselves a minimal draw or salary as laborers, as they worked in the houses along with

their employees. They knew that they needed to expand the farm and Sanderson authorized them

to add two additional houses. None of the investors had any money to contribute for those houses,

so Appellants drew no wages for a year and used the wages they would normally have paid

themselves to build two additional houses. All the investors benefitted from the additional houses.

        After operating the Georgia farm for some time Appellants decided they would like to move

to Texas, where most of their family members were located. They decided to sell the Georgia farm,

and told the investors of their plans. They sold the farm for a profit, deferred the capital gains taxes

on the sale, and then moved to Texas.

        While staying in Houston Appellants began searching for some land in central Texas that

could be approved by Sanderson Farms for a chicken farm. They spent approximately a year

searching for land in several counties and got approval from Sanderson for a tract in Robertson

County. Appellants secured a loan, in their names only, for approximately four and one-half million

dollars based on their contract with Sanderson, purchased a tract in Robertson County, and built a

chicken farm with 16 houses. Appellants secured a contractor for the houses, had a water well

drilled, utilities installed, and provided all management of the farm as well as working on the farm.

Appellants received no income for approximately a year while they were searching for the land and

constructing the chicken farm in Texas.

        Appellants learned that Sanderson would provide them chickens for eight additional houses.

Appellant Nguyen personally borrowed $400,000 to secure the funds to build those houses. All the

investors benefitted from the income earned by those houses, although none of the other investors


                                           xii
had any liability for the loan.

        Appellants successfully operated the farm in Texas. They worked hard. According to

Appellee Vu her husband worked from 6:30 a.m. to 9:00 or 10:00 p.m. each day. Appellee Hoang

worked as a laborer in the farm, but was “fired” by Appellants because of his poor work habits and

one event in which he left the farm unattended when it was his duty to be present. Appellee Le never

worked on either of the farms and seldom was present. Appellants decided to sell the farm, in part

because they no longer wanted to continue any type of business relationship with Appellees.

        Appellants then offered the farm for sale, sold it, and several months later called a meeting

with the investors, including Appellees, to distribute the profits made. Appellees insisted on being

paid in cash, and in order to protect themselves Appellants recorded the meeting on a video camera.

At the meeting Appellant Ngo provided the investors with a worksheet in which he showed the

profits made and any deductions from profits. At trial a certified public accountant testified that in

his opinion the worksheet was a reasonable and fair accounting of the chicken farm business.

        The worksheet that Appellants provided the investors showed that Appellants were

withholding from the distribution of profits 20% of those profits as compensation to them for their

services and contributions to the venture. They also deducted the amount of capital gains taxes that

Appellant Ngo calculated would be due and the taxes on ordinary income they would owe due to

depreciation recapture and withheld those amounts from the distribution. While the other investors

did not object, Appellees objected to both of these deductions. Appellee Le also objected to the

division of the distribution of profits between her and Tuan Ngo. Appellees took the money despite

their objections.

        After all the business affairs of the farm were completed, Appellants distributed a final


                                         xiii
additional amount to each investor out of the funds accumulated. The final tally on the investments

of Appellees was that Hoang invested $80,000 and realized about $400,000 from his investment

while Le invested $50,000 and Appellants paid back over $200,000.




                                        xiv
                               SUMMARY OF THE ARGUMENT


       The judgment by the trial court cannot stand because there is insufficient evidence to support

the jury’s finding that a partnership was created between the parties. The totality of the evidence

shows no competent evidence to create a partnership, no agreement to share losses or be liable to

third parties for debts of the business, and a complete lack of control, the ability to make “executive

decisions” by Appellees.

       There is also legally insufficient evidence of a breach of a partnership agreement or breach

of contract. Any payment by Appellants to themselves for their uncompensated services over four

years are compensable through the theory of quantum meruit. There is no express agreement for

their compensation for those services.

       The withholding of funds to pay the Internal Revenue Service on the profits earned cannot

be a basis for a breach of a partnership agreement or contract between the parties for the reason that

a party has no legal right to compel another to violate the laws that apply to the transaction.

       The division of the payment of proceeds to Appellant Le and her former boyfriend, Tuan

Ngo, is not a breach of an implied contract to pay only her because the evidence is insufficient to

show any such implied contract. That division is likewise not a breach of any express contract to

pay only Appellant Le because there is no evidence of any express contract.

       The “contract” claim and “partnership” claim of Appellees are in fact the same. The only

contract was the same agreement Appellees call an agreement to be partners. The damages that

Appellee claim arise out of the same operative facts. Therefore, the trial court erred in awarding

what are the same damages twice, which is not permitted because of the one satisfaction rule.



                                          xv
       The evidence is insufficient to show the participation by Appellant Vu in any act or omission

which was a cause of injury or damages to Appellants, and it was error for the trial court to award

a judgment against her as well as against Appellants Nguyen and Ngo.




                                        xvi
                           POINTS OF ERROR

POINT OF ERROR NO. 1:

           THERE IS INSUFFICIENT EVIDENCE AS A MATTER OF LAW TO
           ESTABLISH A PARTNERSHIP BETWEEN THE PARTIES;
           THEREFORE, THERE IS NO LIABILITY FOR BREACH OF A
           PARTNERSHIP AGREEMENT.

POINT OF ERROR NO. 2:

            THE EVIDENCE IS LEGALLY INSUFFICIENT TO ESTABLISH THAT
            APPELLANTS BREACHED A CONTRACT WITH APPELLEES.

POINT OF ERROR NO. 3:

            THE EVIDENCE IS INSUFFICIENT TO SHOW ANY DAMAGES FOR
            BREACH OF A PARTNERSHIP AGREEMENT.

POINT OF ERROR NO. 4:

           THE EVIDENCE IS INSUFFICIENT TO SHOW ANY DAMAGES FOR
           BREACH OF A CONTRACT.

POINT OF ERROR NO. 5:

           THE TRIAL COURT ERRED IN AWARDING JUDGMENT FOR
           DAMAGES FOR BOTH BREACH OF A PARTNERSHIP AGREEMENT
           AND BREACH OF CONTRACT WHEN BOTH CAUSES OF ACTION
           AROSE FROM THE SAME FACTS OR EVENTS.

POINT OF ERROR NO. 6:

           THE EVIDENCE IS INSUFFICIENT TO ESTABLISH ANY LIABILITY
           BY APPELLEE DUNG VU BECAUSE THERE IS INSUFFICIENT
           EVIDENCE THAT SHE ENGAGED IN ANY CONDUCT FOR WHICH
           APPELLEES COMPLAIN.




                                   1
                             ARGUMENTS AND AUTHORITIES


       Most people who receive a return of several times their investment without any effort on their

part are grateful. Appellee Manh Hoang invested $80,000 with Appellants in their purchase,

operation and sale of chicken farms in Georgia and Texas, and received in return approximately

$400,000. Appellee Dung Le invested $50,000 and received in return approximately $200,000. But

instead of gratitude, they felt resentment.

       It bothered them that Appellants received some income in which they did not share.

Oblivious of the critical importance of management in making a successful business venture, or

simply resentful that Appellants received money when they did not, they objected when Appellants

told them they were taking part of the profits earned as their compensation for several years of work,

risk, and sacrifice. Appellees brought suit because they wanted all the profits distributed to the

investors strictly in accordance with their monetary contribution.

       Appellees also objected when Appellants withheld funds from the distribution to the

investors to pay the Internal Revenue Service for capital gains taxes and taxes they expected to owe

because of depreciation recapture. To Appellees payment of taxes was abstract or hypothetical, and

they would worry about that later, but the money on the table was real, and they wanted all of it

distributed.

       Appellee Le also complained that Appellants divided the profit on what she called her

investment to between her and a brother of Appellant Ngo, Tuan Ngo, who lived with her for several

years, including the time that monies were invested to buy each of the chicken farms.

       This case is complicated by the absence of any written agreement between the parties. While



                                                  2
not explicitly stated at trial, it appears there is a custom among families of Vietnamese descent to

consider written agreements either unnecessary or undesirable. Therefore, much of the trial of this

case consisted of the parties recounting what each said, or in many cases, their interpretation or

understanding of what was said.

       The case was submitted to the jury inquiring about two primary causes of action. First,

Appellees claimed that a partnership existed, and that Appellants breached that partnership agreement.

Second, they claimed that a contract existed between the parties and Appellants breached that

contract. As will be shown the contract was actually the same as what Appellees call an agreement

to create a partnership. In this case, the “contract” is the same thing as the “partnership.”

       All the damages found by the jury are based on claims that arose at the same time and from

the same event, i.e. when Appellants distributed the proceeds from the chicken house investment. The

jury found damages arising from both a breach of partnership and from a breach of contract, but did

not award any exemplary damages. There is no way to separate damages arising from a breach of

partnership from those arising from a breach of contract, and Appellants will show that the court

granted Appellees an impermissible double recovery.




                                                  3
                                  STANDARD OF REVIEW


       This court has already set out the standard of review in a case of this nature, where an

appellant attacks jury findings on issues on which he did not have the burden of proof, in Westside

Wrecker Service v. Skafi, 361 S.W.3d 153 (Tex.App.–Houston [1st] 2011, pet.rev.den’d.), and in

Sewing v. Bowman, 371 S.W.3d 321 (Tex.App.–Houston [1st] 2012, pet.rev.dism’d.).




                                                4
Point of Error No. 1 Restated: THERE IS INSUFFICIENT EVIDENCE AS A MATTER OF LAW
TO ESTABLISH A PARTNERSHIP BETWEEN THE PARTIES; THEREFORE, THERE IS NO
LIABILITY FOR BREACH OF A PARTNERSHIP AGREEMENT.


       Partnership law in Texas has evolved over the past several years in light of the adoption of

the Texas Revised Partnership Act and the later adoption of the TEXAS BUSINESS ORGANIZATION

CODE. None of the parties to this suit have ever argued that the TRPA does not control. The

agreement of the parties was made in 2006 and the last farm was sold in 2010.

       Any analysis of a partnership claim must begin with a review of Ingram v. Deere, 288 S.W.3d

886 (Tex. 2009). That case involved a psychiatrist, Deere, who agreed to serve as the medical

director of a pain clinic and who claimed that he became a partner with a psychologist, Ingram.

Initially they had no written agreement. Fourteen months later Ingram presented to Deere a

“Physician Contractual Employment Agreement” which Deere refused to sign because he contended

he was to be a partner. Deere brought suit claiming he was entitled to damages as a partner.

       The Court applied the TRPA, which provides that “an association of two or more persons to

carry on a business as owners creates a partnership,” and then enunciates the elements of a

partnership. Those elements are:

       (1)     receipt or right to receive a share of profits of the business;

       (2)     expression of an intent to be partners in the business;

       (3)     participation or right to participate in control of the business;

       (4)     sharing or agreeing to share:

               (A)     losses of the business, or




                                                    5
               (B)     liability for claims by third parties against the business; and

       (5)     contributing or agreeing to contribute money or property to the business.

The elements that control under the TRPA vary somewhat from the common law requirements, as

the court noted. Ingram, p. 895-896. Instead of requiring proof of all elements, the Court held that

a “totality-of-the-circumstances test” would be the measure by which courts would determine the

existence of a partnership. If none of the elements exist, then a partnership cannot be created.

Conversely, if conclusive evidence on all the factors is found, a partnership exists as a matter of law.

This case now before the court falls in between the two ends of the spectrum: there is evidence on

some factors and none on others. Each element will be considered in the order listed in Ingram.


Receipt or Right to Receive a Share of Profits:

       No dispute exists that the parties agreed to share profits. It was uncontradicted that Appellant

Ngo contacted his brother, Tuan Ngo, who lived with Appellee Le, and told him if they contributed

money toward Appellants’ purchase of a chicken farm in Georgia that they would share in any profits

made. Appellants made the same offer to Appellee Hoang. There is no dispute that Appellee Hoang

contributed $80,000 and that he received in return approximately $400,000. There is a disagreement

as to whether Appellee Le alone, or she together with Tuan Ngo, made a contribution, but no dispute

that a contribution of $50,000 was made which resulted in a return of over $200,000.


Expression of Intent to Be Partners:

       The expression by the parties of their intent to be partners can be shown in several ways.

Some examples noted by the Court in Ingram are “statements that they are partners, one party holding

the other party out as a partner on the business’s letterhead or name plate, or in a signed partnership


                                                   6
agreement.” Ingram, p. 900. Another indication might be a party referring to another as his partner

in a conversation with a third party. An example of such a reference to another as his “partner” is

found in Cintrin Holdings, LLC v. Minnis, 2013 Tex.App. LEXIS 5723 (Tex.App.–Houston [14th]

2013, pet.rev.den’d.).

        There must be some evidence that both parties expressed their intent to be partners. Reagan

v. Lyberger, 156 S.W.3d 925, 928 (Tex.App.–Dallas 2005, no pet.); Hoss v. Alardin, 338 S.W.3d 635,

641 (Tex.App.–Dallas 2011, no pet.); Brown v. Keel, 2012 Tex.App. LEXIS 1854

(Tex.App.–Houston [1st] 2012, no writ hist.).

        The court must inquire separately whether there exists evidence of an intent to be partners,

and a court should “only consider evidence not specifically probative of the other factors.” Sewing

v. Bowman, 371 S.W.3d 321, 333-334 (Tex.App.–Houston [1st] 2012, pet.rev.dism’d.), citing Ingram.

Thus the court can only look to the expressions of intent by the parties or to their representations to

third parties.

        This case involves a purely oral agreement, which creates other issues. The terms of an oral

contract must be “clear, certain, and definite.”           Knowles v. Wright, 288 S.W.3d 136

(Tex.App.–Houston [1st] 2009, pet.rev.dism’d.); Gannon v. Baker, 830 S.W.2d 706, 709

(Tex.App.–Houston (1st] 1992, writ den’d). Reliance on what one party says does not establish what

both agreed to. There must be evidence that “both parties expressed their intent to be partners.” Hoss

v. Alardin, p. 644. The opinion of a lay witness that a partnership has been created is not competent

evidence of a partnership.        Westside Wrecker Service v. Skafi, 361 S.W.3d 153, 169

(Tex.App.–Houston [1st] 2011, no writ hist.).




                                                  7
        There is absolutely no documentary evidence of a partnership in this case. No document ever

referred to any of the parties as partners. All documents executed in connection with the purchase,

improvement, operation and sale of the two chicken farms show Appellants only as the owners. All

loan documents executed with financial institutions were executed solely in Appellants’ names. All

contracts and correspondence with the chicken producer, Sanderson Farms, name Appellants alone

as owners. No bank account or record showed or referred to the names of Appellees, but instead

showed Appellants as owners of the account.

        There is likewise no testimony by any third party that any of the parties represented to them

that they were partners nor is there is any evidence that any of the partners referred to themselves as

partners.

       The only evidence in this case of an intent to be partners is by Appellee Hoang. He testified

that “we all agreed we are owners.” (RR Vol. 2, p. 118). Yet there is no evidence of that intent being

expressed to anyone any time, to a lender, contractor, chicken producer, employee, or to anyone.

Another portion of Appellee Hoang’s testimony really says what the parties agreed to. His counsel

asked him if he wanted to be a “partner” and his response was “we agreed at the first time if we make

it, everybody will make it.” (RR Vol. 3, p.126). That testimony is consistent with Appellants’. They

testified that if they made profits all would share in them. But an agreement to share profits alone is

not evidence of an intent to be partners. Appellant Ngo made the distinction when he said Appellees

were not owners or partners, but that “they invest–what I call is they put in money in there to earn the

profit.” (RR Vol. 3, p. 27).

       The court noted in Ingram that “[t]he Legislature does not indicate that it intended to spring

surprise or accidental partnerships on independent business persons” (p. 898). The intent to be


                                                   8
partners must be mutual, and the evidence in this case lacks evidence of mutual intent to be partners.


Right to Control the Business:

        The right to control is generally considered one of the most important of the factors considered

in evaluating whether a partnership existed. Big Easy Cajun Corp. v. Dallas Galleria Ltd., 293

S.W.3d 345, 348 (Tex.App.–Dallas 2009, pet.rev.den’d.). The court in Ingram said that the right

involves “the right to make executive decisions.” So a review of the evidence in this case of the right

of the parties to make those “executive decisions” is in order.

        One of the first “executive decisions” a party makes is controlling access to the business’s

books and records. In Ingram the court cited Tierra Sol Joint Venture v. City of El Paso, 155 S.W.3d

503 (Tex.App.–El Paso 2004, pet.den’d.), as holding that a party cannot be in control of a business if

he does not have control over and access to its books. In this case, there is no evidence that Appellees

had any control over the books and records of the chicken farms. Instead, Appellants kept the books

themselves and were the only parties who even knew whether the chicken farms had made a profit.2

        Another of the “executive decisions” made by those who are partners is to have the right to

write checks on the business checking account. Guerrero v. Salinas, 2006 Tex.App. LEXIS 8562

(Tex.App.–Corpus Christi 2006, no pet.), cited by the court in Ingram. Appellees failed to show they

even knew where Appellants had a bank account, much less had access to it.

        There is some evidence that Nguyen and Ngo talked to Hoang and Le on a few occasions about



         2
           W hen Appellees came to the final distribution of profits they had no idea of what would be distributed or
what profit, if any, was made from the chicken farms. Appellee Hoang testified that he knew the farm was paid when
batches of chicken were sold, but those payments are not income. Income is what is left after payment of fixed
expenses such as servicing the debt on the farm and variable expenses such as labor costs, the cost of utilities, costs
of upkeep and management, etc. Deere, p. 898. Since Appellee Hoang had no knowledge of the amount of those
expenses he had no knowledge of the income from the farms.

                                                          9
their plans, i.e. deciding to sell the farm in Georgia, the decision to buy property and build a farm in

Robertson County in Texas, but the decision to sell the Texas farm and distribute the proceeds was

made by Appellants alone. (RR Vol. 3, p. 186-187). In Malone v. Patel, 397 S.W.3d 658, 676

(Tex.App.–Houston [1st] 2012, pet.rev.den’d.), this court addressed the claim by one party that he had

“control” because the other discussed with him decisions that were made, and the financial condition

of the business, and concluded that this was no evidence that he actually made any executive decisions

and had control. To phrase it differently, conversation does not equal control. Sewing v. Bowman, 371

S.W.3d 321 (Tex.App.–Houston [1st] 2012, pet.rev.dism’d.).

       What does the evidence show in this case? It shows first that it was the decision of Appellants

to go into the chicken business. They first worked on farms owned by friends to learn how to operate

a chicken farm and found a farm to purchase, negotiated an agreement with Sanderson Farms, the

chicken producer, and qualified as a grower for Sanderson before they ever talked to Appellees about

investing. According to Appellants’ testimony they could have found the money to make the purchase

elsewhere, so the Appellees’ participation was not critical to the venture. (RR Vol. 4, p 78). Further,

neither of the Appellees had any knowledge or experience that was necessary to operate a chicken

farm: they were investors only.

       Appellants also made all the arrangements for financing, to borrow over a million dollars to

purchase the Georgia farm. There is no evidence that Appellees chose the lender, investigated the loan

terms to decide if the loan was suitable, or discussed the loan with the lender. In fact, no evidence

exists that the lender even knew that Appellees existed.

       When Appellants decided to buy land and build a chicken farm in Texas it was their decision

where to purchase property. (RR Vol. 2, p. 110). There is no evidence that the approval of Appellees


                                                  10
or any other investor was either sought or acquired. In this farm as well as in Georgia, Appellants

decided who would work on the farm and what they would be paid. Appellee Hoang’s own testimony

testimony makes clear his lack of control. (RR Vol. 2, pp. 132-142). He had nothing to do with any

of the negotiations for the land, the construction of the farm, the grower contract, or the bank loan

required to purchase the land and build chicken houses. He did not even meet the contractors who

prepared the site and built the chicken houses. He did not keep the bank account nor did he pay any

bills for the business. Appellants handed the checkbook and signed checks.

       In responses to questions about the relationship between the chicken farm and Sanderson

Farms, the producer, Appellee Hoang testified that he had no dealings with Sanderson, that “The

chicken company they only deal with the owners of the company” (emphasis added). (RR Vol. 2,

p.140). Those “owners” were Appellants, not him. He also testified that “I just do whatever Phap

Nguyen and Andy Ngo tell me to do.” (RR Vol. 2, p.141).

       When asked “what you did without talking to Andy and Phap first” Hoang responded:

                A      When I drive the tiller to prepare the road, and I just drive the
                       lawnmower. I do not need to talk to them or ask them. As to the
                       anything need to be done, I do it.

                Q      Can you tell me anything else that you ever did on the farm without
                       asking them first?

                A      Many things, but I cannot.

                Q      Tell me what they are.

                A      This cleaning the ditches to make the road so that the vehicle can
                       drive in. Pave the cement. Do the flooring for the mobile home.

From his testimony it is apparent that Appellee Hoang made no executive decisions in operating the

chicken farm. Actually the evidence showed that Appellee Hoang worked as a laborer in the chicken


                                                 11
houses and that Appellants “fired” him as an employee because of their dissatisfaction with his job

performance and his lack of responsibility. (RR Vol. 3, pp 185-186; Vol. 3, p. 34-36).

       Finally, one of the most telling admissions by Appellee Hoang of a lack of control over the

venture was this response:

                Q       The chicken farm in Texas, who made the decision to sell it?

                A       Those two, because of their name on the document.

Further, when asked about the sale of the chicken farm in Georgia Appellee Hoang stated “ the deal

was handled by those two people.” (RR Vol. 3, p. 131). Appellee Nguyen testified that the decision

to sell the farm in Georgia was his and Appellee Ngo’s, and they did not talk to Appellees about selling

it before they made the decision. (RR Vol. 3, p. 176). There can be no executive decision more

important to a business venture than to sell the business itself and cease all operations. A sale of the

chicken farm would end the venture and the relationship of the parties. One who has no say in such

a decision cannot claim he had the right to make executive decisions.

       There is no evidence at all that Appellee Le ever participated in any decision necessary in the

purchase, operation or sale of the chicken farms in Georgia and Texas. She was present at the final

distribution of funds from the venture, but there is no evidence that she participated in any of the

business decisions that were made.


Sharing or Agreeing to Share in Any Losses:

       An agreement to share losses of a business or to pay debts to third parties is a good indicator

of an ownership status. This case lacks any evidence that either Appellee ever paid, or expected to

pay, any losses of the business or to pay a debt of the chicken farm to a third party. It was clear from



                                                  12
the beginning that only Appellants stood to lose if the venture failed. (RR Vol. 2, p. 63). Appellee

Ngo understood at all times that if the business failed he would lose everything, his time, for the

liability for the bank loans, everything. But he did not expect Appellees to be responsible for any

losses. (RR Vol. 2, p. 81).

       At every stage it was Appellants who made up any shortfall. For example, in Georgia, when

the farm with its initial six chicken houses was not producing enough income to even pay the farm

utilities and operating expenses, it was Appellants who came up with the funds. For a time the needed

funds came from the income of Appellant Dung Vu, earned in her decorating business in New Orleans.

(RR, Vol. 3, pp 170-171). Appellees contributed nothing.

       When Appellants realized that building two more chicken houses on the farm in Georgia was

necessary to make the farm economically viable, they invested back into the farm what they would

normally have paid themselves as labor expense (they paid themselves and all employees an amount

whenever a batch of chickens was sold to defray their basic living expenses ) in order to have the funds

necessary to build the additional houses. (RR Vol. 2, p. 84-85; Vol 3, p. 171). Appellees contributed

nothing.

       In both Georgia and Texas it was Appellants who assumed the full legal liability for bank loans

to purchase and/or build the farm. (RR Vol. 2, p. 81).

       After Appellants made the decision to move to Texas and build a farm in Robertson County,

they learned that Sanderson Farms would allow them to add another eight chicken houses, expanding

from 16 to 24 and increasing the farm’s profitability. It was Appellant Nguyen who borrowed

$400,000 from family or friends to come up with the necessary funds. (RR Vol. 3, p. 87-88).

Appellees incurred no legal liability.


                                                  13
        Appellants never told a creditor of the chicken farms that Appellees had anything to do with

the farm, much less that they would be liable for debts incurred. Likewise, there is no evidence that

Appellees ever told a creditor or third party that they were liable for debts of the business. In this case

it is clear that evidence does not exist on this element of a partnership.


Contributing or Agreeing to Contribute Money or Property to the Business:

        It is not contested that Hoang invested $80,000 and Le (with Tuan Ngo) $50,000 to purchase

the chicken farm in Georgia.


Summary: The Totality of the Evidence Shows that Appellees were not Partners:

        Appellees satisfy two of the elements necessary to the creation of a partnership. They both

contributed money and were entitled by agreement to a portion of the profits earned. But in many

critically important ways there is no evidence of a partnership. No evidence exists that the parties

referred to themselves as partners or represented to others that a partnership existed. There is no

evidence that Appellee’s ever lost or stood to lose anything other than their investment. And most

important of all, Appellee’s had no control over the executive decisions made in the business, a clear

indicator that they were investors but not partners.



Point of Error No. 2 Restated: THE EVIDENCE IS LEGALLY INSUFFICIENT TO ESTABLISH
THAT APPELLANTS BREACHED A CONTRACT WITH APPELLEES.

Point of Error No. 3 Restated: THE EVIDENCE IS INSUFFICIENT TO SHOW ANY DAMAGES
FOR BREACH OF A PARTNERSHIP AGREEMENT.

Point of Error No. 4 Restated: THE EVIDENCE IS INSUFFICIENT TO SHOW ANY DAMAGES
FOR BREACH OF A CONTRACT.



                                                    14
       As the breach of partnership and breach of contract claims are based on the same operative

facts and the same damages were claimed for both alleged breaches, Appellants will address the issue

of damages in a combined argument applicable to both claims.

       Appellee Hoang was asked what he claimed that Appellants had done to harm or injure him.

His answer was that (1) they had paid themselves 20% of the profits made from purchase,

management, and sale of the chicken farms as compensation for their management of the chicken

farms, and (2) they had held out funds from the distribution made after the farm in Texas was sold to

pay the Internal Revenue Service.

       Appellee Le’s testimony is somewhat confusing. She is clear that she objected to Appellants

paying themselves any compensation for their services, about withholding any funds to pay taxes, and

about the division between the distribution between her and her former boyfriend. (RR Vol. 2, p. 57-

58).

       On the issue of labor, she seems to assert that Appellants were already paid for their services.

(RR Vol. 2, p.20). She testifies that they were paid $3,500 per month. Later, it becomes clear that this

testimony is incorrect. She admits that they were paid $3,500 per batch of chickens sold and that five

batches a year were sold (RR Vol. 2, p. 47-48), which means that Appellants received only $17,500

per year, paltry compensation for working 12-14 hours a day, going without pay for nearly two years,

and assuming personal liability for about $7,000,000 in bank loans.

       With respect to Appellants’ withholding of funds to pay taxes she testified that “the tax money

had been deducted before giving this money to me.” (RR Vol. 2, p. 51). She said she had not reported

the gain she received because “Andy said he had already paid tax for that portion already. When asked

what she wanted, she said “I just want Andy to pay me the tax back to me so I can report to the IRS.


                                                  15
(RR Vol. 2, p. 54). Of course, the problem with that position, as explained by Appellants’ accounting

expert, is that the IRS considers Appellants as the taxpayer because Appellants were the purchasers

and sellers of the farms.

       Le also complains that Appellants should not have divided the profits from the chicken farm

operations with Tuan Ngo. (RR Vol. 2, p. 57). Her testimony fails to show that Appellants should

have known that only she was entitled to profits. She admitted that when the money was sent to

Appellant Ngo that there was nothing with the money “that said whose money its was.” (RR Vol. 2,

p. 42). She likewise admitted that she never gave anything that said that “this is my part and this is

Tuan’s part.” (RR Vol. 2, p. 42). Other evidence shows that Tuan Ngo’s paycheck from working on

the chicken farm went to Appellee Le and that distribution of funds made by Appellants on another

occasion was divided between Appellee Le and Tuan Ngo.


Payment of 20% of Net Profits to Appellants a Breach of a Partnership Agreement or Contract?:

       It was uncontradicted that when Appellants made a final distribution of profits from the sale

of the chicken farm in Robertson County that they deducted from the amount distributed to the

investors 20% of the profits as compensation to them for their services provided. It is uncontradicted

that the parties did not discuss at the beginning of the business that Appellants would charge for their

services.   Counsel for Appellee Hoang asked Appellant Ngo why he should be entitled to

compensation out of profits while Appellee should not, when he also worked on the farm. Appellant

Ngo clearly explained the difference between one who is a common laborer and can be replaced, and

one if has overall responsibility for managing the business. (RR Vol. 2, p. 106-107).

       Appellants believe that the basic source of error in the jury verdict in this case was a



                                                  16
presumption by the jury that a party is only entitled to be paid for services rendered if there is an

express agreement to that effect, while the law in Texas is actually that a party is entitled to

compensation unless an express agreement establishes the compensation due for those same services.

        There is a fundamental difference in compensation to Appellants for a return on the monies

they invested, and the services they provided. They are entitled to be paid a return on their monetary

investment just as are Appellees. But Appellees refused to accept that Appellants were also entitled

to be paid for their management services, additional investments, sacrifices, and assumption of debts

on the business. Appellee Hoang’s opinion at trial was that “we are all the same,” meaning that a

return on investment is all anyone is entitled to receive. (RR Vol 3, p. 129).

        His opinion is incorrect under Texas law. Texas recognizes that a party may have a claim for

services rendered even when there is no contract providing for that compensation. Truly v. Austin, 744

S.W.2d 934, 936 (Tex. 1988). The underlying theory is that it would be unjust for a party to receive

benefits as the result of the efforts of another without paying the value of those benefits to the party

who did the work. Baldwin v. Smith, 586 S.W.2d 624, 632 (Tex.Civ.App.–Tyler 1979), reversed on

other grounds 611 S.W.2d 611 (Tex. 1980); Murphy v. Canion, 797 S.W.2d 944 (Tex.App.–Houston

[14th] 1990, no writ hist.).

        The elements of a claim in quantum meruit are as follows:

        1.      valuable services were rendered;

        2.      for the person sought to be charged;

        3.      the services were accepted by the person sought to be charged, used and enjoyed by
                him;

        4.      under circumstances as reasonably notified the other person that there was an
                expectation of being paid.


                                                   17
        Vortt Exploration Company v. Chevron, 787 S.W.2d 942 (Tex. 1990).

        There is no doubt that Nguyen and Ngo rendered valuable services. They spent uncompensated

time learning the chicken business before deciding to enter it, secured grower contracts, financed the

construction of two chicken houses in Georgia by foregoing any payment of even basic living expenses

to themselves so that the farm could build the houses; assumed debt in excess of seven million dollars;

went months without compensation in Georgia while they operated a chicken farm there (they

reinvested their wages for their farm labor, while no other investor did so); worked long hours (RR

Vol. 3, p. 209) while the other investors were free to engage in other gainful employment; went

without compensation for a year after selling the Georgia farm while they purchased and constructed

the farm in Texas (RR Vol. 3, p. 180); and then operated the farm in Texas on a full-time basis and

negotiated a sale of it at a substantial profit to all investors.

        The services were rendered for all investors, not just Appellees. While Appellants also

received a distribution of profits, their proportionate part of those profits on their monetary investment

was no greater than that of the other investors. And the amount of the return they received on their

monetary investment was only a small fraction of what they earned for all investors.

        Appellants’ services were accepted by all the investors, including Appellees. While Appellees

were not in control of the operations of the chicken farms, they were aware that the farms had been

purchased by Appellants; that Appellants were living on the farms and operating them; that Appellants

received no compensation for long periods of time while they put together the deals; that Appellants

put in many, many hours managing the farms; that Appellants had over the time the farms were

operating assumed personal liability for approximately seven million dollars in debt; and that the farms

would never have been purchased and would have never earned any return to the investors without


                                                     18
Appellants’ management skill and effort.

       Finally, was there anything about what Appellants did that would put Appellees on notice that

they expected to be compensated for their services? Appellees were free to run their own businesses

or seek other employment but Appellants were committed to full-time operation of the farms.

Appellees knew that for substantial periods of time Nguyen and Ngo were working without any

compensation at all for their services. That knowledge alone was sufficient to put anyone on notice

that a return on their monetary investment alone would not fully compensate Appellants and at some

point they expected to be compensated by something more.

       An agreement to divide any return on a monetary investment in the chicken houses would not

preclude Appellants from claiming compensation for their management services and labor. In Black

Lake Pipe Line Company v. Union Construction Company, 538 S.W.2d 80 (Tex. 1976), the court held

that even if the parties have an express contract that provides compensation for some services a party

can recover the reasonable value of other services which were rendered and accepted that were not

covered by the express contract.

       This case is in an unusual posture. It is not a suit by Appellants seeking a judgment that

Appellees should be ordered to pay them reasonable compensation, but instead a suit by Appellees to

recover damages because Appellants already paid themselves that compensation.               Since the

compensation has already been paid, Appellants contend they had no duty at trial to prove that their

compensation was reasonable, but that Appellees had a burden to show it was unreasonable.

       When the agreement between the parties was silent on the question of compensation by

Appellants for their services there is no evidence that by charging for their efforts they breached any

partnership agreement. If the jury found a breach of a partnership agreement or contract because


                                                  19
Appellants were paid for their services, it is not supported by any evidence because it is presumes that

Appellants were only entitled to be paid for their services if they expressly contracted to be paid.


Is Withholding Money from a Distribution of Profits to pay Federal Taxes a Breach of a Partnership
Agreement Or Contract?:

       Appellees also contended at trial that Appellants breached their “partnership agreement” by

withholding monies to pay the Internal Revenue Service for taxes on capital gains arising from the

purchase and sale of the chicken farms and for taxes on ordinary income as a result of recapture of

depreciation expense deductions taken on the farms. Appellees claimed that Appellants should instead

give them the amount of money withheld for payment of taxes and it would be up them whether to

report the income and pay taxes on it.

       Those taxes were explained by Michael Halls, a C.P.A. called by Appellants as an expert. He

testified that there would be a capital gains tax liability on the sale of the chicken farm(s), and in his

opinion the Internal Revenue Service would assess that liability against Appellants because they were

shown as the owners of the farm. (RR Vol. 4, p. 21).

       Halls also testified that there would be a tax liability in the form of a “recapture” of depreciation

expensed on the farm. (RR Vol. 4, p. 15). His testimony was that Appellants would be responsible for

payment of those taxes. He further testified that while the methodology used by Appellant Ngo to

calculate the expected tax liability was not the same as a certified public accountant would use, it was

a reasonable method of calculating the tax liability. (RR Vol. 4, p. 21).

       The issue here is whether one can be in breach of a contract by compliance with the Internal

Revenue Code. Appellants argued that any tax liability from the sale of the chicken farm will fall on

them, so they are justified in withholding the amount of that tax liability from the proceeds distributed.


                                                    20
In other words, they take the funds because they will owe the taxes. Appellants had no way of

compelling Appellees to pay the IRS if they distributed all the profits to them. Appellants did not trust

Appellees. That Appellees insisted on being paid in cash at the time of the final distribution contributed

to Appellants’ doubt Appellees would report and pay taxes on any profits distributed to them. (RR Vol.

3, p. 59). It was not unreasonable for Appellants to hold the money that would be owed.

         Appellees questioned whether the sale of the chicken farm in Robertson County and the

reinvestment by Appellants properly qualified as what was referred to as a “Section 1031 exchange,”

in an attempt to raise doubt with the jury as to whether a tax liability actually existed.           If the

transaction does not qualify as a Section 1031 exchange, Appellants will be liable immediately for the

taxes. (RR Vol. 4, p. 71). Deferring payment of the capital gain taxes in no way injures Appellees:

they have what was distributed to them free and clear of any tax liability because Appellants assume

payment of any taxes due.


Was It a Breach of a Partnership Agreement or Breach of Contract to Divide Proceeds between
Appellant Le and Tuan Ngo Rather than Pay All the Proceeds to Appellee Le?:

       In addition to those claims on which she joins Appellee Hoang, Appellee Le makes an additional

claim, i.e. that Appellants breached their agreement with her by paying part of the distribution of profits

to Tuan Ngo. She claims she contributed $50,000 and she alone is entitled to a return on the investment

of that amount. To understand this issue requires reviewing the facts and circumstances under which

the investment was made.

       There is no evidence that Appellants ever represented to anyone that they would pay a

proportionate part of any distribution solely to Appellee Le. If there is any basis for that claim, it must

be an implied promise. The evidence shows, however, that the investment Appellee Le claims to have


                                                    21
solely made was actually made as the result of a conversation between Tuan Ngo and Appellant Ngo,

not as the result of a conversation between Appellee Le and Appellant Ngo.

        Tuan Ngo and Appellee Le lived together for seven years. (RR Vol. 2, p. 41). Appellant Ngo’s

uncontradicted testimony was that he contacted Tuan Ngo about investing in the purchase of the farm.

Tuan Ngo told him he would talk to Appellee about it. Tuan Ngo, not Appellee Le, then contacted

Appellant Ngo and said that “they” would invest in the farm.

        Appellant Ngo then received a check in the agreed amount of the investment drawn on an

account solely in Appellee Le’s name. Neither Appellee Le nor Tuan Ngo gave anything to Appellant

Ngo that said whose money was being invested. (RR Vol. 2, p. 42). Appellant Ngo later learned other

information that confirmed the investment was made jointly. Tuan Ngo worked on the farm for a

period of time as a laborer and instructed Appellant Ngo to make his paychecks payable to Appellee

Le and those checks were sent to her. When asked how Appellant Ngo “is supposed to know that Tuan

is not supposed to get any of the money?” Appellee Le responded “Because of my money.” (RR Vol.

2, p. 42).

        A distribution of some accumulated profits was made at one time to Appellee Le in the amount

of $14,000: she told Appellee Ngo that she divided those funds with Tuan Ngo. (RR Vol. 2, p. 113).

At the time of the distribution of the funds Appellant Ngo put the money down on the table to pay

Appellee Le and then she told him to give Tuan Ngo his part, and he did so. (RR Vol. 2, p. 117).

        Is the evidence sufficient to show the existence of an implied agreement to pay only Appellee

Le? To put the question another way, should Appellant Ngo have known from the facts and

circumstances that only she was to be paid at the time of the final distribution of the proceeds from the

sale? Given the circumstances, the answer is “no.” Appellee Le’s real complaint is not that Appellant


                                                   22
disregarded any agreement or understanding, but rather that she and Tuan Ngo have parted ways and

she did not want to split the profit from the investment with her ex-boyfriend.

       An implied agreement may arise out of the regular course of conduct between the parties.

Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mt. Ranch, Inc., 2014 Tex.App. LEXIS

13417 (Tex.App.–San Antonio 2014, rev’d. in part; aff’d. as modified). There must exist a meeting of

the minds. Prime Prods, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.App.–Houston [1st] 2002,

pet. denied).

       In this case there is insufficient evidence to support a finding that an implied agreement between

Appellee Le and Appellants existed that only she should be paid any proceeds from the investment

made by her and Tuan Ngo. She cannot hold Appellants liable on an implied agreement to pay only

her because there was no meeting of the minds that she alone would be paid. Prime Prods, Inc. There

is no basis for a finding of breach of an agreement because of the payment of the proceeds from an

investment to both investors.

       Counsel for Appellee also alluded several times during the trial that there was some duty by

Appellants, either by contract or by implication, to include Appellees as owners on the chicken farms

they owned at the time of trial. (RR Vol. 2, p. 100). This argument is essentially that once someone

is partner he has a right to be a partner thereafter in any venture and to participate in other ventures of

Appellants. As a matter of law that claim is not valid. Rankin v. Naftalis, 557 S.W.3d 940 (Tex.1977);

Greenberg Traurig, LLP v. National American Insurance Company, 448 S.W.3d 115

(Tex.App.–Houston [14th] 2014). Appellants agreed to participate with Appellees in one venture, a

chicken farm, and when that farm was sold no continuing business relationship continued. (RR Vol.

2, p. 100). Further, there is no competent evidence of the value of Appellants’ farms or any other basis


                                                    23
upon which the jury could have calculated Appellee’s damages based on that argument.



Point of Error No. 5 Restated: THE TRIAL COURT ERRED IN AWARDING JUDGMENT FOR
DAMAGES FOR BOTH BREACH OF A PARTNERSHIP AGREEMENT AND BREACH OF
CONTRACT WHEN BOTH CAUSES OF ACTION AROSE FROM THE SAME FACTS OR
EVENTS.


       Texas long ago adopted what is called the “one recovery rule.” Southern County Mutual

Insurance Company v. First Bank & Trust, 750 S.W.2d 170 (Tex. 1988); Stewart Title Guaranty Co.

v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991); Crown Life Ins. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000).

This means that generally when a party recovers damages under two different theories or causes of

action that arise from the same operative facts he must elect one but cannot recover on both.

       That rule was illustrated in a partnership case, Murphy v. Seabarge, Ltd., 868 S.W.2d 929

(Tex.App.–Houston [14th] 1994, aff’d.). One party claimed that the other had paid himself more than

their partnership agreement allowed. Those payments became an issue, because unlike this case, the

partnership was unable to service its debt and funds were not available to pay a management fee. The

jury found that the payments made were self-dealing, a breach of the partnership agreement and a

breach of fiduciary duty. The court noted there was no distinction between the acts that constituted self-

dealing, a breach of fiduciary duty, or violations of the Partnership Agreement: all were based on the

same actions. The court held that the plaintiff was only entitled to recover one compensation for its loss

as the result of the conduct of the defendant, and that since the jury questions inquired about damages

for the same conduct the judgment resulted in an impermissible double recovery. Murphy p. 937.

       Appellants recognize that in some situations, when there is an additional basis for damages

together with actual damages, that a party may recover additional damages arising from the same fact


                                                   24
situation. For example, one could be found to have committed a violation of a common law duty and

also to have violated the Texas Deceptive Trade Practices Act, TEXAS BUSINESS AND COMMERCE CODE

§ 17.41, et. seq. In that case it is possible to recover additional damages allowed by statute. But in the

case before the court, the jury did not award any exemplary damages and only awarded actual damages.

       Murphy is on all fours with the case before this court. In this case there is only one contract,

according to Appellees, which they say was an agreement to form a partnership. The acts they complain

of are the payment by Appellees to themselves of compensation for their management and labor,

withholding funds to pay taxes, and for Appellee Le, a complaint that someone else received funds she

was entitled to solely receive. All of these complaints arise out of the same event, i.e. the distribution

of funds by Appellees. And the “contract” is the “partnership agreement.” Therefore, awarding

damages both for “breach of contract” and for “breach of a partnership agreement” is a double recovery

of damages for the same conduct.



Point of Error No. 6 Restated: THE EVIDENCE IS INSUFFICIENT TO ESTABLISH ANY
LIABILITY BY APPELLEE DUNG VU BECAUSE THERE IS INSUFFICIENT EVIDENCE THAT
SHE ENGAGED IN ANY CONDUCT OF WHICH APPELLEES COMPLAIN.


       All the evidence shows regarding Appellant Vu is that she is married to Appellant Nguyen, she

provided financial support to the chicken farm in Georgia with funds she earned in her business, and

she was a signatory on the title documents for the farms and on the loan documents with the lenders.

There is no evidence that she calculated the amounts that Appellants Nguyen and Ngo decided to

withhold from the final division of proceeds and there is no evidence that she made the decision to

withhold funds from the distribution to the investors.



                                                   25
       A wife is not automatically liable for any obligations created by her spouse. TEXAS FAMILY

CODE § 3.201(a). A spouse is only liable for the acts of her spouse if the spouse acts as her agent or

if the debt is created for “necessaries.” There is no evidence that Appellees provided Appellant Vu’s

family “necessaries.” There is no evidence that Appellant Nguyen was acting as an agent for Appellant

Vu.

       TEXAS FAMILY CODE § 3.201(c) explicitly states that a spouse is not automatically considered

an agent because parties are married. Some evidence of an agency relationship is required. Appellee

Vu signed the title documents and loan papers herself. There is no evidence that her spouse acted for

her under a power of attorney or delegation of authority. There is no basis for an award of damages

against Appellant Vu.




                                                 26
                                            CONCLUSION


       Appellants request that this court reverse the judgment of the trial court and render judgment

that Appellees take nothing by way of this suit.

       If this court rules that the evidence is insufficient to show the parties were partners it should

render judgment that no partnership existed between the parties and reverse the award of damages for

breach of partnership against Appellants.

       If the court affirms the judgment of the trial court that the parties were partners, the award of

damages for breach of partnership should be reversed as there is legally insufficient evidence of such

a breach.

       The court should reverse the award of damages for breach of contract for the reason that the

evidence of breach is legally insufficient to support that award.

       If the court affirms the judgment of the trial court that the parties were partners and that both

a breach of the partnership agreement and a breach of contract occurred, the court should require

Appellees to elect which damages they choose to retain, as the award of damages on both claims is an

impermissible double recovery of damages arising from the same facts.

       The court should reverse any judgment against Appellant Dung Vu as the evidence is

insufficient that she committed any act or omission which Appellees claim was a cause of injury to

them resulting in damages.

       The court should award all costs of this appeal to Appellants.




                                                   27
                                                        Respectfully submitted,




                                                        Tom Rorie
                                                        State Bar No. 17238000
                                                        210 North Street
                                                        Nacogdoches, TX 75961
                                                        (936) 559-1188
                                                        FAX (936) 559-0099

                                                        ATTORNEY FOR APPELLANTS



                               CERTIFICATE OF COMPLIANCE

        Pursuant to TEXAS RULE OF APPELLATE PROCEDURE 9.4(i)(3), I hereby certify that this brief
contains 10,743 words (excluding any caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix). This is a computer-generated document created in
WordPerfect, using 12-point typeface for all text. In making this certificate of compliance, I am relying
on the word count provided by the software used to prepare the document.




                                                        Tom Rorie



                                   CERTIFICATE OF SERVICE

      I certify that a copy of the foregoing document has been served on counsel for Appellees this
  th
29 day of July, 2015, by e-file service.




                                                        Tom Rorie



                                                   28
               NO. 1-15-00352-CV

       ______________________________

                  IN THE
          FIRST COURT OF APPEALS
            AT HOUSTON, TEXAS

       ______________________________


PHAP V. NGUYEN, ANDY NGO, and DUNG T. VU,
                            Appellants

                        VS.

         MANH HOANG and DUNG LE,
                           Appellees

       ______________________________


  Appealed from the 55th Judicial District Court of
              Harris County, Texas

       ______________________________

    APPENDIX TO APPELLANTS’ BRIEF
      ______________________________


                              TOM RORIE
                              State Bar No. 17238000
                              210 North Street
                              Nacogdoches, TX 75961
                              (936) 559-1188
                              FAX (936) 559-0099

                              ATTORNEY FOR APPELLANTS



      ORAL ARGUMENT REQUESTED
                                      APPENDIX


No.   Document

1     Plaintiffs’ Original Petition

2     Charge of the Court

3     Final Judgment

4     Motion for Judgment Notwithstanding Verdict, Motion to Disregard Jury Findings,
      and Objections to Proposed Final Judgment

5     Motion for New Trial




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OJUSTUENTS.*

$ry's.
7. Counti, Ta<sr
                                                              b                           ,                   ADJUSTMSNTS TO
                                                                                                              {00. C+stowrr Taxor
l. aqg*snenE                                                                                                                                   b




                                                                                                                                                                      97! 190, ooo- oo
                                                                                                                                trunuoumrotE.-rr-ffiIlH:
                   t"Un   srqbd;
                                                                                                                                                                              $noo.96

                                                                                                                                                                        25s,soe, g2




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                                                                                                                                                                             9751. 04
                                                                           .e1s
                                                                           510.




   zlu
2fr,TOTAL PA'D BY/FOR
       EORROWER:
                                                                                                                                 s7   ,255.   939 , 86
                                                                                IN AMOUNT DUE TO SELLER:



301. Gfilsl arnount due frorn boncruor (tne 120)         $7,573,110.60 601. Gross arnounl duo    to sellof                       $1 r 490    .0O0 , 00
302 Lnss amount pald by/for bonorrrer (tlne 220)         1r.202t757,O       .   l+ss redudJons ln aml due selhr {lno 520)        67t255.939.86
303'   cAsll   t firnoul t I rot           BoRRovlrER:                          cAsH     tIrnor'.r)      tfiro1        sELLER:        €231   ,959   ,   71


                                                                                      HUD"I (3.86) - RESPA, HB 4:105.2




                                                                                                                                      FAGE      1
         ,A,' S   etitetr e nt'StaGilen t
                                                                                                                                                 U,S. Depsrlfid.rl ot   Fheln o
                                                                                     Jm6                                                         0m ufbsfl qowbp,ner{
                                                                                                                                                                            .p$\
                                                                                                                                                                            -ll-ll
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                                                               410   En"zE   Wnans   Road, Moulblo,
    ..                                                                                                OA Btf6g           110   Erw Wlilams Road, lioulfiE,
         NAME AND        ADSMSFTEilEEil                                                                                                                    OA       ll1iI
                                                               s000 southltitb   bpiii tou, Jackonvlue, FL       AIZ6A
         LOCATlO.ll frto,ude, AA UT6g



                           oATE:             AWTAAA
                                                                                                  RESCISSIONDATE;


I        Conbact_Srt€r   ftico
,
t. s€t{tdne"tr       dur0os-tom
            tno
                      seiLe.r.,       g Il{aFG;TEil;
                                                                                                                         '   !t ptcpalz!€ut panal. t1.
IOJUSTMENT$FORrrE@                                                                                                                                       t-
                                                                                                                                                                   €30,696 . no
-q,      Cftplan    b.ves                          h                         I                   AD
                                                                                                {0O Q0nolrn   Taxes                  lo                  I




                                                                                                                         -

Depocn oreemeel                                                                                       REOUCNONSIN@
              on1offil of nefl

                               b
                     lsken suOlod
                         alqpmt of loen                                                                                                                             $570, o0
                                                                                                                                                         ---Llt
                                                                                                                                                         97.        , 636 . 55
                                                                                                                                                               i395,76s . 96
oraer Flnan&;;
                                                                                                                                                              '------]]
                                                                                                                                                              %
JUSTMENTSFO@                                                                                                                                                  $23o,0',00. o0
c{tyltoyrn t8ro3
                                             to
uounb,|axos
                                                       o3./t
Aesgsenrent-f
                                             Ir)



-
20. TOTAL PAIO BY/FOR                                                 520. TOTAL REDUCTIONS
                                                                                                                              $1t805t1107.33
    BORROWER:                                                             INAMOUNTDUETO SELLER:


lO1. Gross amountdue frorn borrcnnor (line 120)                         . Gross   €rnountduo lo seller                        $2,03A,o00 , 00
t02. [pEs amount psld byrftr bonovrnr (tirir 220)      97,7t7.1t06,      Less rddudlone tn srnl, due eellor (llne 520)        $7,405,do7.33
lo3'cASH    t firnou)                                   $3t3,149,72 603.CASH
                              r   flrot     soRRowER                                 t Irnou) t          fl[ro)     SELLER:     $22a   t892.6?

                                                                                  HUD-I    (3{6).    RESP& HB 4305.2




                                                                                                                                PAGE     1
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                                                                                                                                     QtriB "O,2s02.0266

         S. oEilARIMEIT oF HoUsINo E URsA}t DEVET0PMENT

                   SEITLEMENT STATEMENT
                                                                         8. MoRTGAGE     INS.ASEIIMBM
         NOTE:    DriS a.T! ls i.,?ys/ro.d b
                  rensnedied IPQCJ'were            paUoultttune*:sni;iitt'lii'iiil"ire      whtonnottondputp'scs       jNqN norrdrd*,,uts   ratqt'.
     . NAME       etonsss or goRROt/ER                        €,
                                                                                                                 t.0
                                                                   NAME ANo ADoneSs6EFr_r_srr
    dlt.Phu, klc                                                                                               F. NAITE At{D ADDRES8 OF Li.NDER;
    uc T, Phan 8nd ufo, Anh T. Ngrryon
    orl|0 T, Phdn
                                                              ffi:xTfrff'ff#i?ffitx,1"$tr+                     FlItl Flfisndsl 66nk
                                                                                                               P,O.8ox {764
                                                             Dung T, Vu ond Andy Ngo
    ls7 cR 127                                                                                                 El Dorado. AR 21731
                                                             8312 Cooks Rd,
    aldwefi l6ya5 7636
                                                             Calvorl, Texse 71836

    . pnomnryLoc,qrroil:
    ,12 Coolr Rd,
                                                             IJ.STTTLEMENTAGENT: ?5.?065483
                                                                                                                                      I. SEmEMENT     OATE:
    otyorl, TX ?7838                                         J. Kon Muc*okry Aflor$oy Bl Lsrv, p,C.
    oberlson Courily,T6xsc                                                                                                            Novdmb€r 16,20,10
                                                             PTACE OF SETILEIIENT

                                                                        &Abstrdd
                                                                                                                                                              ffiffiffiY
                                                             Lovo n0o                               '
                                                             114 g, Morgan Slr€ot Flankiln, Toxoo
                                                                                                    r/85B




I




     GROSS.Ai,tourft          o   uE I:ROtt B2RROIWR
                                                                                     420. (iRos.s AMOUfli" DUE ro sEr,-€R




TOTAL PND BylFOn BORROII,ER
                                                                                    62!; T(tfAL   REOUCIIOTV AI{OU /TOUE   SFI(ER



cAsH( X          FROH )   (       TO   )   EORR}fiER
                                                                                    N3. cAsH:( .TO)( FROM)iFL,ER
                                                                                                                            8. TYpg
             s. oepnRTtr€ut6i flousfiro          t   unsA]t DEveLopMENi
                       .   SETTLEMENTSTATEMEMT


                           l!!:  ton t! tu.!l:F!Lo sruuru
                           ll'Ers nrctucd 'lPocf wom pald oulstda tho      dosll:           oi
                                                                                    tlrsy        sno,vi   nn fu   namathnat putposas aN src nol h};tut,/gdh ap bbrr.
         .NAMEANO                                                          NA,VI6 AND AOORESS             Of                      F. NAA{SAffDADORESSOF
         noeol T. Phsfit end hi(o,                                 oo*trrt(orm ErcIsrRo Co{Dprny, qusllflod
         rsr€la    H. PhBm
                                                                                                                                  Flr!l flnNftcjsl Book
                                                                  l0l0rmedlBry tor Phap V. N0rr),tn 8rd wtto,                     P,O. tlox 1751
         iO3 Mo{(rns Rtdgo Ct                                     OJng T, Vu s.dArdy N9o
         0uslor, r€xa3 71041€239                                                                                                  ElOr''ndo,AR 7173|
                                                                  0312 Coo*f Rosd
                                                                  Celv€rl, Toxas 71037

         .   PROFERTYLOCATION:                                             SCTTTEMENTASEVN                     25.2606483
         ItE Cookr Rold                                                                                                                                   I. $ETTIEMENTOATE:
                                                                  J. Kon Msc*okoy, Atto{noy dl Lsw, p.C.
         Bfvorl,  fi
                   77 837
         obertson County, Toxor                                                                                                                           Decombof 17.2010
                                                                  ruACE OT SEfiLEMET{T
                                                                  Lovo Tltlo    t   Abrtrcct Conparry
                                                                  1   l{   E. Morgen Skcol, FlFr*Un. Tox88 77dS6




     a.




     1




 IO, CROSSAMOUNT DUE FROM AORROly|lr,R
                                                                                                      {30. cnos$A {ouNTDUe rOs&((.EF




                                                                                                                                                                               I   J'r'   Lc,zt"z1 Jtzrt'tcrtal




O,,          TOTAL FAID BY/FOR 8ORRO91€I3
                                                                                                     620. TOTAL REOUCTION AHOW\ OIJE SELLER


l.
I, c4SHr X FROH)( TO)BORR}WER
                                                                                                     603 cr,A,sHf     Tol(   Fftott)SELLER
                            !.SF]-T!E4ENT GHARGES
                                                  '
                                  .-@_




     ITEMS PAYAI]LE IN




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                                                     \lAL DISBURSEMENTS EXHIBIT

   .            Borrowoft Vincent T. pham end w{fo, Therosa ll, pham
                    6ollsn
                             fnqp.y. Nguyon and wifo, Dung T. Vu
                             Andy Ngo
                  Londer:    First Flnanclel Bank
       Seillemont Agerrtl    J. Kenlvluckelroy, At(ornoy at Law, p,C,
                             (930)276.2304
   Plsc6 of Seflomonti
                             !9yo_n!.e & Abstract Company
                             114 E, Morgan Street, Frankllri, Texas ZZ860
         Sottlolnsnt Dato:   Uecember 17,2a1O
       Property Locatlon:    8918 Cooks Road
                             Calverl, TXtTggl
                             Rob€rlson County, Texas




  Escrow for MH property Taxes                                                                           2,000,00
Doy.ntl:ql
            flc hange
  trxcnang0 Qredlls
                        Co m pa ny
                                                                                                     2,389,242.52


                    Tolal Addltlonal Dlsbureemontg shown on Llno
                                                                 l3p6                           $   *-e[9]'34?pa




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                                                      ftron-u,
                                             ro3r excha'ge: capitar Gains Result : 1031Tax calculator

                                              l. Cslculah ltetAdJurted Badr:
                                                      Origirol hrcsmt prlcc
                                                                                                           $   11490,000
                                                          plun lrnpovcnrcum
                                                                                                       +s 390,000
                                                          mlnus Dcprcciadou
                                                                                                        -s      336,ggE
                                                      -NBf    .{DIUSTEDBASIS                           -$      1,533,012
                                              2.   Crtculrh {hpthl Grtn $rls hce of prtptrfy:
                                                      Sdcsprlci
                                                                                                        $ 2,030,000.
                                                          mirlu Nct Adjustat Brsir
                                                                                                               1,t33,012
                                                                                                       "t
                                                          orinw Cosg ofSate                            .t           |rcJ
                                                   " Capttal Gain                                      c$       496,478
                                             J. Crlculrh Crplrrl Grtn Trr Ducl
                                                         Rtapnritd Ocprcciadorr (25%) '
                                                         (33t;p6g tcrcd er     25%)                    $         up47
                                                         plrc Fed€ral Calibt Oala Ta:r
                                                         (Riruilndd:$49q+ZA- $jqbsg b(cd          +S             23,y24
                                                                                         st l5y")
                                                         plns $tto Capttal0qbRstol Wo
                                                         (wlxrlc amoutrt to(cd st dlle ratc)
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                                                                F^STIMATC TAXES DIr6

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                                   ro3r excha:nge; Capital Gains Result : 1og1.Tax Calcujator

                                    l.   Crlcuhqc Nct AdJurted         Brrtrl
                                            OriSiosl       t\rctass pr{ce                                         $   863,556
                                                   plus;   trnpruwmcots                                      +S 4,900,000
                                                   miuus Dcprwiation
                                                                                                              ^t   r,197,0t3
                                           =   NETADJUSIID BASIS
                                                                                                             =S 4,266,543
                                   2. Crlculatc     Orptfrl Grln Srla htcc              of pruperty;
                                           Salcs   lli,m                                                      $ 6930,000
                                                 minw NctAdjusted Bqsls                                       .t   4'266,J43
                                                 rninrls    &tfi   ofSalo                                     -3       s6,8l,l
                                           -   Copltal Oajn                                                  *$    2,626,643
                                   J. Crlcutale     Crpltd Galn.,fu Due
                                                                 p.prwia{ion (25%)
                                                 llT$"A
                                                 (t,49'7,0t3 tixcd d 25%)
                                                                              -
                                                                                                              s       374,253
                                                 plus .l;cderal Capital Oalq Ta:r
                                                 (Rarra.lnder:$!626,643 .          $l,4g,ot3 tlxcd6t lj%)    +$       169,445
                                                 plus tlffio Caplral Grin        ltac   0%
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                      uQ not lll9J.qge pe.rsgnqlgl living expengss_quc-h
                                                                         as taxes, in
'i2        Car ard truck e&€nsss (scs posg
           F-1). Also attadr Form 45€2)
13                                         ...,
          Chsmlcals
t4 conss'rrbo;;ffi is,;;-i;i;i
l6        CuGtorn htre (macfrlne rrurkl

!$E@tuat,"n              ang-rocton 1zs''
                                             '''
          'elgenss dsducdon
                               not dalm€d.                                                                                                                                    oo0
          etsetrfisrs (sse p€go F4)
7        Enrployes beneft program;       ;ih;;'
         thsn on llns 25
8        Feod
J        Fertllkors ard lirne
J        Frepht and tucldno
I        Ganofine, fuet, and oll
         Ingurance lottnr Sran health)                                                                                                                                  4   ,5(}0
;        Intdr€3l:
    a Uortgago    (paH to banka, etc.)
    b Olher

                                                                                                                                                                              9
                                                                                                                                                                            5L6
                                                                                                               poge F-8).
                                                                                                                                        -1    SZa     ffl   Altnvotrrn€dtrarrttk
                                                                                                                                        J     37b     Ll    Somhyostnsrb{Era(risL
                                                                  ,1,;^l* 14*
                                                             TIfi"
                                                             Depreciation and Amorfizailon
          ,"_4562                                                                                                             Ofig t{c t€4SO17t
                                                         (lncludlng'fnformaflon on Llstsd property)
          OqpdrDff oatF Tr.ar|ry
          rknl RsffrrC gqr{co
                                                                                                                                 2@07
                                                                                                                             Afladrnro{rl
          Nane(s)sffiffin
                         Electlon   to O
          1
          2
          3
         4
         6




                                                                                                        Instrucllons)




                                                                                             tfian lfeted
                                                                                       tax year (eee lnstrucfons)   .




   11y.o*
   tu
         l?:jr::tedlrurosroup            any a$ers   pH*d;;;;t#
                                                                 fu
         gefieral assel accourts,                    '
                                     dred nero .     .


                 (a) Cfasaflcatfon of proporty
                                                                                                                                 (s)
                                                                                                                             Dopr€datlon




     Ig
     h Resldential

     I




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il,Pap€ru/ork


                                                                           <J*   l
                                                                                            41,wen'
                                                                                                  ^'\
                                                                                                              *ffi      (J
                                                                                                                                                 c{n}(o, 15454t72
           F*4562                                                                        Depreclation and Amortization
                                                                                    (lncluding fnformatlon on Llsted froperty)                     2008
          ftm$ffi,f*m"                                                        -f
                                                                                   See         lnstrucdons.       > Attach to
          l{arr{s) Cuvn ar rctun
                                                                                                                                          tdxrdfybrg   ffir6+t
          Fr4P         v   NGUYBN AND                              TVt]
          eushc$ or rdi,ig   lomE--fom             rcroh{
          $chedule           F                      4835           -      POOI,TRY
                           $lectign To Expense Ceftaln                                              U      Sectlon 179
                           Nola] ll   tou haw Eny llsted pronarh                                    Pail
           1 Maximum amount. see the instructions
                                                      tor a trtgh€i llmit for certain hsin-e;;
           2 Total cost of section 17g properry praced in sorvic* (see
                                                                          insrnrctiohs). .. .
           3 Threshold cost of sqction 179 proporty before reduction
                                                                        ln limitat'ron (see instruclions)                                                 S800, 0OO.
           I Redwtion in limitation, subtrsct ilne 3 from llne 2, lf zero or ress,
                                                                                     enrer .0r
           5                                                  subtracl line 4 frorn line 1. tf zero or toss, enrer .0., tf manied nlins
                3J'fl"t'fll"J"tlffJ,,Htg{.




      ic
      15       Prope(y subject to section l6g(0cl) eleclion.
     16        Othor



     ---%
     17 MAcRs uuou"u@                                                                    __           _SgcdonA
                                                                                         in kx years begrnning betore 200g
                                                                                                                                                            72,449.
     l8        lt you aro electinq tlofgu-q anv assets placed
                                                              in son'ice during lhe tax year into one or mor€ gonoral

                                   sectlqn       8--     Asgets prqg€d                                        r* viil r&rru ft. cun;ror
                                                                                     F sgrvrc,t ourrng 200g
               ***#L"**                                                                                                                           G)O.p.acla$orr
                                                                                                                                                       dodrxidl
     19a




                                                                                                                                                                  750
      h Residential :ental
           properly
      I   Nonrosidential real
          proporty

                                                                                                     2008 Tax Year        tho Altemattw
20a CJass




z1     Listedproperry.enturffi
n      Tltal,ldd anflmtr
      0E'pp(0p,i;6-ril;'tyffi,ifr
                                 frryn lino   lZ lircs   lt   rinnrr*r   r7-fi*;; ."'''' '
                                                ,l.H,l|,m*# JH,H,t*,f_:',gyfit l*# lT jl : iy.yl.y.T
23 FOf ac(els stHlh oh^.-                      aJ        r-
                                                    -r^^^r               --                                                                                 6,07 4
Bm     Forpaperworkn                                                                          ffi                     FOlIfflla@t2i6            Form 45@ (200S)
                                                                                                                                                   oial|4   t545.0172
        Frr        4562                                                     Depreclation an d Amor{izafi on
                                                                       (ncludlng Infomration on Llsted property)
       rHffiffiffg,f,I.frH'v
                                                                                                                                                     2009
       %-                                                                                Instructlo                       tax rotum.
       lkrt (sl*E,rnmmtfil
                                                                                                                                            ldcndfy&rg.{ftrb*
       AI{IDY NGO
       tr(.6ratcst 0r   ldyty b itlro\ hb locn ml, s




            't
            2                                                                                                                                                        oo0
            3
         4
                                                                                                                                                                0,   oo0.
         5

        6




                                                                                                                       include listed
   14

   15
  16



             MAcRs deductions for assets pla.ea tn su*icu'frG-
                                                                                         v*rs   o;fiffi_.    zoog
  18         lf you are      fo.group any essers olacad                    in senrico during the laxyoar into one or mor€ general
                                     e.c*(   hgrB   ,... 1:.. .. . ,..,.. .,. ....   j
                                                                                                                                        .


                                                                           SoMcs                      Year          thc Goncral
                 ***,gt


                                                                                                                                                                62s.

   h Rosldenlihl rentat
     proporty
   I    NonresldenUalroai
        properly

                                                                    ln Servlcc
Zla Clqls lifa .. .. ..
   b1




                                                                                                                                                  Form 4562 (a0og)
                                                                                                                             \nctrnP-fu*
                                                                                                                                  CidB   rt:.   ilrt-i:r,li
            F   Onh
                                                                        .. Deprcciation and Arnodization
                                                                        (lncluding Informatlon on Listed property)
           ffim#-fslff*'Y                                                                                                            201 0
                                                                                                                                 Atladvrlcnl
           namc{t)       sho,rrr on   rehm                                                                   tax return.           Seq€rEc l{.J       67
                                                                                                                           ldcriltyl4g r*nnbtr
                                                  AND
           arltress      ol aatvfy    ioffiG-to.rn ranr*
           Sch.gdu]e                  It / Form 4B3S -

                1
            2                                                                                                                                   500     000
            3
            4                                                                                                                          2,000, 000:
            5
            6



                    Total otected cost of          s€cton r79 properry. ruo urnorit
                                                                                      'r;;ffi
                                                                 6;:il;, ;;,,;;.
                    I:yy.lg5ion. Enreru,usln*r.roiiin";;,;';*8..... ...,.....,....
                    O.-r^--^     !           r,   !.   .-                      ;;;#;#",ffi


      14

      15
      l6
                Properly subixt lo section ili8(D(l)
                                                         eleclion
                                                                                                  ffi     lnclude



                Oltff deof eciallnn fl nnft rilnn dr\ocr
                                                                  not

      17

      18                                                                                                                                  100,581-.



                                                                                                                                      DoFe'daihn




      h Resictentiaf           raraf
           propor{y
      I   Nonresidential              is*
          prop€rty




 n
 2
 23
                                                                                                                                           0, 58
BAA

                                                                                                                              Form 4562 (2010)
                                         ROBArr.f B. ITHAM & ASSOC-ATES, P.C.
                                                                     Attorneys and. Cclunrclors at La'iv
                          9999 Bellalrc Blvd,, Suire # I122
                                                                                                                            Tel: (?f 3) 7'16-33J3
                          Hous(orr, 'l'exas 71036
                                                                                                                             Irax: (? l3) '176-3335
                                                                                                                            rsbcd$sD@pdsdd
                                                                                  Junc 30,201    1




                          YIA CERTIFIED MAIL, Rzur                 ?OO4 25IO O(}OO 6496   I4SIAND REGULAR MAIL
                          Phat V. Nguycn
                          Dung T. Vu
                         l8722Timber'I'wisr
                         Humblg Tsxas 77346

                         Rer                 our clients:                                 Manh lloang & Dung l,e


                         Dear Mr. Nguycn and Ms, Vu:

                        Plcaso be advised that      I am rcpresenting    the above-mentioned clicnts
                                                                                                   -,- regarding
                                                                                                       --o'--.----Q thoir partnerships in your
                        farms in Texas and      Georgia
                        I have roviewed your profit.sharing calculations (see
                                                                              attached Bxhibit A) and apparontly, per my clients,               it
                        does not rcflect the true division oi in"ome


                        fl-tl':^iiT", ploase accept this lctter a,s a formal denrand for additional $250,000 per
                        $250,000.00 for Ms. Le.
                                                                                                                            Mr. I{oang and

                        If I do not recoive tho said $500,000.00 for my
                                                                        olicnts as.of July 31, 2011, I will file a lawsuit against you
                       and   will ask for attimey fees.

                       Ifyou      have any questions, please contact nre at the addross
                                                                                        listed above,

                       Sinccrelv ,./
                          ./// ,/ /7r//
                        /^'4/{*l-...--
                       Robert Pham
                       Attorney at Law

ri
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+
Ir.
JI

I q!'iqu
r
             W          Postag€
                                           I A_[r_!u
                                                              &t
                                                                sH
i.**ffi;tr+,ffi:r                                  s 0 /i?i*;
I     r.kffifl3,'f,,H,1"tr
       ]bldj poctago
                       E fbgs                       *, - -'^\


    fuof^kt (WW);D-r.ilqE
    f    #,x,r,        jl:]rt{fivby=d,+
                                             RO,BN T B. ]3HAM & ASSOC I,'TES, P-C.
                                                                                A;ttoflreys And Counselore at La\y
                                99V) Dellafue Blvd., Sufte   #l I22
                                Houston, Tcxas ?7036                                                                                  Tcl: (713)77G3333
                                                                                                                                       Fax: (713) 776.3335
                                                                                                                                      rclcqdiam@pds,lcl
                                                                                            Jme 30,201I
                            WA CEITTIFIED MAIL, RRR                           7OO4 2510 OOOO 6496 94?4   AND REGULAI{ MAIL
                           Andy Ngo
                           I8722 Timber Trvist
                           Humble, iexa,s 7ii4d

                           Re:                    Our Clicnts:                                     Manh Hoang & Dung Le


                          Dear Mr. Ngo;

                          Pleasc be advised that I anr ropresenting
                                                                    the above-mentioned clients regarding their partnerships
                          fanns in T'exas and Georgia.                                                                       in your

                          I have rovierued vour pro.fit.sharing calculations
                                                                             (see attaohed Exhibit A) and apparontly, per
                          docs not reflect t-hc true division                                                             nly clients,                 it
                                                              oiin*nrc
                         At this time. olease a&ept this retter as a rvrrrrqr
                         $250,000.00'for Ms. Lc.                   ' fo,,nar uvr'rurru tul iarlditio.ar $2i0,000 per Mr, Hoang
                                                                              domand for
                                                                                                                                                    and


                        If I do not receive the said $500,000.00 for
                                                                     my clicnts as of                July 3r,201r, t witt file   a lawsuit against you
                        and rvill ask for attomcy fees.




                        Sirrcerolv




                       Robcrt Phanr
                                   "W
                        If yo, havc any questiorrs, prease contacrr
                                                                    rne at tho address listed atrovo.




                       Attor:rey at Law




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     (#H*RT.tT,ff                                            3   I tfltt
      lbld   poet60o
                       & F€€s
                                                   CAUSE   NO.   2A11.72"1L9



                                                   RECE],I]T NO.        1-3801.               0.00            cl-v
                                                                 09-28-2012 -                        TR#72830822-
PIJAINTIFF: HOANG,     MANTI
                                                                                        In The ssLh
                                                                                        .rudlcial oistrict Court
DEFENDANT: NGUYEN' PHAP V
                                                                                        of Harris County' T'cxas
                                                                                         55TTI D:I:STRICT COURT
                                                                                         HousLon'    TX
                                                   CITATION
THE STATE OI.' TEXAS
County   of Harris



TOr NGUYEN, PLIAP V
    832 COUNTY ROAD 4849            TIMPSON    \X'159'15



    ALLaclred ,i.s   a copy of pLATNTIFF'S-QBI-C:IIA!-!E'IM9N
,I.his lnstrunent was fi.l.ed on tlre 28th-d4y of ,9ept-elrnber, 201'2, in Lhe above clted cause nunilcer
                                                                         you'
and. cour:h. The insLrument, abtached describes t-he claint against'

      YOU HAVE BEEN SUED, You may employ an attorney'         If you ol: your aLtol:ney do noL' fite a
writ-Len ansvier wil.h t-he DisLricL clerk riho,issued this citati,on by 10r00 a'm' and peL-'i'tion'
                                                                                         on t-he Monday
next foLlowiDg i-he explration of 20 days after you were served this          cibaLion
a defaulL ju<lgment ntay be taken againsl- you'
TO OFFTCER SERVING:
    This citalion r'ras issued on 3rd oiay            of ocf,ober, 2aL2t ullcler: my hand and
seal of said     Court-   '


.Issued at request
 NC}UYEN, TRAN BAO
 11045   LANDSWAIJK DR103
 HOUSI'ON,   TX ?'/099
 Tel: (B32) 725-t49L
 Bar No. z 2404384'7
                                         OFFICIIR/AI'THOR],ZED PI'RSON RETURN

 Cane Lo hand at                  o'clock - -- .M', on t-he                   day of
                                                                                                                         tn
 Ilxecuted at- (address       )



                                   County at                  o'clock             .M,, On Lhe        day of      _- .-   -l
                                                                           defendant, in Person, a
                                                                           -.
       , by delivering to                                                        coPY(ies) of Lhe
 t-rue copy of bhis citation bogeLirer vtith the accompanylllg                           PeLiLj'on
 attackred Lherebo ahct I endorsed otl said copy of the cit-aLion Lhe date of crelivery.
 To certi.fy which r affix nty hand official-ly tlris        day of

 Feer    $

                                                                                         of               CounLY, Texas
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                                                                                                    1/23/2015 12:40:43 PM
                                                                                 Chris Daniel - District Clerk Harris County
                                                                                                     Envelope No. 3878020
                                                                                                       By: DANIEL FLORES
                                                                                             Filed: 1/23/2015 12:40:43 PM

                                           NO. 2011-721t9

 MANH HOANG and                                        $    rN THEI DISTR]CT COURT
 DTING LE                                                                                   9F

 VS.                                                        TI/\RRIS COTINTY. TEXAS

 PHAP V. NGUYEN,




                                                                                 k
 ANDY NGO and




                                                                              ler
 DI]NG T. VU                                                55TH   JUDICIAL DISTITICT




                                                                           tC
                                                                       TNGJEBDIEI,




                                                                       ric
                              TO PROPOSED FINAL JTIDGMEI{T




                                                                    ist
                                                                lD
TO THE HONORABLE JUDGE OF SAID COURT:




                                                            nie
        Now coME PHAP v. NGUYEN, ANDY NGo                    and DUNG T. vu, hereinafter
                                                           Da
as "Defendants," and file the these combined motions objecting to the proposed lFinal udgment
presented by MANH HOANG and DUNG LE, hereinaften.refemed to as "Plaintiffs".               lbndarrts
                                                       is
request that the court disregardjury findingsl and request ther entry of a judgrnent notwi   ing t1[re
verdict of the jury as to all defendants, all as set out hereitr. In support, they show
                                                 hr

                                                                                                 rcouft as
follows:
                                              C
                                           of




                                                  1.
                                        e
                                    ffic




                ATTORNEY'S FEES ON APPEAL CANNOT B]O AWARDED
                BECAUSE THERE IS NO FINDING BY THE JIJRY AND NO
                               yO




                  EVIDBNCE TO SUPPORT AN AWAIID O]F fiUCH FEES
                            op




       The proposed judgment ten<lered to the court awards the followine relief:
                         C
                     ial




            IT IS FURTHER Ozu)ERIlD, ADJUDGIID, and DECREED thar plai
                  fic




       MANH HOANG and DUNG'I. LE recover from DrefenclarLts, pHAp V. NGU                           ,
       ANDYNGO, andDIINGT. VlJanamountof $15,0011.00 i:nattorney's fees inthe e
                of




                                                                                                  nt
       of an appeal to the Court of Appeals and Plaintiffs prevail on said appeal, an additi
           Un




       $10,000.00 in attomey's fees in the event a petition for review is filed in the T        X AS
       Supreme Court, and an additional $15,000.00 in attorney's files in the event revie         is
       granted by the Texas Supreme Court and Plaintiffs prevail on said appeal.

        There was no evidence offered atlu'ial as to any attorney's fees on any clairn by aintiftrs,
either for trial preparation,trial, or for appeal. Any award by the trial. court of attomey's fi would
amount to a finding by the trial court as to reasonable and necetisary attorney's fees, w thout the
benefit of evidence of any of the factors set out as relevant by the ToXas Supreme Court in Arthur
Anderson & co. v. Peny Equipment corp.,945 s.w.2d 81j2, (Tex. lg97\.



         Proof of attomeys fees requires some type of basic prool; such as the itemizatidn of what
services
Dvr vrvvD a lawyer
            taw yvr performed,    ure tirne
                    lrgrrururetl, the       requrec rc
                                      urne required to perlolm
                                                       perform tnem,
                                                               l;hem, and that tlte
                                                                               t6e rate applied to
                                                                                                {o the tirne
required is reasonable. Even generalized statements as to ar reasonable fee are noi-suffi.Jie
                                                                                                    nt. Citv
ofLaredov.Montano,414S.W.3d73I,73ti-737(Tex.2011)). Therre.krre,thetrialcourtcafir,otmake
a finding that the jury was required to make, and there is no evidence to sgpport
                                                                                        anv find]ing.




                                                                                    k
                                                                                 ler
        No attomey's fees are recoverable in this case.




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                                                     2.




                                                                          ric
                     THERE IS NO EVIDENCE OF A I}IREACIIIOF ANY




                                                                       ist
                      CONTRACT'BY DI] VU WITH PLAINIIIIIFS AND




                                                                   lD
                  THE COURT SHOULD DISREGARD T'HE JIURY FINDING
                  THAT SHE "BREACHIDD THE PARTIES' AGREEMENT''



                                                              nie
        In order for the jury to find that defendant Dung Vu breached any contract with ttrd plaintiffs
                                                          Da
there must exist proof of a valid contract between them, a breach by her of some term or prrovisi,rn
                                                      is
ofthat agreement, some evidence of injury, and proof of darnages arising from that injury. ptuthwel
v University of the Incarnate Word,974 S.W.2d 351,3:t4-355 (l'ex. App.- San Antofrio 199g,
                                                   hr


pet.den.); Meadv. JohnsonGroup,6l5 S.W.2d 695,697 (llex. l9g1).
                                                C
                                             of




        The evidence in this case shows Dung Vu's involvernent 1;o r>nly a very lirnited e{te,nt. Slhe
                                          e




joined the other defendants in applying for and securing finiencinlg to purchase bpth of tde
                                                                                                   chickrn
                                      ffic




farms involved in this case. She executed clocuments to sell each of the two farms. She li.{red on the
farm in Georgia, traveling back anLd .forth to New Orleans to eiarn inco.me to support her fan{il'y. None
                                 yO




of those acts form the basis for arLy of the plaintiffs' breach of contra.ct claims; in fact, th{ plaintilfs
benefitted from those acts.
                             op




        There is no evidence that Dung Vu made any decisic,n as to omployment of and phyment to
                          C




any of the participants nor made decisions regarding the nLanagernent of the faims. The! evidence
                       ial




shows, and is uncontradicted, that the decision to charge connpensation for services (20% of profits
                   fic




from the farm sales) was made by Andy Ngo; that the calculaticns of capitaX gains rfa;<es a'd
withholding of them from a distriburtion to the partners was made b,y r\ndy l{go; that the caic,ulations
                of




of depreciation and recapture of depreciation was made by Andy lolgo; that the decisioh to defbr
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payment of capital gains taxes was rnade by Andy Ngo, with the assent of Phap Nelur.en: the
calculation of the amounts due each pafticipant was made b),,\ndy N6;o; and the distrituti"hlf n n,t,
to the participants was made by Andy Ngo.

        A wife is not automaticalty liable fur obligations incurred. b.y her husband. Texhs Family
Code $ 3 .20I(a) provides that aspouse is liable for the acts of his or her spouse only if the s$ouse acts
as the agent for the other or the debt is for "necessaries." Therre is no evidence that the dedt r;laimed
by the plaintiffs was created because "necessaries" were pro'vided t9 t6e family. There is nf evidenoe
that defendant Phap Nguyen was acting as an agent for Dung        Vu.   Slhe   executed any necebsarv lesal
documents to buy and sell the chicken farms herself.



        The Family Code $ 3.20I(c) explicitly states thatastr)ouse is not automatically corlsidered
                                                                                                       an
agent because of the mamiage relationship. Therefore, sornr3 eviilence of an agency-agre{nrent
                                                                                                     was
required: there is none in this case. Plaintiffs could have arsked JDung Vu what tr"t.tJt.
                                                                                               was, w6at
decisions she made, if she was consulted, etc. but did not do so. As a result, the trial record
                                                                                                is dev'id




                                                                                  k
of any evidence that she committedlany act or omission thal;caused injury to the plaintiffs.




                                                                               ler
        Thus, there is no evidence to supporl the answer of the jurlr to




                                                                            tC
                                                                         Questions No. 2 urrd 5 thut Dg
Vu breached any contract or agreement with the plaintiffs zurd the court should disregard those juLry




                                                                        ric
findings.




                                                                     ist
                                                    3.




                                                                 lD
             THERE IS NO EVIDENCE OF ANY BREACIT OIF'CONTRAC'T



                                                             nie
            BETWEEN THE PAITTIES BY PHAP NGIUYEN A]\D THE COURT
                                                         Da
           SHOULD DISREGARD THE JURY FINDING TTIA'I HE BREACHED
                 THE PARTIE}S' AGIIEEMENT WI]IH P]L/,INTIFFS
                                                     is
                                                   hr

        There is no real conflict in the testirnLony of the partiesito this suit as to what was ag   when
they first agreed to pool money to purchase a chicken faim in Geo.rgia. llt is uncontestr that tlhe
                                               C



parties agreed to invest funds anrl to receive a share of the profits fiom operations and le
                                                                                                    of the
                                            of




                                                                                                r


faim. It is uncontested that the parties agreed againto build a flLrm in Texas and share profits in
                                          e




proportion to their investments but tlhere is a complete llack of'proof of any 6ther               s ofan
                                     ffic




agreement.
                                yO
                             op




        The central issue in this case is what, if anything, was ilgreed between the            res as to
payment of any compensation to Andy Ngo and Phap Nguyern for throir assumption of lial ility, loss
                         C




of earnings, full-time devotion to the chicken farms, labor, an.d serrrices. Plaintiffs assume th.ere was
                      ial




an agreement not to be paid for those services. The evidencti is that there was never any            ment
                   fic




that Ngo and Nguyen would not be paid. No witness ev,er testifiied that Neo and N
                                                                                                 lren, the
                of




defendants ever represented at any time, that they would wo;rk for frr:e. Therefore, any fi ing that
they breached a contract by paying themselLves 20o/o of profits is siuprportecl by no eviden at all.
            Un




        There is no assumption that a party who provides valuable services will              without
compensation. In fact, the assumption is that unless there is €m expreiss agreement forr com
that valuable seruices will be compensated" Grynberg v. ,Gwaltn'qt, l9g3 Tex. App. L         )ts 44(i7
(Tex.App.-Ft' Worth l983,nowritJrist.); BlackLake Pipe Line Companyv. (JnionConstr           tion,538
S.W.2d 80 (Tex.1976).
        Since Plaintiffs failed to prove the existence of any express ragreement that lDefi
                                                                                                         ts Ngo
 and Nguyen would work and provi<le services without compensation and,
                                                                            such an agree            camot
                                                                                                   rrt
 be implied, there is no evidence that a demand to be pai,l is a. breach of any
                                                                                      contrar       with the
 plaintiffs. Therefore, the court shoulcl disregard the answ'r of the j,ury to
                                                                               euesiions No.        and 5.



        Again, the question is whLat did the parties agree to. A tax liability for either
                                                                                          ca1        I gairrs




                                                                                   k
or ordinary income is created by the laws o1 the United States of America.
                                                                              There is no ev             that




                                                                                ler
any of the defendants ever representecl to any of the parlicipants that any profit
                                                                                   they reali          would
be tax-free' It cannot be a breach of a contract to insist on complying with




                                                                             tC
                                                                                   the naws   of      United
States of   America. In fact, it would be against public policy for pinii"s to agree to not        rltaxable




                                                                         ric
income.




                                                                      ist
        Plaintiffs asked questions and attempted to raise doubt aboul any terx liability throirelh
                                                                                                     cross-




                                                                  lD
examination of defendant Ngo arrd Defendant's accounting,expert, Iylike llalls, but neithdr
                                                                                                  of those
witnesses testified that there would be no tax liability. And tJhe jury cannot find no tax




                                                              nie
                                                                                           liabf;tv UuruA
solely on the skepticism of the plaintiffs: thLere must be sorn,; testimony by one competenlt
                                                                                                 to testifl,
that there would be in fact no such tax liabiility.
                                                         Da
                                                      is
        Therefore, the actions of defendants Ngo and Nguye,n in rvithholding frorn any d{stributipn
of profits the amounts of expected federal rtaxes neither breaches neither un
                                                   hr

                                                                                       uir*[or.rrt,no.
any implied agreement. The court should disregard the ansurer of thr; jury to "rprrru
                                                C



                                                                               euestionr Nb. Z ancl 5
and enter judgment that the plaintiffs take nothing on their c,laim for breach oicontract.
                                             of
                                           e
                                       ffic




        Dung Le also complains that the Defendants breachLed their contract with her         paying a
                                 yO




portion of the distribution of profits to her former boyfriend and brottLer of Andy Ngo. Tl cluestion
is, where is the evidence that any of the defendants agreed to pay any distribution 6f profi
                                                                                             solely to
                              op




her?
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        The evidence at trial is unc<lntested that the initial conversarlions regarding inr    lng were
                       ial




between Andy Ngo and his brother; that she and her boyfriend joinlly marJe the 1nvest
                                                                                                 : that a
                    fic




prior distribution of profits was divided between Dung Le iand the brother; and that the brother's
paycheck from working on the chicken farm was sent to Drung l-e. There is no evi
                  of




                                                                                                  of arry
express agreement that Dung Le would only be paid any arnount clisriributed. The only e idlence
             Un




                                                                                                       of
an agreement shows one between Andy Ngo and his brother. llhere is no evidence t|at
                                                                                        the i vestment
was hers alone, other than a check dlawn on her account, but ilrat chqck was drawn wXren s and
                                                                                                     her
boyfriend were living together and apparently sharing their incorne; and after they had re           ted
that they were investing together.

        There is no evidence frorn whiah the jury could havr: found that withholcling                from a
distribution to the participants for federal capital gain and ordlinary income taxes was a            of the
agreement between the parties, that payment of compensrrtion to defendants Ngo                     )t{guyen
breached any agreement, and that dividing the division ofprofits betrveen Dung Le
                                                                                   and her boyfriend
was a breach.. Therefore, the court should disregard the jr"uy's ans\ver to
                                                                            euestions No. 2and5as
to Phap V. Nguyen and should enter judgment denying any recoverrF against him                 orr that gr:ound,

                                                       4.

              THERE IS NO EVIDENCE OF ANY BREACET OF'CONTRACT
              BETWEEN THE PARTIE]S BY ANDY NGO ANID THIX COUR'T




                                                                                       k
            SHOULD DISREGARD THE JURY F'INDING TBTAT HE BREACHED




                                                                                    ler
                  THE PART'Itr],S' AGRB,BMENT WI'[H PLII,INTIFFS




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      In support of the Motion the Defendants adopt the sarrLe staternLent of the evihence and




                                                                             ric
argument as set out in Paragraph 3 above.




                                                                          ist
        The action ofDefendant}rtrgo inwithholdingpayment for compensation from any dislribution




                                                                    lD
           C-- -^-.':^^^ provided
of
^f profits
   ^.^fi+o for services  ^-^-,|l^l or.. f^-,- Lt^ ^ -,,,
                                        for the          ,   .
                                                    amounts of expected   fei<ieral taxes   neith"i bJ"r,"h",     un
express agreement nor any implied agreement. The court shrculd diriregard the answer of




                                                                nie
                                                                                            lhe iury to
Questions No. 2 and 5 and enter.judgrnent that the plaintiffti take nc,thing on their claim fo1. Lr"uott
ofcontract.
                                                              Da
                                                             is
       There is no evidence from which the jury could have firund rthaf payment for servirendered
and withholding funds from a distribution to the participanrts for fe,leral capital gain i
                                                      hr

                                                                                         ordinary
lncome taxes was a breach of the agreement between the prarties, that payrment of compr
                                                  C



                                                                                             ion to
defendants Ngo and Nguyen breached any agreement, and that dividing the division           profits
                                                of




between Dung Le and her boyfriend was a breach.. Therefore, the court should disregard tlLe jury's
                                           e




answer to Questions No. 2 and 5 as to Andy Ngo and shourkl enterr judgment denying any recovery
                                      ffic




against him on that ground.
                                  yO




                                                       f,.
                             op




                  THERE IS NO EVIDENCE OF THE IIXIS'IENCE OF A
               PARTNERSHIP BX]TWEEN THE PARTI]ES AND THT] COURT
                          C




                 SHOULD DISREGARD THE PARTI{IORSIItrII FINDING
                      ial
                   fic




         The jury answered "yes" to Questtion No. 8, askirng about a partnersftip, as                    all the
Defendants. In order for the court to disregard the jury finding of partnerstrip it must be
                of




                                                                                                    r     lished
that there is no evidence of a partnelship. There is some evidence gffered by the plairrtiffs
            Un




                                                                                                        SuppO,rt
a claim of a partnership, but the question is, as a matter of liaw, is thLat evirJence zrlone su          ient to
support a partnership finding?

        The elements to show existence of a parlnership are:

        1. The right to receive   a share of   profits of the business;

        2. Expression of intent to be partners;
         3. Participation or right   ito participate   in control orlthe bgsiless;

         4.   Sharing or agreeing to share either losses of the business or liability to third

         5.   Contributing or agreeing to contribute money or property to the business.

 Ingram v. Deere,288 S.W.3d 886 (Tex.2009).




                                                                                       k
          Defendants conceded that trial that the plaintiffs contributed money to
                                                                                    the busin,     ilnd each




                                                                                    ler
 had a right to share in the profits of the business. Howe.ver, those factons
                                                                                  alone do n      support a
 f,rnding that apartnership existed.. .And there is no evidence of any




                                                                                 tC
                                                                         of the other factors.




                                                                             ric
        There is no evidence that any of the parties ever refened to each other
                                                                                  as partners.    T'he court
in Ingram noted that the best evidence of the intent of the parlies to be partners




                                                                          ist
                                                                                   is found ir    u'hat they
wrote, both to each other and to others, how they held themserlves out to others,
                                                                                   etc. In thi    case there




                                                                      lD
is no evidence that any of the parties ever held themselves o,ut to third parties
                                                                                   as pantnel     erxecuted
any document as a"partner" witlL each other, or referred to themselves as partners




                                                                  nie
                                                                                         in any
or conespondence. To the contrary, the evidence shows thaLt the Defendants contracted
                                                                                                  ith many
                                                             Da
third parties while representing they were the sole owners, r,vith the knowledge of the pl
                                                                                                  ntiffs.
                                                          is
        There is likewise no eviclence that the plaintiffs either parl"icipated in or had
                                                                                          t         right to
participate in control of the business. 'Ihe court in Ingramnotedireverul *uy,
                                                       hr

                                                                                 in which t         right to
control would be manifested. It defines "control" as the riglrt to rnake executive deci
                                                  C



                                                                                                        Some
examples of control would be:
                                               of
                                            e




        1. Access to the books and records of the business: t"here is no evirjence that the Iaintiffb
                                       ffic




        ever had access to the books and records. The court in .[n|yam sraid party
                                                                                            rrot ha-ye
        control ifhe does not have access to the business, books.
                                  yO




        2. The right to write checks onL the lbusiness checking accourrt: ther:e is                that the
                               op




        plaintiffs ever wrote a check over aperiod ofseveral years.
                           C




        3. The right to make decisiions regarding the major property of the business, i.e.,
                        ial




                                                                                                   chicken
        houses. The decisions to purchase land, hire a contrarctor, culs into a grower,s    c            , selll
                    fic




        each of the chicken farms, etc. were made solely by the defendants.
                  of




        4. The right to hire and fire employr:es. The eviderLce shows no right to hire anc
              Un




                                                                                                  r,e   by the
        plaintiffs, and even shows that defendants Ngo and Nguyen..flrred,;plaintiff Hoar         flom his
       job working in the chicken houses.

        Likewise, there is no evidence of any agreement to share losses or assume ljiabilir        to third
parties for liabilities of the business. The only evidence in this carse regarding
                                                                                   sharing of
losses is the testimony        tUanft lloang that he "would have shared 1n any loises.,, But
                           _bV                                                                           is   nLo
evidence that he ever offered to do so, was expected to do so, or that:he ever became
                                                                                          co                  Itv
bound in any way to pay any debt to a third party.
       Ingram says no one factor is determinative in the existerrce, of a partnership,
                                                                                         bu given the
evidence that there was no evidence of intent to be partne:rsr, no j oint management
                                                                                      and c ntrol, and
no agreement or obligation by the plaintiff's to assume lossers, the
                                                                      evidenceis simply ins fficient as
a matter of law to support the jury answer to
                                                 Question Nc,. 7, and the court should di regard the
answer and enter judgment that fte plaintiffs take nothing a.s pafl;ners.


                                                     6.




                                                                                   k
                    THERE IS NO EVIDIi,NCE OF'AN]' DAMTAGES THAT




                                                                                ler
                    RESULTED FROM A BREACH OF A PAR:TNERSHIP




                                                                             tC
                        AGRE,EMENT BETWEEN'THE PA,R'TIES




                                                                         ric
         It is unclear whether the darnages found by the jury in resp,onse to ()uestion lrlo. 9
the same as those found by the jury in their answer to
                                                                                                [nd l5 are
                                                          Questiott l,lo, 3 and 6. What is c(ear is that




                                                                      ist
Plaintiffs only evidence of any damages arising from any hreach of the alleged partnersh]ip
                                                                                                  ;",- fij




                                                                  lD
                                                                                                       \-/
the 20%o of net profits deducted ernd (2) the amounts withhetd to pay federaiinct*.
                                                                                           tu*"[.


                                                              nie
         In order for the plaintiffs tto recover for breach of a duty as a partner they have to uiro*
                                                                                                       ,o.n"
                                                          Da
damages that resulted from the breach of the partnership agreement. PlairLtiffs
of the value of a business enterprise as a continuing business. They could not because
                                                                                       offe:red nd evidence
                                                                                                thb bu;in;s;
                                                      is
itself, a chicken farm, had been sold. No evidence exists o:f any goodwill. There is no p[rtn.trfrjo
                                                   hr

asset that was lost: all the assets were sold and the proceedls distrjbuted
                                                C



         The plaintiffs argued attrialthat the defendants had s,cme ilut'y to continue to stay
                                                                                               ih business
                                             of




with them, to allow the plaintiffs to participate in any businesrs venture they might enter inq[
                                                                                                  after the
                                          e




sale of the chicken farm. There is no such duty as a matter of'law. ,Sa,linas v.
                                                                                 Riyan,q+S S.W.ZJ Zg6
                                      ffic




(Tex.1997)
                                 yO




        Plaintiffs offered the amounts of capital gain and or:d.inary income taxes with no Iculation
of damages from any breach of a pertnership agreement upo,n wlichL the jury could find
                                                                                            amount
                             op




of damages other than the porlion of net profits paid to the defendants and capital gains withheld.
Since there is no distinction between a breach of an "agreeme:nt" between the partie
                         C




                                                                                            and the
purported "partnership" between rthe parties, there is no legal basis for an avyard of
                      ial




                                                                                           damages
for dissolution of the business or for any lost value of the businesrs.
                   fic




       The court should disregard the jury answers to
                of




                                                         Questions 9)ald 15 and render ju
matter of law that the plaintiffs take nothing on their claim fbr darnages for breach of a
             Un




agreement.
             WHEREFORE, DEFENDANTS request that the Mtotion
                                                                       be GRANTED in all
that   a   judgment be rendered that plaintiffs take nothing
                                                             frorm their suit.



                                                           R.espect   ftrlly submitted,




                                                                                   k
                                                                                ler
                                                                             tC
                                                           Stale Bar lrtro. 17238000




                                                                         ric
                                                           210 North Street




                                                                      ist
                                                           NaoogdochLes,TX 75961
                                                          (e36) sse-1 1s8




                                                               lD
                                                          FAX (936) ss9-00e9




                                                           nie
                                                          ATTORN]DY F'OR DEF'END

                                                       Da
                                                    is
                                                  hr

                                     CERTIFICATE OF SEEIreE
                                               C



           I certify thatacopy oflhe foregoing document has been served
                                                                        on opposing co     this 23'd
                                            of




day of January,2015,by facsimile and email. to-wit:
                                          e
                                      ffic




                  Mr. Scott K. Bui
                  Bui, Pham & Nhan, PLLC
                                 yO




                  FAX (713) 783-0787
                  email : sbui@buinhanlaw. com
                              op
                           C
                        ial
                     fic
                   of
               Un
                                                                                                                2/25/2015 2:25:01 PM
                                                                                           Chris Daniel - District Clerk Harris County
                                                                                                               Envelope No. 4280986
                                                                                                                  By: Deandra Mosley
                                                                                                         Filed: 2/25/2015 2:25:01 PM

                                              NO. 201t-72719

MANH HOANG          and                                     $       IN THE DISTRICT COURT OF
DLING LE

VS.                                                         $       HARzuS COUNTY, TEXAS

PHAP V. NGUYEN,
ANDY NGO and




                                                                                         k
                                                                                      ler
DUNG T. VU                                                  $       55'H   JUUCIAL DISTRICT




                                                                                   tC
                                                                               ric
                                   MOTION FOR NEW TRIAL




                                                                            ist
                                                                       lD
TO THE HONORABLE COURT:




                                                                   nie
           PHAP V. NGUYEN, ANDY NGO, and DTING T. VU, Defendants, move this Court to set
                                                                Da
aside the judgment rendered on January 27,2015, in the above styled and numbered case and to
                                                            is
                                                         hr

order a new trial, and in support of this motion show as follows:
                                                    C



                                                           L
                                              of
                                            e




                          INSUFFICIENT EVIDENCE OF ANY BREACH OF
                                    ffic




                                  AGREEMENT BY DLING T. VU
                                 O




           In order for the jury to find that defendant Dung T. Vu breached any contract with the
                               y
                            op




plaintiffs there must exist proof of   a   valid contract between them,       a breach by her    of some term or
                          C




provision of that agreement, some evidence of injury, and proof of damages arising from that injury.
                      ial
                   fic




Southwell v. University of the Incarnate Word,974 5.W.2d351,354-355 (Tex.App.-San Antonio
               of




    998, pet.den.); Mead v. Johnson Group,              5 S.W.2d 685, 687 (Tex. 1 98 1).
             Un




1                                               6   1




           The evidence in this case shows Dung T. Vu's involvement to only a very limited extent.

She joined the other defendants     in applying for and securing financing to purchase both of the


Page   1

Hoang vs. Nguyen
Mtn New Trial
chicken farms involved in this case. She executed documents to sell each of the two farms. She

lived on the farm in Georgia, traveling back and forth to New Orleans to eam income to support her

family. None of those acts form the basis for any of the plaintiffs' breach of contract claims; in fact,

the plaintiffs benefitted from those acts.




                                                                                 k
        There is insufficient evidence that Dung T. Vu made any decision as to employment of and




                                                                              ler
                                                                           tC
payment to any of the participants nor made decisions regarding the management of the farms. The




                                                                       ric
evidence shows, and is uncontradicted, that the decision to charge compensation for services (20%




                                                                    ist
of profits from the farm sales) was made by Andy Ngo; that the calculations of capital gains taxes




                                                                lD
and withholding of them from a distribution to the partners was made by Andy Ngo; that the




                                                            nie
                                                        Da
calculations of depreciation and recapture of depreciation was made by Andy Ngo; that the decision
                                                    is
to defer payment of capital gains taxes was made by Andy Ngo, with the assent of Phap Nguyen; the
                                                 hr


calculation of the amounts due each participant was made by Andy Ngo; and the distribution            of
                                              C
                                             of




funds to the participants was made by AndyNgo. Therefore, there is insuffrcient evidence thatany
                                        e
                                    ffic




act or omission by Dung T. Vu could constitute a breach of any agreement.
                                O




                                                   L.
                              y
                           op




                   INSUFFICIENT EVIDENCE TO SHOW THAT DUNG T. VU
                        C




                         IS LIABLE FOR ACTS OR OMISSIONS OF
                                 OTHER DEFENDANTS
                    ial
                   fic




        A wife is not automatically liable for obligations incurred by her husband. Tnxes Fervnry
             of
           Un




CooB $ 3.201(a) provides that a spouse is liable for the acts of his or her spouse only if the spouse

acts as the agent for the other or the debt is for "necessaries." There is insufficient evidence that the

debt claimed by the plaintiffs was created because "necessaries" were provided to the family. There



Page2
Hoang vs. Nguyen
Mtn New Trial
is insufficient evidence that defendant Phap V. Nguyen was acting as an agent for Dung T. Vu.

         The Texes   Fevnv Conn $ 3.201(c) explicitly      states that a spouse is not automatically

considered an agent because of the mariage relationship. Therefore, some evidence of an agency

agreement was required: there is none in this case. She executed any necessary legal documents to




                                                                                k
buy and sell the chicken farms herself. The trial record is devoid of any evidence that she herself




                                                                             ler
committed any act or omission that caused injury to the plaintiffs.




                                                                          tC
                                                                      ric
         Thus, there is insufficient evidence to support the answer of the jury to Questions No. 2 and




                                                                   ist
No. 5 that Dung T. Vu breached a contract or agreement with the plaintiffs.




                                                               lD
                                                          nie
                                                  3.


                                                       Da
                       INSUFFICIENT EVIDENCE OF ANY BREACH OF
                         AGREEMENT BY ANDY NGO BY PAYMENT
                                                   is
                                FOR SERVICES RENDERED
                                                hr


         There is no evidence that the parties ever agreed that defendant Andy Ngo would be or would
                                             C
                                           of




not be compensated for his assumption of liability, loss of eamings, fuIl-time devotion to the chicken
                                        e
                                    ffic




fatms, labor, and services. Plaintiffs assume there was an agreement not to be paid for those services
                                O




due to that absence. But no evidence exists that the parties agreed that Ngo would not be paid for
                              y
                           op




his assumption of debt and liability, time, and labor. There is no evidence that Ngo ever represented
                        C




at any time that he would work for free. Therefore, the evidence is insufficient to show any breach
                     ial
                   fic




of an agreement by his payment to himself for his services.
             of
           Un




         There is no assumption that a party who provides valuable services       will work without

compensation. In fact, the assumption is that unless there is an express agreement for compensation

that valuable services will be compensated. Grynberg v. Gwaltney, 1983 Tex. App. LEXIS 4467



Page 3
Hoang vs. Nguyen
Mtn New Trial
(Tex.App.-Ft. Worth 1983, no writ hist.); Black Lake Pipe Line Company v. Union Construction,

538 S.W.2d 80 (Tex. 1976).

         Plaintiffs failed to prove by sufficient evidence the existence of any agreement that Defendant

Ngo would work and provide services without compensation. Such an agreement cannot be implied.




                                                                                  k
There is insufficient evidence that his payment to himself for services rendered is a breach of any




                                                                               ler
                                                                            tC
contract with the plaintiffs.




                                                                        ric
                                                    4.




                                                                     ist
                        INSUFFICIENT EVIDENCE OF ANY BREACH OF




                                                                 lD
                       AGREEMENT BY ANDY NGO BY WITHHOLDING




                                                            nie
                              FLINDS FOR PAYMENT OF TAXES


                                                         Da
         A tax liability for either capital gains or ordinary income is created by the laws of the United
                                                     is
States of America. There is no evidence that any of the defendants ever represented to any of the
                                                  hr


participants that any profit they realized would be tax-free. As a matter of law it cannot be a breach
                                              C
                                            of




of a contract to insist on complying with the laws of the United States of America.
                                         e
                                     ffic




         There is insuffrcient evidence that the actions of defendant Ngo in withholding from any
                                 O




distribution of profits the amounts of expected federal taxes breaches any express or implied
                               y
                            op




agreement between the parties.
                         C
                     ial




                                                    5.
                   fic




                       INSUFFICIENT EVIDENCE OF ANY BREACH OF
             of




                       AGREEMENT BY ANDY NGO BY PAYING PART
           Un




                                OF PROFITS TO TIEN NGO

         Dung Le asserted that the defendants breached their contract with her by paying     a   portion of

the distribution of profits from the sale of the chicken farm(s) to Tien Ngo, her former boyfriend (and



Page 4
Hoang vs. Nguyen
Mtn New Triai
brother of Andy Ngo). The evidence is insufficient to show that defendant Atrdy Ngo ever agreed,

either expressly or by implication, to pay her and her alone a portion of the profits from the sale   of

the chicken farm(s).

         The evidence at trial is uncontested that the initial conversations regarding investing were




                                                                               k
between Andy Ngo and Tien Ngo; that Dung Le and Andy Ngo never had any discussions at         all;thx




                                                                            ler
Dung Le and TienNgo jointly made the investment; that aprior distribution of profits was divided




                                                                         tC
                                                                     ric
between Dung Le and Tien Ngo; and that Tien Ngo's chicken farm paycheck ftom working on the




                                                                  ist
chicken farm was sent to Dung Le.




                                                              lD
         There is insufficient evidence from which the jury could have found that dividing the funds




                                                          nie
                                                       Da
distributed between Dung Le and Tien Ngo was a breach of any agreement.
                                                  is
                                                  6.
                                                hr


                        INSUFFICIENT EVIDENCE OF ANY BREACH OF
                                             C



                       AGREEMENT BY PHAP V. NGUYEN BY PAYMENT
                                          of




                                 FOR SERVICES RENDERED
                                       e
                                   ffic




         There is no evidence that the parties ever agreed that defendant Phap V. Nguyen would be
                                O




or would not be compensated for his assumption of liability, loss of eamings, full-time devotion to
                              y
                           op




the chicken farms, labor, and services. Plaintiffs assume there was an agreement not to be paid for
                        C




those services due to that absence. But no evidence exists that the parties agreed that Nguyen would
                     ial
                   fic




not be paid for his assumption of debt and liability, time, and labor. There is no evidence that
             of




Nguyen ever represented at any time that he would work for free. Therefore, the evidence is
           Un




insufficient to show any breach of an agreement by his payment to himself for his services.

         There is no assumption that a party who provides valuable services       will work without


Page 5
Hoang vs. Nguyen
Mtn New Trial
compensation. In fact, the assumption is that unless there is an express agreement for compensation

that valuable services will be compensated. Grynberg v. Gwaltney, 1983 Tex. App. LEXIS 4467

(Tex.App.-Ft. Worth 1983, no writ hist.); Black Lake Pipe Line Company v. (Jnion Construction,

538 S.W.2d 80 (Tex. 1916).




                                                                                 k
         Plaintiffs failedto prove by suffrcient evidencethe existence ofany agreementthatDefendant




                                                                              ler
Nguyen would work and provide services without compensation. Such an agreement cannot be




                                                                           tC
                                                                       ric
implied. There is insuffrcient evidence thathis paymentto himself for services rendered is abreach




                                                                    ist
of any contract with the plaintiffs.




                                                                lD
                                                            nie
                                                    7.


                                                         Da
                      INSUFFICIENT EVIDENCE OF ANY BREACH OF
                   AGREEMENT BY PHAP V. NGUYEN BY WITHHOLDING
                                                    is
                            FUNDS FOR PAYMENT OF TAXES
                                                  hr


         A tax liability for either capital gains or ordinary income is created by the laws of the United
                                              C
                                           of




States of   America. There is no evidence that any of the defendants ever represented to any of the
                                         e
                                     ffic




participants that any profit they realized would be tax-free. As a matter of law it cannot be a breach
                                 O




of a contract to insist on complying with the laws of the United States of America.
                               y
                            op




         There is insufficient evidence that the actions of defendant Nguyen in withholding from any
                        C




distribution of profits the amounts of expected federal taxes breaches any express or implied
                     ial
                   fic




agreement between the parties.
              of
            Un




Page 6
Hoang vs. Nguyen
Mtn New Trial
                                                      8.


                          INSUFFICIENT EVIDENCE OF ANY BREACH OF
                          AGREEMENT BY PHAP V. NGUYEN BY PAYING
                                PART OF PROFITS TO TIEN NGO

         Dung Le asserled that the defendants breached their contract with her by paying         a   portion of




                                                                                   k
the distribution    ofprofits from the sale ofthe chicken farm(s) to TienNgo, her former boyfriend (and




                                                                                ler
                                                                             tC
brother of Andy Ngo). The evidence is insufficient to show that defendant Phap V. Nguyen ever




                                                                         ric
agreed, either expressly or by implication, to pay her and her alone a portion of the profits from the




                                                                      ist
sale of the chicken farm(s).




                                                                  lD
         The evidence at trial is uncontested that the initial conversations regarding investing were




                                                              nie
                                                           Da
between Andy Ngo and Tien Ngo; that Dung Le and Phap V. Nguyen never had any discussion at
                                                       is
aII;that Dung Le and Tien Ngo jointly made the investment; that         a   prior distribution of profits was
                                                    hr


divided between Dung Le and TienNgo; and that TienNgo's chicken farm paycheck from working
                                                 C
                                              of




on the chicken farm was sent to Dung Le.
                                           e
                                       ffic




         There is insuffrcient evidence from which the jury could have found that dividing the funds
                                    O




distributed between Dung Le and Tien Ngo was a breach of any agreement.
                                  y
                               op




                                                      9.
                           C




                              INSUFFICIENT EVIDENCE TO ESTABLISH
                        ial




                                  EXISTENCE OF A PARTNERSHIP
                     fic




                                      BETWEEN THE PARTIES
             of
           Un




         There is insufficient evidence to support the jury's answer to Question No. 8 finding the

existence of   a   pattnership. The evidence offered by the plaintiffs to support a claim of a partnership

is insufficient as a matter of law to support a partnership finding.



Page 7
Hoang vs. Nguyen
Mtn New Trial
          The elements to show existence of a partnership are:

          1.       The right to receive a share of profits of the business;

          2.       Expression of intent to be partners;

          3.       Participation or right to participate in control of the business;

          4.




                                                                                    k
                   Sharing or agreeing to share either losses of the business or liability to third parties;




                                                                                 ler
                   and




                                                                              tC
          5.       Contributing or agreeing to contribute money or property to the business.




                                                                          ric
Ingram v. Deere,288 S.W.3d 886 (Tex. 2009).




                                                                       ist
                                                                   lD
          Defendants conceded attrial that the plaintiffs contributed money to the business and each




                                                              nie
had a right to share in the profits of the business. However, those factors alone do not support a

finding that apartnership existed.
                                                          Da
                                                       is
                                                    hr

          There is no evidence that any of the parties ever referred to each other as partners. The court
                                                 C



rn   Ingram noted that the best evidence of the intent of the parties to be partners is found in what they
                                              of
                                           e




wtote, both to each other and to others, how they held themselves out to others, etc. In this case
                                       ffic




there is no evidence that any of the parties ever held themselves out to third parlies as partners,
                                 y O




executed any document as a"partner," or referred to themselves as partners in any document or
                              op
                           C




correspondence. To the contrary, the evidence shows that the defendants contracted with many third
                       ial




parties while representing they were the sole owners, with the knowledge of the plaintiffs.
                    fic
              of




          There is likewise no evidence that the plaintiffs either participated in or had the right to
            Un




participate in control of the business. The most important factors in determining the existence of a

partnership are the sharing ofprofits and the control of the business. Big Easy Cajun Corp. v. Dallas

Galleria, Ltd.,293 S.W.3d 345 (Tex.App.-Dallas 2009, no writ hist.). The court in Ingram noted

Page 8
Hoang vs. Nguyen
Mtn New Trial
several ways in which that right to control would be manifested. It defines "control" as the right to

make executive      decisions. Some examples of control would      be:

         1.        Access to the books and records of the business: there is no evidence that the
                   plaintiffs ever had access to the books and records. The court in Ingram said party
                   does not have control ifhe does not have access to the business' books.




                                                                                  k
         2.        The right to write checks on the business checking account: there is no evidence that




                                                                               ler
                   the plaintiffs ever wrote a check over aperiod ofseveral years.




                                                                            tC
         a
         J.        The right to make decisions regarding the major property of the business, i.e. the




                                                                        ric
                   chicken houses. The decisions to purchase land, hire a contractor, cuts into a
                   grower's contract, sell each of the chicken farms, etc., were made solely by the




                                                                     ist
                   defendants.




                                                                 lD
         4.        The right to hire and fire employees. The evidence shows no right to hire and fire by




                                                             nie
                   the plaintiffs, and even shows that defendants Ngo and Nguyen "fired" plaintiff
                                                         Da
                   Hoang from his job working in the chicken houses.
                                                     is
         There is essentially no evidence of any agreement to share losses or assume liability to third
                                                   hr


parties for liabilities of the business. The only evidence in this case regarding sharing of losses is
                                               C
                                             of




the testimony by Manh Hoang that he "would have shared in any losses." But there is no evidence
                                          e
                                      ffic




that he ever offered to do so, was expected to do so, or that he ever became contractually bound in
                                   O




any way to pay any debt to a third party.
                                 y
                              op




         No one factor is determinative in the existence of a partnership, but given the fact that there
                          C




was no evidence of intent to be partners, no joint management and control, and no agreement or
                       ial
                    fic




obligation by the plaintiffs to assume losses, the evidence is simply insufficient as a matter of law
                of




to support the jury answer to Question No. 7.
              Un




Page 9
Hoang vs. Nguyen
Mtn New Trial
                                                  10.


                         INSUFFICIENT EVIDENCE OF DAMAGES
                       FOR BREACH OF PARTNERSHIP AGREEMENT

        Plaintiffs' only evidence of any damages arising from any breach of the alleged partnership

was (1) the2}Yoofnetprofits deducted andpaidto defendantsNgo andNguyen, and (2)the amounts




                                                                                 k
                                                                              ler
withheld to pay federal income taxes. That is not proof of damages for a breach of a partnership




                                                                           tC
agreement.




                                                                       ric
        In order for the plaintiffs to recover for breach of a duty as a partner they have to show some




                                                                    ist
                                                                lD
damages that resulted from the breach of the partnership agreement. Plaintiffs offered no evidence




                                                          nie
of the value of a business enterprise as a continuing business. They could not because the business
                                                        Da
itself, a chicken farm, had been sold. Plaintiffs offered no evidence of any goodwill or value of the
                                                     is
                                                hr

alleged partnership as an entity. Plaintiffs offered no evidence that partnership assets were lost: all
                                             C



the assets were sold and the proceeds distributed.
                                          of
                                       e




        Defendants had no duty to continue to stay in business with Plaintiffs or to allow the
                                   ffic




plaintiffs to participate in any business venture they might enter into after the sale of the chicken
                              y O




farm. There is no such duty   as a matter of law. Salinas v.   Rafati,948 S.W.2d 286 (Tex. 1997).
                           op
                       C




        Plaintiffs offered no calculation of damages from any breach of a partnership agreement upon
                    ial




which the jury could find any amount of damages. There is no distinction between the damages the
                   fic
             of




jury found for breach of an agreement between the parties and the evidence of damages for breach
           Un




of partnership. The evidence is insufficient to support any award of         damages    for breach of

partnership.




Page 10
Hoang vs. Nguyen
Mtn New Trial
                                                  11.


                     THE INTEREST AWARDED ON THE DAMAGE,S
                   FOLIND BY THE JURY IS COMPUTED INCORRECTLY

        One of the primary purposes of awarding pre-judgment interest to a      plaintiff who prevails

is to provide a disincentive to a defendant to delay the trial and disposition of case.




                                                                                k
                                                                             ler
        In this case it was the plaintiffs who failed to promptly set the case for trial. In fact, on




                                                                          tC
June 6, 2014,the Court dismissed the case for want ofprosecution. The case was reinstated by order




                                                                      ric
                                                                   ist
dated July 1, 2014, upon motion by the plaintiffs.




                                                               lD
        The Texas Supreme Court discussed the purpose of pre-judgment interest in Johnson &




                                                           nie
Higgins v. Kenneco Energy,962 S.W.2d 507 (Tex. 1996). It referred to principles of "equity" and
                                                        Da
mentioned providing disincentives for defendants to delay. The Court noted that normally when
                                                   is
                                                hr

there is a "tolling agreement" that the accrual of interest is also   tolled. In this case it was the
                                             C



plaintiffs who caused delay, but they seek to recover interest that accrued during the period they
                                          of
                                        e




delayed. A party that causes the delay should not benefit from the accrual ofinterest; therefore,
                                   ffic




Defendants contend that the Court should modify the award of pre-judgment interest accordingly.
                              y O




        Pre-judgment interest should be disallowed after June 6, 20l4,the date on which the Court
                           op
                       C




dismissed the suit due to the failure of the plaintiffs to pursue it diligently. By that date the Court
                    ial




itself has sufficient evidence of a failure by the plaintiffs to timely prosecute their suit. In the
                   fic
               of




altemative, interest from June 6, 2014,until July l,2014,should be disallowed for during thatperiod
             Un




of time the case had been dismissed.

        WHEREFORE, Defendants pray the Courl grant this Motion for New Trial and the relief

requested.


Page I I
Hoang vs. Nguyen
Mtn New Trial
                                                       Respectfu lly submitted,




                                                       State Bar No. 17238000
                                                       210 North Street
                                                       Nacogdoches, TX 75961




                                                                           k
                                                       (936) ss9-1188




                                                                        ler
                                                       FAX (936) ss9-0099




                                                                     tC
                                                       ATTORNEY FOR DEFENDANTS




                                                                 ric
                                    CERTIFICATE OF SERVICE




                                                              ist
                                                           lD
          certifu that a copy of the foregoing document has been served on opposing counsel this
 ^.JhI
d2  :'day of February,2015, by facsimile and email, to-wit:



                                                       nie
                   Mr. Scott K. Bui
                   Bui, Pham & Nhan, PLLC
                                                   Da
                                                 is
                   FAX (713) 783-0787
                                                 hr

                   email : sbui@buinhanlaw.com
                                            C
                                          of
                                       e
                                    ffic
                               y O
                            op
                         C
                      ial
                   fic
             of
           Un




Page 12
Hoang vs. Nguyen
Mtn New Trial
