### CASE NO. 01-15-00681-CV IN THE FIRST COURT OF APPEALS AT HOUSTON, TEXAS

CHI TRUC HOANG Appellant
vs. TREVOR GILBERT AND JORJA GILBERT Appellees Appealed from the 334TH

### Court of Appeals of Harris County, Texas APPELLANT CHI TRUC HOANG’S BRIEF Mynde S. Eisen State Bar No. 06503950 Law Office of Mynde S. Eisen, P.C. P. O. Box 630749 Houston, Texas 77263 (713) 266-2955 (281) 343-1089 wyndeeisen@sbcglobal.net Gary Cerasuolo State Bar No. 00789927 Smith & Cerasuolo, LLP 7500 San Felipe, Suite 410 Houston, Texas 77063 (713) 787-0003 (713) 782-6785 (fax) gary.cerasuolo@sbcglobal.net ATTORNEYS FOR APPELLANT CHI TRUC HOANG APPELLANT REQUESTS ORAL ARGUMENT ACCEPTED 01-15-00681-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 11/25/2015 8:38:06 AM CHRISTOPHER PRINE

CLERK

### CASE NO. 01-15-00681 IN THE FIRST COURT OF APPEALS AT HOUSTON, TEXAS

CHI TRUC HOANG Appellant
vs. TREVOR GILBERT AND JORJA GILBERT Appellees Appealed from the 334TH

### Court of Appeals of Harris County, Texas APPELLANT CHI TRUC HOANG’S BRIEF
IDENTITY OF PARTIES & COUNSEL Appellant: Chi Truc Hong Appellant’s Counsel: Mynde S. Eisen State Bar No. 06503950 Law Office of Mynde S. Eisen P.O. Box 630749 Houston, Texas 77263 (713) 266-2955 (281) 343-1089 (fax) email: wyndeeisen@sbcglobal.net

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### Gary Cerasuolo State Bar No. 00789927 Smith & Cerasuolo, LLP 7500 San Felipe, Suite 410 Houston, Texas 77063 (713) 787-0003 (713) 782-6785 (fax) gary.cerasuolo@sbcglobal.net Appellees: Trevor Gilbert and Jorja Gilbert Appellee’s Counsel: Dana LeJune State Bar No. 12188250 6526 Washington Avenue, Suite 300 Houston, Texas 77007 (713) 942-9898 (713) 942-9899 (fax) dlejune@triallawyers.net

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### TABLE OF CONTENTS IDENTITY OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT ON ORAL ARGUMENT ................................3 ISSUES PRESENTED ..............................................4 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. The District Court Erred in Granting Appellees’ JNOV and Awarding Hoang Nothing in Contravention of the Jury Verdict (Issue No. 1 Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. Claims Against Hoang were Subject to the Release and Hold Harmless Provision of the Acceptance Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 1. Hoang is a Third Party Beneficiary to the Acceptance Agreement . . . . . . . . . . . . . . . . . . . . . . 13 2. Appellees Waived Any Argument that Hoang is Not Protected by the Release and Hold Harmless Provisions of the Acceptance Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 14 B. Attorney’s Fees are Damages Under General Hold Harmless Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 -iv-

### C. Appellees’ Argument that Hoang Cannot Recover Attorney’s Fees Under Tex. Civ. Prac. & Rem. Code §38.001 is Misplaced and Not Relevant . . . . . . . . . . . . . . . . . 19 D. The Jury Determined Reasonableness of Attorney’s Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 E. The Express Negligence Doctrine Does Not Preclude Enforcement of the Hold Harmless Provision . . . . . . . . . . . . 20 1. The Express Negligence Doctrine Is Not Applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 2. Appellees’ Waived Any Arguments that the Hold Harmless Clause Was Not Conspicuous or Did Not Provide Fair Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 II. The Trial Court Erred by Refusing to Submit Hoang’s Question on Breach of Contract Damages (Issue No. 2 Restated) . . . . . . . . . . 23 A. Hoang Properly Submitted Her Breach of Contract Damage Question and the Court’s Refusal To Submit It to the Jury was Error . . . . . . . . . . . . . . . . . . . . . . . . 25 B. Hoang’s Attorney’s Fees as Damages is a Deemed Finding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 III. The District Court Erred in Failing to Award Attorney’s Fees under the Declaratory Judgment Act (Issue No. 3 Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 A. Hoang was entitled to Attorney’s Fees under Tex. Civ. Prac. & Rem. Code §37.009 . . . . . . . . . . . . . . . . . . . . . . 30 B. Hoang’s Declaratory Judgment Action was Properly Pled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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### C. An award of Attorney’s Fees to Hoang is Equitable and Just . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

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### INDEX OF AUTHORITIES Cases Adams v. First Nat'l Bank of Bells/Savoy 154 S.W.3d 859 (Tex. App.-Dallas 2005, no pet.)
.................. 31 Approach Resources I, L.P. v. Clayton 360 S.W.3d 632 (Tex. App.–El Paso 2012, no writ)
................ .34 AVCO Corp., Textron Lycoming Reciprocating Engine Div.of AVCO Corp. v. Interstate Southwest, Ltd. 251 S.W.3d 632 (Tex. App.–Houston [14 Dist.] 2007, writ denied) . . 37-38 Bocquet v. Herring 972 S.W.2d 19 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31, 34 Cap Rock Elec. Co-op., Inc. v. Texas Utilities Elec. Co. 874 S.W.2d 92 (Tex. App. – El Paso 1994, no pet.) . . . . . . . . . . . . . . . . . . 34 Chubb Lloyds Ins. Co. of Texas v. Andrew's Restoration, Inc. 323 S.W.3d 564 (Tex. App.–Dallas,2010) aff’d in part, rev’d in part 364 S.W.3d 817 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . 26 Crimson Exploration, Inc., v. Intermarket Management, LLC. 341 S.W.3d 432, (Tex. Civ. App.–Houston [1st Dist] 2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15, 18, 19 Cruz v Andrews Restoration, Inc. 364 S.W.3d 817 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Dallas Mkt Ctr. Dev. Co. v Liedeker 958 S.W. 2d 382 (Tex. 1987) overruled on other grounds 46 S.W.3d 829 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27 DiGiuseppe v Lawler 269 S.W.3d 588 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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### District Judges of Collin County v. Commissioners Court of Collin County 677 S.W.2d 743 (Tex. App.—Dallas 1984, writ ref'd n.r.e.) . . . . . . . . . . . 33 Dresser Industries, Inc. v. Page Petroleum, Inc. 853 S.W.2d 505 (Tex. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21, 22, 23 Ellis v. Woods 453 S.W.2d 509 (Tex. Civ. App.—El Paso 1970, no writ) . . . . . . . . . . . . . 22 Ethyl Corp. v. Daniel Constr. Co. 725 S.W.2d 705 (Tex.1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Flagship Hotel, Ltd. v. City of Galveston 117 S.W.3d 552 (Tex. Civ. App-Texarkana 2003, writ denied)
....... 31 Fort Bend Cty. Drainage Dist. v. Sbrusch 818 S.W.2d 392 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Frost v. Sun Oil Co. (Delaware) 560 S.W.2d 467 (Tex. Civ. App.—Houston [1st Dist.] 1977, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Garcia v. Sky Climber, Inc. 470 S.W.2d 261(Tex. Civ. App.–Houston [1 st 

### Dist] 1971, writ ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 16, 17, 18 Gulf States Utilities Co. v. Low28 79 S.W.3d 561 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29 Hartman v. Sirgo Operating, Inc. 863 S.W.2d 764 (Tex.App.-El Paso 1993, writ denied) . . . . . . . . . . . . . . . 32 Housing Authority of the City of Harlingen v. Valdez 841 S.W.2d 860 (Tex.App.—CorpusChristi 1992, writ denied) . . . . . . . . 33 James v. Hitchcock Indep. School Dist. 742 S.W.2d 701 (Tex. App.—Houston [1st Dist.] 1987, writ denied) . 32-33
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### In the Interest of JFC, ABC, & MBC 96 S.W.3d 256 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Johnson v. Johnson 869 S.W.2d 490 (Tex.App.-Eastland 1993, writ denied) . . . . . . . . . . . . . . 27 Keystone Equity Management v Thoen 30 S.W.2d 339 (Tex. App-Dallas, 1987, no writ) . . . . . . . . . . . . . . . . . . . . 16 Little Rock Furniture Mfg. Co. v. Dunn 148 Tex. 197, 222 S.W.2d 985 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Mancorp., Inc., v. Culpepper 802 S.W.2d 226 (Tex. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Mem’l Med Ctr. of E. Tex v Keszler 943 S.W.2d 433 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Monical & Powell, Inc. v. Bechtel Corporation 404 S.W.2d 911 (Tex. Civ. App-Eastland 1966, writ ref’d n.r.e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,18 Ohio Oil Company v Smith 365 S.W.2d 621 (Tex. 1963) . . . . . . . . . . . . . . . . . . . . . . . 10, 16, 17, 18, 21 Owen Elec. Supply, Inc. v. Brite Day Constr., Inc. 821 S.W.2d 283 (Tex. App.—Houston [1st Dist.] 1991,writ denied) . . . . 34 Patch v. Amoco Oil Co. 845 F.2d 571 (5th Cir.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 Purvis Oil Corp. v. Hillin 890 S.W.2d 931 (Tex. App.–El Paso 1994, no pet.) . . . . . . . . . . . . . . . . . . 34 Ridge Oil Company, Inc. v Guinn Investments, Inc. 148 S.W.3d. 143 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 34 Salinas v. Rafati -ix-

### 948 S.W.2d 286 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Schlumberger Technology Corp. v. Swanson 959 S.W.2d 171 (Tex.1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Shearson Lehman Hutton, Inc. v. Tucker 806 S.W.2d 914 (Tex.App.-CorpusChristi 1991, writ dism'd w.o.j.) . . . . 29 Spencer v. Eagle Star Ins.,Co. 876 S.W.2d 154 (Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Stark v. Benckenstein 156 S.W.3d 112 (Tex. App.–Beaumont 2004, pet. denied) . . . . . . . . . . . . 32 State Farm Life Ins. Co., v. Beaston 907 S.W.2d 430 (Tex. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Tamez v Southwestern Motor Transport, Inc. 155 S.W.3d 564 (Tex. App-SanAntonio 2004, no pet.) . . . . . . . . . . . . . . . 14 T. J. Kline, Inc. v DAG Management, Inc. 1995 WL500298 (Tex. App.-Dallas 1995, no writ) . . . . . . . . . . . . . . . . . . 16 Tri v J.T.T., 162 S.W.2d 552 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Torrington Co. v Stutzman, 46 S.W.3d 829 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Vera v. North Star Dodge Sales, Inc
. 989 S.W.2d 13 (Tex. App.–San Antonio1998, no pet.) . . . . . . . . . . . . . . . 23 Washington v. Reliable Life Ins. Co. 581 S.W.2d 153 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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### Wilson v. Remmel Cattle Co. 542 S.W.2d 938 (Tex. App.-Amarillo 1976, writ ref'd n.r.e.) . . . . . . . . . . 29 Womble v. Atkins 160 Tex. 363, 331 S.W.2d 294 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Statutes Tex. Civ. Prac. & Rem. Code § 37.001 et seq . . . . . . . . . . . . . . . . . . . . . . . . 1,9, 31 Tex. Civ. Prac. & Rem. Code § 37.004(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Tex. Civ. Prac. & Rem. Code §37.009 . . . . . . . . . . . . . . . . . . . . . vi, 11, 30, 33, 38 Tex. Civ. Prac. & Rem. Code §38.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . v, 15, 19

Rules Tex. R. App. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Tex. R. App. P. 39.1(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......3 Tex. R. Civ. P. 276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Tex. R. Civ. P. 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15, 28 Tex. R. Civ. P. 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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### STATEMENT OF THE CASE The appeal in this case involves the narrow issue of whether the District Court erred by granting Appellees Trevor Gilbert’s and Jorja Gilbert’s (collectively “Appellees” or “Gilbert”) Motion for Judgment Non Obstante Verdicto (the “JNOV”) after the jury awarded Appellant Chi Truc Hoang (“Hoang” or “Appellant”) $230,000 damages in the form of attorney’s fees for breach of a hold harmless agreement. The jury returned its verdict finding (1) that Hoang was not liableto Appellees for any of the Appellees’ claims against Hoang and (2) that Appellees breached the hold harmless agreement. The jury then awarded Hoang $230,000 for her attorney’s fees which she incurred as damages under the hold harmless agreement. Appellees then filed their JNOV. Appellees’ argument in the JNOV centered solely on the issue that no separate jury issue was submitted for damages and attorney’sfees were not recoverable as damages. Hoang filed her response opposing the JNOV since Appellees were not entitled to judgment as a matter of law beca use attorney’s fees are damages under hold harmless indemnity agreements. Alternatively, Hoang argued that since the jury found a breach of the hold harmless agreement and found reasonable attorney’s fees, she was entitled to attorney’s feesunder her claims pursuant to Tex. Civ. Prac. & Rem. Code §37.001 et seq (the “Texas Declaratory

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### Judgment Act”). The Trial Court granted the JNOV and entered a take nothing judgment in favor of Appellees. It is from this judgement that Hoang appeals.

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### STATEMENT OF ORAL ARGUMENT The Court should grant oral argument for the following reasons: a. Oral argument would give the Court a more complete understanding of the facts presented in this appeal. Tex. R. App. P. 39.1(c). b. Oral argument would allow the Court to better analyze the complicated legal issues presented in this appeal. Tex. R. App. P. 39.1(c). c. Oral argument would significantly aid the Court in deciding this case.

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### ISSUES PRESENTED FOR REVIEW ISSUE NO. 1 THE DISTRICT COURT ERRED IN GRANTING APPELLEES’ JNOV AND AWARDING HOANG NOTHING IN CONTRAVENTION OF THE JURY VERDICT ISSUE NO. 2 THE DISTRICT COURT ERRED IN REFUSING TO SUBMIT HOANG’S QUESTION ON DAMAGES TO THE JURY ISSUE NO. 3 THE DISTRICT COURT ERRED IN FAILING TO AWARD ATTORNEY’S FEES UNDER THE DECLARATORY JUDGMENT ACT

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### STATEMENT OF FACTS Appellees brought suit against Hoang. Anh Van Dang and Hong Bich Chau (collectively “Chau” or “Seller”) for violations of the Deceptive Trade Practices Act, fraud, statutory fraud and civil conspiracy to commit fraud arising out of the purchase of a piece of property in Harris County, Texas (the “Property”). CR 105-107.Chau was the seller of the Property and Hoang was the real estate agent for the Seller. CR 23-31, RR 35-37. Appellees’ claims against Hoang centered solely on the argument that Hoang failed to disclose and/or misrepresented material information a bout the condition of the Property which Appellees claim Hoang had gained from her knowledge as the real estate agent for the Seller. CR 105-107. Hoang brought counterclaims for (1) breach of a hold harmless agreement that was signed by Appellees at closing which was part of the Acceptance of Title and Closing Agreements (“Acceptance Agreement”) and (2) for a declaratory judgment seeking to establish that the hold harmless provision in the Acceptance Agreement released Hoang from any liability. CR 156-165. Appellees do not dispute signing the Acceptance Agreement. TheAcceptance Agreement clearly stated that Appellees “acknowledge that neither the Real Estate Agent(s) or Broker(s) . . . have made any warranties or representations as to the condition of the above referenced property . . . and accordingly the undersigned
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### Purchasers release and hold them harmless from any and all liability in regard to the same.”SCR at 266. Since the breach of the hold harmless agreement was the act ofAppellees suing Hoang, the only damages that Hoang could claim in her counterclaims were the her costs to defend herself against the actions of the Appellants who had agreed to hold her harmless under the Acceptance Agreement.These damages constituted her attorney’s fees. CSR at 266. RR 41-42, RR11. The case was tried to a jury in November 2014. At the jury charge conference, Hoang requested and submitted a standard form breach of contract question, a standard form breach of contractdamages question, and a standard form reasonable and necessary attorney’s fees question, all from the Texas Pattern Jury Charge. Due to the fact that Appellees had sued Hoang for fraud, Hoang’s questions were conditioned upon the jury’s finding that Hoang was not liable to Appellees on any of their causes of action against her. Because Hoang’s breach of contract question was conditioned on findings of no liability by Hoang, the only damages arising from the hold harmless obligation were attorney’s fees. The Trial Court submitted the conditioned breach of contract question and the reasonable and necessary attorney’s fees question to the jury,but refused to submit the breach of contract damages question.The Trial Court refused the submission of the
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### breach of contract damage question because the only damages, if any, arising from the hold harmless obligation were Hoang’s cost of defense, i.e. her attorney’s fees. Therefore, the Trial Court concluded that a question on the amount of reasonable and necessary attorney’s fees was sufficient to establish Hoang’s damages. CR 306-339; RR Vol.3 at 5, Vol. 4 at 15:16. Hoang’s counsel objected on the record to the Trial Court’s refusal to submit the contract damages question. RR Vol. 3 at 53. The Trial Court overruled the objection for the reason that the attorney’s fee question submitted would cover the damages for the breach of contract cause of action damages. CR 406; RR Vol3 at 53; RR Vol. 4 at 15-16. The Trial Court property submitted the question as to whether the Appellees breached the Acceptance Agreement with respect to Hoang. CR 421-22. The case was submitted to the jury on November 20, 2014 without the breach of contract damages question for Hoang. The jury found: a. Hoang did not engage in any false, misleading or deceptive act or practice that Appellees relied upon to their detriment and that was a producing cause of damage to them; and b. Hoang did not engage in any unconscionable action or course of action that was a producing cause to Appellees; and c. Hoang did not commit fraud against Appellees; and d. Hoang did not commit statutory fraud against Appellees and e. Hoang was not part of a conspiracy to commit fraud; -7-

### f. Appellees breached the agreement to release and hold Hoang harmless. CR 409-413, 418, 421.However, the jury did find that the Seller had committed fraud and awarded Appellees in excess of 1.2 million in damagesagainst the Seller. CR 409-413, 415-417, 420 Based on finding that Hoang had not committed any wrongdoing, the jury then answered the questions approved by the Court with respect to Hoang’s counterclaims against the Appellees. The Jury found that Appellees failed tocomply with the release and hold harmless agreement. CR 421. The jury also found that a reasonable fee necessary for the services of Hoang’s attorney was $230,000.00.CR 422. On November 25, 2014, Appellants filed their JNOV seeking to overrule the findings of the jury and proposing to award Hoang nothing. CR 436-444. Hoang filed her response on December 11, 2014. CR 484-499. Appellees’ argument in the JNOV centered solely on the issue that no separate jury issue was submitted for damages and attorney’s fees were not recoverable as damages. Hoang filed her response opposing the JNOV since Appellees were not entitled tojudgment as a matter of law because attorney’s fees are damages under a hold harmless agreement. Alternatively, Appellees argued that because the jury found a breach of the hold harmless agreement and found reasonable attorney’s fees, she was entitled to attorney’s fees under her claims pursuant to Tex. Civ. Prac. & Rem. Code §37.001 et

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### seq (the “Texas Declaratory Judgment Act”). On May 11, 2015, this Court entered a judgment overruling the Jury’s findings and entering a Judgmentawarding a take nothing in favor of Appellants against Hoang. CR 501; CR 507-08. Hoang filed her Motion for New Trial on June 9, 2011 which was overruled by operation of law. Hoang filed her Notice of appeal. CR 509-510.

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### SUMMARY OF ARGUMENT The Trial Court improperly granted Appellees’ JNOV because Appellees were not entitled to recover as a matter of law because Hoang’s attorney’s fees which the jury found constituted damages. Under hold harmless agreements,a party can recover her costs of defending the lawsuit as damages. See Crimson Exploration v. Intermarket Management, LLC, 341 S.W.3d 432 (Tex. Civ. App.-Houston [1 st 

### Dist.] 2010, no pet.). Attorney’s fees and expenses are recoverable under general “hold harmless” indemnity agreements even though they do not expressly provide for legal fees and expenses. See Ohio Oil Co. v. Smith, 365 S.W.2d 621, 623 (Tex. 1963); Garcia v. Sky Climber, Inc., 470 S.W.2d 261, 269-70 (Tex. Civ. App.-Houston [1 st 

### Dist.], writ ref’d). Since the only damages incurred by Hoang could be her attorney’s fees, the submission of the attorney’s fee questions and the jury’s finding was proper. Therefore, Hoang was entitled to the judgment against Appelleesfor the $230,000 as found by the jury. Alternatively, if the Court finds that a separate damages was necessary, the Court erred in not submitting the question to the jury over Hoang’s objection. The Trial Court found the separate damages question to be duplicative and refused to submit it to the jury. Since Hoang did submit a jury question on contract damages and the Court refused the submission, the issue that attorney’s fees are damages is a “deemed finding” and the Court can enter a finding as such. See Tex. R. Civ. P. 279.
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### The Trial Court also abused its discretion by not granting Hoang her attorney’s fees under Tex. Civ. Prac. & Rem. Code §37.009. Hoang properlypled her cause of action under Tex. Civ. Prac. &Rem. Code §37.009. The jury found the reasonable and necessary attorney’s fees incurred by Hoang were $230,000.The fees were equitable and just in light of the circumstances of this case. Appellees, through counsel in closing argument, admitted that they had brought suit in this case against at least two other parties, whom they did not believed did anything wrong, but had insurance or were a source of funds for the lawsuit. Hoang was sued for exactly the same reason. Appellee’s and Appellees’ counsel’s conduct of suing innocent people just to fund their lawsuit justifies the award of attorney’s fees under the equitable and just standard. Further, Appellees’ signing of a hold harmless agreement and then initiating suit against the very party that they agreed to hold harmless justifies attorney’s fees under the equitable and just standard. Furthermore, Appelleeswere awarded in excess of $1,2 million in damages , including treble damages for whichthey now own a judgment against the Seller for that amount. The award of attorneys’ fees as damages against Appellees will not impose the same type of financial burden on Appellees as in the typical case of a since losing plaintiff and a single prevailing defendant. Under these circumstances, the award of attorneys fees to Hoang under Tex. Civ. Prac. & Rem. Code §39.001 is just and equitable and the Court erred in not doing so.

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### ARGUMENT AND AUTHORITIES I. THE DISTRICT COURT ERRED IN GRANTING APPELLEES’ JNOV AND AWARDING HOANG NOTHING IN CONTRAVENTION OF THE JURY VERDICT(Issue No. 1 Restated) A motion for judgment notwithstanding the verdict should not begranted by a court unless a directed verdict would have been proper. Tex. R. Civ. P. 301. See Fort Bend Cty Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). A motion for judgment notwithstanding the verdict cannot be granted unless the evidence is conclusive, and one party is entitled to recovery as a matter of law. Mancorp., Inc. v. Culpepper, 802 S.W.2d 226, 227-28 (Tex. 1990). Appellees were not entitled to judgment as a matter of law in contravention of the damages awarded by the jury. Furthermore, a jury’s answers to a question should only be disregarded if (1) the jury question was improperly submitted, (2) even though properly submitted the jury question was rendered immaterialby other findings, or (3) the findings cannot change the effect of the verdict. See Salinas v Rafati, 948 S.W.2d 286, 288 (Tex. 1997); Spencer v. Eagle Star Ins., Co., 876 S.W.2d 154, 157 (Tex. 1994). As shown below, Appellees cannot show that the question upon whch the jury found in favor of Hoang was improperly submitted. The primary argument raised by Appellees in their JNOV was the assertion that there was not a separate question of actual damages, apart from the findings on attorney’s fees submitted to the jury and

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### that attorney’s fees are not recoverable as damages. Appellees never raised this objection at the charge conference, nor did they challenge the attorney’s fees question as submitted. Even if they had raised this objection, as shownbelow, the question on damages was properly submitted. Alternatively, to the extent the question on damages was not properly submitted, this Court can either award damagesbased on the deemed findings or remand the case to the Trial Court solely to make a determination regarding the proper damages to be awarded as a result of Appellees’ breach of the hold harmless provision. A. Claims Against Hoang were Subject to the Release and Hold Harmless Provision of the Acceptance Agreement. 1. Hoang is a Third Party Beneficiary to the Acceptance Agreement The Acceptance Agreement, whichwas agreed to and signed by Appellees at closing stated that Appellees “acknowledge that neither the Real Estate Agent(s) or Broker(s) . . . have made any warranties or representations as to the condition of the above referenced property, or as to the requirements of the parties under their contract of sale, and accordingly the undersigned Purchasers release and hold harmless from any and all liability in regard to the same”. SCR at 266. Under Texas law, releases are eff ective against named parties to the release or parties described with such particularity that their identity is not in doubt
. Mem’l Med Ctr. of E. Tex v. Keszler, 943 S.W.2d 433, 434 (Tex. 1997)(Emphasis -13-

### added.) In this case, it is undisputed that Hoang was the real estate agent for the Chau, the Seller and that Appellees were aware at all times that Hoang was the real estate agent for Chau. Indeed, Appellees claims in this lawsuit relate to alleged failure to disclose and/or misrepresentations to Appellees by Hoang and the Seller. Because Hoang’s identity was never in doubt, Hoang was protected by therelease and hold harmless agreement in the Acceptance Agreement. Furthermore, a release agreement, valid on its face is a complete bar to any action based on matters covered by the release, unless the release is set aside. Tamez v. Southwestern Motor Transport, Inc.,155 S.W.3d 564, 569-71 (Tex. App-San Antonio 2004, no pet.) Hoang is a third party beneficiary whosuffered actual damages in having to defend against a suit in which Appellees had clearly agreed to release and hold Hoang harmless. 2. Appellees Waived Any Argument that Hoang is Not Protected by the Release and Hold Harmless Provisions of the Acceptance Agreement Finally, any argument by the Appellees that Hoang was not protected by the release and hold harmless provisions of the Acceptance Agreement were waived by Appellees. Appellees neither submitted, nor requested the subnmission of any questions on whether an agreement existed between them and Hoang with respect to the release and hold harmless obligations. Failure to submit a jury issue waives the argument. Tex. R. Civ. P. 279; Washington v. Reliable Life Ins. Co., 581 S.W.2d 153, -14-

### 156-157 (Tex. 1979). By their failure to submit any issue, Appellees have waived this argument. B. Attorney’s Fees are Damages Under General Hold Harmless Agreements Appellees argued that Hoang cannot recover attorney’s fees as damages and that attorney’s fees are not damages under Tex. Civ. Prac. & Rem. Code §38.001. Hoang disagrees that the attorney’s fees cannot be recovered as damages in circumstances that exist in the present case. Furthermore, Hoang was not seeking her attorney’s fees under under Tex. Civ. Prac. & Rem. Code §38.001, but rather Hoang was seeking her attorney’s fees as damages for breach of a hold harmless agreement. Under the hold harmless agreement and circumstances in the present case, the only damages Hoang could have sustained was her cost of defending the lawsuit, i.e. her attorney’s fees which are recoverable as damages under Texas law. Therefore, Texas courts have held that attorney’s fees are awarded as damages under “hold harmless” indemnity provisions and are not awarded under §38.001. See Crimson Exploration, Inc. 341 S.W.3d at 446. Under Texas law, an indemnitee may recover the expenses of litigating an indemnified claim.Monical & Powell, Inc. v.Bechtel Corporation, 404 S.W.2d 911, 914 (Tex. Civ. App-Eastland, 1966, writ ref’d n.r.e); T.J. Kline, Inc. v. DAG Management, Inc.1995 WL500298 at 3 (Tex. App.-Dallas 1995, no writ); Keystone -15-

### Equity Management v Thoen, 30 S.W.2d 339, 340 (Tex. App-Dallas, 1987, no writ). Attorney’s fees and court costs are recoverable under general “hold harmless” indemnity agreements even though they do not expressly provide indemnity for legal fees or expenses. Ohio Oil Co., 365 S.W.2d at 623; Garcia, 470S.W.2d 261, 269-70 (Tex. Civ. App-Houston [1 st 

### Dist] 1971, writ ref’d). Otherwise an indemnitee would not be fully protected. Monical & Powell, Inc.404 S.W.2d at 914; T.J. Kline, 1995 WL500298 at 3. In Ohio Oil, the Texas Supreme Court reviewed the following two indemnity provisions: “15. OHIO INDEMNIFIED: Ohio shall not be liable or responsible for and Contractor shall save and hold harmless Ohio from and against any and all claims and damages of every kind, for injury to or death of any person or persons and for all damage to loss of property, arising out of or attributed, directly or indirectly, to the operations of Contractor hereunder. Contractor shall likewise indemnify Ohio for any or all injury or damage to property belonging to Ohio for any or all injury or damage to property belonging to Ohio, arising out of or in connection with or resulting from any and all acts or omissions of Contractor hereunder. 17. STATUTES TO BE COMPLIED WITH: (a) Contractor agrees to comply with the Workmen’s Compensation Act of the State of New Mexico and to pay or causeto be paid all compensation, medical or hospital bills which may become due or payable thereunder, and to protect and indemnify Ohio from and against any and all liability by reason of injury of employees of Contractor. Contractor shall furnish Ohio with a certificate f rom the -16-

### State Agency charged with the administration of the Workmen’s Compensation Act evidencing Contractor’s compliance therewith. Ohio Oil Co., 365 S.W.2d at 623. The Supreme Court affirmed the trial court’s decision that the indemnitor was liable for both damages and legal fees and expenses under these indemnity provisions. Ohio Oil Co., 365 S.W.2d at 623-24. The Court held that when the indemnitor has agreed to save and hold harmless the indemnitee from liability for any and all claims and damages, the indemnitee is entitled to recover from the indemnitor all reasonable expenses incurred in defending the claim asserted against him. Ohio Oil Co., 365 S.W.2d at 627-28. Similarly in Garcia, the Court examined the following indemnity provisions.’ 3. The lessee [Texas Concrete Silo] . . . agrees. . . to pay all claims and damages arising from defects inthe machinery and equipment . .
. 5. . . . lessee agrees to hold . . . [Sky Climber] . . . harmless from any claim of whatsoever kind or nature. . . This hold harmless agreement shall encompass any claims arising from either or both personalinjury and property damage . . . Garcia, 470 S.W.2d at 269.The Garciacourt held that these general provisions including indemnity for legal fees and expenses incurred by theindemnitee. See also Monical & Powell, 404 S.W.2d at 914 (court held that indemnitee may recover against the indemnitor for all reasonable expenses in settling the claim against indemnitee). In the present case, under the Acceptance Agreement, Appelleesagreed to hold harmless Hoang from any liability in regard to claims arising f rom any alleged -17-

### warranties or representations as to the condition of the subject property. SCR 226. The claims asserted against Hoang by the Appellees specificallyrelated to purported warranties and representations by Hoang regarding the conditionof the subject property. CR at 105-107. Therefore, Hoang is entitled to recover her costs and expenses associated with defending the lawsuit under the hold harmless agreement which the jury found that Appellees breached. See Ohio Oil Co., 365 S.W. 2d at 627- 78; Garcia 470 S.W.2d at 261; See also Patch v. Amoco Oil Co., 845 F.2d 571, 573 (5th Cir.1988) (indemnitee would not be held “harmless” where it was not found negligent by jury unless entitled to recover costs of litigation);Monical & Powell,404 S.W.2d at 914; Crimson Exploration Inc. 341 S.W.2d at 446. (parties are not precluded from recovering their defense expenses.

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### C. Appellees’ Argument that Hoang Cannot Recover Attorney’s Fees Under Tex. Civ. Prac. & Rem. Code §38.001 is Misplaced and Not Relevant Appellees contend that Hoang cannot recover attorney’s fees asdamages under Tex. Civ. Prac. & Rem. Code §38.001. Despite Appellees’ contention, Hoang was not seeking the attorney’s fees under Tex. Civ. Prac. & Rem. Code §38.001.Hoang was seeking her damages under the hold harmless agreement. Attorney’s fees consitute damages under hold harmless agreements. They are not awarded under Tex. Civ. Prac. & Rem. Code §38.001. Crimson Exploration, 341 S.W.3d at 446.An indemnitee is not required to prove monetary damages beyond attorney’s fees in order torecover its actual attorney’s fees. Therefore, Appellees’ contention that Hoang is not entitled to recover her attorney’ss fees under Tex. Civ. Prac. & Rem. Code §38.001 is inapplicable and not relevant. D. The Jury Determined Reasonableness of Attorney’s Fees Once the jury found that Appellees breached the Acceptance Agreement, Hoang became entitled to recover her attorney’s fees. Crimson Exploration, 341 S.W.3d at 444 (citing Patch v Amoco Oil Co., 845 F.2d 571, 573 (5th

### Cir. 1988)). Because attorney’s fees are within the control of the party seeking indemnification, they are subject to the reasonablenss test. Id.
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### In this case, reasonableness was submitted to the jury and thejury found that Hoang’s reasonable attorney’s fees were $230,000. CR 421-422. Therefore, Hoang is entitled to recover $230,000 from Appellees. E. The Express Negligence DoctrineDoes Not Preclude Enforcement of the Hold Harmless Provision 1. The Express Negligence Doctrine Is Not Applicable Appellees raised the argument that the hold harmless agreement was not conspicuous, did not provide fair notice and could not be used to limit Hoang’s liability for her own negligence. Not only did Appellees waivethis defense, but the express negligence doctrine is not applicable. If, an indemnity agreement or hold harmless agreement seeks to limit a party’s liability for its own negligence, the party attempting to limit its liability must give fair notice and the clause should be conspicuousness. See Dresser Industries, Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 507–09 (Tex.1993). Under the express negligence doctrine, a party who wishes to contractually shift risk from itself for the consequences of its future negligence must specifically expressthat intent within the four corners of an agreement. See Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 707–08 (Tex.1987);Dresser Industries, Inc., 853 S.W.2d at 508. Stated generally, the express negligence doctrine provides that contracts will not beconstrued so as to

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### indemnify a person against his own negligence unless such intention is expressed in specific terms. Ohio Oil Co., 365 S.W.2d at 624. Fair notice requirements to indemnity agreements and releases only apply when such exculpatory agreements are utilized to relieve a party of liability for its own negligence in advance. Dresser Industries, Inc., 853 S.W.2d at 508. In the present case, Hoang was not attempting to shift liability for her own negligence. She is not seeking indemnity for the consequences of her own negligence. No claims of negligence were brought against Hoang by Appellees or any third parties. No third parties are seeking any claims against the Appellees that are attributable to the conduct of Hoang, nor is Hoang seeking to be indemnified for any such claims by any third parties. Further, Hoang is a third party beneficiary to the Acceptance Agreement. There was no attempt to shift liability and there is no indemnification for “the consequences” of a party’s own negligence. Hoang is seeking recovery due to the conduct of the Appellees who signed the hold harmless agreement agreeing to indemnify Hoang. Hoang is not utilizing the hold harmless language to relieveherself from liability for her own negligence, instead she is utilizing the agreement/release to impose liability upon the Appellees for their own conduct and breach by their refusal to honor the hold harmless agreement.
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### 2. Appellees’ Waived Any Arguments that the Hold Harmless Clause Was Not Conspicuous or Did Not Provide Fair Notice. Further, Appellees have waived any argument that the hold harmless clause was not conspicuous or did not provide fair notice because they never pled this defense nor presented any evidence. When a release is interposed and established as a bar against the plaintiff's action, the plaintiff must plead and obtain findings on any fact issues that will avoid or invalidate the release. Dresser Industries, Inc. 821 S.W.2d 359, 364-365; Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294, 296 (1960);Ellis v. Woods, 453 S.W.2d 509, 510 (Tex. Civ. App.—El Paso 1970, no writ). In Dresser, the Defendant pled and established the release as an affirmative defense and obtained a finding that the plaintiff’s representative had the authority to bind plaintiff to the agreement. Consequently, plaintiff had the burden of obtaining any finding that would avoid the effect of the release. Since plaintiff did not obtain a finding that the provision was not conspicuous enough to givefair notice, the plaintiff waived any defenses that it may have had to the release’s enforcement. Dresser Industries, Inc, 281 S.W.2d at 364-365. In the present case Hoang obtained a finding that the Appelleesbreached the release. CR 421-22. Appellees did not obtain any finding that the release was not conspicuous to give fair notice. Further, Appellees did not raise objections with the -22-

### Court to challenge the conspicuousness of the release language or with respect to any other provision of the agreement. RR Vol. 3 at 48-55. Having made no argument regarding conspicuousness at trial, Appellees’ arguments as to conspicuous are waived. See Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 15-17 (Tex.App.–San Antonio,1998, no pet.). See also Tex. R. App. P. 33.1(a). II. THE TRIAL COURT ERRED BY REFUSING TO SUBMIT HOANG’S QUESTION ON BREACH OF CONTRACT DAMAGES(Issue No. 2 Restated) In the case at hand, Appelleesagreed to release and hold Hoang harmless from any and all claims pertaining to the condition of the Property. A “release,” or “hold harmless agreement,” is a contractual agreement whereby one party assumes liability inherent in a situation thereby relieving the other party of responsibility. Dresser Industries, Inc., 853 S.W.2d at 508 (Tex. 1993). Appellees do not dispute signing the Acceptance Agreement. Despite Appellees’ agreement to release and hold Hoang harmlessand despite accepting responsibility for any liability pertaining to the condition of the property, Appellees nevertheless filed suit against Hoang seeking to impose the liability on Hoang for the condition of the property. This was a clear breach of the terms and conditions of the Acceptance Agreement by the Appellees. As a direct result of

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### Appellees bringing suit against Hoang, Hoang incurred damages in the form of defense costs in having to def end against Appellees’ claims. RR Vol. 3 at 9-11. Hoang properly brought and was allowed to bring a claim for breach of contract by the Appellees for violating the terms and conditions of theAcceptance Agreement. CR 156-165. Hoang provided evidence at trial on the fees incur red in having to defend against the suit as a result of Appellees’ violation and breach and was cross examined on the fees incurred. At the charge conference, Hoang submitted jury questions on whether the Appellees violated the Acceptance Agreement and what sum of damages would Hoang be owed as a result of their breach. CR 306-339. The Court inquired as to the whether the defense costs incurred by Hoang were the actual damages she was seeking and Hoang concurred that her damages were her costs of defense. Vol 3 at 53, Vol. 4 at 15-16. The Trial Court found the separate breach of contract damage question to be duplicative of the attorney’s fees question which was included in the proposed charge.Therefore, the Trial Court concluded that the attorney’s fees question would provide for defenses costs as damages. RR Vol.. 3 at 53, Vol 4 at 15-16. However, by accepting Appellees’ JNOV arguments and refusing to award Hoang damages in accordance with the Jury’s findings, the Trial Court is now implying that the attorney’s fees question was not sufficient, and that there should have been a separate breach of contract damage question.Therefore, the Trial
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### Court erred in improperly removing and refusing to submit the actual breach of contract damage question submitted by Hoang in her proposed charge and by failing to include said question in the f inal jury charge despite Hoang’s requests to do so. A. Hoang Properly Submitted Her Breach of Contract Damage Question and the Court’s Refusal To Submit It to the Jury was Error A party is entitled to attorney’s fees if it prevails on a cause of action for which attorney’s fees are recoverable. State Farm Life Ins. Co., v. Beaston, 907 S.W.2d 430, 437 (Tex. 1995). Hoang properly submitted a breach of contract claim for which attorney’s fees were recoverable. Hoang properly submitted a breach of contract damage question and an attorney’s fees question as part of her breach of contract claim. The Court erred in failing to include the damages question, despite including the attorney’s fees question which awarded the same damages being sought by Hoang for her actual damages. It is undisputed that the jury made a finding that the Appellees violated the Acceptance Agreement thereby entitling Hoang to damages and attorney’s fees. Appellees’ counsel cross examined Hoang and her attorney with respect to the defense costs incurred and the jury properly awarded a value based on the evidence presented. RR Vol. 13 at 9-11. The court erred in failing to include the breach of contract damage question and has committed further error by failing to accept the findings by the jury. -25-

### Appellees raised the argument that the award of attorney’s feesto Hoang was improper because there was no separate findings of actual damages other than attorney’s fees awarded to Hoang. However, Hoang did submit a jury question on breach of contract damages and the Court refused the submission, stating since the only damages that Hoang incurred were the costs of defense, i.e. her attorney’s fees; therefore, a separate breach ofcontract damage question was not necessary. RR Vol. 3 at 53, Vol. 4 at 15-16. If such refusal, as shown below, is not a deemed finding, it would be reversible error. By requesting the question and the Court refusing it on the record, Hoang preserved the error. SeeDallas Mkt Ctr. Dev. Co. v Liedeker, 958 S.W. 2d 382, 386-387 (Tex. 1987) overruled on other grounds Torrington Co. v Stutzman, 46 S.W.3d 829 (Tex. 2000). (Error can be preserved by court stating on the record that the jury question is refused). When a trial court omits a jury question, the party who relies on that question must tender that question in writing in substantially correct f orm and obtain a ruling in order to preserve error. Chubb Lloyds Ins. Co. of Texas v. Andrew's Restoration, Inc., 323 S.W.3d 564, 584 (Tex. App.–Dallas, 2010) aff’d in part, rev’d in part Cruz v Andrews Restoration, Inc.364 S.W.3d 817 (Tex. 2012). SeeTex. R. Civ. P. 276 See also Johnson v. Johnson, 869 S.W.2d 490, 492 (Tex. App.-Eastland 1993, writ denied).
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### An oral ruling by a court on a written request will suffice “when the court's refusal is otherwise clear from the record.” Liedeker, 958 S.W.2d at 387. In Liedeker, the record reflected that the appellant submitted written requests to the trial judge, the judge said he would sign them later, and through inadvertence the judge never signed them. The Supreme court held that the trial court's “statementson the record clearly preserved [appellant]'s complaint.” Liedeker, 58 S.W.2d at 387. Similarly, in the present case, Hoang court specifically asked for her actual breach of contract damage question. CR 318-319, 330-331 The Court refused the submission stating that since the only damages that Hoang was seeking was her attorney’s fees, such question was not necessary. RR Vol. 3 at 53, Vol. 4 at 15-16. The Court did not submit the question, and inadvertently forgotto sign the question presented to it by Hoang’s counsel. Therefore, Hoang’s question on damages was preserved. B. Hoang’s Attorney’s Fees asDamages is a Deemed Finding Since Hoang did submit a separate question as to breach of contract damages to the Trial Court, and the Trial Court refused the submission of such question, and Appellees never objected to the submission of the attorney’s fees and the breach of contract/release questions, the issue that attorney’s fees are damages is a “deemed finding. This Court can enter a finding as such.
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### Tex. R. Civ. P. 279 provides that when a ground of recovery or defense consists of more than one element, if one or more of such elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and found by the jury, and one or more of such elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court,at any time before the judgment is rendered, can make and file written findings on such omitted element or elements in support of the judgment. If no such written findings are made, such omitted element or elements shall be deemed found by the court in such manner as to support the judgment. Tex. R. Civ. P. 279. It is undisputed that the jury awarded Hoang her reasonable andnecessary attorneys’s fees in the sum of $230,000.00. CR 422. The Trial Court could have made a written finding that such attorney’s fees constituted Hoang’sdamages. Even if no such written findings are made, such omitted element or elements shall be deemed found by the Trial Court in such manner as to support the judgment. See Gulf States Utilities Co. v. Low, 79 S.W.3d 561, 564-66 (Tex. 2002). In Low, the Texas Supreme Court held that “when an incomplete theory is submitted without complaint, the parties are deemed to have waived a jury trial on the omitted issue and to have agreed to submit the issue to the trial court.Low, 79 S.W.3d
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### at 564. See, e.g., Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 925 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.); Wilson v. Remmel Cattle Co., 542 S.W.2d 938, 942 (Tex.App.-Amarillo1976, writ ref'd n.r.e.); see also Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991 (1949)(holding that petitioner who did not object to improperly conditioned submission waived right to a jury answer on the unanswered issue, and the issue must be deemed as having been answered by the court in such manner as to support the judgment). More importantly, Appellees against who the issue would be deemed, had an opportunity to object to the submission of the two jury questions without the damage question. Appellees did not object. They cannot now complain that the damage issue was missing since they did not object prior to the submission of such issues. See DiGiuseppe v Lawler, 269 S.W.3d 588, 599 (Tex. 2008). If one or more elements is omitted from the charge, then the omitted element must be deemed found by the trial court in a manner that supports its judgment Tri v. J.T.T., 162 S.W.2d 552, 558 (Tex. 2005). See also, In the Interest of JFC, ABC, & MBC,96 S.W.3d 256, 262-63 (Tex. 2002). Since Hoang submitted the proper jury question and the jury found the reasonable and necessary fees, the issue of attorney’s fees as damages is a deemed

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### finding and the Trial Court should have entered the judgment infavor of Hoang for the $230,000. III. THE DISTRICT COURT ERRED IN FAILING TO AWARD ATTORNEY’S FEES UNDER THE DECLARATORY JUDGMENT ACT (Issue No. 3 Restated) A. Hoang was entitled to Attorney’s Fees under Tex. Civ. Prac. & Rem. Code §37.009 Hoang brought a cause of action under the Texas Declaratory Judgment Act (the “Declaratory Judgment Act”) to determine that Appellants had released Hoang under the hold harmless agreement in the Acceptance Agreement.A court may award costs and reasonable and necessary attorney’s fees which are eq uitable and just. Tex. Civ. Prac. & Rem. Code §37.009. The Court had the discretion to award attorney’s fees under the Texas Declaratory Judgment Act.Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). The Declaratory Judgment Act imposes four limitations on the Court’s discretion; 1) that the fees are reasonable; 2) that the fees are necessary; 3) that the fees are equitable and 4) that the fees are just. The first two limitations, reasonable and necessary are fact issues which should be decided by the trier of the fact and the second two limitations, fair and equitable are legal issues that are matters of law to be decided by the Court. Ridge Oil Company, Inc. v Guinn Investments, Inc.; 148 S.W.3d. 143, 161 (Tex. 2003); Bocquet, 972 S.W.2d at 21. -30-

### In the present case, the Court submitted the issue of reasonable and necessary fees to the jury to decide.CR 421-422. The jury handed down a verdict that the reasonable and necessary attorney’s fees for the services of Hoang’s attorney’s was $230,000. CR 422. B. Hoang’s Declaratory Judgment Action was Properly Pled In the present case, Hoang brought an action under Tex. Civ. Prac. & Rem. Code §37.001 et seq., seeking a declaration that Appellees released Hoang under the hold harmless agreement in the AcceptanceAgreement. The Declaratory Judgment action was not filed solely as a means to recover attorney’s fees as Appellees argue. Only when a party brings a declaratory judgment action by way of a counterclaim or amended petition and the declaratory judgment involves only issues already raised by the original claim, does Appellees’ argument prevail. See Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 873 (Tex.App.-Dallas 2005, no pet.);Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 556 (Tex. Civ. App-Texarkana 2003, writ denied). This was simply was not the case in the present case. Appellees brought claims against Hoang for violations of the Texas Trade Practices Act, fraud, statutory fraud and conspiracy to commit fraud. Hoang brought counterclaims for breach of contract, promissory estoppel and an action under the declaratory judgment act seeking a declaration for interpretation of the Acceptance
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### Agreement that Appellees had released Hoang. CR 156-165.Hoang’s counterclaims under the Declaratory Judgment Act were distinct and separate claims from Appellees’ claims. Any party may sue and seek a judicial determination of contractual rights. Stark v. Benckenstein,156 S.W.3d 112, 116 (Tex. App.–Beaumont, 2004, pet. denied); Hartman v. Sirgo Operating, Inc., 863 S.W.2d 764, 767 (Tex. App.-El Paso 1993, writ denied). A release constitutes a contract. Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex.1997). Hoang was entitled to request a determination of questions of construction or validity arising under the Acceptance Agreement and to obtain a declaration of rights, status, or other legal relations thereunder. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a); Hartman, 863 S.W.2d at 767. Appellees’ raised the argument that Appellant’s pleadings were insufficient which was simply a red herring.There is no particular type ofpleading required for causes of action under the Declaratory Judgments Act. James v. Hitchcock Indep. School Dist., 742 S.W.2d 701, 704 (Tex. App.—Houston [1st Dist.] 1987, writ denied). Moreover, pleadings under the Declaratory Judgment Act are to be liberally construed. Frost v. Sun Oil Co. (Delaware), 560 S.W.2d 467, 473 (Tex. Civ. App.—Houston [1st Dist.] 1977, no writ). Hoang’s Fifth Amended Answer and Counter-claim clearly articulated Hoang’s claim for declaratoryjudgment and her
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### rights to attorney’s fees under the Declaratory Judgment Act. See CR 156-165. It is not necessary for a party moving for attorney's fees in a declaratory judgment action to specify the statutory authority for such an award in the motion, so long as the party pled for attorney's fees. Purvis Oil Corp. v. Hillin, 890 S.W2d 931, 939 (Tex. App.-El Paso 1994, no pet.) See also Cap Rock Elec. Co-Op, Inc. v. Texas Utilities Elec. Co., 874 S.W.2d 92, 102 (Tex. App. – El Paso 1994, no pet.); Housing Authority of the City of Harlingen v. Valdez, 841 S.W.2d 860, 868 (Tex. App.—Corpus Christi 1992, writ denied): District Judges of Collin County v. Commissioners Court of Collin County, 677 S.W.2d 743, 746 (Tex. App.—Dallas 1984, writ ref'd n.r.e.). In Purvis Oil Corp, Hillin pled for attorney's fees in its amended answer. Similarly, Hoang pled for attorney’s fees under §37.009 in herpleadings. Since it was properly plead, the Court has the discretion to award Hoang her attorney’s fees. See Purvis Oil, 890 S.W.2d at 939.

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### C. An award of Attorney’s Fees to Hoang is Equitable and Just Equitable and just are questions of law for the Court to decide
. Bocquet, 972 S.W.2d at 21. Whether the fees are equitable and just depends, “not on direct proof, but on the concept of fairness, in light of all the circumstances of the case.”Approach Resources I, L.P. v. Clayton, 360 S.W.3d 632, 639-640 (Tex.App.–El Paso 2012, no writ). See also Ridge Oil Co., 148 S.W.3d at 162. The award of attorney’s fees is within the sound discretion of the court. See Purvis Oil Corp. 890 S.W.2d at 938 citing Cap Rock Elec. Co-op., Inc., 874 S.W. 2d at 101 (an award of attorney's fees rests in the sound discretion of the trial court, and its judgment will not be reversed on appeal without a clear showing of abuse of discretion); See also Owen Elec. Supply, Inc. v. BriteDay Constr., Inc., 821 S.W.2d 283, 288 (Tex. App.—Houston [1st Dist.] 1991, writ denied). The Trial Court abused his discretion because under the circumstances and facts of this case, awarding Hoang her attorney’s fees in this case is equitable and just. The testimony solicited by the Appellees’ counsel was that Hoang’s attorney’s fees were equal or close to what he was asking the jury to award him in his case in chief. 1 

### There was no great disparity in the amounts being sought by Hoang. The jury found

1The jury awarded Appellees’ attorney $205,000 for attorney’s fees and appellate attorney’s fees of $41,000 and $25,000 making a total award to Appellees’ attorney of $271,000. C$R 407-427. -34-

### the fees to be reasonable and necessary. As shown below, Hoangonly incurred the fees because, despite having little or no evidence against Hoang, Appellees persisted in bringing claims against Hoang all the way through trial, despite executing the hold harmless agreement. Appellees initiated the lawsuit against Hoang based upon alleged claims of fraud and statutory fra ud which were basically frivolous. Appellees, throughout the trial, presented no evidence to support their allegations. This was confirmed by the jury findings. Appellees admitted that there had been no representations or misrepresentations to them by Hoang, having never spoken to her except to exchange pleasantries at closing. No independent evidence of any of Appellees’ allegations against Hoang existed, yet Appellees forced her to defend herself for the better part of three (3) years against their unfounded allegations. Moreover, Appellees testified throughout the trial that they brought suit against at least two other parties, Grace Inspection Homes, Inc. and Michael Nguyen, whom they did not believe did anything wrong, but had insurance or were a source of funds for the lawsuit. Appellees own attorney admitted in his closing arguments that the jury should not hold his clients responsible for his advise to sue parties for the sole purpose that they had were sources of income, not because they were liable in any manner. RR Vol. 3A 12.

-35-

### Appellees although they do not willingly admit it,sued Hoang for exactly the same reason. Appellees sued Hoang in hopes of getting a judgment that they could then take against the Texas RealEstate Trust fund, not becausethey really believed that she misled them or had knowledge of any of the water damage. Appellees did not have any knowledge of anything that Hoang knew until several months into the case when she unequivocally testified that she had no knowledge of any of the alleged water damage that had occurredwhen the Seller owned the house.Hoang consistently took the position that she hadno knowledge of any water damageand the jury founder her to be credible. RR Vol. 2 at 20-21, 30, 37-39. Appelleesand Appellees’ counsel’s conduct of suing innocent people just to fund their lawsuit justifies the award of attorney’s fees under the equitable and just standard.See RR Vol.3A 12. Despite having executed and willingly entered into the Acceptance Agreement at closing which contained the release and hold harmless agreement, Appellees persisted in bringing claims against Hoang. Appellant’s actions cost Hoang at least $230,000.00 in legal fees as the cost of defense. RR Vol. 15, Ex. 16. Further, an award of damages against the Appellees will not impose the same type of financial burden on them or give rise to the same equities as it would in a typical case involving a single losing plaintiff and single prevailing defendant. In this case, despite losing on all jury questions involving Hoang, Appellees obtained a
-36-

### judgment in excess of $1,200,000, against Chau, the Seller of the subject property. Having prevailed against Chau, the practical net effect of entering judgment in favor of Appellee for her attorney's fees would merely reduce Appellees’ collection rights from approximately $1,200,000 toapproximately $1,000,000, after netting out Hoang’s attorney's fees of $230,000. On the other hand, failingto award Hoang her attorney's fees leaves her with an attorney's fees obligation of $230,000, despite favorable jury findings on all causes of action and despite having committed no wrongdoing and having been released and indemnified by Appellees. Finally, the $1.2 million plus judgment arose from the purchase of a home by Appellees from defendant Chau for approximately $145,000. CR 31.Appellees' judgment against Chau included additional damages under the Texas Deceptive Trade Practices Act which constitute a windfall to Appellees. Awarding Hoang’s out of pocket attorney's fees against a windfall judgment in favor of Appellees is the only fair and equitable result. The jury, as the trier of fact, did not find Hoang guilty of any wrong doing. More importantly, the jury through their answer affirmed that Appellees not only agreed to hold Hoang harmless, but actually failed to do so. Awarding Hoang her attorney’s’ fees’, based on the jury's fact findings, is “equitable and just.” See AVCO Corp., Textron Lycoming Reciprocating Engine Div. of AVCO Corp. v. Interstate
-37-

### Southwest, Ltd., 251 S.W.3d 632, 670 (Tex. App.–Houston [14 Dist.], 2007, writ denied). Since the jury had found that the attorney’s fees were necessary and reasonable and the evidence was such that Hoang was released byAppellees, the Trial Judge abused his discretion by not awarding Hoang her attorney’s fees under Tex. Civ. Prac. & Rem. Code §37.009. CONCLUSION AND PRAYER The Trial Court erred in granting Appellee’s Judgement Non Obstante Verdicto. Hoang is entitled to recover her attorney’s fees of $230,000 for breach of the hold harmless agreement. Hoang respectfully requests this Court reverse the judgment of the trial court and render judgment in her favor for $230,000.00 plus post judgment interest as allowed by law. Alternatively, this Court should remand the sole issue of Hoang’s damages under the hold harmless agreement. Respectfully submitted, LAW OFFICE OF MYNDE S. EISEN, P.C. By /s/ Mynde S. Eisen Mynde S. Eisen State Bar No. 06503950 P. O. Box 630749 Houston, Texas 77263 (713) 266-2955 (281) 343-1089 wyndeeisen@sbcglobal.net
-38-

### and Gary Cerasuolo State Bar No. 00789927 Smith & Cerasuolo, LLP 7500 San Felipe, Suite 410 Houston, Texas 77063 (713) 787-0003 gary.cerasuolo@sbcglobal.net ATTORNEYS FOR APPELLANT CHI TRUC HOANG CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Appellant’s Brief has been served on all parties in interest as listed below by ecf transmission and/or by facsimile and/or by depositing the same in the U.S. mail, certified mail,return receipt requested on this 25th

### day of November, 2015. /s/ Mynde S. Eisen Dana LaJune Dana LeJune & Associates 6526 Washington Avenue, Suite 300 Houston, Texas 77007

-39-

### CASE NO. 01-15-00681-CV IN THE FIRST COURT OF APPEALS AT HOUSTON, TEXAS

CHI TRUC HOANG Appellant
vs. TREVOR GILBERT AND JORJA GILBERT Appellees Appealed from the 334TH

### Court of Appeals of Harris County, Texas APPELLANT CHI TRUC HOANG’S APPENDIX Mynde S. Eisen State Bar No. 06503950 Law Office of Mynde S. Eisen, P.C. P. O. Box 630749 Houston, Texas 77263 (713) 266-2955 (281) 343-1089 wyndeeisen@sbcglobal.net Gary Cerasuolo State Bar No. 00789927 Smith & Cerasuolo, LLP 7500 San Felipe, Suite 410 Houston, Texas 77063 (713) 787-0003 (713) 782-6785 (fax) gary.cerasuolo@sbcglobal.net ATTORNEYS FOR APPELLANT CHI TRUC HOANG APPELLANT REQUESTS ORAL ARGUMENT

### TABLE OF CONTENTS
Tab no. Document Record Cite 1. Trial Court Judgment CR 507-508 2. Order Granting JNOV CR 501 3. Jury Verdict CR 407-427 4. Acceptance of Title and Closing Agreements SCR 226-228 5. Tex. Civ. Prac. & Rem. Code § 37.001 et seq 6. Hoang’s Proposed Jury Charge 306-339 7. Motion for JNOV CR 434-444 8. Response to JNOV CR 484-499

# TABN0.1.; 

### - 

## ..

Cause 

### No. 201l·S8137A 

### TREVOR GILBERT and JORJA GILBERT § §**~** 

### § § HONG BICH CHAU, et al. § 

### IN THE DISTRICT COURT HARRIS COUNTY, TE X A S 334rn JUDICIAL DISTRICT
FINAL JUDGMENT On the l 

### Jl11 day ofNovember, 2014, Cause No. 2011-58137 was called to trial. All parties appeared in person and through their attorneys and announced ready for trial. Ajury consisting oftwelve good and lawful jurors was duly impaneled and the case proceeded to trial. Testimony
was taken from witnesses and documents were received into evidence. At the conclusion ofthe evidence and after all parties rested and closed, the Court prepared its written charge to the jury, reading of the questions was waived by the parties but the first three pages ofthe charge were read to the jury. The jury reached its verdict on November 20, 2014, and found no fraud or deceptive trade practices on the part of Defendant Chi True Hoang ("Hoang"). The jury also reached a verdict awarding Chi True Hoang $230,000 against Plaintiffs Trevor Gilbert and Jorga Gilbert ("Plaintiffs"). On December 12, 2012, this Court entered its order severing all actions between Plaintiffs and Defendant Hoang into the above-numbered cause. Plaintiffs filed a Motion for Judgment Non Obstante Veredicto, which was granted by this Court on April 20, 2015. It is, therefore: 

### ORDERED, ADJUDGED A~D DECREED that Trevor and Jorja Gilbert recover nothing against Chi True Hoang on their claims against her. It is, further, 

### ORDERED, ADJUDGED AND DECREED that Chi True Hoang recover nothing against Trevor Gilbert or Jorja Gilbert. It is, further, 

# FILED Chrla 

### Dania/ Dl•trlct Clerk 

## MAY 

## 11 2015 nma:_"ti:ima"&:;::::-=,-.- Hania Coun.ty. T••• By;
____ a;;;;;;;;;---...c;; l>ep•ly 

### 507§~

### ORDERED that all costs ofcourt are adjudged against the party incurring the same, in light ofthe mutual take-nothing awards being entered herein. It is, further, 

### ORDERED that this Judgment adjudicates all claims between Plaintiffs Trevor and Jorga Gilbert and Defendant Chi True Hoang. All relief not specifically granted herein is hereby 

### DENIED. SIGNED this 

# // 14 day

# of--=-/t(-'--J-1------ 2015.

2



## 508

# TABN0.2Cause No. 2011-58137A TREVOR GILBERT and JORJA GILBERT 

### § § 

### § § 

### § IN THE DISTRICT COURT 

### v. HARRIS COUNTY, TEXAS HONG BICH CHAU, et al. 334rn JUDICIAL DISTRICT
ORDER ON TREVOR AND JORJA GILBERT'S MOTION FOR JUDGMENT NON OBSTANTE VEREDICTO 

# "' f.t,009. "=>f1 

# ~x

CAME ON TO BE HEARD Plaintiffs Trevor and Jorja Gilbert's Motion for Judgment 

### Non Obs/ante Veredicto ("the Motion"). Based upon the submissions and arguments ofthe.parties, the Court is ofthe opinion that the Motion is meritorious and should be GRANTED. It is, therefore, ORDERED that the Plaintiffs' Motion for Judgment 

### Non Obstante Veredicto is hereby GRANTED. Plaintiffs are hereby directed to file and set for submission or oral hearing a proposed Final Judgment respecting the claims between Plaintiffs and Chi True Hoang 

### in this severedcause number within seven (7) days
. 

## .(ta 

# AA
. SIGNEDthis 

# 2o dayof-Lr--F
..... 

### ,.d.-=-=:.._.;,_
_____2015.



### 501

# TABN0.3

### " ••**~** 

## ,_ ., 

## . 

# ORIGINAL 4 \ Ii· .- • 

# 2011-58137A 

# I Court: 334 CAUSE NO, 2011-58137 

### TREVOR GtLBl<:RT and JORJA 

### GILBERT IN THE DISTRICT COURT OF 

# 1,\

, .. HARRIS COUNTY, TEXA S HONG 

### BICH CHAU, AHN VAN DANG CHI TRUC HOANG and MICHAEL TRUONG NGUYEN § § § 

### § § 

### § § 334 1 

### hJUDICIAL DISTRrlr

# J.!, b Chl'/ 11 "'-~ 

## l) CHARGE OF THE COURT 

### tit,1,1oif:f'"' h 

# Nov •rh 

### MEMBERS OF THE JURY: 

## 'hll~O 20/t

# ~~~ After the closing arguments, you will go 10 

### 1hcjury room to decide the case, ar ..,~~ ""*i 

### questions that are attached and reach a verdict. You may discuss the case with otherjurors"~ ly when you are all together in thejury room. Remember my previous inslrnctions: Do not discuss the case. with anyone else, either in person or by any other means. Do not do any independent investigation about the case or conduct any research. Do not look up any words in dictionaries or on the lnternel. Do not post information about the case. on the Internet. Do not share any special knowledge or experience with the other Jurors. Do not use your phone or any other electronic device during your deliberation$ for any reason. Any notes you have taken are for your own personal use. You may take your notes back into thejury room and consult them during dellberations, but do not show or read your notes to your fellow jurors during your deliberations. Your 

### mJtes are not evidence. Each ofyou should rely on your independent recollection of the evidence and not 

### be influenced by the fact that anotherjurorhas or has not taken notes. You must leave your notes with the bailiffwhen you are not deliberating. The bailiff

### will give your notes to me promptly after collecting them from ycm. I will 

### make sure your notes arc kept in a safe, secure location and not disclosed to anyone. After you complete your deliberations, the bailiffwill collect your notes. When you are released fromjury duty, the bailiff will promptly destroy your notes so that nobody can read what you wrote. Here arc the instructions for answering the questions. l. Do 

### not let bias, prejudice, or sympathy play any part in your decision. 2. Base your answers only on the evidence admitted in court and on the law that is in these instructions and questions. Do not consider or discuss any evidence that was not admitted in the courtroom. 3.. 

### You are to make up your own minds about the facts. Yoti arc the sole judges of the credibility ofthe witnesses and the weight to give their testimony. But on matters of law, you must follow all ofmy instructions. 

### 407

### ,. 4. If

### my instructions use a word in a way that is different from its ordinary meaning, use the meaning I give you, which 

### will be a properlegal definition. 

### 5. All the questions and answers are important. No one should say that any question or answer is not important. 6. Answer "Yes" or "No" to all .questions unless you are told otherwise. A "Yes" answer must be based on a preponderance ofthe evidence. Whenever a question requires an answer other than "Yes" or "No," your answer m11st be based on a preponderance ol9("". the evidenc

## 7 u"'-i....- 

# 1().)**~** 

### ,.~i.u_ 

## 1,._,,..fn,,o&,...**~** The term "preponderance of the evidence" means the greater weight of credible evidence presented in this case. If

### you do not find that a preponderance ofthe evidence supports a "Yes" answer, then answer ''No." A preponderance of the evidence is not measured by the 

### number of witnesses or by lhe number of documents admitted in evidence. For a fact to be proved by a preponderance ofthe evidence, you must find th.e fact is more likely 1rue than not 

### true. A fact may be establii;hed by direct evidence or by circumstantial evidence or both. A tact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. Afact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved. 7. Do not decide who you think should win before you answer the questions and then just answer the questions to match your decision. Answer eacl1 question carefully wilhout considering who will 

### win. Do not discuss or consider the effcet your answers will have. 8. Do not answer questions by drawing straws or by any method ofchance, 9. Some questions might ask you for a dollar amount. Do not agree in advance to decide on a dollar amount by adding up each juror's amount and then figuring the average. I0. Do not trade your answers. For example, do not say: "I 

### will answer this question your way ifyou answer another question my way." 11. Unless otherwise instructed, the answers to the que.~tions must be based on the decision ofat least IO ofthe 12jurors. The same IO jurors must agree on every answer. Do not agree to be bound by a vote ofanything less than l O jurors, even ifit 

### would be 

### a majority. lfyou do not follow these instmctions, you will be guilty ofjuror misconduct, and I m.ight have to order a new trial and start this process over again. This would waste your time and the parties' money, and would require the taxpayers ofthis county to pay for another trial. Ifa juror breaks any ofthese rules, tell that person to stop and repon it to me immediately. Depending upon your answers to this Charge, there may be a need to take brief, additional testimony and for you to deliberate upon additional questions after you have completed your initial deliberalions. 2 

## 408QUESTION NO. 1 

### Did any ofthe persons named below engage in any false, misleading, or deceptive act or practice that Trevor and Jorja Gilbert relied on to their detriment and that was a producing cause ofdamages to them? "Producing cause" means a cause that was a substantial factor in bringing about the damages, ifany, and without which the damages would not have occurred. There may be more than one producing cause. "False, misleading, or deceptive act or practice" means any of the following: 1. Representing that real estate had or would have characteristics that it did not have; or 2. Representing that real estate is or will be ofa particular quality ifit was ofanother; or 

## 3. Failing to disclose information about real estate that was known at the time of the transaction with the intention to induce the Trevor and Jorja Gilbert into a transaction they otherwise would not have entered into ifthe information had been disclosed. Answer "Yes" or "No" for each ofthe following:
a. Ahn 

### Van Dang Answer:
_ 

### _...<'I_,~=-<- b. Hong Bich Chau Answer:
__ 

## 7'.'.,_e.,."'~~ c. Chi True Hoang Answer: 

# A/0

3 

### 409

### QUESTION NO. 2 Did any of the persons named below engage in any unconscionable action or course of action that was a producing cause ofdamages, ifany, to Trevor and Jorja Gilbert? "An unconscionable action or course of action" is an act or practice that, to a consumer's detriment, takes advantage ofthe lack ofknowledge, ability, experience, or capacity ofthe consumer to a grossly unfair degree. Answer "Yes" or "No" for each ofthe following:
a. 

### Ahn Van Dang Answer: 

## Ye7 b. Hong Bich Chau Answer: 

# le e5
c. Chi True Hoang Answer: /// 

### 0

4 

### 410Answer Question No. 3 for any of the persons named below only 

### if you answered "Yes" with respect to that person in either Question No. J or Question No. 2. Otherwise, do not answer the following question. QUESTION NO. 3 Did any ofthe persons named below engage in the conduct that you found 

### in response to Question Nos. 1or 2, above, knowingly or intentionally'? "Knowingly" means actual awareness, at the time ofthe conduct, of the falsity, deception, or unfairness of the conduct in question. Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness. "Intentionally" means actual awareness of the falsity, deception, or unfairness ofthe conduct in question, coupled with the specific intent that the consumer act in detrimental reliance on the falsity or deception. Specific intent may be inferred where objective mamfestations indicate that a person acted intentionally, or may be inferred from facts showing that the person acted with such flagrant disregard of prudent and fair business practices that the person should be treated as having acted intentionally. In answeringthis question, consider only the conduct that you have found was a producing cause ofdamages to Trevor and Jorja Gilbert.
Answer "Yes" or "No" for each ofthe following persons, ifand as applicable: Knowingly Intentionally 

### a. Ahn Van Dang Answer: 

# 'r:'L.P Answer: 

# 4-'es. b. Hong Bich Chau Answer: '{e.!, Answer; 

## 'r',!;t
c. Chi True Hoang Answer: 

# &/A Answer: 

# &!/A5 

### 411

### QUESTION NO. 4 Did any ofthe persons named below commit fraud against Trevor and Jorja Gilbert? You are instructed that fraud occurs when

- a. a person voluntarily discloses partial infonnation but fails to disclose the whole truth, or makes a partial disclosure and conveys a false impression; b. the party knows that the other party is ignorant ofthe fact and does not have an equal opportunity to discover the truth;
c. the party intends to induce the other party to take some action by failing to disclose the fact; and d. the other party suffers injury as a result ofacting without knowledge ofthe undisclosed fact. You are further instructed that fraud also occurs when

- a. a party makes a material misrepresentation; b. the misrepresentation is made with knowledge ofits falsity or made recklessly without any knowledge ofthe truth and as a positive assertion;
c. the misrepresentation is made with the intention that it should be acted on by the other party; and 

# 4 the other party relies on the misrepresentation and thereby suffers injury. "Misrepresentation" means a false statement offact. Answer "Yes" or "No" for each ofthe following:

a. Ahn 

### Van Dang Answer: 

## 4"1!!

## 5 b. Hong 

### Bich Chau Answer: 

# 4-'e 7 c. Chi True Hoang Answer: 

## -~M~=O

__ 6 

# 0Ji\

~- 

# )

412

### QUESTION NO. 5 Did any ofthe persons named below commit statutory fraud against Trevor and Jorja Gilbert? You are instructed that statutory fraud occurs when

-
a. there is a false representation ofa past or existing material fact; b. the false representation is made to a person for the purpose of inducing that person to enter into a contract, and;
c. the false representation is relied on by that person in entering into that contract.
Answer "Yes" or "No" for each ofthe following:
a. Ahn Van Dang Answer: 

# t/e_j b. Hong Bich Chau Answer: 

# 'l-e- !>
c. Chi True Hoang Answer: 

### A)t)

7 

### 413If

### you answered "Yes" to either Question Nos. 1, 2, 4 or 5 for more than one of those named below, then answer the following question. Otherwise, do not answer the following question. Assign percentages ofresponsibility only to those you found caused or contributed to cause the occurrence in response to Question Nos. 1, 2, 4 or 5. The percentages you find must total 100 percent. The percentages must be expressed in whole numbers. The percentage ofresponsibility attributable to a person or product is not necessarily measured by the number ofacts, omissions, or product defects found. The percentage attributable to any one need not be the same percentage attributed to that one in answering another question. 

### QUESTION NO. 6 For each person you found caused or contributed to cause the damages, ifany, to Trevor and Jorja Gilbert, find the percentage ofresponsibility attributable to each: 1. Ahn 

### Van Dang 

## Go % 2. Hong Bich Chau 

## 50 % 

### 3. Chi True Hoang 

### 0 % 4. Trevor Gilbert 

### (;) % 

### 5. Jorja Gilbert 

### 0 % 6. Grace Home Inspection Services 

### CJ % 

### 7. Michael Nguyen 

### 0 

### %

8 

### 414

# . •



### Ifyour answer to Question Nos. I, 2, 4 or 5 was "Yes" for any party, then answer the following

question. Otherwise, do not answer the following question. QUESTION NO. 7 

### What sum ofmoney, ifany, ifpaid 

### now in cash, would fairly and reasonably compensate Trevor and Jorja Gilbert for their damages, ifany, that resulted from such conduct? In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because of your answer lo any other question about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment. Do not add any amount for interest on damages, if

### any. You shall not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if

### any. Do not include in your answer any amount that you find Trevor and Jorja Gilbert could have avoided by the exercise ofreasonable care. Answer in dollars and cents for damages, ifany: 1. The reasonable and necessary cost to repair Trevor and Jorga Gilbert's home. Considerthe reasonable cost in Harris County, Texas, to restore the River Garden house to the condition it was in immediately before any ofthe water damaging events, if

### any, that occurred on or before October 2, 2009. Answer:$ 

# t 

# s-o, oao .. ae, ' 

### 2. The loss ofuse ofthe home in the past. Consider the reasonable value ofthe use ofa home in the same class as the home in question. Answer:$ S 

### 4 1 O 

## oc. Oo 

### 3. Trevor Gilbert's mental anguish in the past: Answer:$ 

### I c,o, ot:,o. oc I $

9 

### 415

# .. •
4. Trevor Gilbert's mental anguish in the future: Answer:$ 5. Jorja Gilbert's mental anguish in the past: Answer:$ 6. Jorja Gilbert's mental anguish 

### in the future: Answer:$

10 

### 416If

### you answered any part of Question No. 7 by inserting a dollar amount for any ofthe persons named below, then answer the following question for any corresponding person(s) named below. Otherwise, do not answer the following question. 

### QUESTION NO. 8 What sum ofmoney, ifany, in addition to actual damages, should be awarded to Trevor and Jorja Gilbert because the conduct was committed knowingly? Answer with an amount in dollars for each ofthe following:
a. Ahn Van Dang Answer:$ b. Hong Bich Chau

## 'IJzP, ooo. oo Answer: $ 

## L/£0 CIOO. O-' 

### c. Chi True Hoang Answer: $ 

# ,&/A11 

### 417Answer Question No. 9 for any of the persons named below only if you answered "Yes" with respect to that person in either Question Nos. 1, 2, 4 or 5. Otherwise, do not answer the fqllowing question. 

### QUESTION NO. 9 Were any ofthe persons named below part ofa conspiracy that damaged Trevor and Jorja Gilbert? To be part of a conspiracy, one ofthe persons named below and another person or persons must have had actual knowledge of, agreed to, and intended a common objective or course of action that resulted in the damages to Trevor and Jorja Gilbert. One or more persons involved in the conspiracy must have performed some act or acts to further the conspiracy.
Answer "Yes" or "No" for each ofthe following:
a. Ahn Van Dang Answer: 

## r"e ::,, b. Hong Bich Chau Answer: 

# l/g
c. Chi True Hoang Answer: 

# A/

# /A,

12 

### 418Ifyou unanimously answered "Yes" to Question No. 

### 5, then answer the following question. Otherwise, do not answer the following question. 

### QUESTION NO. 10 Did any ofthe persons named below have actual awareness ofthe falsity ofthe representation that you found to be fraud in Question No. 

### 5, above? You are instructed that actual awareness may be inferred where objective manifestations indicate a person acted with actual awareness. Answer "Yes" or "No" for each ofthe following:


### a. Ahn Van Dang Answer: b. Hong Bich Chau Answer: c. Chi True Hoang Answer:

13 

### 419

### Answer Question No. 11 for any ofthe persons named below only ifyou answered "Yes" with respect to that person in either Question Nos. I, 2 or 5. Otherwise, do not answer the following question. QUESTION NO. 11 

### What is a reasonable fee for the necessary services ofTrevor and Jorja Gilbert's attorney, stated in dollars and cents? Answer with an amount for 

### each ofthe following: I. 

### For representation in the trial court. Answer: $ 

### 2.c:> S-1 OCJ!c7,t?i!> • 2. 

### For representation through appeal to the court ofappeals. Answer: $ 

# fl? c>Pe. pe> 

### 3. For representation through oral argument and the completion ofproceedings in the Supreme Court ofTexas. Answer:$ 

### Z.s,, oo&>. o&>

14 

### 420Do not answer Question No. 12 if you answered "Yes" to either Question No. 4(c) or 5(c ). Otherwise, you should answer Question No. 12. 

### QUESTION NO. 12 Did Trevor and Jorja Gilbert fail to comply with the agreement to release and hold harmless Chi True Hoang? Answer "Yes" or "No": ANSWER:



### 15 

### 4214 • i 

### Answer Question No. 13 only ifyou answered "Yes" to Question No. 12. Otherwise, do not answer the following question. QUESTION NO. 13 

### What is a reasonable fee for the necessary services ofChi True Hoang's attorney, stated in dollars and cents? Answer with an amount for each ofthe following: I. For representation in the trial court. Answer: $ 'J. 

### ?

# o, t:?t>~. ,:,,:, 

### 2. For representation through appeal to the court ofappeals. Answer: $ · 

# <Q
3. For representation through oral argument and the completion ofproceedings in the Supreme Court ofTexas. Answer:$

### ~

16 

### 422i
Answer Question No. 14 only if you answered "Yes" to Question Nos. 4 or 5, and you were unanimous in your answer to the question or questions. Otherwise, do not answer Question No. 14. To answer "Yes" to the following question, your answer must be unanimous. You may answer "No" to the following question only upon a vote often or more jurors. Otherwise, you must not answer the following question. QUESTION NO. 14 Do you find by clear and convincing evidence that the harm to Trevor and Jorja Gilbert resl.l!ted from malice attributable to Ahn Van Dang? "Clear and convincing evidence" means the measure or degree ofproof that produces a firm belief or conviction of the truth of the allegations sought to be established. "Malice" means:
a. a specific intent by Ahn Van Dang to cause substantial injury to Trevor and Jorja Gilbert; or b. an act or omission by Ahn Van Dang·· (i) which when viewed objectively from the standpoint ofAhn Van Dang at the time ofits occurrence involved an extreme degree ofrisk, considering the probability and magnitude ofthe potential harm to others; and 

### (ii) ofwhich Ahn Van Dang had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare ofothers. Answer "Yes" or "No": 

### ANSWER:

17 

### 423j • • 

### Answer Question No. 15 only if you answered "Yes" to Question Nos. 4 or 5, and you were unanimous in your answer to the question or questions. Otherwise, do not answer Question No. 15. 

### To answer "Yes" to the following question, your answer must be unanimous, You may answer "No" to the following question only upon a vote often or morejurors. Otherwise, you must not answer the following question. QUESTION NO. 15 

### Do you find by clear and convincing evidence that the harm to Trevor and Jorja Gilbert resulted from malice attributable to Hong Bich Chau? "Clear and convincing evidence'' means the measure or degree ofproof that produces a firm belief or conviction of the truth of the allegations sought to be established. "Malice" means:
a. a specific intent by Hong Bich Chau to cause substantial injury to Trevor and Jorja Gilbert; or b. an act or omission by Hong Bich Chau

-- (i) 

### which when viewed objectively from the standpoint ofHong Bich Chau at the time ofits occurrence involved an extreme degree ofrisk, considering the probability and magnitude ofthe potential harm to others; and (ii) 

### ofwhich Hong Bich Chau had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare ofothers. Answer "Yes" or "No": ANSWER:



### 18 

### 4241 • 

## > Answer Question No. 16 only if you answered "Yes" to Question Nos. 4 or 5, and you were unanimous in your answer to the question or questions. Otherwise, do not answer Question No. 16. To answer "Yes" to the following question, your answer must be unanimous. You may answer "No" to the following question only upon a vote often or morejurors. Otherwise, you must not answer the following question. QUESTION NO. 16 Do you find by clear and convincing evidence that the harm to Trevor and Jorja Gilbert resulted from malice attributable to Chi Tn1c Hoang? "Cleat and convincing evidence" 

### means the measure or degree ofproof that produces a firm belief or conviction of the truth of the allegatfons sought to be established. ''Malice" 

### means:
a. a specific intent by Chi True Hoang to cause substantial injury to Trevor and Jorja Gilbert; or b. an act or omission by Chi True Hoang •• (i) which when viewed objectively from the standpoint ofChi True Hoa11g at the time ofits occurrence involved an extreme degree ofrisk, considering the probability and magnitude ofthepotential harm to others; and (ii) ofwhich Chi True Hoang had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare ofothers. Answer "Yes" or "No": ANSWER:

19 

### 425

# ' ,. 

# .. When you go into thejury room to answer the questions, the first thing you will need to do is choose a presidingjuror. 

### PRESIDING JUROR The presidingjuror has these duties:
a. Read the complete charge aloud. b. Preside over your deliberations. This means the presiding juror will manage the discussions, and see that you follow the instructions. c. Give written questions or comments to the bailiffwho will give them to thejudge. d. Write down the answers you agree on. e. Get the signatures for the verdict certificate. f. Notify the bailiffthat you have reached a verdict Do you understand the duties ofthe presidingjuror? Ifyou do not, please tell me now. 

### lNSTRUCTIONS FOR SIGNlNG THE VERDICT CERTIFICATE I. Unless otherwise instructed, you may answer the questions on a vote of IO jurors. The same IO jurors must agree on every answer in the charge. This means you cannot have one group of 10 jurors agree on one answer and a different group of 10jurors agree on another answer. 2. If 10jurors agree on every answer, those IOjurors sign the verdict. If 11 jurors agree on every answer, those 11 jurors sign the verdict. If all 12 of you agree on every answer, you are unanimous and only the presiding juror signs the verdict 3. All jurors should deliberate on every question. You may end up with all 12 of you agreeing on some answers, while only IO or 11 of you agree on other answers. But when you sign the verdict, only those IO who agree on every answer will sign the verdict. Do you understand these instructions? lfyou do not, pleas

20 

### 426

# r... ,

Check one: VERDICT CERTIFICATE



### Our verdict is unanimous. All twelve ofus have agreed to each and every answer. The presidingjuror has signed the certificate for all 12 ofus.
Signature ofPresiding Juror Printed name ofPresiding Juror

1. 2. 3. 

### 4. 5. 6. 

### 7. 8. 9. 10. l l. 

### Out verdict is not unanimous. Eleven ofus have agreed to each and every answer and have signed the certificate below Our verdict is not unanimous. Ten ofus have agreed to each and every answer and have signed the certificate below
NAME PRINTED ::$ 

## "-"ret4 @('U*-'5-



### 21 

### 427

# TABN0.4ACCEPTANCE OF TITLE AND CLOSING AGREKMENTS li'ldclit_y Na1fonal Tith! lns:urnnc.e Cnmtitrn~ (:\Wing Onto:

_ 

### _,l.._Q'--,[,_lf"l-'o.,_'j~- GFNo. Hct Lcgnl Dc~crlpUon
____·------------- Ouye.r's Numi:.: S\l:fl!.\" Nr.m~s) Seller•.~ Mnme; Seller Nnin.e{.Y)

R~CEIPT OF COMMITM!.N'f 'Th.e. undcrsi.g11ed Purcha~ets do hereby icknowlc:d~e recrlp! Qr~,• Owm:, Title Policy Cu;nm!hntnl in lh:i! 1.ift\C\llll o\'?i**~** Qr, _,.: and a C-(Jpy ot' lhc i11stn.m1t:ms which ll\'idence rhe i:i,:c~ptions indh:1:ned in said Owner Tl( e Policy Commitment .a11d opprove Uti:; s1111'\e (irreqm:~lcd). 1·11e u11di=rsigncd Purchasers f'urthtr acknowledge 1he r&ceipt ofcopies or the tlos1r.g dci..iments, lncludlng 1he closing !il'l1tmenl.

n,e undi:rs!gncd Purcha,ers acknowledge ri:cetp1 ofa copy of 1htsur11r.y ofthe. above propel'l)l l'lnd 11ccept the son,.e. s1.1bjcct to l\(l}' 1111J all e11,en1ents, right of Wily,, 45rlcroacltmi::111s, confli.cls, discrepllncies and hns>rovemenis shawn thereon and her.eby relci15i, end agree. io 1e.ve e.1,d h,i.!..S FID'tLl'l'V NATlONA\... TITLE lf'ISUnA.NCt COMPANY harmless, from any ond a[I casts, da1,u1gc6 and eKpense.$' in 111y w11y arising from the i,.x.btcncc ofthe aforemcn1iom::d er"1cro8chmen1(5) lncJudlng 1 bot nc,1 llmite& to, court cosfs end attorney's ftes. rh~ undi,rsigned Pu1·chssi:.(s fortki:.r nckr,owledgc. th&li un!c::J:i lh~)' ~lee~ j1t writing or othcrwi,i:: by lni1i11llng at the end ofthis para3r11ph 1 qr fail or r,;(u.se to pay lhe premium pre,c:ribed by the Texns Dc.}).a1·1m1rn1 oflniurance. Yf>\\f Owners.. P.o,l~y ofTl1le \nsur~11ce, llem 2, S1;tieclule 8 1u to nny <l1screpa11¢i~:s 1co1lniC.:IS, shor1ag.i.s ia eu·ac1 OI" hQ\111dary Hn'es, t11\)' enc:rcaclunents or proirusions, 

### o, ar.y overlapping ofimprovcnu:nrs will be smcllded to read h its emirety ' 1Short,t1ges irl area", Item "l, Schedule 6 ofthe Owner Polii:.y ofTille lnsumnc-c 11:, be tuued \r, tt\eir favor, will re11Q in its entirety rlShol'le.ges. ln Area", pursltlHll to Prnced11tal Rul.P.1 :l(tt) ot' 1he T~x.af. iitle lnsul'enc~ $JSsic Marrnal. WAI YER QF INSPECTION The undersigned Purc:hosers do hereby W?,lve hupection by fi'IDtLt1'Y NATIONAL 1'11'L~ INSUl'tANCE COMPANY ofsuch property and atcc:pr llleir Owru;r 'Tille lnrnmnt:e Policy subject to 1hc rights of the pru·1 in in posstnion. ~FFm,v11'of PQ.SSESSIOtl. The undersigned Sellers h11.ve sold and conveyed 10 tlu~ undersigntd Purchast:r!I. the prOpertY reterenced above, S~ch sate has been -closed and Selle,, ecknowlcdge full receipt of the sitle prh:c tmd ~cknowledge rhe Purchaser$ P! 1he owoers ofs~id p(opcrty rmd rue encitled IQ pQS.S:ession lhc:reof. It' Sc.l\.i:.o:s. fa\l lo ~alli\\e on or bt:fora l!'lid ~ate: Purc:hiueu ma}' pur.stie lhei< rCmcdil!.~-81\tl rights ccecrding tu f11w. We reque:;c! F'rO&LiiY NATIONAL.TITLE ,NSUA.ANCll: COMIJANV to file t"cnrecord che Deed and 1Jthe'i' pYr.pe~\ r:.\iiled lo lht: transaction, and to pay 1he. s11,1ers the 11.ntounl or money dlje 1hen1 i11d to oiherwi~e fully dlsbune all f\Jnds out ofthe U.Brt.\1Bllt!on 1and it is. ur1derstood lh'lll said PID[i:Ll'l'Y MATIOL'IAL TJTL!l: lNSURANCE COMPANY shall 1101 be h~ld responsible In tiny mann~rby reason ofSelle1·1 nmlai.uing. \n po!-,.llB&ion. A.CCEPTANCll P, PROPllR'l'V Tile unde,sigm1d Putc:hasers h11V1 lnspec1ed seir:t 9rope1;ty ~et$Ont.ll) 1;1.ndfor ll\t~uih ptofoninna\s which 1bey hnvc selected. The re,ulrs ofchc insptcrions havebce1, ,~11sraetor}' 10 them and tttey actepr lhe property in its pre~enr c.ondition. All r.epuirs required ti) t,c made under lht terms (Jflhe PurchGse Contrac~ hilvc bte11 Ulti5foc1orlly comp\c111d, · The: un((er,i.~m1d Purcl1a5ers acknowledge lhat neilhar th.e Real E$lill8 Agenits}, or 8rok.ef{5}, or FIOELlTV NATIONAL 1'11'L.E INSURANCE. COMPANY hfl<J'- m11;de lm:, Wbrra•ri1ies Qf rep111s..enl11tlor.s as to the conditkin oflhe 11bove refetcnc1,1d property, or as iO 1he ri:quire1'Jier.rs oflht: porde!i: under Lheircomr11cl of.!H\le, and accordlngly 1 t'nt; undersigned Purc:tnser3 rcll::.!ls.t .ind hold them l111rmles1 fr!Jm any and all liabitlry in regord 10 fhe same. 

### EXHIBITADVALOREMTAXES No~ w\,-h,,\\\nding 'lll'l)I prov\s1tmls:) t:~nt111ni;:d in ~ny-othl!( written 11gieomll-nl belween $elli:r and Puroh11sers.. lhcs undetslgned Purt:h!sers t111d Sc:llers. or 1he obQve ni:reninted property acknowledge rhel tht:y have bel!!I\ a<lvised thi!lf lhe IPJt tolls may carty snid property wi1hin a lar,ger tr11c1 of'le,od and/or 115unlmpr'l.lved or pa11ially impr(lved prQpi:irl}' or with ctr111in exen,p1iq11s. TilX escrows 111ay be cPlculated on an- unimproved basr, or wllh ex-tmp1ions to which the Purchaser, m11.y no1 beentilled. A change in or {rnnsfer ofexemptions may resul{ in 11.n im:rea~e,in the la,t,e5 on the pi-op.::f'tY. FlDEL.ITY NA1'10NAL1"11'LE INSURANCE COMPANY wiU not bl! liat.Jle~t reS;ponsib[e: e& a result ofany subseQ\lent increase in uute.~ or oh1mge in 1he besi~ on wnlch the- property is apprais:ed, valued or called. · The underSigncd egree thet iflhe Contraot or agreemerit cFthe parties requires proration ot'lhet1111cs. lhen. Che pror11trcn i:rFh•>:es rna)' b11 based on nn eslimnte or actual taxe, From the prcviou:t year on ihe. abo'l!e rei(erei,c~ prtJpe~t-y. Should the aetu.at ta'K tiii.il·ee. f'()r lh't yee..r pn)ra\~d ~uo'ie ll) bed\fl'eu:n\11t1m\\ing. in the micess:ity for adjus1ment, lhe undersigned 11gree and consent 'tn n1Rke fl[lpropri.ne !ldjl!If~ems ttel\vecn th;;mielvt:.~ nni;I flDELlT\' NAT{ONAL TlTLE:; l('(SURANCE COMPANY shall have na responsibi.Ji1y ln this re-.gard. S-elh:r recQgnfzes their respO:\Sibiti!y 

### ro, alt laKcs prior 10 1he Osie oicioiung the sub;eei 1ransacrion. ShOl,jfd itdevelop at a later dare, chst taxes 01her thBn 1hose collec1ii:d 111 clog/11& are du~ for \)rioryears,Sell¢r atrees. 10 make full se11le1nent lo f<IDE.LlTY NATIONALTJ1'LCl lNSURANCG: CQl',IJPANY. Purchase( tecO)tllizes their resi)onsihitily for i:urrent ye11rjs tn:<e!. Funt,er, PU~CHA$ER. AGREES TO CONTACT ALL TAXING AU1HORITIE$TONOTIFYTHEM OF'J'HECHANGE IN OWNSRSHIP OF SUBJECT PROPERTY TO ASSURE PROPER RECEIPT OF FUTIJRE TAX NOTICE$.
PA YOff AGllEEM~NT We !he 1111dcfsi2,ned Sellel'(t' do liereby acknowtedge 1hn1 Jhe payoff111r1;1rmiitlon {lofln batiln-;e, reserve 11ccounl infornrn:tion, la!e cherg_u 1 inler~si, etc} relative ro the referenced lonn(-i;) pllid 1is part of1'1fs closing wn!l p;'oVi~l:ld to FIDEl.l'l'Y NATIONAL TITLt INSURANCE COMPANY by the Li:nder(s)nnd 1h111 FIDE.l.l'l'Y NATIONAi.. TJTLE tNSUR.ANC-t COMPANY doe.snot guaranlea nor can 1h~y be held II-able IOr the accuracy ot' seid htfor·rnatioo. · The undersigned does heri::by a111horize. le.11dl!.r 1o·deduct from t1is. inipouod/reservt: 111::count any nddhiomtl ~mount ni:icesnry 10 pay in foll the rcrercnced loan; Qnd thg und~tsigrted fo11her agcees that ,;hoold lender refuse ro mnke 5uch ded~tton fro1n lt\c ~mpOUC\dlrcs~s"c ac.c1;1.u1,~ or o;;00\1lt \he Qn\t.nte \ri i1.mh 6CC1)\111\ nti\ bt !iuffici,:n\, 1hen 1he unde1•sianed will immediately dcllvet' !he n:qutred 11ddillon111 r~nds 10 FIDELITY NATIONAL ilTLE lNSURANCE COMPANY. 1'h~ Uridel'Signed Iurther,egrccs to hold ho.fmlen PIDELITV NATIONA.LTITLR INSURA~CE COMJ>ANV From any 11nd all e.clions !h~t n1ay arjse (lue to stop paymeni ofchec-ln from selll'IL' to lender, NSP che.cks ofseller1o lender, or ini1cc1.1ra1e loan infurrnation provided m fl DELITY NATIONAL TITLR INSURANCE COMPANY.

. RESPA !?TSCLOSUR~ NOTICE Th~· rllrlci1v1ne 111m1i,1 111111 iu 1,n111~tilo,n&"'vtnml brTht l~rlll l!:11111, St1lll!.mt1li rrot~t!u,·~1 Adur 1 \\74 (ll ll,S,C,l61Jl-uu11.) (ILESL'A) This is to give-you riari«thnt f'IOEk-ltV NATlONi\l..TJTL.E INSURANCE COMPANY ("Fld"elhy") t1nd FIDEL.ITV NATIONAL. TITLE tHSURA.NCE. COMPANY, (1'Ti1le") h·as abusine1s relotionshir, with Fidelity Na1ionol lnform1uio11 $olu1ions 1 /nt. l"FNIS") AND ITS SU8SI DlARI ES. fiile and Fideli1,i are owoed IOOo/., bY Pidclil)' N,11titJmtl FinaJJciaf, Inc, ("f1NF"), which 11:Jsq Qwn, 80o/4' orFNIS, FNIS OWllS IOOo/, qfNali1J1111) T11:k.Ne1i lhe stnleme1'1 !lt:,vlce provider to wh·1c'h you have been rer;:irred. 9ecousc otflds. ,.,1a11011shlp, thi,: ret~rtl'il may provide Fidefitv or FNF with a fimmcia\ or other beni::fi!, The estimated charge for lhi: purch!lscd 11x iil!Onnation will be s_, _, You arc not required to o.,;e NotiQt1al TeKNeJ 11s a condhion r1;1r 1he elo.slng or the real ts11ui: !f8nsnction u11 lhe 5i1l;jco1 property. Ttiere. are rrequemly 011,et sertfemenl 1S-ervice ptc'lliders available with slmllnr ,e,,ices. YOU ARE FREE TO SHOP A ROI.IND TO OETllRMU-lETHAT YOU ARE RECEIVING THE BEST TAX: INFORMATION SERVICE ANO 'l'HE BEST !\AiE FOR 1'HlS SERVICE. Ifyou da l\Ol acquix~ o.ceeptoablc:. ad ve.lorem uu1. informatlOI\ yo11rself 1 and \ltlliz:ic 1helnformotion provided by Nalii;:mal TexNct1 you afc at:knowh:1dgins b sigr,ing this Agree1nen1 lllal J/We hlwe rend lhis RESPA discloune. stl!tem~n1, 11nd llndusrand chal FIVELlTV NATIONAL TITLE INSURANCg COMPANY i::1 feFerrin.g me/11s-to pvn1h-a,se 1he 1tb0Ye de.niribed seulemel\tMr'r'ice ,l\nd n1ny receive a flnnncial or 01her benefit t'IS the result ofrhis (eferral. • HQMe WAR(!ANJIES ANO RESIDlr.NTlt',LSltRVICltCCNTBACTS FIP&L.ITV NATIONAL TITL..€'INSUP.ANCI! COMl'ANY dOe$11of sell, promote ur prncurc. hQme wnrtenlies orrc,idt:n~i1tt :scrviti: co(llr,c:ts 1md es:5uro1c1110 lieblH1y or re!lporislbilit.Y in regard to the s11.me. Home w(lrranties and tcsidemia.l service 1,ontr1cfs ee.nnQ1 be :i:ceLited U!llil e.fter the: clo.s-ing is complch~ 1then the: pu~Euutr and sellet n1usl send acomple1e-•pplication to the warranty Qr residc111ial se<vice eOJJltaet company. 1-'urlh11r, FIDELITY NATIONAL TITLE INSURA:NCE COMPANY m~kes norepreseolfltion or guarantee: 1h111 home warrantie:s or residenlillil service con1r1Clts coverage hn or will be issued in connection witlt this tta.n!IRCtion. The llrider.siufled hereby nccep1 full responsibili1y for ob!Qiningsny ltanie worraniy or (esidentfalservlcecomn\cl protection n:quirec;I in lhis rr1n~11c11on, The parties hi!reby rele~e 11nd agree ro Indemnify fi'!DQ:.L.l'fY NATIONAL 

### 267Tl'.l'L£ JNSVRANCE COtvrPANV from •"Y"-nd all li11hili!y in cm1m:i:lim1 with ~l'curing ;.ny home W;\L'mncy or 1'<'!.1;1d,nth1I ;1c1·~lcc co111r!\c.1 rll"qu\t«i 1n dti(!> lru.r,~1n:1lon,
C:0.MPLJANC£ AGBEEM E:NT 'rhe undcrsl~ntid llgft:ti l~ cumpl~ with !lll provlslon$ of !he l'C!.I e~ta[e <:on1rpc1, Lender 1 ~ c(o.sin,g l!1s1_n1i;tlo11s:. or n1hcr dQcumt?nls ex_ccu1ed In conn-e.c1ion wi1h d1'5 ~losit)i ofchis 1r1msac!lou, Tb-, u11di!rslgm:U lurther agree 10 fully CQ.Oper.111.:. adJUJt, and cun-1:i:t any trrors or<imi$~lons and 10 execute nny 1mcl 1111 tlotrnmcnts f\l!Wd or )'\t(.c~nt)' to comp\y wh'n ttl~ pruYis:lons or 1he above rncntiofled rent c:1U'llte: ~.c,ntrai:l, Ll:nder's Cto11ing rnS1ruc1io1iS or n1h~rcl1~unu:nl~· ll~ecu1td i11 l!onnecclo11 wirh the closlnB, of1his-1,a1,ucdo11, li1~ludlng: ihc pay,nem of iiU<irm~y's fee$ lncurr~ In tl'iforcing lhc tcrrtu1 u1"1hi1 cornplitintc t1gree1111ml. bRPIJ'AATlOf!l All claim!!, r.!i!1pu1c;i;, or com,\l~et·slcs be1ween thD under.;igne.d pani!s a!'lil Fidclily ...,.;i.tinnal Tide lll~ura11i:.e Company_and/or ilY HL\1Jmt:y:,11md repre:s~11ratlve1, Including, but r.n1 lit11lti:.d tn, 1~QJO •rith\,g <iUI n(i.'lr tel1ti1'5 IQ 11u1· ~crvl.:~s ln l!Ont'lee1lon wich thi~ transectinr. or !his Agreer.:cr,t (,e;....ii:p; (Vt ,;l;1i,,1 ~ng0;ittS? 11 !l1!.1 isiH,mm:c yu!l1.)' 1:iu~Q fil i.:vru11,"'\;L1vn wicil t\\is lnlnllllc.itm,), wUt**~** '1.Ub,m\«!.d m b\l'ld\1")1,. ~tbi\n,,kin gD"'ltmlcc!i by 1heμroi::edure!i: of the Tt:xur: Ci.:ni:ral Arblrrnrion Ac1, Tc>ii.S Civil P111cticl! ~ntl Rcm\!llie:i; Cude, C.:huplcr 171 lbr S\aLc luw clui1t1!i, P~<lcri\l Leiw-clalrn~ 111011 Ile s\lb'Tlill~tl l:t u,; Na1:o~u\ Arbit,ali1111 f'or~m and 1111.1ii.t 11-11 g,ive..r-1cd by rhi: i:,·.,a~unl ,\.rbitnuion Acl, 9 \J,S,C. I• l6, 11.5 amended. The arbilrnlit;n r~·c~ mt1s1 be shatciJ equ-ally ti, thll pllrlie!:I. Tht!c decfslon otthl:l lnbilr3Lur will ~e Onwl iiltd tthl~lng Upon tlU! pnrti~~. The -11rbitra1!on muM· 14ke· p.l1ca ill tCJrt W()11.11, 1'iex1is liJr Shll~ La~ dnlm! orthe nenrest National ~rbhrl:llfun FQt,.i.m ror Federal Lo.Vt ~ll\i.1wt. If nr.:, fi1Hl:, co111me11c1u 1itl1111.1!ru, in viola.lion of lhi.!f Atn:cment, :;uch pony mutt rolmbunc the other pany f'or it, cost aild e~11ause incurrcc.1 in such Ji1igc'ulo1,. "fhls n;reeu,oent and 11u11:.acti.>n will b1: ~uvcrT11:d b)' lc)l::i.:i L11w Knd, t1:t ipplkab!e 1 P-ed~ral Li!..w. lUtQl\lPT OF COPJF.S
Thu untlcr.,,;igncd parli..i.s tid:-nowled~,o tl1nt we have receivedi:opic~ orall cl,e d('lc1.1ment1 slan\ld l,y u, ar lhe closing. ri:lntin; ro ti,, f't·i:i11er1y d~~erihed above,
ou~ 10 spll¢e: r.::~1r!c1ions .i,nd the <C()SI ofilurnge, f'ido::lity N:nk11111l Tillii In~urance. Company ,viii n,nl tl!llDin co~lie!l. <if 1111 lht: <.hn.-umt:fll! 111.: tmderslgm:d IJ ,~,elvlns ,odny, 11 h rile ,ole re~pon5lbllhy of 1he. \tndi!:Dignc:tl 11.JU.I is nul thi: r1.:spo 1 1sibi11[)'

### or 11Jdc1icy Noriunnl Tirle lns.urnnce C~n11uny ro 1111httr,i11 the. records di$UV.ered 1oday. h'I \ht even\ »it undr:nlcned nteds eop\es ofll1e doG<1,rnetns in l'til!: future, lhey must be obtnl11cd from third p:;r1iL;$, 1;11ch tu a lender or oti1er pr(l..-idcr involved In 1his tn1n:u11:tion. THIS l)OC{.JMf.NT RLPRi!:Sl::N'1'S TJ4£ FltfALAOR!iEMI:N1 IJEt\V&EN THE UNDERStO~ED ,\ND f)DQ·LJ'l'Y t:(ATJQffA.l. Tl'l'Lr. 1NSUR~:~(:QM.rf:.NV C:ONCERNlNG 1'KtMi. lTE.RS ti.DD1\r£SEt\:flEI\'t'.lN hNO MA 'i NOT 'BE CON1R.AD1CTP..0 JJV &YIDENCE01' l'IUOR,CONT:tMPORANEOtJS, ORSUBSl:X,JU£:NT0RAL A.OR&&M&NTS OF'rllE PARTl.E:S, 'l'HER&ARJ::.NO U~WRIT'T2N ORAl~AORRF.l't'f'RNtS,·WA~RAr,i:1•11:,.; OH. 1t£1"k'P.SF.NTATlONS atTWEEN 'tllK PAWl'll?:S, NO E.XPR&SS OR JMPLIED AGREEMSNT, Wi\RRI\NTY, Rl::PRES.F.N'fATION OR WAIVER CONCERNING Tflt MAITERSAIJPltt:aSt':U .Ht:R&JN Mi\Y'Bt MAO~ 0.V ANY o~~t'C'E~. AGP.NT OR EM}'LOVl.tE OF lilDf,l lJY NAt"IUNAI. ·nrLg IN$UR,ANC\t COMPANY. WlTHOllT TtlE Wlll'l'r'.EN CONStNT Ql"THE BOA~D 0:F lllREC:TOI\S DF'l"HB COMl"/1,.NV.

runcHAS~fl(S), r.,.,u!Cd 11.i, 

# ..,__a,ror_..,Oc.a!m>=~B~~~=~•

# ioi

268

# TABN0.5§ 37.001. Definition, TX CIV PRAC & REM§ 37.001

Vernon's Texas Statutes and CodesAnnotated

Civil Practice and Remedies Code(Refs & Annas)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. DeclaratoryJudgments (Refs & Annas) V.T.C.A., Civil Practice & Remedies Code§ 37.001 § 37.001. Definition Currentness
In this chapter, "person" means an individual, partnership, joint-stock company, unincorporated association or society, or municipal or other corporation ofany character.
Credits Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. 1, 1985.
Editors' Notes RESEARCH REFERENCES Forms Texas Jurisprudence Pleading & Practice Forms 2d Ed § I :2, Checklist-- Drafting Petition to Establish Rights to Abandoned Property at Common Law. Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 1:3, Petition--For Declaratory Judgment Establishing Ownership of Abandoned Personal Property--By Holder--Against Former Owner. Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 68:3, Petition--To Enjoin Enforcement ofStatute--Denial ofEqual Rights. Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91:1, Overview. Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91 :4, Subject Matter for Relief. Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91:6, Parties. Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 12:28, Petition--Application for Injunction--Wrongful Diversion of Water Onto Plaintiffs Property. Texas Jurisprudence Pleading & Practice Fonns 2d Ed § 170:6, Actions to Quiet Title. Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 186:3, Ripeness and Mootness. Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 189:5, Actions Involving Party Walls. Texa_s Jurisprudence Pleading & Practice Forms 2d Ed § 189:8, Petition--Against Adjoining Landowner--For Declaratory Judgrnent--To Determine Rights in Wall and for Restraining Order and Injunction. Texas Jurisprudence Pleading & Practice Forms 2d Ed § 196:7, Prayer for Relief. Texas Jurisprudence Pleading & Practice Forms 2d Ed § 208:9, Petition--By Unsuccessful Bidder--For Injunctive and Declaratory ReliefCompelling County to Award Contract to Plaintiff. Texas Jurisprudence Pleading & Practice Fonns 2d Ed§ 209:1, Introductory Comments. Texas Jurisprudence Pleading & Practice Forms 2d Ed § 215 :7, Petition--Declaration ofValidity ofElection ofChurch Officer. Texas Jurisprudence Pleading & Practice Forms 2d Ed § 215:8, Petition--Injunction Against Use of Name of Religious Association by Another.

'NestlawNexr © 2015 Thomson Reuters. No clairn to original U.S. Government Works.§ 37.002. Short Title, Construction, Interpretation, TX CIV PRAC & REM§ 37.002



### ·--·------------------

Vernon's Texas Statutes and Codes Annotated

Civil Practice and Remedies Code (Refs &Annas)

Title 2, Trial, Judgment, andAppeal

Subtitle C. Judgments

Chapter 37. DeclaratoryJudgments (Refs &Annas) V.T.CA., Civil Practice & Remedies Code§ 37.002 § 37.002. Short Title, Construction, Interpretation Currentness (a) This chapter may be cited as the Uniform Declaratory Judgments Act.
(b) This chapter is remedial; its purpose is to settle and to afford relieffrom uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally constmed and administered,
(c) This chapter shall be so interpreted and constmed as to effectuate its general purpose to make uniform the law ofthose states that enact it and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.

Credits Acts 1985, 69th Leg,, ch, 959, § I, eff Sept. I, 1985,

Notes ofDecisions (245) V, T. C, A., Civil Practice & Remedies Code§ 37,002, TX CIV PRAC & REM§ 37,002 Current through the end ofthe 2015 Regular Session ofthe 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works,§ 37.003. Power of Courts to Render Judgment; Form and Effect, TX CIV PRAC & REM

...**·~~~~~~~~~~~~~~~~~~~**

Vernon's Texas Statutes and Codes Annotated

Civil Practice and Remedies Code (Refs &Annas)

Title 2. Trial, Judgment, andAppeal Subtitle C. Judgments

Chapter 37. DeclaratoryJudgments (Refs &Annas) V.T.C.A., Civil Practice &Remedies Code§ 37.003 § 37.003. Power ofCourts to Render Judgment; Form and Effect Currentness (a) A court ofrecord within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. An action or proceeding is not open to objection on the ground that a declaratoryjudgment or decree is prayed for. (b) The declaration may be either affirmative or negative in form and effect, and the declaration has the force and effect of a final judgment or decree. (c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the exercise of the general powers conferred in this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty.
Credits Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.
Editors' Notes LAW REVIEW COMMENTARIES Annual survey ofTexas law: Declaratoryjudgments. John McElhaney, 24 Sw.L.J. 196 (1970). Declaratoryjudgments from the Texas Court ofCriminal Appeals. 21 S.Tex.L.J. 310 (1980). Declaratoryjudgments in Texas: Mandatory or discretionary? Robert W. Calvert, 14 St.Mary's L.J. I (1982). Declaratoryjudgments under Model State Administrative Procedure Acts. Daniel J. Gifford, 13 Hous.L.Rev. 825 (1976). Texa.s Administrative Procedure and Texas Register Act since 1976--Selectedproblems. Honorable Bob E. Shannon and James B. Ewbank, II, 33 Baylor L.Rev. 393 (1981). LIBRARY REFERENCES 2014 Main Volume 2014 Main Volume Declaratory Judgment 11=3, 383.

Westla.wNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.§ 37.004. Subject Matter of Relief, TX CIV PRAG & REM§ 37.004

Vernon's Texas Statutes and Codes Annotated

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal Subtitle C. Judgments

Chapter 37. DeclaratoryJudgments (Refs & Annos) V.T.C.A., Civil Practice & Remedies Code§ 37.004 § 37.004. Subject Matter of Relief Effective: June 15, 2007 Currentness (a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
(b) A contract may be construed either before or after there has been a breach.
(c) Notwithstanding Section 22.001, Property Code, a person described by Subsection (a) may obtain a determination under this chapter when the sole issue concerning title to real property is the determination ofthe proper boundary line between adjoining properties.
Credits Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985. Amended by Acts 2007, 80th Leg., ch. 305, § I, eff. June 15, 2007.
Editors' Notes LAW REVIEW COMMENTARIES Annual survey ofTexas law: Family law: Parent & child. Linda B. Thomas and Ardita L. Vick, 61 SMU L.Rev. 819 (2008). Annual survey ofTexas law; Oil, gas, and mineral law. Richard F. Brown, 60 SMU L.Rev. 1189 (2007). A miry bogpart II: UDJA andAPAdeclaratoryjudgment actions and agency statements made outside a contested case hearing regarding the meaning ofthe law. Ron Beal, 59 Baylor L.Rev 267 (2007). Recent developments in fifth circuit business tortsjurisprudence. Sofia Adrogue, 44 Tex. Tech L. Rev. 565 (2012). LIBRARY REFERENCES 2014 Main Volume 2014 Main Volume Declaratory Judgment w->81.
2014 Main Volume

Westtav1Next' © 2015 Thomson Reuters. No claim to original U.S. Government Works.§ 37.005. Declarations Relating to Trust or Estate, TX CIV PRAC & REM§ 37.005**·~~--~~~~~~~~--~~~·~~~**

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs &Annos)

Title 2. Trial, Judgment, andAppeal

Subtitle C. Judgments

Chapter 37. DeclaratoryJudgments (Refs & Annos) V.T.C.A., Civil Practice & Remedies Code§ 37.005 § 37.005. Declarations Relating to Trust or Estate Currentness
A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee, guardian, other fiduciary, creditor, devisee, legatee, heir, next ofkin, or cestui que trust in the administration ofa trust or ofthe estate ofa decedent, an infant, mentally incapacitated person, or insolvent may have a declaration ofrights or legal relations in respect to the trust or estate:

(1) to ascertain any class ofcreditors, devisees, legatees, heirs, next ofkin, or others;
(2) to direct the executors, administrators, ortrustees to do or abstain from doing any particular act in theirfiduciary capacity;
(3) to determine any question arising in the administration ofthe trust or estate, including questions ofconstruction ofwills and other writings; or (4) to determine rights or legal relations of an independent executor or independent administrator regarding fiduciary fees and the settling ofaccounts.
Credits Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 3.08(a), eff. Sept. 1, 1987; Acts 1999, 76th Leg., ch. 855, § 10, eff. Sept. 1, 1999.

Notes ofDecisions (55) V. T. C. A., Civil Practice & Remedies Code§ 37.005, TX CJV PRAC & REM§ 37.005 Current through the end ofthe 2015 Regular Session ofthe 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works.§ 37.006. Parties, TX CIV PRAC & REM§ 37.006

Vernon's Texas Statutes and Codes Annotated

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. DeclaratoryJudgments (Refs & Annos) V.T.C.A., Civil Practice & Remedies Code§ 37.006 § 37.006. Parties Currentness (a) When declaratoryreliefis sought, all persons who have or claim any interest that would be affected bythe declaration must be made parties. A declaration does not prejudice the rights ofa person not a party to the proceeding. (b) In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party and is entitled to be heard, and ifthe statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must also be served with a copy ofthe proceeding and is entitled to be heard.
Credits Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.
Editors' Notes LIBRARY REFERENCES 2014 Main Volume 2014 Main Volume Declaratory Judgment <>"',291 to 306.
2014 Main Volume C.J.S. Declaratory Judgments§§ 133 to 147. RESEARCH REFERENCES 2015 Electronic Update ALRLibrary 71 ALR 2nd 723, Construction, Application, and Effect of§ 11 ofthe Uniform Dedaratory Judgments Act that All Persons Who Have or Claim Any Interest Which Would be Affected by the Declaration Shall be Made Parties. 110 ALR 817, Joinder ofCauses ofAction and Parties in Suit Under Declaratory Judgment Act. 142 ALR 8, Application ofDeclaratory Judgment Acts to Questions in Respect ofInsurance Policies.

WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.§ 37.007. Jury Trial, TX CIV PRAC & REM§ 37.007

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annas)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. DeclaratoryJudgments (Refs & Annas) V.T.C.A., Civil Practice & Remedies Code§ 37.007 § 37.007. JuryTrial Currentness
Ifaproceeding under this chapter involves the detennination ofan issue offact, the issue may be tried and determined in the same manner as issues offact are tried and determined in other civil actions in the court in which the proceeding is pending.
Credits Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.

Editors' Notes LIBRARY REFERENCES 2014 Main Volume 2014 Main Volume Declaratory Judgment ;,a,,368.

2014 Main Volume C.J.S. Declaratory Judgments§§ 164 to 165.
RESEARCH REFERENCES

TX Jur. 3d Declaratory Relief§ 13, Deeds. TX Jur. 3d Declaratory Relief§ 29, Jury Trial. 2015 Electronic Update Encyclopedias

Forms Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91 :9, Trial. Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91:14, Checklist--Matters to Consider in Drafting Cause ofAction Seeking Declaratory Judgment Under UDJA.

WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.§ 37.008. Court Refusal to Render, TX CIV PRAC & REM§ 37.008

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal Subtitle C. Judgments

Chapter 37. DeclaratoryJudgments (Refs & Annos) V.T.C.A., Civil Practice & Remedies Code § 37.008 § 37.008. Court Refusal to Render Currentness
The court may refuse to render or enter a declaratoryjudgment or decree ifthe judgment or decree would not terminate the uncertainty or controversy giving rise to the proceeding.
Credits Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.

Editors' Notes LIBRARY REFERENCES 2014 Main Volume 2014 Main Volume J)eclaratory Judgment @=5, 8.
2014 Main Volume C.J.S. Declaratory Judgments §§ 11 to 13. RESEARCH REFERENCES 2015 Electronic Update ALRLibrary 87 ALR 1205, Declaration ofRights or Declaratory Judgments. Encyclopedias TX Jur. 3d Declaratory Relief§ 8, Discretion ofCourt. TX Jur. 3d Declaratory Relief§ 17, Jurisdiction. Forms Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91 :3, Power ofCourts Under UDJA. Texas Jurisprudence Pleading & Practice Forms 2d Ed§ 91 :55, Answer--Allegation--Plea to Jurisdiction--Declaration Would Not Terminate Controversy--Another Action Involving Same Parties and Issues Pending.
W€stlawNexr© 2015 Thomson Reuters. No claim to original U.S. Government Works.§ 37.009. Costs, TX CIV PRAC & REM§ 37.009



### '? ;

l KeyCite Yellow Flag**~** Negative Treatment Proposed Legislation 

### ·--------

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs &Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. DeclaratoryJudgments (Refs &Annos) V.T.C.A., Civil Practice & Remedies Code§ 37.009 § 37.009. Costs

Currentness
In any proceeding under this chapter, the court may award costs and reasonable and necessary attomey 1s fees as are equitable andjust.
Credits Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.
Editors' Notes LAW REVIEW COMMENTARIES Annual Survey ofTexas Law: Ajudicial and economic analysis ofattorney's fees in trust litigation and the resultinginequitable treatment oftrustbeneficiaries. Charles Epps Ipock, 43 St. Mary's L.J. 855 (2012). Resolving attorneys' fees in Texasbusiness litigation. Ralph I. Miller, Angela C. Wennihan, 56 SMU L.Rev. 1115 (2003), RESEARCH REFERENCES 2015 Electronic Update ALRLibrary 87 ALR 3rd429, Insured's Right to Recover Attorneys' Fees Incurred in Declaratory Judgment Action to Determine Existence ofCoverage Under Liability Policy. 98 ALR 1264, Act or Default ofOfficer or Employee Covered by Fidelity Bond or Insurance. Encyclopedias TX Jur. 3d Declaratory Relief§ 5, Justiciable Controversy. TX Jur. 3d Declaratory Relief§ 7, Effect ofExistence ofAnother Adequate Remedy. TX Jur. 3d Declaratory Relief§ 8, Discretion ofCourt. TX Jur. 3d Declaratory Relief§ 9, Where Action Pending. TX Jur. 3d Declaratory Relief§ 27, Counterclaims. TX Jur. 3dDeclaratory Relief§ 31, Costs and Attorney's Fees. TX Jur. 3d Declaratory Relief§ 33, Review.
Westl,wl"Nexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.§ 37.010. Review, TX CIV PRAC & REM§ 37.010

Vernon's Texas Statutes and Codes Annotated

Civil Practice and Remedies Code (Refs &Annas)

Title 2. Trial, Judgment, andAppeal

Subtitle C. Judgments

Chapter 37. DeclaratoryJudgments (Refs &Annas) V.T.C.A., Civil Practice &Remedies Code§ 37.010 § 37.010. Review

Currentness
All orders, judgments, and decrees under this chapter may be reviewed as other orders, judgments, and decrees.
Credits Acts 1985, 69th Leg., ch. 959, § I, eff. Sept. I, 1985.

Notes ofDecisions (64) V. T. C. A., Civil Practice & Remedies Code§ 37.010, TX CIV PRAC & REM§ 37.010 Current through the end ofthe 2015 Regular Session ofthe 84th Legislature
End ofDocun1ent © 2015 Thomson Reuters. No claim to oliginal U.S. Government Works.

WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.§ 37.011. Supplemental Relief, TX CIV PRAC & REM§ 37.011

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annas)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. DeclaratoryJudgments (Refs & Annas) V.T.C.A., Civil Practice & Remedies Code§ 37.011 § 37.011. Supplemental Relief Currentness
Furtherreliefbased on a declaratoryjudgment or decree maybe granted whenevernecessary or proper. The application must be bypetition to a court havingjurisdiction to grant the relief. Ifthe application is deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratoryjudgment or decree to show cause why further reliefshould not be granted forthwith.
Credits Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes ofDecisions (23) V. T. C. A., Civil Practice & Remedies Code§ 37.01 l, TX CIV PRAC & REM§ 37.011 Current through the end ofthe 2015 Regular Session ofthe 84th Legislature
End ofDocument © 2015 Thomson Reuters. No claim to original U.S. Government Works.

WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.

# TABN0.610/20/20142:00:00 PM Chris Daniel - DiStrict Clerk Harris County 

# 2011-58137A 

# I Court: 334 NO. 201 l-=58137 TREVOR GILBERT AND JORJA GILBERT § 

### IN THE DISTRICT COURT Plaintiffs § 

### vs. § § OF 

### HARRIS COUNTY, TEXAS § 

### HONG BICH CHAU, ET AL 

### § 334rn JUDICIAL DISTRICT Defendant § 

### DEFENDANT CHI TRUC HOANG'$ PROPOSED JURY CHARGE

Defendant and Counter-PlaintiffChi True Hoang's Proposed Jury 

### Charge is attached. Respectfully submitted, LAW OFFICE OF MYNDE S. EISEN, P.C. 

### 'li.:=.J.
. 

# J. 

# e;...;.**By:~-~_,._~~~~~~~~~** Mynde S. Eisen State Bar No. 06503950 P.O. Box 630749 Houston, Texas 77263 (713) 266-2955 (713) 

### 266-3008 (fax) 

### email: wyndeeisen@sbcglobal.net ATTORNEYS FOR DEFENDANT AND COUNTER-PLAINTIFF CHI TRUC HOANG CERTIFICATE OF SERVICE 

### I hereby certify that a true and correct copy ofthe foregoing document has been served on all pal'ties ofrecord through their attorneys as listed below hand delivel'y on this 201~

### day ofOctober, 2014.

DanaLeJune 6525 WashingtonAvenue, Suite 300 Houston, Texas 77007 Craig Welscher Alex Weatherford The Welscher Law 

### Fim1 1111 North Loop West, Suite 702 Houston, Texas 77008 Mynde S. Eisen Michael Truong Nguyen 3514 Shadow Spring Court Houston, Texas 77082



## 306

### QUESTION NO._ Did any of the parties named below engage inany false, misleading, or deceptive act orpractice that Trevor Gilbert and Jorja Gilbert rdied on to their detriment 

### and that was a producing 

### cause of damages to them? "Pmducing cause" or "Proximate 

### cause" means a cause that was a substantial factor in bringing aboutthe damages, ifany, andwithout whichthe damages would nothave occurred. There may be 

### more than one producing cause. 1 "False, 

### misleading, or deceptive act or practice" means any ofthe following: I. 

### Representing that goods had or would have characteristics that they did nothave;2 or 2. 

### Failing to disclose information about gaods that was known at 

### the time of the transaction with the intention to induce Trevor Gilbert and Jorja Gilbert into a transaction they would not have entered into ifthe information had been disclosed; 3 

### or 3. 

### Representing that goods are or will be of

### aparticular quality ifthey were ofanother; or representing that good or services are ofaparticular standard, quality or grade, or that goods are ofa pa1ticula1· syle 

### or model when they are ofanother 4 

### "Goods" means tangible chattels or real property purchased or leased for use"5 

### Answer "Yes" or "No for each Ahn (''Andy")Van Dang Hong Bich Chau Answer:------- 

### Answer:
______ _ Chi True Hoang 

### Answer:



### ------- Granted: Refused:'--------- Modified as Follows:
___________and Given. Exception Allowed:
________ _
JUDGE PRESID1NG

1 PJC 102.1; Fort/Motor Co. v l.edesma, 242 S.W.3d 32, 46(Tex. 2007); Prude11/1a/ l11s111•u1,ce Co. o[Ame1•ioa ,, Jeberso11Associates, Ud S% S.W.2d 156, 161 ('re.. JV95) 'PJC 102.2; iex. l)us. & Comm. Code *1746(b)(5). 'PJC 102.5; Tex Jlus. & Comm. Code § I746(h)(24). 'PJC I02.3 Tex. llus. & Comm. Code §I746(b)(7).
-2- 

## 307QUESTION NO._ 

### Did any ofthe parties named below engage in any unconscionable action orcourse ofactionthatwas apmducing cause ofdamage, ifany, to Trevor Gilbert and Jorja Gilbert. "Producing cause" or "Proximate cause" means a cat1se that was a substantial factor in bringing about the damages, ifany, andwithout which the damages would nothave occurred. There may be more than one producing cause. 6 

### "Unconscionableaction orcourse ofaction" means an act

### orpractice which to aconsumer's detrimenttakes advantage ofthe lack ofknowledge, ability, experience or

### capacity ofthe consumer to a grossly unfair degree. 7 

### Answer "Yes" or "No" for 

### each Ahn 

### ("Andy") Van Dang: Answer:
_____ _ Hong Bich 

### Chau Chi Trnc Hoang Answer:------ Answer:
_____ _ Granted:
________ _ Refused:.
_______ _ Modified as Follows:
___________and Given. Exception Allowed:
_____________ _
JUDGE 

### PRESIDING

'PJC 102.7; FordMotor Co. v lede.,ma, 242 S.W.Jd 32, 46 (Tex. 2007); Prnde11fia/ l11sm·ance Co. of America v Jejftrso11Associa/-,, Lid 896S.W.2d 156, 161 (Tex. 1995) 'PJC 102.7; Tex Bus. & Comm. Code§ 17.45(5). -3- 

## 308

### Ifyour answer to Question was ''Yes" for any party, Chen answer the following questio.n. Otherwise, do not answer the following 11uestion. 

### QUESTION~- Did the parties named below engage in any such conduct knowingly 

## or intentionally? "Knowingly" means actual awareness, at the time of the conduct, of tbe falsity, deception, or unfairness of the conduct in question. Actual awareness ma, be 

### inferred where objective manifestations indicate that a person acted with actual awareness. "Intentionally" means actual awareness ofthe falsity, deception, 

### or unfairness 

### oftlie conduct 

### in question, 

### or actual awareness of the conduct constituting 

### a .faUure to comply with 

### a warranty, coupled with the specific illtent that the consumer act in detrimental reliance on the falsity 01· 

### deception. Specificintentmay beinferred whereob,jectivemanifestations indicate thataperson acted intentionally.' In answering this question, consider only the conduct thatyou have found was.a producingcause of damages to Trevor and Jorja Gilbe11. Answer 

### "Yes" or "No" for 

### each. Knowingly: lntentionally: 10 

### Answer;
____ _ 

### Ahn "Andy" Van Dang: Answer;



### ----- Hong Bich Chau: Answer:
____ _ Answer:



# ----- Chi Tmc Hoang: Answer:



## ----- Answer:
____ _ Granted:
________ _ Refused;
_______ _ Modified as Follows:.
____________and Given. Exception Allowed:.
________ _ 

### JUDGE PRESIDING

'PIC I02.2l;To,. B\ls, & Com. Code *J7.4S{9) 'PJC 102.21; See .~puncer v. Eagle Stai• lnsuro11ce Co. of Amerim, 876 S.W.2d 154, IS7 

### (Tex. 1994); 

### Brown v. Amf.l'ica11 Transfer & Storage 

### Co., 601 S.W.2d 93 

### l, 937 

### (Tex. 1980)," ''The 

### difference between "knowledge" and 

### "intent" is that 

### under "intent" the defendant 

### specifically intended that the consumer net in detrimental 

### reliance. Compare 

### DTPA § 

### 17.45(9) with §17.45(13). A

### finding that 

### the defendant acted knowingly allows discrebona1y trebling only ofeconomic damages under the 

### DTPA, whereas a finding 

### .ofintentional conduct allows discretionary trebling ofboth economic and mental anguish damages. DTPA §17.SO(b)(l). 

### Ifboth 

### economic damages and 

### mental anguish damages are sought, 

### the consumer may choose to 

### submit sepur11te 

### questions on the defendant's knowledge and i11tent, or 11 single question on 

### intent. 

### -4- 

### 309QUESTION NO._ Did any ofthe parties below commit fraud against Trevor Gilbert and Jorja Gilbert? Fraud occurs when:
a. a party makes a misrepresentation ofa material fact, and b. the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge ofthe truth and as a positive assertion, and c. the misrepresentation is made with the intention that it should be acted onby the other party, and d. the otherparty acts in reliance onthe misrepresentation and thereby suffers injury." "Misrepresentation" means a false statement offact. 12 Answer "Yes" or "No" for each. 

### Ahn "Andy" Van Dang Hong Bich Chau 

### Chi Tmc Hoang Granted:
________ _ 

### Refused:
_______**~** Answer:
_______ _ Answer:-------- Answer:--------

Modified as Follows:
___________and Given. Exception Allowed:
_____________ _
JUDGE PRESIDING

11PJC105.1; PJC I05.2;See Johns0t1 v Brewer & Pr1i</Jard, P.C., 73 S.W.3d 193, 211 n.45 (Tex. 2002); farmosa Plastics Corp. USA• Presidio Ellgineers & Canlrac/ars. Inc
.. , 960 S.W. 2d41_, 47 (Tex. 1998); Oilwell Division, United States SIU{ Co,p. v. fryer, 493 S.W. 2d 487, 491 (Tex. 1913) "PJC 105.JA; See Trenholm v Ratcliff. 646 S.W.2d 927, 930 (Tex. 1983). 

### 310 -5-

### QUESTION NO._ Did any ofthe parties below commit statutory fraud against Trevor Gilbert and Jorja Gilbert? 13 "Fraud" occurs when 

### a. there is a false representation ofa past or existing material fact; b. the false representation is made to a person for the purpose ofinducing that person to enter into a contract; and c. false representation is relied upon by that person in entering into that contract. 14

Answer "Yes" 

### or "No" for each: 

### Ahn "Andy" Van Dang Hong Bich Chau Chi True Hoang

"PJC 105.7 "PJC 105.8 Answer:-------- Answer:-------- Answer:
_______ _



### JUDGE PRESIDING

-6- 

### 311Ifyou unanimously answered "Yes" to Question
__ , then answer the following question. Otherwise do not answer the following question. QUESTION NO.
__ Didanyof the followingpartieshave actual awareness ofthe falsity of therepresentation you found to be fraud in Question
__ 

### ? Actual awareness may be inferred where objective manifestations indicated a person acted with actual awareness.' 5 Answer "Yes" or "No"for each.
Ahn "Andy" Van Dang Hong Bich Chau Chi True Hoang

"PJC !05.11 Answer:-------- Answer:-------- Answer:--------

JUDGE PRESIDING

-7- 

### 312If you have answered Question_ or Question_ or Question_ "Yes," then answerthe following question. Otherwise, do not answer the following question. QUESTION_ Was Ahn " Andy" Van Dang part ofa conspiracythat damaged Trevor and Jorja Gilbert? To be part ofa conspiracy Ahn Van Dang and another person or persons must have had actual knowledge ofand agreed to, and intended to have a common objective or course of action that resulted in damages to Trevor and Jorja Gilbert. One or more persons involved in the conspiracy must have performed some act or acts to further the conspiracy. 16 Answer Yes or No Answer:



# ---- Granted:
________ _ Refused:
________ _ Modified as Follows:
___________ and Given. Exception Allowed:
_____________ _ JUDGE PRESIDING

"PJC 109. l 

### 313 -8-Ifyou have answered Question_ or Question_or Question_ "Yes," then answer the following question. Otherwise, do not answer the following question. QUESTION_ Was Hong Bich Chau part ofa conspiracy that damaged Trevor and Jorja Gilbert? To be part ofa conspiracy Hong Bich Chau and another person or persons must have had actual knowledge of and agreed to, and intended to have a common objective or course of action that resulted in damages to Trevor and Jorja Gilbert. One ormore persons involved in the conspiracy must have performed some act or acts to further the conspiracy. 17
Answer 

### Yes or No Answer:



## ----

Granted:
________ _ Refused:
_______ _ Modified as Follows:
___________ and Given. Exception Allowed:.
_____________ _

JUDGE PRESIDING

"PJC109.l 

### 314 -9-If you have answered Question_ or Question _or Question_ "Yes," then answer the following question. Otherwise, do not answer the following question. QUESTION_ Was Chi True Hoang part ofa conspiracy that damaged Trevor and Jorja Gilbert? To be part of a conspiracy Chi True Hoang and another person or persons must have had actual knowledge of and agreed to, and intended to have a common objective or course of action that resulted in damages to Trevor and Jorja Gilbert. One or more persons involved in the conspiracy musthave performed some act or acts to further the conspiracy. ' 8 Answer Yes or No Answer:



### ----

Granted:

# ~-------- Refused:
________ _ Modified as Follows:,
____________ and Given. Exception Allowed:
_____________ _



### JUDGE PRESIDING

"PJC 109.1 

### 315 -10-QUESTION NO.
__ Did Jorja Gilbert waive her claims against Chi True Hoang? "Waiver"means anintentional surrenderofaknown rightorintentionalconduct inconsistent with claiming the right. 19 Answer "Yes" or "No." Answer:------

20
Granted:
________ _ Refused:
________ _ Modified as Follows:
____________and Given. Exception Allowed:
_____________ _

JUDGE PRESIDING

"PJC 101.24; UnilcdS1a1es Fidelily & G1wra11/y Co. v Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex. 1971); See also Gage v Langford, 582 S.W. 2d 203, 207 (Te<. Civ. App.-Halland 1979, writ rcrd n.r.e.} 

### 316 -11-QUESTION_ Did Trevor Gilbert waive his claims against Chi True Hoang? "Waiver"means anintentional surrenderofaknown right orintentional conductinconsistent with claiming the right. 21 Answer "Yes" or "No." Answer:-------

Granted:
________ _ Refused:,
________ _ Modified as Follows:
____________ and Given. Exception Allowed:
_____________ _

JUDGE PRESIDING

"PJC 101.24: U11itedStales Fidelity & G,mranty Co. v Bimco Iron & Mela/ Corp., 464 S.W.2d 353, 357 (Te,. 1971); See also Gage v umgford, 582 S.W. 2d 203, 207 (Tex. Civ. App.-Eatland 1979, writ refd n.r.e.) 

### 317 -12-

### QUESTION NO.
__ Did Trevor Gilbert, Jorga Gilbert and Hong Bich Chau agree to hold Chi True Hoang harmless in the Acceptance ofTitle and Closing Agrcement?22

Answer 

### "Yes'' or "No" for each. Jorga Gilbert Trevor Gilbert Answer: Answer:



### ------ Answer:



### -------
Granted:.
________ _ Refused:
________ _ Modified 

### as Follows:
___________and Given. Exception Allowed:
_____________ _



### JUDGE PRESIDING

"PJCIOI.I -13- 

### 318QUESTION NO.
__ _ Did Trevor Gilbert and Jorga Gilbert 

### fail to comply with the agreement to hold Chi True Hoang harmless in the Acceptance ofTitle and Closing Agreement?"
Answer "Yes" or "No" for each: Jorga Gilbert Answer:



### ------- Trevor Gilbert Answer:



### ------- Granted:
________ _ Refused:
_______ _ Modified as Follows:
___________ and Given. Exception Allowed:
_____________ _



### JUDGE PRESIDING

"PJC10l.l 

### 319 -14-

### QUESTION_ Did Chi True Hoang substantially rely to her detriment on the promise to hold her harmless by Trevor Gilbert and Jorja Gilbert as set forth in the Acceptance ofTitle and Closing Agreement, ifany, ans was this reliance foreseeable by Trevor Gilbert and Jorga Gilbert.24 

### Answer Yes or No for each: Jorga Gilbert Answer:



## ------- Trevor Gilbert Answer:

-------



### Granted:
________ _ Refused:
________ _ Modified 

### as Follows:
___________ and Given. Exception Allowed:,
_____________ _

JUDGE PRESIDING

"PJCIOl.41 

## 320 -15-

### Ifyou answered "Yes" to Question
__ , or 

### Question _, or 

### Question ____j 

### then answer the following question. Otherwise, do not answer the following question. QUESTION NO. 

### What sum ofmoney ofmoney, ifany, 

### ifpaid now in cash would fairly and reasonably compensate Trevor Gilbert and Jorja Gilbert for their damages, ifany that resulted from the conduct of

### Ahn "Andy"Van Dang?2' 

### Consider the following elements ofdamages, if

### any, and none other. "Economic damage" means compensatory damages ofpecuniary loss, including costs of repairand replacement. Theterrndoes not include exemplary damages ordamagesfor

### physical pain and mental anguish, loss of consortium, disfigurement, physical impainnent, or loss of companionship and society. 2 ~ 

### Donot include in

### your answer any amount thatyoufind TrevorGilbert and/orTrevor Gilbert could have avoided by the exercise ofreasonable care." In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because ofyour answer to any otherquestion about damages. Do not speculate about what any party's ultimate recovery may or 

### may not be. Any recovery wUJ 

### be determined bythe court when it applies the lawto your answers at 

### the time of judgment. Do not add any amount for interest on damages, if

### any. Answer separately in dollars and cents for 

### damages, ifany The reasonable and necessary costto repair Trevorand Jorja Gilbert's home, ifany: Answer:
_____ _ Trevor Gilbert's mental anguish, ifany, in the 

### past Answer:------ Trevor Gilbert's mental anguish, ifany, that, in reasonable probability, he 

### will sustain in the futm•e Answer:
_____ _ Jorja Gilbert's mental anguish, ifany, in the past Answer:------

"PJC 115.9; 115.JO "PJC llS.10; Tex. bus. & Comm. code§ 17.45(11). "PJC 101.41 

### -16- 321Jorja Gilbert's mental anguish, ifimy, that, in reasonable probability, she will sustain in the future Answer:------

Granted:.
________ _ Refused:.~-------~ Modified as Follows:.
____________and Given. Exception Allowed:
_____________ _

JUDGE PRESIDING

-17- 

### 322If

### you answered "Yes" to Questions_, Question_, and Question _for mote than one ofthose namedbelow, then answer the following question. Otherwise do not answer the following question. QUESTION NO,
__ 

### Assign percentages ofresponsibility only to those you found caused or contributed to cause the damages and hann. 

### The percentages you find must total 

### I00 percent. The percentages must be expressed in whole numbers. The percentage 

### of responsibilift attributable to any one is not necessarily measured by the number ofacts or omissions found. 2 

### For each person you found caused or contributed to cause the harm or damages to Trevor Gilbert, fmd the percentage ofresponsibility attributable to each: 1. 

### 2. 3. 

### 4. 5. 6. 

### 7. Hong Bich Chau Ahn "Andy"Van 

### Dang Trevor Gilbert Jorja Gilbert Imeldia Adams Michael Nguyen Chi True Hoang %



### ------ % 

## ------. %



### ------
______%

______% %



### ------%



# ------ For each person you found caused or contributed to cause the harm or damages to Jorja Gilbert, find the percentage ofresponsibility attributableto each: 1. 

### 2. 3. 4. 

### 5. 

### 6. 7. Hong Bich Chau Ahn "Andy" 

### Van Dang Trevor Gilbert Jorj

### a Gilbert Imeldia Adams Michael Nguyen Chi True Hoang Granted:
________ _ Refused:.
_______ _ % 

## ------. % 

## ------.
______ %

______ %

______ %



### ______ %

______ %



### Modified as Follows:
___________and Given. Exception Allowed:
_____________ _

JUDGE PRESTDING

"PJCl 15,36 -18- 

### 323

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

### What sum ofmoney ofmoney, ifany, if

### paid now in cash would fairly and reasonably compensate Trevor Gilbert and J

### orja Gilbert for their damages, ifany that resulted from the conduct ofHong 

### Bich Chau? Considerthe following elements ofdamages, ifany, and none other. "Economic damage" means compensatory damages ofpecuniary loss, including costs of repair and replacement. The tenn does not include exemplary damages 

### ordamages forphysicalpain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society.Z 9 Do 

### notinclude inyour answerany amountthatyoufmdTrevor Gilbertand/orTrevorGilbert could have avoided by the exercise ofreasonable care. 30 

### In answering questions about damages, answer eachquestion separately. Do 

### notincrease or 

### reduce the amount in one answer because ofyour answerto any otherquestion about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any recovery will 

### be determined by the court when it

### applies the Iawto your answers at the time of judgment. Do not add any amount for interest on damages, ifany. Answer separately in dollars and cents for 

### damages, ifany The reasonable and necessary .cost to repair 

### Trevor and Jorja Gilbert's home, ifany: Answer;



## ------ Trevor Gilbert's mental anguish, ifany, in the past. Answer;----- Trevor Gilbert's mental anguish, if

### any, that, inreasonable probability, he will sustain in the future Answer:
_____ _ Jorja Gilbert's mental anguish, 

### ifany, in the past Answer:
____ _

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

• 10f'JC !Ol.41 

### -19- 

### 324Jorja Gilbert's mental anguish, ifany, that, in reasonable probability, she 

### will sustain in the future Answer:
_____ _

Granted:.
________ _ Refused:
________ _ Modified as Follows:.
___________ and Given. Exception Allowed:
_____________ _

JUDGE PRESIDING



### -20- 

## 325If

### you answered "Yes" to Questions _, Question _, and Question _formore than one ofthose named below, then answer the following question. Otherwise do not answer the following question. QUESTION 

### NO.
__ Assign percentages ofresponsibility only to thoseyou found caused or contributed to cause the damages and harm. The percentages you find must total I00 percent. The percentages must be expressed in 

### whole numbers. The pe1·centage of responsibilifr attributable to any one is not necessarily measured by the number ofacts or omissions found.' For each person you found caused or contributed to cause the harm or damages to Trevor Gilbert, find the percentage ofresponsibility attributable to each: 

### 1. Hong Bich Chau % 

### 2. Ahn "Andy"Van Dang % 

### 3. Trevor Gilbert % 

### 4. Jorja Gilbert % 

### 5. Imeldia Adams % 

### 6. Michael Nguyen % 

### 7. Chi True Hoang % 

### 8. Clay Collins % For each person you found caused or contributed to cause the hann or damages to Jorja Gilbert, find the percentage ofresponsibility attributable to each: 

### 1. 

### 2. 

### 3. 

### 4. 5. 

### 6. 7. Hong Bich Chau Alm "Andy" Van Dang Trevor Gilbert Jorja Gilbert Imeldia Adams Michael Nguyen Chi True 

### Hoang Granted:,
________ _ Refused:



# --------- %



### ------%



### ------%



# ------ %



### ------

______ %

______ %

______ %



### Modified as Follows:
___________and Given. Exception Allowed;
_____________ _

JUDGE PRESIDING

"PJC I 15.36 

### -21- 

## 326If

### you answered "Yes" 

### to Question
__ , or Question ___, or 

### Question , then answer the following question. Otherwise, do not answer the following question.

-- QUESTION NO. 

### What sum ofmoney ofmoney, if

### any, if

### paid now in cash would fairly and reasonably compensate Trevor Gilbert and Jorja Gilbert for their damages, if

### any that resulted from the conduct ofChi True Hoang? Consider the following elements ofdamttgcs, ifany, and none other. "Economic damage" means compensatory damages ofpecuniary loss, including costs of repairand replacement. Thetermdoes not include exemplarydamages ordamages forphysical pain and mental anguish, loss
.of consortium, disfigurement, physicul impairment, or loss of companionship and society. 32 

### Do notinclude inyour answer any ilffiountthat you find Trevor Gilbert and/orTrevor Gilbert could have avoided by the exercise ofreasonable care.33 

### In answering questions about damages, answer each question separately. Do not increase or reduce the amount in. one answer because of your answer to any other question about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any recovery will 

### be determined by the court when it applies the law to your answers 

### atthe time of judgment. 

### Do not add any amount for 

### interest ondamages, if

### any. Answer separately in dollars and cents for damages, if

### any The reasonable and necessary cost to repair Trevor and Jorja Gilbert's home, ifany: Answer:
_____ _ Trevor Gilbert's mental anguish, ifa.ny, in the past Answer:
_____ _ future Trevor Gilbert•smental anguish, if any, that, in reasonabfo probability, he will sustain in the Answer:------ Jorja Gilbert's mental anguish, 

### ifany, in the past Answer:
____ _

"PJC 115.\l; 115. IO; Tex. bus. & Comm. code§ 17.45(1 I). "PJCIOl.41. 

### -22- 

## 327Jorja Gilbert's mental anguish, ifany, that, in reasonable probability, she will sustain in the future Answer:------

Granted:,
________ _ Refused:,
________**~** Modified as Follows:,
___________ and Given. Exception Allowed:.
_____________ _

JUDGE PRESIDING



### -23- 

### 328If 

### you answered "Yes" to Questions _, Question_, and Question _for more than one ofthose named below, then answer the following question. Otherwise do not answer !he following question. QUESTION NO.
__ 

### Assign percentages ofresponsibility only to those you found caused or contributed to cause the damages and harm. The percentages you find must total I00 percent. The percentages must be expressed in whole numbers, The percentage of responsibili~ attributable to any one is not necessarily measured by the number ofacts or omissions found. 3 

### For each person you found caused or contributed to cause the harm or damages to Trevor Gilbert, find the percentage ofresponsibility attributable to each: I. 

### 2. 

### 3. 

### 4. 5. 6. 7. Hong Bich Chau Ahn "Andy" Van Dang Trevor Gilbert Jorja Gilbert 

### Imeldia Adams Michael Nguyen Chi True Hoang ______ %



### ______ %

______ % %



### ------



## ------ %



### ------% %



### ------ For 

### each person you found. caused or contributed to cause the harm or damages to Jorja Gilbert, find the percentage ofresponsibility attributable to each: I. 

### Hong Bich Chau % 

### 2. Ahn "Andy" Van Dang % 

### 3. Trevor Gilbert % 

### 4. Jorja 

### Gilbert % 

### 5. Imeldia Adams % 6. Michael Nguyen % 

### 7. Chi True Hoang %


### Granted:
________ _ Refused:,
________ _ Modified as follows:
___________ and Given. Exception Allowed:
_____________ _

JUDGE PRESIDING

"1 l~.36 -24- 

### 329

### lfyou answered "Yes" then answer the following question. Otherwise do not answerthe following question. QUESTION NO.
__ 

### What sum ofmoney, ifany, ifpaid not in cash would 

### fairly and reasonably compensate Chi True Hoan§ for her damages, if

### any, thatresulted from Trevor Gilbert's and Jorga Gilbert's failure to comply?' Consider the following elements, ifany, of

### the following: Amount of damages, if any, awarded against Chi True !Ionag in Question
_ and Question Do not add any amount for interest on damages, ifany. Answer separately in dollars and cents for damages, ifany. a. Trevor Gilbert Answer:



## -------- b. 

### Jorja Gilbert

Granted:
________ _ Refused:
________ _ Modified as Follows:
___________ and Given. Exception Allowed:
_____________ _

JUDGE PRESIDING

"PJC 115.3 

### -25- 

### 330

### QUESTION_ What sum ofmoney, ifany, ifpaid now in cash, would fairly and reasonab1x compensate Chi True Hoang for her damages, ifany, thatresulted from herreliance on thepromise •bythe following Consider the following elements, ifany, ofthe following: Amount of damages, if any, awarded against Chi True Honag in Question
_ and Question
__ Do

### not add any amount for interest on damages, if

### any. Answer separately in dollars and cents for 

### damages, ifany. a. Trevor Gilbert Answer:



### -------- b. 

### Jorja Gilbert 

### Answer:-------
Granted:
________ _ Refused:
________ _ Modified as Follows:
___________and Given. Eii;ception AJlowed:
_____________ _

JUDGE PRESIDING

"PJC 110.5 -26- 

### 331

### QUESTION
__ Whatis a reasonable fee for the necessary services ofChi True Hoang's attorney in this case, stated in dollars and cents?37 Answer in Dollars and Cents, Ifany: a. For preparation and representation in the trial court Answer:



### ------- b. For representation through appeal to the Court ofAppeals Answer:



### ------- c. Forrepresentation at the petition for review stage in the Supreme Court ofTexas
Answer:-------- d. For representation at the merits briefing state in the Supreme Court ofTexas Answer:

------- 

### c. Forrepresentation through oral argument and completionofthe proceedings inthe Supreme Court ofTexas.
Answer:-------
Granted:
________ _ Refused:
________ _ Modified as Follows:
___________and Given. Exception Allowed:
_____________ _

JUDGE PRESIDING

"PJC 115.47 

### -27-


### 332

### Answetthe following question only if

### you answered "Yes to Question_as to Hong Bich Chau. Otherwise, do not answer the following question. To Answer "Yes'' to any part ofthe following question, your answer must be unanimous. You may answer "No" to any part ofthe following question only upon a vote often or morejurors. Otherwise, you must not answer that pait ofthe following question. 

### QUESTION NO.
__ 

### Do youfind byckarand convincin

# 8 evidencethat the harin to Trevor Gilbert orJorj11 Gilbe1t resulted from malice ofHong Bich Chau? ' ''Clearand convincing evidence" means the measure or degree ofproofthat produces afirm beliefor conviction ofthe tmth ofthe allegations soughtto be established. "Malice meansI, A specific intent byHong Bich Chau to cause substantial injuryto Trevor Gilbett and Jorja Gilbert 2. An act omission by Hong Bich Chau
a. which when viewed objectively from the standpoint ofHong Bich Chau at the time ofits occurrence involves an extreme degree ofrisk, considering the probability and magnitude ofthe potential harm to .others; and b. of which Hong Bich Chau has actual, subjective awareness of the risk involved, butneverthelessproceeds withconccious indifferenceto therights, safety or welfare ofothers.

Granted:.
________ _ 

### Refused:
________ _ Modified as Follows: and Given. Exception Allowed:
________ _
JUDGE PRESIDING

"PJC 115.39A -28- 

### 333Answer the following question only ifyou answered "Yes to Question_as to Anh "Andy" Van Dang Otherwise, do not answer the following question. To Answer "Yes" to any part ofthe following question, your answermust be unanimous. You may answer "No"to any part ofthe following question only upon 

### avote oftenor morejurors. Otherwise, you must not answer 

### that part ofthe following question. QUESTION NO._ Do you find by clearand convincingevidencethat the harm to Trevor GilbertorJo~ja Gilbert resulted from malice ofAnh "Andy" Van Dang?'° "Clear and convincing evidence" means the measure or degree ofproofthat produces 

### afirm beliefor conviction ofthe truth ofthe allegations sought to be establi.shed. "Malice means

### l. A specific intent by Anh "Andy" Van Dang to cause substantial injury to Trevor Gilbert and Jorja Gilbert 2. An act omission by Ahn "Andy'' Van Dang
a. which when viewed objectively from the standpoint ofAhn "Andy" Van Dang at the time of its occurrence involves an extreme degree of risk, consideringthe probabilityandmagnitudeofthe potential.harmto others; and b. ofwhich Alm "Andy" Van Dang has actual, subjective awareness ofthe risk involved, but neverthelessproceedswith conccious indifferenceto the rights, safety or welfare ofothers.

Granted:.
________ _ Refused:
________ _ Modified as Follows: and Given. Exception Allowed:.
________ _
JUDGE PRESIDING

"PJC l 15.39A 

### -29- 

### 334

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

### To Answer "Yes" to 

### any part ofthe following question, your answer must be unanimous. You may answer "No" to any part ofthe following question only upon a vote often or morejurors. Otherwise, you must not answer that part ofthe following question. QUESTION NO.
__ 

### Do you find by clearand convincing evidence that the harmto Trevor Gilbert orJorja Gilbert resulted from malice ofChi True Hoang 40 

### "Clearand convincing evidence" means the measure ordegree of proofthat produces afirm beliefor conviction ofthe truth ofthe allegations sought to be established. "Malice meansI. 

### A specific intent by Chi True Hoang to cause substantial injury to Trevor Gi

### lbett and JorjaGilbert 2. An 

### act omission by Chi True Hoang
a. which when viewed objectively fromthe standpoint of Chi True Hoang atthe time ofits occurrence involves an extreme degree ofrisk, considering the probability and magnitude ofthe potential harm to others; and b. of which Chi 

### True Hoang has actual, subjective awareness of the risk 

### involved, butneverthelessproceeds with conccious indifferenceto therights, safety or welfare ofothers.

Granted:.
________ _ Refuscd:,---=--=------ Modified 

### as Follows: and Given. Exception Allowed:
________ _
JUDGE PRESIDfNG

"PJC l 15.39A -30- 

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



### -31- 

## 336Answer the following question regarding a defendant only ifyou have unanimously answered ''Yes" to Question_regardingthatDefendant. Otherwise do not answerthe following question regarding that Defendant. You must unanimously agree on the amount ofany award ofexemplary damages. 

### QUESTION NO._ What sum ofmoney ifany, ifpaid in cash should be assessed against Hong Bich Chau and awarded to 'frevor Gilbert and Jorja Gilbert as exemplary damages, ifany, for the conduct found in response to Question
__ ? "Exemplary damages" means an amount that you may inyour discretion award asapenalty or by way ofpunishment. Factors to consider in awarding exemplary damages, ifany, are __ I. The nature ofthe wrong 2. The character ofthe conduct involved 3. The degree ofculpability ofHong Bich Chau 4. The situation and sensibilities ofthe parties concerned 5. The extent to which such conduct offends a public sense of justice and propriety. 6. The net worth ofHong Bich Chau.
Answer in dollars and cents, ifany.
Granted:
________ _ Refused:
________ _ Modified as Follows:
___________and Given. Exception Allowed:
_____________ _

-32- 

### 337

### Answerthe following question regarding adefendant only ifyou have unanimously answered "Yes" to Question_regardingthat Defendant. Otherwise do not answerthe following question regarding that Defendant. You must 

### unanimously agree on the amount ofany award ofexemplary damages. QUESTION NO._ 

### What sum ofmoney if

### any, ifpaid in cash should be assessed against Ahn"Andy" Van Dang and awarded to Trevot· Gilbert andJorjaGilbertas exemplary damages, ifany, for the conductfound in 

### response to Question
__ ? "Exemplary damages" means an amount that you may in your discretion award as a penalty or by way ofpunishment. Factors to consider in awarding exemplary damages, ifany, are __ 

### 1. The nature ofthe wrong 2. 

### The character ofthe conduct involved 3. 

### The degree ofculpability ofAhn 

### "Andy" Van Dang 4. The. situation and sensibilities ofthe parties concerned 5. The extent to which such conduct offends a public sense of justice and propriety. 

### 6. The net worth ofAhn "Andy" Van Dang. Answer in dollars and cents, ifany.
Granted:
________ _ Refused:.
_______ _ Modified as Follows:.
___________ and Give11. Exception Allowed:
_____________ _

-33- 

### 338

### Answerthe following question rega!'ding adefendant only ifyou have unanimously answered "Yes" to Question_regardingthatDefendant. Othe1wisedo not answerthe following question regarding that Defendant. You must unanimously agree on the amount ofany award ofexemplary damages. QUESTION NO._ 

### What sum ofmoney ifany, ifpaid in cash should be assessed against the Chi True Hoang and awardedto TrevorGilbert and Jorja Gilbertas exemplary damages, ifany, for 

### the conductfound in response to Question
__ ? 

### "Exemplary damages" means an amount that you may in your discretion award as a penalty or by way ofpunishment. Factors to consider in awarding exemplary damages, if

### any, are -~ I. 

### The nature ofthe wrong 

### 2. The character ofthe conduct involved 3. 

### The degree ofculpability ofChi True Hoang 4. 

### The situation and sensibilities ofthe parties concerned 5. 

### The extent to which such conduct offends a public sense of justice and propriety. 6. The 

### net worth ofChi True Hoang Answer in dollars and cents, ifany. Granted:,
________ _ Refused:~------- Modified as Follows:
___________ and Given. Exception Allowed:,
_____________ _
JUDGE PRESIDING



### -34- 

### 339

# TAB NO. 7

# 2011-58137A 

# I Court: 334

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

TREVOR GILBERTAND 

### JORJA GILBERT § § § § § § IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS 

### vs. HONG BICH CHAU, ET AL 334THJUDICIAL DISTRICT
PLAINTIFFS' MOTION f'OR JUDGMENT NON OBSTANTE VEIIDICTO
This is Trevor and Jorga Gilbert's (collectively, "the Gilberts" or "Plaintiffs") Motion for Judgment Non Obstante Verdicto (JNOV) as to Defendant Chi T1uc Hoang's ("Defendant Hoang'') award ofattomey's fees. I. FACTS I. Plaintiffs sued Defendant Hoang for violations ofthe Deceptive Trade Practices Act, fraud, slatutoty fraud, and civil conspiracy. 2. Defendant Hoang answered and raised defenses of failure to mitigate damages, assumption of the risk, release and waiver, but also br0t1ght a counterclaim for breach of contract, promissory estoppel at common law and sought declaratory relief. 

### All these defenses and the counterclaim were based upon one sentence in a document prepared by the title company entitled "Acceptance of Title and Closing Agreements." The sentence recited hold harmless language, and although was signed by tl1e Gilberts and tl1e seller/defendants, Ahn Van Dan and Hong Bich 

### Chau (collectively 

### "Chau Defendants") 

### at the closing ofthe real estate tl'ansaction, it was not signed or authorized by the third party realtors 01· their supervising broke!'s. Page I of 11


### 4343. On November 

### 20, 2014. a jury awarded to the Gilberts what can only be deemed a large verdict against the Chau Defendants for $1,384,000 for knowingly and intentionally violating the DTPA, and for common law fraud, and statutory fraud. However, the jury did not find the listing/selling realtor of the Chau Defendants (Hoang) liable under any of the Gilberts' causes ofaction. Thejury further answered "Yes" to whether the Gilberts failed to comply with an agreement lo release and hold the realtors and their brokers, including Defendant Hoang, hrumless. The jury also dete1mined that $230,000.00 was a reasonable fee for necessary legal services ofHoang's attorney. 4. The Gilberts now move the Court for ajudgment notwithstanding the verdict regarding the recoverability of attorney's fees of the Hoang's lawyer, as there was never any claim for recovery of (nor did she disclose or prove) any damages as a result ofthe Gilberts' alleged breach ofcontract. Additionally, there was no evidence ofconsideration to the Gilberts for their promise. Further, Hoang's Counsel did not properly allocate her attorney's fees between the time spent defending against the Gilberts' 

### claims and that incurred for the counterclaim. Finally, Hoang cannot use a declru:atory judgment solely as a vehicle to
recover attorney's foes.

Page2of 11


### 435

### II. DEFENDANT HOANGDID NOT SEEK- NORRECOVER-DAMAGES 5. To obtain an award of attorney's fees under Section 38.001 of the Civil Practice and Remedies Code, a party 

### must (1) prevail on 

### a cause of action 

### for which attorney's 

### fees are recoverable, and (2) recover damages. State Fann Life I,1s. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995); See also Rodg,!ts v. RAB 

### lnvestnutnts, Ltd., 816 S.W.2d 543, 551 (Tex.App. -Dallas 1991, 110 writ), A party mu.st satisfy tlte two re(Juirements to recover attorney's fees. See State at 437. 6. Here, Defendant Hoang presented neither pleadings nor a shl'ed ofevidencc upon which she might have independently recovered actual damages as a result ol' any lrrcach ofcontract by the Gilbe1ts. Likewise (and due to the lack of pleading and. proof), thejury did not award any actual or even "nominal" damages to Hoang. Jn her Fourth Amended Answer and Counte!'claim. HoUllg filed a counterclaim fo1· breach of contract, promissmy estoppel, and plead fol' n declaratoryjudgment based on one sentence in the Acceptance Title and Closing Document. ln this claim, Defendant Hoang claimed, "As a result ofthe Counter-Defendants breach oftheir hold haimless agreement. Counter-Plaintiffhas been damaged in an amount of not less than $50,000.00." This is the only time Hoang ever mentioned any damages suffered, and despite this, she proved-up no specific instance of ham1 caused by the Plaintiffs' alleged breach, and she made no claim for actual damages whatsoever. 7. l11roughout the entire three year litigation Hoang foiled lo plead or prove any specific damage she suffered as a result of the alleged breach ofcontract. Although she served six (6) separate sets ofdisclosures, Hoang never set forth any damages she suffered or incun-ed Page3of 11


### 436caused by or even due to Gilberts' alleged breach ofcontract, nor did she ever disclose any specific monetmy value of such damages. Hoang only pied recove1y of teasonablc and necessary attorney's fees. Additionally, throughout trial Hoang presented no testimonial or documentary evidence ofhow, and by what amount, the alleged breach damaged her. Again, the only evidence of a dollar amount ofanything lhal was presented was ofattorney's fees allegedly incu!'red. 8. In Green Intern., Inc. v. Solis, although thejury found that Solis failed to comply with the Woodville Subcontract, !he Jury awmded zero damages to Green for this breach. Because Green failed 10 recover damages on its breach of co11tract claim. Green was not entitled to
recover attorney's 

### fees under Section 38.001. 

### Green int'/, J11c. 

### v. So{ls, 951 S.W.2d 384, 390 (Tex.1997). 9. Hoang did not even present evidence ofnominal damages from which to attach an award of attorney's fees. The law requires a counter-plaintiff to recover some damages in order to be awarded attorney's 

### fees. "Ifthe law were otherwise, it would follow that 

### it is available for virtually every debtor, heing sued for the nonpayment ol' a contractual obligation to pay. to file a 'counterclaim' asse11ing that he has sustained a 'loss' in the amount being sued for by his creditor, and ifthe debtor is SLtccessful in defeating 1U1y part ofthe claim, lie is entitled lo attorney's fees 

### as an adjunct to 

### his counterclaim." 

### rrrCommercial Fin Co171. v. Riehn, 796 S.W.2d 248. 256 (Tex.App.

- Dallas 1990, no writ). 10. 1n sumnuu·y, because Defendant Hoang did not present evidence ofdamages resulting from her breach of contract claim. Section 38.001 of the Texas Civil Practices and Remedies Code;, does not allow recove1y ofattorney's fees. Page4of 11


### 437

### III. NO CONSIDERATION BETWEEN THE GILBERTS AND DEFENDANT HOANG lL To prove ru1 action for breach of contract. a plaintiff must establish the existence of im enforceable contract. 

### Advanwge Physical Therapy. Inc. v. Cruse, 165 S.W.3d 21. 24 (Tex.App.-Houstoo [14ili Dist.] 2005, no pet.). The elements of an enforceable contt·uct aJ'e: (1) an offer; (2) an acceptance in suict compliance with the terms ofthe offer; (3) a meeting ofthe minds; ( 4) a communication that each pm1y consented to the terms ofthe contract; (5) execution and delivery of the contract with an intent ii become mutual and binding on both pal'lies; Md (6) consideration. Id. Generally, 11 contract must be supported by consideration to be enforceable. 

### McClemon v. Dynegy. Inc., 347 S.W. 315, 335 (Tex.App.-Houston [14th Dist.J 2011, no pel.) (citing

### Alex Shuslwnojf Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 659 (Tex.2006)). Consideration consists ofeither a benefit to the promisor or a detiiment lo the promise. See Roark v. S1allwo11h Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex.1991). I! is
a present exchange bargained for in relu111 for a promise. Id. ft may consist of some 1ight, interest, orprofit, or benefit that accrues to one party, or, alternatively, ofsome forbeai·Mce, loss or responsibility that is undertaken or incurred by the other party. 

### Angelou v. African Overseas Union, 33 S.W.3d 269, 280 (Tex.App.-Houston [14u1 Dist.] 2000, no pet); Westergnm v. Natio11al Pmperty Holdings, LP., 409 S.W.3d 110, 130 (Tex.App.-Houston [14' 11 Dist.], 2013). But the bollom line is th:it there must be some consideration. 12. Here. there was no evidence presented al trial (or any stage oflitigation) which established consideration passing from the Plaintiffs to the Defendant Hoang. Additionally. there is no evidence ofan offer, acceptance, 01· a meeting ol' the minds. The Gilbe11s merely signed the Page5of II


### 438Acceptance of Title and Closing Document: concerning the Chau Defendants only. Hoang
never signed the document, nor was she a party to it. 13. The Acceptance Agreement stated: "The undersigned Purchasers acknowledge that neither the Real Estate Agent(s), or Broker(s) or FIDELITY NATIONAL TITLE INSURANCE COMP ANY have made any watrnnties or representations as lo the condition of the above referenced prope1ty, or as to the requirements of the parties under their contract of sale, a:nd accordingly, the undersigned Purchasers release and hold them hamlless from any and all liability in regard to the same." See Exhibit A. Hoang based herbreach ofcontract claim on this boilerplate language which did not specifically name the sellers' realtor, Chi True Hoang, in a contrnct fo1· which Defendant Hoang was not a party, and gave no considel'ation. 14. Additionally, even if Hoang had been a party to this agreement, and there was proper consideration for the Gilberts' promise, this clause was a contract of adhesion. That is, the Gilbe1ts were required to execute this document ill 01·der to pw·chase the home. Texas law defines an adhesion contract as a contract in which one party has absolutely no bargaining power or ability to change the contract terms. See /11 

### re H.E. 

### Butt Groce1y Co.• 17 S.W.3d 360, 370-71 (Tex.App.-Houston [14d' Dist.] 2000. orig. proceeding). Here, the Plaintiffs had
no opportunity to negotiate this provision, or negotiate an alternative one. This language was placed in the middle of literally hundreds ofpages of legal documents, and not pointed out to the Gilbe11s. TI1e Gilberts cmmot be held liable for signing such an agreement which was not discussed nor negotiated between any patties at closing

- least of all. lhe Plaintiffs or Defendant Hoang. Page 6 of ll


### 43915. As a maUer of law, lhe Plainliffs cannot be held liable for filing suit against Defendant Hoang for violations of the DTPA and fraud, which may have violated such a contract of adhesion. 

### IV. COUNSEL FOR HOANG FAILED TO ALLOCATE FEES 16. l11e general rule is that attorney's fees must be segregated between those services rendered for prosecuting a suit, and fees for services renderoo in defense of a claim against a defendant. Hannes v. Arklatex Corp
.. 615 S.W.2d 177, 180 (Tex,1981). One claiming attorney's fees has the burden of proof to segregate those recoverable from an opponent ti·om those which are not. Natural Gas Clearinghouse v. Midgard Energy Co., I 13 S.W.3d 

### 400, 416-17 (Tex.App.-Amarillo 

### 2003, pet. denied); Hmska v. First State Bank, 

### 747 S.W.2d 783, 785 (Tex. 1988). 17. For 

### the Defendant Hoang to recover attorney's 

### fees, she must distinguish between the fees incurred while defending against the Plaintiffs' claims offraud and violations ofthe DTPA from those incurred in pursuing her claim for breach of contract. Defendant Hoang did not allocate or otherwise segregate her fees in this regard. The law requires her to introduce evidence to show what portion of

### the attorney's fees was applicable to the counterclaim fol' hreach of contract. Instead, she submitted to thejury, one lump sum, commingling 

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

cause oraction. There was no evidence by which thejury could apportion the atto111ey's fees between the defense and the prosecution ofthe countet•claim. 18. As a matter of fact, Hoang did not file her counterclaims for breach of contract and Page7of II


### 440promissory esloppel until March 

### 1. 2013. Clearly. all fees incu1Tcd prior lo lhis dale go towards defending ngainst the Plaintiffs' claims offraud and violntions ofthe OTPA. Tirns. even ifthe Court were to take over thejury's fact-finding duti.es at this point in the

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

### 19. lfHoang could recover attorney's fees (despite the fact that she did not present evidence of damages for the alleged breach ofcontract), she cannot he awarded the amount found by the jury because she failed to distinguish which fees m·e ac!uulJy recoverable in prosecution of thecounlerclaim. 

# v. HOANG'S DECLARATORY JUDGMENT SOUGHT NO AFFRIMATIVE RELIEF 20. A declaratory judgment is not appropriate when a controversy is already pending, and the declaratory judgment simply answers the claims and asks for no relief outside the scope of the main suit. 

### Univ. (>J'T11x. v. Ables, 914 S.W.2d712, 717 (Tex.App. -Austin 1996, writ denied); HECI Exploration Co. 11. Ch{imr Gas Co., 843 S.W.2d 622, 638 (Tex.App. -Austin 1992, write denied); see also 

### BHP Pe1roleum Co. v. Millan{, 800 S.W,2d 838. 841 (Tex.1990); Abor v. Black, 695 S.W.2d 564, 566 (Tex. 1985); Heritage Life v. Heritage Group f/oldi11g, 751 S.W.2d 229, 235 (Tex. App.

- Dallas 1988, writ denied); 

### John Chezik Buick v. Friendly 

### Chevrolet, 749 S.W.2d 591, 594 (Tex.App. -Dallas 1988. writ denied.). A 

### declaratoryjudgment 

### cannot be 

### used solely as 

### a vehicle for attomey's fees. See, e.g., 

### Ables, 914 S.W.2d at717; HECI, 843 S.W.2d at 638. This is the general rule which applies when a defendant tiles a declaratory-judgment counterclaim that presents no new issues except to Pago8of II


### 441recover attorney's fees. / 1 

### alls Cmmty \I, 

### Perkins, 798 S.W.2d 868. 871 (Tex.App.-Fort Worth 1990, no wril). The counter-plaintiffmust make an independent claim for affi1mative relief. 

### BHP Petroleum Co. v. Millatd. 800 S.W.2d 838. 840-41 (Tex.1990). To state a claim for affirmative relief, a defensive pleading must assert. a cause of action independent of the claims already asserted by the plaintiff. i.e.. the defendant could recover benefits. compensation. or relief. even ifthe plaintiffabandoned its cause ofaction. 

### Id. For example, in suits asse11ing breaches of contracts or deeds, where declaratory counterclaims seeking construction of such instruments may constitute claims for affimmtive relief because, in contrast to a "one-time occurrence" giving rise to the plaintiff's suit, they concern the partjes' ongoing and future relationship. Id. 

### 21. Hoang did not seek any affimiative relief for her claim ofbreach of contract for which she basis her declaratory Judgment. She has not made a claim to recover benefits. nor does she seek compensation orrelieffrom the alleged breach. There is nothing in the language ofthis clause that concerns any on-going relationship between the Plaintiffs and Hoang. In fact, Hoang is not even a pm1y to the agreement in the first place. TI1is is boilerplate language which does not specifically name the defendant. 22. In filing for a declaratoryjudgment on her breach ofcontract claim, the Defend.ant Hoang is requesling just that: a declaration that the Plaintiffs btcachoo their contract. There are no damages sought. As stated previously, Defendant Hoang did not present any evidence of damages attributable to this alleged breach. mid thejury did 1101 find any such damages. 23. While the jury did find that the Plaintiffs breached the clause lo release m1d hold harmless the Defendant Hoang

- and may be entiUed to ajudgment on this basis

- this declaratory Page 9 of Jl


### 442judgment cannot be used as a vehicle for the Defendant Hoang to recover attorney's fees in the absence ofclaimed or proven damages. VI. CONCLUSION 24. Hoang cannot collect ajudgment for any award of attorney's fees thejury may have found "reasonable." Hoang did not recover any damages from her breach of contract claim; produced no evidence ofconsideration for the Gilberts' promise to hold hannless unnamed realtors; did not properly allocate her attorney's fees; and she caimot use a declaratory judgment solely as avehicle to recover attorney's fees. 25. Plaintiffs respectively move the Comt for a JNOV regarding any possible award of

\ attorney's fees, and request the Court Order the Defendant Hoang to take nothing against the Gilberts. Respectfully submitted,

Dana A. LeJune SBN: 12188250 6525 Washington Avenue Suite 300 Houston, Texas 77007 713-942-9898 (Main) 713-942-9899 (Fax) dl\'.i1mi;,~> 1:rialla'YYers.nel (Email) ATTORNEY FOR PLAINTIFFS TREVORAND JORJA GILBERT

Page 10 of 11


### 443CERTIFICATE OF SERVICE Ihereby certify that a true and correct copy of !he foregoing instrument was forwarded on this the 25th day ofNovember, 2014, to all counsel ofrecord, pursuant to the Texas Rules ofCivil Procedure, to all attorneys ofrecord.

Dana A. LeJune

Page 11 of 11


### 444

# TAB NO. 8NO. 2011 58137A 115/2015 4:54 :19 PM Chris Daniel · Dis\rtct Clerk Harris County Envelope No. 3656033 By: DAVIA FORD Filed: 115/2015 4:54:19 PM

TREVOR GILBERT AND JORJA GlLBERT § IN THE DISTRICT COURT Plaintiffs § § vs. § 

### OF HARRIS COUNTY, TEXAS HONG BlCH CHAU, ET AL Defendant 

# * § § 334m JUDICIAL DISTRICT DEFENDANT AND COUNTER-PLAINTIFF CHI TRUC HOANG'S SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION .FOR JUDGMENT

AND RESPONSE TO PLAINTIFFS' AND COUNTER·DEFENDANTS' MOTION FORJUDGMENT NON OBSTANTE VEIIDlCTO TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant and Co,mter-PlaintiffChiTl'uc Hoang("Hoang") andfiles this supplemental bdefin support ofher pending Motion for Entry ofJudgment (''Judgment Motion") and in support ofher response to Plaintiffs; Trevorand Jmja Gilbel't's (''Plaintiffs") pendingMotion for Judgment Non-Obstane Verdicto ("NOV"). In support ofher motion for entry of judgment and in further response and opposition to Plaintiffs' JNOV, Hoang rnspectfully shows the court as follows: BACKGROUND 1. Plaintiff brought claims against Hoang for violations under the Texas Deceptive Trade Practice Act., for fraud, statutory fraud and conspiracy to commitfraud. 2. Hoang broughtcounter-claims againstPlaintiffs for damages and attorney fees under the Texas Declaratory Judgment Act and for breach of contract based upon the hold harmless agreement in the Acceptance ofTitle and Closing Agreements (the "Acceptance Agreement"). The Acceptance Agreement was signed by Plaintiffs specifically to hold Defendants harmless from the exact type offrivilous claims that were alleged against Hoang by Plaintiffs.



### 4843. After 7 full days oftrial, the case was submitted to thejury. The Court submitted Hoang's questions as to whether Plaintiffs' breached the Acceptance Agreement. 4. Hoang specifically requested a specific damage question, but the Court refused the submission stating that since the only damages were in the nature ofattorneys fees, the question on Hoang' s attorneys fees was sufficient. 5. The jury subsequently rendered its verdict A tiue and correct copy of the Jury Verdict is attached hereto as Exhibit "A". 6. The Jury specifically found that:
a. Hoang did not engage in any false, misleading or deceptive act orpractice that Plaintiffs relied upon to their detriment and that was a producing cause ofdamage to them; and b. Hoang did not engage in any unconscionable action or course ofaction that was a producing cause to Plaintiffs; and
c. Hoang did not commit fraud against Plaintiffs; and d. Hoang did not commit statutory fraud against Plaintiff; and
e. Hoang was not part ofa conspiracy to commit fraud; 7. The Jury specifically found tliat Plaintiff filed to comply with release and hold harmless agreement. This jury quesiion was predicatedupon no findings on any type of wrong-doing by Hoang. Since Hoang did not engage in any wrong doing and thejury expressly found such, the express negligence doctrine does not apply to the hold hamiless agreement. 8. The jury also found that a reasonable fee necessary for the services ofHoang's attorneys was $230,000.00. 9. On November 25, 2014 Plaintiffs filed the JNOV. 10. Hoang filed her Judgment Motion on November 26, 2014.

-2-


### 485

### 11. After an initial hearing on both Motions, this Court requested additional briefing: on 1) whatwould constitute "fairand equitable" undertheTexas Declaratory Judgment Act, 2) whether attorneys fees' can 

### be damages 

### for abreach of

### the hold hamiless agreement, and 

### 3) whetherthe hold harmless agreement needed to be conspicuo11s. 

### ARGUMENTS & 

### AUTHORITIES I. The Court has discretion to awal'd Iloangher attorneys' fe~s under Tex. Ci\/. Prac. & Rem. Code Ann. §37.009 A. Awarding Hoang attorneys fees under §37.009 is equitable andJust 12. 

### Under the 

### Texas Declaratmy Judgment Act 

### ("the Declaratmy Judgment Act"), a 

### courtmay award costs and reasonable and necessary attorney's 

### t'ees as which are equitable andjust. Tex. Civ. Prac. & 

### Rem. Code 

### § 37.009. Under the Declaratmy Judgment Act, the Court lias the discretion to award attorneys fees. 

### Bocq11e1 v. 

### Herring, 972 S.W.2d 19, 

### 20 (Tex.1998) 13. 

### The Declaratory Judgment Act imposes four limitations on the Court's discretion:; I) 

### that the fees are reasonable; 2)

### thatthe fees 

### are necessary; 3)

### thatthe fees are 

### equitable and 4) 

### that the fees arejust. The first two limitations, reasonable and necessary are fact issues which should be 

### decided by the trier ofthe fact 

### and the second two limitations, fair and equitable are legal issues that are matters oflaw to be decided by the Court. Ridge Oil Company, /11t', Vs Guin11 /11vestme111s, Im:.; 148 S.W.3d. 143, 

### 161 (Tex. 2003); Bocquet, 972 S.W.2d 

### at 21. 14. 

### In tJ1e 

### present case, the Cornt submitted the issue ofreasonable and necessary to the jury to decide. Thejury handed down averdictthat the reasonable and necessary attorneys fees for tl1e services ofHoang's attorneys was $230,000. 

### See Exhibit"A", Question 13 at p.16. Therefore, this Court must now decide ifthe attorneys fees being sought by Hoallg are equitable andjust. IS. Equitable andjustare questions oflaw for the Courtto decide. 

### Bocquer, 972 S.W.2d 

### at 21. Whether the fees are equitable al\djust depends, "not on direct prooi', but on the concept of 

### -3-


### 486

### fairness, in light ofall the circumstances ofthe case." Appmm:h Uesmm:e.f I, l.P. 

### 1•. Clayton. 

### 360 S.W.3d 632, 639-640 (Tex.App.-El Paso, 2012, no writ). See also Ridge Oil Co., 

### l48 S.W.3d at 162. 111e award ofattomeys fees is within the sound discretion ofthe Court. 

### See Purvis Oil C017J.


### v. 

### flillin, 890 S.W.2d 931, 938 (Tex. App.-EI Paso, 1994), citing Cap Hock 

### Elec. Co-op., 

### Inc. v. 

### Texas Utilities Elec. Co., 874 S.W.2d 92, 101 (Tex. App. -El Paso 1994) (an award ofattorney's fees rests in the sound discretion ofthe trial court., and itsjudgment will not be reversed on appeal without a clear showing of abuse of discretion); 

### See also Owen Elec. Supply. 

### Inc. v. Brite Day Constr

.. Inc., 

### 821 S.W.2d 283, 288 (Tex.App.-Houston [lstDist] 1991, writ denied).

16. Awarding Hoang her attorneys foes in this case is equitable andjust The testimony solicited by the Plaintiffs' counsel was that Hoang's attorneys fees were equal or close to what he
was asking thejury to award him in his casein chief. 1 

### There was no great dispa!'ity in the amounts being sought by Hoang. Thejury found the fees to be reasonable and necessary. As shown below, Hoang only incurred the fees because, despite having little or no evidence against Hoang, Plaintiffs had persistedin bringing the claims againsther all the way through trial, despite executing the hold harmless agreement. 17. Plaintiffs initiated the lawsuit against Hoang based upon frivilous claims ofalleged fraud and statutory fraud. Plaintiffs, through trial, had essentially no evidence to support their allegations. This was confirmed by theju1y findings. See Ex. A. 

### The only evidence presented by P)aintiffs againstHoangwas theinconsistenttestimony ofaco-defendantAndyDang, whom thejury found not credible. Plaintiffs admitted that there had been no representations or misrepresentations to them by Hoang, having never spoken to her except to exchange pleasantries at closing. No

'Thejury awarded Plaintiff's attorney $205,000 for attorneys fees and appellate attorneys fees of$41,000 and $25,000 making a total award to Plaintiffs' attorney of$271,000. See 

### Ex. A -4. 

## 487

### independentevidenceofany ofPlaintiffsallegations against Hoang existed, yet Plaintiffs forced her to defend herselffor the better pa11 ofthree (3) years against their unfounded allegations. 18. 

### Moreover, Plaintiffs testified throughout the trial that they brought suit against at least two other parties, Grace Inspection Homes, Inc. and Michael Nguyen, whom they did not believe did anything wrong, but had insurance or were a source offunds for the lawsuit. Plaintiffs'
own attorney admitted in his closing arguments that thejury should not hold his clients 1·esponsible for his advise to sue partiesfor the sole purpose that they had were sources ofincome, not because they were liable in any manner. 19. 

### Plaintiffs, although they do not willingly admit it, sued Hoang for exactly the 

### same
reason. Plaintiffs sued Hoang in hopes ofgetting a judgment that they could then take against the Texas Real 

### Estate Tn1st fund, not because they really believed that she misled them or had knowledge ofany ofthe water damage. Plaintiffs' did not have any knowledge of

### anythh1g that Hoang knew until several months into the case when Dang testified inconsistently that he did or didn't tell her about the water damage in his deposition. By this time, tliey had already sued Hoang. Hoang consistently took the position that she had no knowledge. ofany water damage and theJury founder herto be credible. Plaintiffs' and Plaintiffs' counsels' conductofsuing innocentpeoplejust to fund their lawsuit justifies the award ofattorneys fees under the equitable andjust standard. 20. 

### Further, despite having executed and willingly entered into the Acceptance Agreement at closing which contained the release and hold harmless agreement, Plaintiffs persisted in bringing claims against Hoang. Plaintiffs' actions cost .Hoang at 

### least $210,000.00 

### in legal fees
as 

### the cost 

### ofdefonse. 2

2 

### ln fact, by bringing the JNOV, Plaintiffs are continuing to costHoang attorneys fees, Although thejury did not find any appellate fees, this Cou11 can. award the same under the same standards as set forth in this brief. Hoang should be entitled to additional attorneys fees ofnot -5-


### 488

### 21. Theju1y, as the trier offact, did not find Hoang guilty ofany wrong doing. More importantly, the Jury through their answer afiirmed that Plaintiffs not only agreed to hold Hoang harmless, but actually failed to do so. Awarding Hoang her attorneys' fees', based on thejury's fact findings, is "equitable andjust." See AVCO C0171
.. Textron Lycoming Reciprocali11g E'ngine Div. ofAVCO Corp. v. lnwrstate Somlzwest, /,rd., 

### 251 S.WJd 632, 670 (Tex,App.~Bouston [14 Dist.],2007). B. Hoang's Declaratory Judgment Action 

### was P1·operly Pied 

### 22. In the present case, Hoang brought an action under Tex. Civ. Prac. & 

### Rem. Code §37.001 et seq., 

### seeking a declaration that Plaintiffs released Hoang under the hold hannless agreement in the Acceptance Agreement. The Declaratory Judgment action was not filed solely as a means to recover attorneys fees as Plaintiff argue. Only when a party brings a declaratory judgment action by way of a counterclaim or amended petition and the declaratory judgment involves only issues already raised by 

### the original claim, does Plaintiffs' argument prevail. See 

### Adams v. First Nat'( Bank tlf 

### Bells/Savoy, 

### 154 S.W.3d 859, 873 (Tex.App.·Dallas 2005, no pet.); Flagship Hotel, ltd., 

### 117 S.W.3d 552, 556 (Tex. Civ. App-Texarkana 2003 writ denied). This was simply not the case in the present case. 23. Plaintiffs had brought claims against Hoang tbr violations of the Texas Trade Practices Act, fraud, statutory fraud and conspiracy to commitfraud. Hoang broughtcounterclaims for breach ofcontrnct, promissory estoppel and action underthe declarato1yjudgment act seeking
a declaration for interpretation ofthe Acceptance Agreement that Plaintiffs had released Hoang.

less than $25,000 for the postjudgment appeals to the Court ofappeals and $25,000 ifa writ to the Supreme Court is applied for and $25,000 if

### such writ is granted. -6- 

## 489

### Hoang's counterclaims under the Declaratory Judgment Act were distinct and separate from Plaintiffs' claims. 24. Any party may sue for the breach alld seek ajudicial determination ofcontractual rights. Stal'k v. 8e11cke11st,!it1, 

### 156 S.W.3d 112, 116 (Tex.App.-Beaumont, 2004); Hart11u111 v. Sirgo 

### Operating, Inc., 863 S.W.2d 764, 767 (Tex.App.-El Paso 1993, writ denied). Arelease constitutes
a contract. Schlumberger Technology Co,yJ. ,,. Swan.1·m1, 

### 959 S.W.2d 171, 178 (Tex.1997). Hoang
was entitled to request a determination ofquestions ofconstrnction or validity arising under the Acceptance Agreement and to obtain a declaration of rights, status, or other legal relations thereunder. See Tex. Civ. Prac. & 

### Rem.Code Ann. 

### § 37.004(a)(Vemon 1997); Haitman, 863 S.W.2d at 767. 25. Plaintiffs' argumems thatHoang'spleadingswereinsufficientisalso improper. There is no particular type ofpleading required for the Declaratory Judgments Act. James v. Hitchcock hu/ep. School Dist., 

### 742 S.W.2d 701, 704 (Tex. App.-Houston [1st Dist.] 1987, writ denied). Moreover, pleadings underthe Declaratory Judgment Act areto be liberally constn.1ed. Frost v. Sun 

### Oil Co., 560 S.W.2d 467, 473 (Tex,Civ.App.-Houston [lstDist.] 1977, no writ). Defendant's Fifth Amended Answer and Counter-claim clearly mticulated Hoang's claim for Declaratory Judgment and herrights to fees under Declaratory Judgment. See Fifth Amended Answer and Counter-claim, attached hereto as Exhibit "B". It is not necessary for a party moving for attorney's fees in a declaratoryjudgment action to specify the statutory authority for such an award in the motion, so long as the party pied for attorney's fees. Purvis Oil, 

### 890 S.W2d at 939; See also Cap Rock, 

### 874 S.W.2d at 102; flortsing Aitthority elfthe City ofHarlingen v. Valdez, 

### 841 S.W.2d 860, 868 (Tex.App.-Corpus Christi 1992, writ denied): DistrictJudges of 

### Collin Cm11uy v. Commi.<sioners 

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

-7-


### 490

### 26. In Pun,is Oil, 

### Hillin pied forattomey's fees 

### inits amended answer. Similarly, Hoang pied for attorneys fees under §37.009 in her pleadings. See Ex. B. 

### Since it 

### was properly plead, the Court has 

### the discretion to 

### award Hoang her attorneys' 

### fees. See Purvis Oil, 

### 890 S.W.2d at 939. II. Hoang is Also Entitle to Attorneys Fees as Damages for .Breach ofthe Hold Harmless Agreement 27. 

### Although the Court can award the 

### attorneys fees under §37.009, and does not need to reach the question as 

### to whether Hoang is entitled to the $230,000 as 

### damages under her breach ofcontract action, this Court requested briefing on the issue. A. Damages in the Form of Attorneys Fees Are Proper under Hold Harmless Agreements 1. Hoang Can Recover Attorneys Fees as Damages 

### 28. Plaintiffs arguethat Hoang catmotrecoverattorneys fees 

### as damages under §38.00 l. 

### However, Hoang disagrees that the attorneys' fees cannot be damages and does not necessarily seek them under §3 

### 8.00 I. 

### Hoang was seeking her

### damages for breach ofahold harmless agreement. As 

### such, the only damages Hoang could have sustained was her cost ofdefending the lawsuit, i.e. her attorneys' fees which are recoverable 11nderTexas 

### law. 29. Texas law is clear that an indemnitee may recover the expenses of litigating an indemnified claim ifindemnity arises eitherunder law orunder a contract. Monica/ & 

### Powell, Inc. 

### VBecluel Corporation, 

### 404 S.W.2d 911, 914 

### (Tex Civ. App-Eastland, 1966, 

### wtitret"d n.r.e); Kline
vDAG Ma11agemem, Inc. 1995 

### WL500298 at 3 (Tex. App.-Dallas 1995, 

### no writ); Ke),stmw Equity 

### Ma11age111elll v Thom, 

### 30 S.W.2d 339, 340 (Tex. App-Dallas, 1987, 

### no writ). Unless the hold harmleS$ contract protects Hoang from the attorneys fees and costs that she incurred, then she will be fully protected, indemnified and saved ham1less. Mo11ical & 

### Powell, Inc. V BechtelC017Joratio11,

-8-


### 491

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

### Kline. 404 S.W.2d at 914. 30. In T.J. Kline, 

### the indemt1ity contract provided that the appellants hold harmless the appellees from any and all losses and expenses out o(orin connection with injmies sustained or alleged to have been sustained by reason ofperformance ofthe work under the subcontract. 1'.J. Kline, 

### 404 S.W.2d at 9 I4. The Courtheld that the indemniteemay recover against the indemnitor for all reasonable expenses in settling the claim agai11stthe indemnitee. T,J, Kline, 

### 404 S.W.2d at 914 dring Ohio Oil Compa11y vSmith, 365 S.W.2d62 l, 627 (Tex. 1963). In Garcia v. S/.,y 

### Climber, hie., 

### 470 S.W.2d 261, 269-70 (Tex. Civ. App.-Houston [ls Dist] 1971, wlitrefd), the Court held that attorney's fees and court costs are recoverable under general "hold harmless" indemnity agreements. 31. Similarly in the present case, Plaintiffs under the Acceptance Agreement agreed to hold harmless Hoang from any claims broughtregarding the condition ofthe property. Despite this agreement, Plaintiffs, brought such claims against Hoang themselves. Not only is it equitable and just to award Hoang her attorneys fees under §37.009, Hoang would be entitled to recover her costs and expenses under the hold harmless agreement which thejury found thatPlaintiffs breached. See Ex. A. 

### See 'J'.J. Kli11e, 

### 404 S.W.2d at 914. See also Crimson Exploration, Inc., v. lntermarket Management, LLC., 

### 341 S.W.3d 432, (Tex. Civ. App. -Houston [1st Dist], 20 I0) (patties are not precluded from recovering their defense expenses); Garcia vSky 

### Climber, Inc., 470 S.W.2d 261 (Tex. Civ. App-Houston [l" Dist.] 1971, wlit refd n.r.e.); Patch v. 

### Amoco Oil Co., 845 F.2d 571, 573 (5th Cir.1988) (indemnitee would not be held "hannless" where it was not found negligent by jury unless entitled to recover costs oflitigation).

-9-


### 492

### 32. Under hold harn1less agreements, attorneys fees 

### are awarded as damages nad not under §38..00 I. 

### See Crimson Exploration, 

### 341 S.W.3d at 446. 2. Ho11ngProperly Submitted herdamagequestion 11nd theCourt's

### refusal to submit it to thejury was error 33. 

### Plaintiffs further argue that attorney'sfees to Hoang are improper becaL1setherewas no separate findings ofactual damages otherthan the attorneys fees' 

### awarded to Hoang. However, Hoang did submit 

### ajury question on damages and the Court refused the submission, stating since the only damages that Hoang incun·ed were the costs ofdefense, i.e. her attorneys fees, therefore 

### a separate damage question was not necessary. If 

### such refusal, as 

### shown below, is not a deemed finding, it 

### would be reversible error. By requesting the question and the Court 

### refusing it on the record, Hoang as preserved the 

### error. See D{d/as Mkr Ctr. 

### Dev. Co. 

### v Uedeker, 

### 958 S.W. 2d 382, 

### 386-387 (Tex. 1987) overruled on otherf1ro1mds Torringto11 Co. v Stutzman, 

### 46 S.W.3d 829 (Tex. 2000) (Error can be preserved by court stating on the record that thejury question is refused). 34. When a 

### trial court omits ajury question, the party who relies on that question must tender that question in writing in substantially correct form and obtain a ruling in orderto preserve error. Chubb Lloyds lns. Co. of Texas v. Andrew's Restoration, lnc., 323 

### S.W.3d 564, 

### 584 (Tex.App.-Dallas,20JO) qf}"d in pan. rev ',I inpart Cruz vAndrews Restoration
.. Inc. 

### 364 S.@.3d 817 

### (Tex. 2012). See Tex.R. Civ. P. 276 See also .lohnson v . .lolm.wm. 

### 869 S.W.2d 490, 492 (Tex.App.-Eastland 1993, writ denied). 35. An oral ruling by a court on a written request will suffice "when the court's refusal is otherwise clearfrom the record." Liedeker, 

### 958 S.W.2d at 3S7. Ill Liedeker, 

### the record reflected that the appellant submitted written requests to the tial

### judge, thejudge said he would sign them later, and through inadvertence thejudge never signed them. The Supreme court held that the trial

-JO
### 493

### court's "statements on the record clearly prese1ved [appellant]'s complaint.'' Liedeke,; 

### 58 S.W.2d at 387. 36. Similarly, in the present case, Hoang court specifically asked for her actual damage question. The Court refused the submission stating that since the only damages that Hoang were seeking were her attorneys fees, such question was not necessary. The Court did not submit the question, and inadvettently forgot to sign the question presented to 

### it by Hoang's counsel. Therefore, Hoang's question on damages was preserved. 3.. lloang's Attorneys .Fees as Damages is a Deemed Finding 

### 37. Since Hoang did submit a separate question as to damages to this Court, and the Courtrefused the submission ofsuch question, and Plaintiffnever objected to the submission ofthe attorneys' fees andthe breach ofcontract/release questions, theissuethat attorneys fees are damages is a "deemed finding. This Court can enter a finding as such, 3S. Tex. R. 

### Civ. P. 279 provides that when a ground ofrecovery or defense consists of
more than one element, ifoneormore ofsuch elements necessary to sustain such ground ofrecovery ordefense, and necessarily referable thereto, are submittedto and fo,mdby thejury, and oneormore ofsuch elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court, at any time befol'e thejudgment is rendered, can make and file written findit1gs 011 

### such omitted element or elements in support ofthe judgment. lfno such written findings are made, such omitted element or elements shall be deemed found.by the court in such manner as to support thejudgment Tex. R. Civ. P, 279. 39. Itis undisputed thattl1ejury awarded Hoang herreasonable and necessaiy fees in the
sum of$230,000.00. The Court can make a written finding that such attorneys fees constituted the damages. Even if 

### no such written findings are made, such omitted element or elements shall be


### -I 1-


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


### v. Low, 79 S.W.3d 561, 564-66 (Tex. 2002). 40. In Low, the Court held that "when an incomplete theory is submitted withot1t complaint, the parties are deemed to have waived ajury trial on the omitted issue and to have a.greed to submit the issue to the trial court. 

### Low, 79 S.W.3d at 564. 

### See, e.g., Shearson Lehman 

### Ht.urcm, Inc. v. Tucker, 806 S.W.2d 914, 925 (Tex.App.-Coq>uS Christi 1991, writdism'd w.o.j.); 

### Wilson v. Renzmel Cattle Co., 542 S.W.2d 938, 942 (Tex.App.-Amarillo 1976, writ ref'd n.r.e.); see also 

### Little RockFurnitureMfg. Co. v. Du1111, 148 Tex. 197, 222 S.W.2d 985,991 (l949)(holdingthatpetitioner who did not object to improperly conditioned submission waived light to a jury answer on the unanswered issue, and the issue must be deemed as having been answered by the court in such
manner as to support thejudgment). 41. More importantly, Plaintiffs, against who tl1e issue would be deemed, had an opportunity to object to the submission ofthe two jury questions without the damage question. Plaintiffs did not object. They cannot now complain that the damage issue was missing since they did not object prior to the submission ofsuch issues. See DiGuesppe vLawler, 269 S.W.3d 588, 599 (Tex. 2008). 42. Ifone or more elements is omitted from the charge, then the omitted element must be deemed found by the trial court in a manner that supports itsjudgment. Chon Tri vJ. T. T., 162 S.W.2d 552, 558 (Tex. 2005). See also, J.F.C., 96 S.W.3d 256, 262,63 (Tex. 2002). 43. Since Hoang submitted the properjury question and thejury found the reasonable and necessary fees, the issue ofattorneysfees as damages 

### is a deemed finding and 

### the Court should enter thejudgment.

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### 495B. 'fbe Express Negligence Doctl'ine ls Not Applicable 

### 44. If 

### an indemnity agreement or hold harmless agreement seeks to limit a party's liability for its own negligence, then the party attempting to limit is liability must give fair notice and the clause should be conspicuousness. See Dresser Indus., Inc. v. Page Petroleum, Inc., 

### 853 S.W.2d 505, 507-09 (Tex.l993). Under the express negligence doctline, a party who wishes to contractually shift risk from itselffor the consequences of its future negligence must specifically express that intent within the four corners ofan agreement. See Ethyl Coq1. v. Daniel Constr. Co., 

### 725 S.W .2d 705, 707-08 (Tex.1987); Dresser Indus.• Inc .• 

### 853 S.W .2d at 508. 45. Fairnoticerequirements to indemnity agreements and releases only apply when such exculpatory agreements areutilized to relieve a party ofliability for its own negligence in adva11ce. 

### Dresser, 853 S.W.2d at 508. In the present case, Hoang was not attempting to shift liability for her
own negligence. She is not seeking indemnity for the consequences of her own negligence. No claims ofnegligence were broughtagainst Hoang by Pla.intiffs or any third parties. No third patties
are seeking any claims against the Plaintiffs that are attributable to the conduct ofHoang, nor is Hoang seeking to be indemnified for any such claims by any third parties. Further, Hoang is athird party beneficiary to the Acceptance Agreement. There was no attempt to shift liability and there is
no indemnific.ation for "the consequences" ofa party's own negligence. 46. Hoang 

### is seeki ngrecovery due to the conduct ofthePlaintiffs. Hoangis not utilizing; the hold harmless language to relieve herselffrom liability for her own negligence, instead she is utilizing the agreement/release to impose liability upon the Plaintiffs for their own conduct and breach in b1inging their claims against Hoang.

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### 496C. Plaitttiffs' Wah'ed Any Arguments that the Hold Harmless Clause Was Not Conspicuous or Did Not Provide Fair Notice. 

### 47. When 

### arelease isinterposed and establishedas abar againstthe plaintiff's action, the plaintiffmust plead and obtain findings on any fact issues that will avoid or invalidate the release. Dre.~ser l11d11s1rie,1·, Inc. 821 

### S.W.2d 359, 364-365; Womble v. Atkins, 160 

### Tex. 363, 331 S.W.2d 294, 

### 296 (1960); Eilis v. Woods, 453 

### S.W.2d 509, 510 

### (Tex.Civ.App.-EI Paso I970, 

### no writ). 48. 

### In 

### Dresser, the 

### Defendant pied and established the release as an affomative defense and obtained a finding that the plaintiffs representative had the authority to bind plaintiffto the agreement. Consequently, plaintiffhad the burden ofobtaining any finding that would avoid the effect ofthe release. Since plaintiffdid not obtain afinding that the provision was not conspicuous enough to give fair notice, the plaintiffwaived any defenses that it may have had to the release's enforcement. Dresser Industries, Inc, 

### 281 S.W.2d at 364-365. 49. In the present case Hoang obtained a finding that the Plaintiffs failed breached the release. Plaintiffs did not obtain any finding that the release was not conspicuous to give fair notice. 50. 

### Further, Plaintiffs did not raise objections with the Court to challenge the conspicuousness ofthe release language or with respect to any other provision ofthe agreement, Having made no ar1,,1.1mentregarding conspicuousness at trial, Plaintiffs arguments as to conspicuous
are waived. See Vcm1 

### v. North Swr Dodgl! Sales, l11c., 

### 989 S.W.2d 13, 15-17 

### {Tex.App.-San Antonio, 1998). See also 

### Tex. R. 

### App. P. 33.1 (a). CONCLUSION 

### 51. Hoangisentitledtorecoverherattorneys fees underthe Tex. Civ. Prac. & 

### Rem. Code §37.009 

### because thejury found the fees to be reasonable and necessary and such fees would be equitable andjust. Hoang was merely avictim of Plaintiffs' own litigation and conduct and thejury found 110 

### wrong-doing by Hoang that would have released Plaintiffs from the hold harmless -14-


### 497agreement. The only protection that Hoang would be afforded under the hold harmless agreement would be the award ofher attorneys fees. 52. Alternatively, Hoang is entitled tot he cost ofher defense, i.e. her attorneys' fees as the indemnitee under the hold harmless agreement. This court does not need to even address recovery ofthe fees under §38.001 

### et. seq. WHEREFORE PREMISES CONSIDERED, Defendant and Counter-plaintiff Chi Tmc Hoang requests that this Court enter the proposedjudgment submitted by Hoang, deny Plaintiffs JNOV and for such other and further reliefto which she may be entitled. Respectfully submitted, LAW OFFICE OF MYNDE S. EISEN, P.C. By: -~.!.""iF=A,=...:::J.,_.,,,.,e=;'=" 1
_____ _ ~eS.Eisen State BarNo. 06503950 P.O. 

### Box 630749 Houston, Texas 77263 (713) 266-2955 (713)266-3008 fax Email: wvndeelse.n(alshedobal.net ATTORNEYFORDEFENDANT 

### AND COUNTERPLAINTIFF 

### CHI TRUC HOANG
CERTIFICATE OF SERVICE I hereby cettify that the foregoing has been served on all parties in interest as listed below by depositing the same in the U.S. mail, regular mail, postage prepaid and/or certified mall on this 511! day ofJanuary, 2015. 

# ~t.~ Isl ~ynde S. Eisen Mynde S. Eisen DanaLeJune -15-


### 498Attorney at Law 6525 Washington Avenue, Suite 300 Houston, Texas 77007 Craig Welscher Nicholas Martinez The WelscherLaw Finn 1111 North Loop West, Suite 702 Houston, Texas 77008

-16-


### 499