CAUSE NO. 01-15-00352-CV

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS 

HOUSTON, TEXAS 

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

Defendants - Appellants 

v.

MANH HOANG and DUNG LE, 

 Plaintiffs - Appellees 

On Appeal from the 55th Judicial District Court Harris County 

Cause No. 2011-72719 

________________________________________________________________ 

APPELLEES’ BRIEF 

BUI & NHAN, P.L.L.C.

Scott K. Bui 

State Bar No.00789185 

Email: sbui@buinhanlaw.com

Charlie T. Nhan 

State Bar No. 24025561 

Email: cnhan@buinhanlaw.com

3921 Ocee 

Houston, Texas 77063 

Tel: 713-783-2466 

Fax: 713-783-0787 

ATTORNEYS FOR 

APPELLEES

ACCEPTED

01-15-00352-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

9/28/2015 5:33:36 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/28/2015 5:33:36 PM CHRISTOPHER A. PRINE Clerk
TABLE OF CONTENT

ii

I. STATEMENT OF THE CASE.......................................................................................1

II. STATEMENT REGARDING ORAL ARGUMENT...................................................1

III. ISSUES PRESENTED.....................................................................................................2

IV. STATEMENT OF FACTS..............................................................................................3

V. SUMMARY OF THE ARGUMENT.................................................................................5

VI. ARGUMENT....................................................................................................................6

VII. PRAYER...........................................................................................................................9

ATTORNEYS FOR APPELLEES...........................................................................................10

CERTIFICATE OF COMPLIANCE.......................................................................................10

CERTIFICATE OF SERVICE.................................................................................................10
TABLE OF AUTHORITIES

Cases

Barnett v. Coppell N. Tex. Court, Ltd., ............................................................. 17

123 S.W.3d 804, 816 (Tex. App. – Dallas 2003, pet. denied)

Birchfield v. Texarkana Mem'l Hosp., ............................................................... 19

747 S.W.2d 361, 367 (Tex.1987)

Burrow v. Arce, ........................................................................................ 19

997 S.W.2d 229, 237 (Tex.1999)

City of Keller v. Wilson, ...........................................................................8, 18

168 S.W.3d 802, 822 (Tex. 2005)

Cotten v. Weatherford Bancshares, Inc., .......................................................... 20

187 S.W.3d 687, 698 (Tex.App.-Fort Worth 2006, pet. denied)

First State Bank v. Keilman, ......................................................................... 8

851 S.W.2d 914, 930 (Tex. App.—Austin 1993, writ denied)

Glover v. Davis, ..................................................................................... 10

360, S.W.2d 924, 928 (Tex.Civ.App. – Amarillo 1962), aff’d, 366 S.W.2d 227 (Tex. 1963)

Ingram v. Deere, ...................................................................................... 9

288 S.W.3d. 886 (Tex. 2009)

King Ranch, Inc. v. Chapman, ...................................................................... 8

118 S.W.3d 742, 751 (Tex. 2003)

Marshall Field Stores, Inc. v. Gardiner, ................................................... 8, 10

859 S.W.2d 391, 400 (Tex. App.— Houston [1st Dist.] 1993, writ dism'd w.o.j.)

Pool v. Ford Motor Co, .............................................................................. 8

715 S.W.2d 629, 635 (Tex. 1986)

Saden v. Smith, ....................................................................................... 19

415 S.W.3d 450, 469 (Tex.App.-Houston [1st] Dist.2013, pet. denied)

Southern County Mutual Insurance Company v. First Bank & Trust, ....................... 19

750 S.W.2d 170 (Tex. 1988)

State v. $11,014.00, ...................................................................................10

820 S.W.2d 783, 785(Tex. 1991) (per curiam)

1

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Now come, Appellees, MANH HOANG (“Hoang”) and DUNG LE (“Le”), make and file 

this Brief in reply and response to the Brief filed by PHAP V. NGUYEN (“Nguyen”), ANDY NGO 

(“Ngo”), and DUNG VU (“Vu”), Appellants, and for such Brief would respectfully show the Court

the followings:

I. STATEMENT OF THE CASE

Appellees filed suit against Appellants alleging that Appellants had breach a partnership 

agreement between the family members to own and operate a chicken farm business; in addition to 

the breach of contract claim, Appellees also made claims for fraud, breach of fiduciary, and sought 

for accounting of the profit and losses of the business and exemplary damages.

This case involves an agreement between family members to contribute money to own and 

operate a chicken farm business. Based on the agreement of the family members, it is undisputed 

and agreed to by all of the members that the ownership interest of the chicken farm business will be 

directly correlated to the amount of money put forth by each of the family members1. The members 

also agreed to share all profits and losses of the business.2 Because of the family relations, the lack 

of formal education, and the inability to comprehend English, it was agreed between Appellees and 

Appellants that the purchased asset would be titled under Appellants’ names.3 The parties’ first 

chicken farm acquisition was in Georgia, with the initial capital coming from the proportionate 

 

1 R.R. Vol. 2, p. 9.

2 R.R. Vol.. 2., 64:2-5 and R.R. Vol. 2, 70:18-24

3 R.R. Vol.. 3., 109:21 – 112:10
2

shares of the family members.4. The parties then sold the Georgia property and used the proceeds

to purchase the first property in Texas in Robertson County.

5

 Thereafter, the first Texas property 

was sold, and the proceeds were used to purchase a second property in Texas.6 The dispute arose 

when Appellants unilaterally decided to dissolve the partnership and calculate the distribution 

based on the sale of the first Texas property, with all deductions for taxes, labor costs, and 

expenses. 7

A unanimous jury found that there was a partnership agreement between Appellants and 

Appellees to own and operate a chicken farm business and that Appellants had breached the 

partnership agreement and award damages accordingly. Appellants filed other related 

post-judgment motions, but the motions were denied. This Court has appellate jurisdiction pursuant 

to Texas Government Code § 22.220.

II. STATEMENT REGARDING ORAL ARGUMENT 

 Oral arguments are not necessary based on the court’s records and jury findings. Appellees 

submit their arguments to this court without requesting an oral argument. Appellees request that 

notice be given if this court deems that oral argument is necessary.

III. ISSUES PRESENTED

Appellees believe the issues should be properly presented as follows:

1. There is sufficient evidence as a matter of law for the jury to find that Appellants 

 

4 R.R. Vol.. 2, 67:2-4

5 R.R. Vol.. 3, 16:13-17:2

6 R.R. Vol.. 2, 76:24 – 78:21

7 R.R. Vol.. 3, 119:11 – 120:16
3

and Appellees had agreed share the investment profits and to create a partnership.

2. There is sufficient evidence to establish that Appellants breached a contract with 

Appellees.

3. There is sufficient evidence for the jury to award damages for the breach of duty 

committed by Appellants.

4. There is sufficient evidence for the jury to award damages for the breach of the 

contract by the Appellants.

5. The trial court correctly awarded damages for both breach of duty and breach of 

contract by the Appellants.

6. There is sufficient evidence of the breach of the duty and breach of contract by 

Appellant Dung T. Vu and that Dung T. Vu is liable to Appellees for such breach.
4

IV. STATEMENT OF FACTS

All of the parties in this case are members of Vietnamese refugee families who all migrated 

to the U.S. at various time after the communist took over Viet Nam in 1975. Appellant Dung Vu

(“Vu”) is the sister-in-law of Appellee Manh Hoang (“Hoang”).8 Appellant Andy Ngo (“Ngo”) is 

the cousin of Hoang’s wife and Appellant Vu9. At a family meeting around 2006, Appellant Ngo 

informed the family members that he has a friend who is willing teach and train him on how to 

operate a chicken farm by raising chickens for chicken producers.10 After a visit to a chicken farm 

belonging to a friend, Appellants and Appellees and other family members met at Ngo’s house to 

discuss their plan to buy a chicken farm and the amount of capital contribution each member would 

need as a down payment for the purchase of a chicken farm11. It was at this family’s meeting that 

the family members, including Appellants and Appellees, agreed to the following cash contribution 

and the percentage share proportional to the contribution from each member

12 13

:

Appellants Phap Nguyen and Dung Vu $80,000 25%

Appellee Manh Hoang and Diem Vu14 $80,000 25%

$160,000

Appellee Dung Le and Tuan Ngo15 $50,000.00 15.5% &15.5%

Appellant Andy Ngo $30,000.00 10%

Tony Ngo and Trang Le16 $50,000.00 12.25% & 12.25%

Tien Ngo and Dung Dinh17 $30,000.00 12.25% & 12.25%

 

8 R.R. Vol. 3, 108:8-24

9 R.R. Vol. 3, 108:8-24

10 R.R. Vol. 3, 68:23-25

11 R.R. Vol. 3, 112: 14-23; R.R. Vol. 3, 112: 14-23

12 R.R. Vol. 2, 11 Defendants’ Exhibit 1

13 R.R. Vol. 2, 9 Plaintiff’s Exhibit 7

14 Diem Vu is Appellant Dung Vu’s sister R.R. Vol. 3, 109: 8-10

15 Tuan Ngo is the brother of Appellant Ngo and an ex-boyfriend of Appellee Le R.R. Vol. 2: 10

16 These are brothers and sisters of Appellant Ngo and were not parties to the lawsuit. R.R. Vol. 3 111: 2-6
- 5 -

$160,000

The family members purchased the chicken farm in Georgia for $1,490,000 with the cash 

contribution as down payment 18. Appellee Hoang testified that because of the family’s 

relationship, the family members decided to put the following names to the title to the Georgia 

Chicken Farm property: Appellant Andy Ngo (as Ngo will represent the contribution of $160,000 

from his side of the family), and Appellants Phap Nguyen and Dung Vu (as Vu is the sister-in-law 

of Appellee Hoang and the contributors of the remaining $160,000)

19

. 

Even though Appellant Ngo contributed the least amount of money into the total cash

contribution from his side of the family, Appellee Hoang testified that Ngo’s name was chosen to 

be listed on the title to the Georgia property because he speaks English well and others do not20. 

Accordingly, Appellants Phap Nguyen and his wife Dung Vu’s names were chosen to be listed to 

the title to the Georgia property (to represent the other half of the total contribution) because Vu is 

the sister of Appellee Hoang’s wife.21 Hoang testified that during the family’s meeting, Appellants 

told him that it would be easier to obtain loan from bank when there are fewer names listed on the 

deed.

22

 Hoang was further told that all of the names of the family members would be added to the 

title once the business is expanded23. Moreover, Hoang also explained that because of culture 

(since Appellant Vu is the oldest sister of his wife, and as a respectful gesture to the oldest sister) 

and because of Appellants Nguyen and Vu’s citizenship status, their names were chosen to 

represent his side of the family24. Hoang testified that Appellant Vu discussed and agreed with him 

 

17 These are brothers and sisters of Appellant Ngo and were not parties to the lawsuit R.R. Vol. 3 111: 2-6

18 R.R. Vol. 5. Plaintiff’s Exhibit 2

19 R.R. Vol. 3, 110: 1-22; R.R. Vol. 2 9: Plaintiff’s Exhibit 7

20 R.R. Vol. 3, 110: 4-9; 111: 2-7

21 R.R. Vol. 3,111:13 - 112:10

22 R.R. Vol. 3 111: 13 - 112:1

23 R.R. Vol. 3 111: 18-25; 112:1

24 R.R. Vol. 3 112: 2-10
6

and his wife that since their contributed funds came from hurricane settlement and stated “This is 

the money coming from God.25 So we all decided to use that money to do business... if we are 

successful, everybody would be better.26 If we fail, we just like a refugee first coming to the 

country”27.

When asked by counsel about the kind of profit sharing agreement the family members had 

made with respect to the initial contribution, Hoang testified that all of the family members agreed 

that if the business is successful, then everybody will benefit.28 Consequently, if the business fails, 

then everybody fails together.29 Hoang stated all of the family members agreed that they will all be 

owners once the business gets bigger30.

Hoang testified that he briefly worked at the Georgia farm at the initial stage.31 He did not 

get pay for the earlier work because he believed he has an ownership interest in the farm32; Hoang

stated that the members all agreed that whoever stayed and worked at the farm should get pay 

$2,000 per month.33 Hoang stated that Appellants Ngo and Nguyen stayed and worked at the 

Georgia farm and they both received compensation for their work at that time.34

The members had many meetings and agreed that since they all are owners they will also 

share the losses as well as the success of the farm.35

The Georgia chicken farm was sold for $2,230,00036; the members all agreed to apply the

 

25 R.R. Vol. 3 112:11 - 113:10

26 Id

27 R.R. Vol. 3 113: 1-7

28 R.R. Vol. 3 112:11 - 113:10

29 Id and R.R. Vol. 3 114:11 - 115:2

30 R.R. Vol. 3 114: 1-7; 116: 9-11; 117: 1-8

31 R.R. Vol. 3 115:3-5

32 R.R. Vol. 3 115:3-22 and R.R. Vol. 3 116: 6-11

33 R.R. Vol. 3 115:3-22

34 R.R. Vol. 3 115: 23-25; 116: 1-5

35 R.R. Vol. 3 117: 1-21

36 R.R. Vol. 2 22: 1-8
- 7 -

profit and proceed from this sale to purchase a second chicken farm in Robertson County, Texas

(first Texas Property) for $4,900,00037. Appellee Le testified that Appellants and Appellees all 

worked at the farm in Robertson County and they all received monthly salaries for their work38. Le 

received $3,000 per month while Appellants Nguyen and Ngo and Appellee Hoang each received 

$3,500 per month for their work on the farm39. 

The parties eventually sold the Robertson County chicken farm (the first Texas property)

and use the proceeds to buy the second Texas property. 40 Appellees were told by Appellants that 

the proceeds from the sales of the first Texas property would be used to reinvest into another 

property at a later time.41 Appellants are now the owner of the second Texas property worth 

$6,930,000.42

V. SUMMARY OF THE ARGUMENT

The testimony of the parties and the evidence presented during trial support the jury’s

findings that Appellees are entitled to their respective interests in the business and Appellants’

breach of duty in their dealings and disclosure. The jury’s findings were supported by the evidence 

of the creation of a partnership between parties. Additionally, the evidence supports the jury’s

findings that Appellees’ were deprived of their interests in the chicken farm business when 

Appellants unilaterally withheld the 20% interests as their labor costs. The evidences of the parties’

initial contributions were clear and uncontested. The evidences were also undisputed with respect 

to the Appellants’ wrongful and unilateral withholding of the taxes which were never submitted. 

The evidences also support the jury’s findings that the damages were for two separate 

 

37 R.R. Vol. 3 16: 13-25; 17:1-2; Vol. 5 Plaintiff’s Exhibit 3 & 4; Vol. 2 17: 12-25; 18: 1-6; 25: 15-25

38 R.R. Vol. 2 19: 4-25

39 R.R. Vol. 2 20: 5-19

40 R.R. Vol.. 2, 76:24 – 78:21

41 R.R. Vol.. 3, 123:19 – 124:1

42 R.R. Vol. 5, Plaintiffs’ Exhibit 1
8

issues of facts: the withholding of the 20% labor costs and the withholding of taxes for Appellants’

own benefits. The amounts awarded by the jury were clearly based on logically conclusion of 

evidence presented as evidenced the number derived on a mathematical formulation. 

VI. ARGUMENT

1.) THERE IS SUFFICIENT EVIDENCE SUPPORTING THE JURY’S FINDING OF A 

BREACH OF DUTY BETWEEN THE PARTIES

Appellants argue that there is insufficient evidence as a matter of law to establish a partnership 

between the parties, and as such, there is no liability for breach of a partnership agreement.

In review the sufficiency of the Jury’s findings, Appellant must demonstrate that no 

evidence supports the finding. The “court must consider evidence in the light most favorable to the 

verdict, and indulge every reasonable inference that would support it." If the conclusion could be 

logically drawn by means of logical deduction and proposition from the evidence then the court 

should support the fact-finder’s conclusion. So long as the fact is “a logical consequence from other 

proven facts,” the court must uphold the decision of the fact-finder. Marshall Field Stores, Inc. v. 

Gardiner, 859 S.W.2d 391, 400 (Tex. App.— Houston [1st Dist.] 1993, writ dism'd w.o.j.) and 

City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Even if there was a disagreement as to

the conclusion, the court “cannot substitute its judgment for the trier-of-fact, so long as the 

evidence falls within this zone of reasonable disagreement.” The evidence would support the jury’s 

findings so long as it enables reasonable and fair-minded people to derive different conclusions. 

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); See Pool v. Ford Motor Co, 715 

S.W.2d 629, 635 (Tex. 1986); and First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex. 

App.—Austin 1993, writ denied)The evidence must be weak as to shock the conscience fairness 

and so wrong as to be unjust before the court is allowed to set aside a jury’s finding.
- 9 -

The Supreme Court’s decision in Ingram v. Deere, 288 S.W.3d. 886 (Tex. 2009) set forth 

the five factors that indicate the creation of a partnership as follows:

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

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

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

(4) sharing or agreeing to share: 

(A) losses of the business; or (B) liability for claims by third parties against the 

business; and

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

In this case, the jury’s finding in response to Question No. 7 is supported by sufficient

evidence that the parties created a partnership. In fact, Question No. 7 clearly tracked the five 

factors enunciated by the Supreme Court in Ingram. Accordingly, the jury found sufficient 

evidence and answered in the affirmative with respect to the five factors from below:

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

It is undisputed that Appellants and Appellees agreed and received the share of the profits 

from the chicken farm business.50. Further, Appellants also agreed to this fact as indicated to in 

Appellants’ brief.51

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

Appellants argue there was no evidence that the parties expressed their intent to be partners

to anyone, including lender, contractor, chicken producer, or employee. Appellants cherry picked 

the testimony by Appellee Hoang and stated the only evidence is where Hoang testified that “we all 

agreed we are owners.”

 

50 Vol. 5: Plaintiff’s Exhibit 1

51 See Appellants’ Brief: p. 6: second paragraph; Vol. 3 24: 1-5
10

The Texas Supreme Court has ruled that an ultimate fact may be established by 

circumstantial evidence. State v. $11,014.00, 820 S.W.2d 783, 785(Tex. 1991) (per curiam). 

“Circumstantial evidence is the proof of collateral facts and circumstances from which the mind 

arrives at the conclusion that the main facts sought to be established in fact existed.” Glover v. 

Davis, 360, S.W.2d 924, 928 (Tex.Civ.App. – Amarillo 1962), aff’d, 366 S.W.2d 227 (Tex. 1963). 

An ultimate fact may be established by circumstantial evidence when the circumstances relied on 

are of such a character as to be reasonably satisfactory and convincing, and are not equally 

consistent with the nonexistence of the ultimate fact. See Marshall Field Stores, Inc. v. Gardiner, 

859 S.W.2d 391, 401 (Tex.App. – Houston [1st Dist.] 1993, writ dism’d w.o.j).

There is undisputed evidence that all of the family members, including Appellants and 

Appellees met and agreed as to the cash contribution and the corresponding percentage of interest 

each member would share in the total contribution52. There was evidence and the logical 

explanation of how the title to the first property in Georgia was taken53. Aside from believing that 

he is one of the owners, Hoang also stated that he believed Appellant Ngo’s sister and brother are 

owners as well. There is evidence that Hoang worked without compensation and used his own car 

in the Georgia farm at the initial stage because he believed he is the owner of the farm54.

On the contrary, Appellant Ngo, who contributed the least amount of money to the total

family’s contribution55, never offered any evidence to refute Appellees’ claims of ownership 

interest; never offered any evidence to substantiate their contentions that Appellees were only 

investors and not partners or owners. For instance, Ngo was asked on direct and offered the 

following answers:

 

52 R.R. Vol. 5. Plaintiff’s Exhibit 2; R.R. Vol. 3 110: 1-22; R.R. Vol. 2 9: Plaintiff’s Exhibit 7

53 R.R. Vol. 3 111: 18-25; 112: 1; R.R. Vol. 3 112: 2-10

54 R.R. Vol. 3 115: 5-22; 116: 1-11

55 R.R. Vol. 2, 11 Defendant’s Exhibit 1
- 11 -

Q: Now, explain to me what kind of arrangement or agreement that you have among 

family members where someone puts money in, pay a portion of the interest that they have 

to pay, okay, and you say they are not the owner. Explain to me what the arrangement is.

A: This is – this is $400,000. This is – this is $400,000 borrowed from – Phap 

borrowed from friend. There is no – there is no agreement, letter, anything.

R.R. Vol. 3. 24: 6-13.

Ngo was asked again to explain the ownership interest of the Texas property and offered the 

following:56

Q: -- who -- who are you testifying that are owners of this Texas property, the first 

Texas property you bought, who were the owners?

A: We are.

Q: Who is “we”?

A: Myself and Phap, and Dung Vu –

Q: So just the three of you?

A: Yes, sir.

Q: Now, explain to me what is the arrangement of the family members, okay, as far as 

the structure of this property here?

A: Okay.

Q: Why should they put their money in, get a share of the profit out, have to pay the part 

of the interest that they borrowed on? What kind of arrangement are we talking about?

A: The arrangements -- what I understand the arrangement here that Phap borrowed 

$400,000 and shared the -- to make money -- to come up another eight house and make the 

money, share the profit at the end, distribution for them, so we told them that before. And 

they satisfied that, so --

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

Aside from the undisputed evidence that the parties received the share of the profits from 

the business, Appellees did offer ample of evidence of their participation in the chicken farm 

 

56 R.R. Vol. 3. 24: 17-25; 25: 1-13.
12

business. Hoang testified that all of the family members agreed that if the business is successful, 

then everybody will benefit. Consequently, if the business fails, then everybody fails together. 

Hoang stated all of the family members agreed that they will all be owners once the business gets 

bigger57.

Hoang testified he worked at the Georgia farm for about two weeks at the initial stage. He 

did not get pay for the earlier work because he believed he has an ownership interest in the farm58. 

Hoang used his own truck as a piece of equipment to do the clean up at the farm59.

Hoang stated that the members all agreed that whoever stayed and worked at the farm 

should get pay $2,000 per month. Hoang testified Appellants Ngo and Nguyen stayed and worked 

at the Georgia farm and they both received compensation for their work at that time60.

Appellee Le testified that prior to the purchase of the Georgia farm she had discussed the 

purchase price of the property and the operation of the property with Appellants Ngo and Nguyen61. 

Le stated she also visited the property with Appellants Ngo, Nguyen and Vu prior to its purchase62.

Le testified that Hoang, Ngo, and Nguyen all worked at the Georgia farm63 and all of them 

received salaries for their work64. Le testified there was a meeting to decide the salary of the 

members who worked at the Georgia farm65.

After the Georgia farm was sold and received a net amount of $657,512, Le testified it was 

a family decision to use this money to buy the Texas property66.

 

57 R.R. Vol. 3 113: 1-7

58 R.R. Vol. 3 116: 6-11

59 R.R. Vol. 3 115: 5-22

60 R.R. Vol. 3 115: 5-22; 23-25; 116: 1-5

61 R.R. Vol. 2 8: 10-25; 9: 1-17

62 R.R. Vol. 2 9: 18-24

63 R.R. Vol. 2: 5 -10

64 R.R. Vol. 2 15: 21-25; 16: 1-3

65 R.R. Vol. 2 16: 4-10

66 R.R. Vol. 2 25: 15-25
- 13 -

Le testified that after the Georgia farm was sold, all of the family members had a meeting at 

Appellant Ngo’s house and all of the members decided to buy the property in Robertson County, 

Texas67. The members also decided at this meeting the purchase price of the property and the 

member who will be responsible for the daily operation of this property68.

Le testified that Appellants Ngo, Nguyen and Vu and Appellees all worked at the farm in 

Robertson County and they all received monthly salaries for their work69. Le received $3,000 per 

month while Appellants Nguyen and Ngo and Appellee Hoang each received $3,500 per month for 

their work on the Texas farm70.

Appellant Ngo testified he did consult with Appellee Hoang prior to the purchase of the 

property in Texas. He testified he believed Appellee Le was also consulted prior to the purchase of 

the property in Texas71. Prior to the purchase of the Texas property, Ngo testified he consulted and 

explained to the family members that the total proceed from the sale of the Georgia farm will be 

used to buy the property in Texas72. 

(4) sharing or agreeing to share: losses of the business or liability for claims by third 

parties against the business;

After the purchase of the Texas property, the parties needed to borrow an additional 

$400,000.00 to build eight additional chicken houses73. Ngo testified the parties had a family 

meeting and stated that Appellant Nguyen had to borrow a loan of $400,000 from his friend and that 

Appellees Hoang and Le have to pay their proportional share of the interest on this loan as well74.

Hoang testified he is obligated to pay back the interest from the $400,000 loan, and in fact, 

 

67 R.R. Vol. 2 17: 18-25; 18: 1-3

68 R.R. Vol. 2 18: 7-14

69 R.R. Vol. 2 19: 4-25

70 R.R. Vol. 2 20: 5-19

71 R.R. Vol. 3 20: 1-12

72 R.R. Vol. 3 20: 13-19

73 R.R. Vol. 3 21: 6-25

74 R.R. Vol. 3 21: 20-25; 22: 1-11; 23: 5-16; 24:1-5
14

he did pay his share of the interest from this loan75.

Appellee Le testified after the purchase and construction of the Georgia farm, Appellants 

Nguyen and Vu told her that although Le’s name and signature were not on the bank loan 

document; Le is still responsible for paying back the bank loan76.

Hoang testified the parties agreed that if the business loses money, he will have to 

contribute the loss77. He stated that all of the family members agreed that each of the members 

must make contribution to pay back the bank loan78.

Hoang testified he paid the monthly interest (for his share of the interest charges of 

$100,000) from the $400,000 loan taken out by Appellant Nguyen to build eight additional chicken 

houses at the Texas farm79.

Hoang testified that although the bank loan was under Appellees’ names, he stated that all 

of the members agreed to be responsible for such loan80.

Appellant Nguyen admitted in his testimony that Appellees Hoang and Le did make interest 

payments on the $400,000 loan Nguyen had to borrow to construct eight additional chicken houses 

at the farm in Texas81.

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

It is undisputed that Appellants and Appellees and other family members agreed and 

 

75 R.R. Vol. 3 126: 19-25; 127: 1-7

76 R.R. Vol. 2 45: 5-25

77 R.R. Vol. 3 126: 1-6

78 R.R. Vol. 3 126: 7-10

79 R.R. Vol. 3 127: 3-7

80 R.R. Vol. 3 130: 9-13

81 R.R. Vol. 3 204: 6-20
- 15 -

contributed an amount of $320,000 to the purchase of the chicken farm in Georgia82.

Summary of the evidence and the “totality-of-the-circumstances” of the five elements

Based on the evidence presented herein, Appellees presented sufficient evidence to satisfy

the five elements cited from the above to establish the creation of a partnership under current Texas 

law.

2.) SUFFICIENT EVIDENCE TO ESTABLISH A BREACH OF CONTRACT CLAIM BY 

APPELLEES

The jury in this case was asked on two separate and distinct set of operative facts. First, the 

jury was asked whether the parties agreed for Appellees Hoang and Le to have ownership 

interest in the chicken farm operation (Jury Q. 1 and 4). The jury answered these questions in 

the affirmative and awarded damages in accordance with the instructions set forth in the jury 

charge83.

Second, the jury was asked whether Appellants and Appellees created a partnership (Jury Q. 

7 and 13). The jury also answered these questions in the affirmative and awarded damages 

based on the findings of breach of duty of loyalty, duty of care, duty of utmost good faith, 

fairness and honesty, and duty to disclose from a partnership interest84.

Based on the first set of fact described herein, the jury found that Appellants breached this 

agreement. Accordingly, the jury awarded the damages to Appellees for the breach of this 

agreement in term of profit generated from the business for which Appellees were deprived of. 

Appellants admitted in trial that they did not have any written or oral agreement to withhold the

 

82 R.R. Vol. 5 Defendant’s Exhibit 1; Plaintiff’s Exhibit 7. Also, see footnotes 4 &5 of Appellees’ Brief 

83 C.R. Jury Charge Question No. 1, 4

84 C.R. Jury Charge Question No. 1, 7
16

20% for labor cost85. The damages awarded by the jury are for the withholding of these 

unjustified labor costs. Clearly, there was no evidence between the parties that allowed

Appellants to withhold the 20% for labor costs. The evidence clearly reflected the 20% of the 

total labor withheld by Appellants which amounted to $67,302 for the Georgia farm, and 

$305,137 for the Texas farm86. Logically, the jury took the total labor costs and awarded the 

amount Appellees would have received as profit had Appellant not withheld the 20%. 

Specifically, Appellee Hoang received a judgment of $93,109.7587 for the breach of the 

parties’ agreement in sharing the profit. The calculation is based on the total labor costs not 

authorized or agreed by the parties, namely, $372,439 multiple by the stipulated 25% interest 

the parties initially agreed to at the inception of their business contribution88.

With regard to the second set of facts as described herein, the jury found that Appellants 

owed and breached the duties as particularly set forth in the jury charge and awarded damages 

based on the amounts withheld by Appellants under the pretext of a tax withholding under 

section 1031 exchange of the Internal Revenue Service Code. This amount is not profit from 

the business. This amount was supposed to be used by the business to pay for any applicable 

capital gains earned by the business. 

The evidence clearly showed that Appellants withheld the tax amounts and rolled these 

amounts over to Appellants’ current Texas farm. Appellants’ tax expert Michael Halls

conceded under cross-examination that the partners to the partnership could potentially liable 

for the capital gain taxes imputed to the business89. Hall also testified that he did not properly 

reviewed Appellants Ngo and Nguyen’s tax return to see if the taxes were properly reported 

 

85 R.R. Vol.. 2, 24:13–16 and R.R. Vol.. 2, 74:19 – 75:5

86 Vol. 5 Plaintiff’s Exhibit 1

87 C.R. Final judgment awarded

88 Vol. 5 Plaintiff’s Exhibit 7

89 R..R. Vol. 4 40: 1-25
- 17 -

and paid90. Hall testified that he only reviewed the tax figures provided by Appellant Ngo and 

did not independently verify the figures91. Hall further stated that Appellant Ngo’s tax figures 

for a 1031 tax exchange was done incorrectly92. Finally, Hall testified that the statute of 

limitation on the amounts withheld by Appellants has expired93.

The jury, considered all of the evidence on the tax liability, awarded Appellees damages on 

the amount illegally withheld by Appellants. The jury also considered the evidence that these 

tax amounts were rolled over to Appellants’ current chicken farm which has a current market 

value of about $6,930,000.

94

Appellants also raised, for the first time, the issue of quantum meruit. Appellants claimed 

that Appellants are entitled to claim for quantum meruit and that Appellees have a duty to prove 

at trial that the services claimed was unreasonable.

There is no record from the trial court that the claim for quantum meruit was sought by 

either party to the underlying litigation. There was no findings of fact and conclusion of law 

with respect to the quantum meruit claim, and as such, this Court is prohibited from reviewing 

claim or dispute of facts that was not properly sought in the trial court stage.

Further, Rule 94 of the Texas Rules of Civil Procedure requires all matters constituting 

avoidance or affirmative defenses be pleaded to give opposing party notice of defensive issues 

to be tried; failure to do so results in waiver of affirmative defenses. Barnett v. Coppell N. Tex. 

Court, Ltd., 123 S.W.3d 804, 816 (Tex. App. – Dallas 2003, pet. denied).

3.) SUFFICIENT EVIDENCE TO SHOW DAMAGES FOR BREACH OF FIDUCIARY

 

90 R.R. Vol. 4 44: 8-10

91 R.R. Vol. 4 51: 2-20

92 Vol. 4 72: 5-11

93 Vol. 4 73: 3-15

94 Plaintiff’s Exhibit 1
18

 Appellees restate the argument in point of error No. 2 and 5, and argue that the damages were

just and correct. The amount of damages was calculated separately and distinctly from the damages 

awarded in the breach of duty of a partnership. These damages are separate and distinct in that the 

jury calculates the damages based on the duty of the Appellants’ failure to divide the profits as 

agreed and use the tax deferred excuse as a precursor for their own investments. Appellees assert 

the arguments in point error No. 2 and 5.

When there is more than a scintilla of evidence to support the judgment, the evidence should be 

considered and inferred in the light most favorable to the verdict. City of Keller v. Wilson, 168 

S.W.3d 802, 822 (Tex.2005). The jurors are the sole judges of the credibility of the witnesses and 

the weight of the evidence. Id. at 819. In this case, the jury’s finding support the damages for both 

the breach of agreement and the breach of duty of the partnership agreement, separately and 

individually. The test is whether fair-minded people would reach the same verdict based on the 

evidence and testimony presented. City of Keller, 168 S.W.3d at 827

4.) SUFFICIENT EVIDENCE TO SHOW DAMAGES FOR BREACH OF CONTRACT

Appellees restate the argument in point of error No. 2, 3 and 5, and argue that the damages were

just and correct. The amount of damages was calculated separately and distinctly from the damages 

awarded in the breach of duty of a partnership. These damages are separate and distinct in that the 

jury calculates the damages based on the duty of the Appellants’ failure to divide the profits as 

agreed and use the tax deferred excuse as a precursor for their own investments. Appellees assert 

the arguments in point error No. 2, 3 and 5.

5.) AWARD OF DAMAGES FOR BREACH OF PARTNERSHIP AGREEMENT AND 

BREACH OF CONTRACT WAS PROPER
- 19 -

It is true that the “one recovery rule” is applicable where the facts and the damages are one and 

the same. Southern County Mutual Insurance Company v. First Bank & Trust, 750 S.W.2d 170 

(Tex. 1988). The one-satisfaction rule does not preclude the recovery where the breach of fiduciary

and breach of contract, as in this case, are recovered from separate and distinct injuries. Saden v. 

Smith, 415 S.W.3d 450, 469 (Tex.App.-Houston [1st] Dist.2013, pet. denied). See Birchfield v. 

Texarkana Mem'l Hosp., 747 S.W.2d 361, 367 (Tex.1987). The jury’s finding of a breach of duty in 

this case is not a double recovery if the damages are part of a disgorgement awards. See Saden, 415 

S.W.3d at 469. Due to the relationship of the parties, the damages awarded are to discourage the 

Appellants’ disloyalty and misconduct in using the withholding of taxes as a precursor to investing 

in the second Texas property for their self-interests.

95

 See Burrow v. Arce, 997 S.W.2d 229, 237 

(Tex.1999). 

It is clear from Appellant Andy Ngo’s testimony, that the Appellants withhold the 20% as labor 

costs which were never agreed by any of the family members.96 The damages of 20% for labor 

were calculated into the failure of Appellants’ failure to comply with the parties’ agreement.97 It is 

also clear from Appellant Andy Ngo’s testimony, that the amount of the tax withholding was used 

to purchase the second Texas property under Appellants’ names for their own benefits without 

regards to the duty owed to Appellees.98 The ownership interest in the chicken farm business is

clearly distinct and different from the duty to be candor and fair. In this case, the excuse in 

withholding the taxes to be invested into Appellants’ later investment is an unjustified enrichment

which Appellant should not be entitled to. Thus, the jury’s finding of Appellants’ withholding of 

taxes for their own benefits amount to a violation of trust and honesty. This relationship of trust 

 

95 R.R. Vol.. 2, 76:24 – 78:21

96 R.R. Vol.. 2, 24:13–16 and R.R. Vol.. 2, 74:19 – 75:5

97 Charge of the Court, No. 1 -6

98 R.R. Vol.. 2, 77:8 – 78:12
20

went beyond the normal partnership, but an informal relationship from a moral, social, domestic, 

and personal relationship of trust and confidence. Cotten v. Weatherford Bancshares, Inc., 187 

S.W.3d 687, 698 (Tex.App.-Fort Worth 2006, pet. denied)

6.) THERE IS SUFFICIENT EVIDENCE TO ESTABLISH APPELLANT DUNG VU’S 

LIABILITY FOR THE BREACH AND THE DAMAGES AWARDED THEREIN.

Appellants argue Vu should not be held liable to Appellees because there is no evidence that 

Vu was involved in the calculations and distributions of the profits and the dispute of the business 

assets by Appellees.

There is ample evidence that Appellant Vu was involved in the decision making process along 

with Appellants Ngo and Nguyen.

For instance, Hoang testified that Appellant Vu discussed and agreed with him and his wife that 

since their contributed funds came from hurricane settlement and stated “This is the money coming 

from God. So we all decided to use that money to do business... if we are successful, everybody 

would be better. If we fail, we just like a refugee first coming to the country”99. Hoang stated that 

this is the reason he agreed to let Appellants’ names to be listed in the title to the property.

Hoang testified the family members had a meeting prior to the purchase of the Georgia property 

and stated the following:

Q: My question to you is: Did the family members talk about sharing the profits before 

you bought the Georgia property?

A: I have already said we had a meeting. If the business is successful, everybody will 

benefit. If we fail, everybody fails together. We all agree to the initial agreement. That is 

why we produced our money. Plus the promise was from my wife’s sister. When the 

 

99 R.R. Vol. 3 113: 1-7
- 21 -

business gets bigger, my name will be in the document.

100

This assertion of the promise by Vu and her involvement was never challenged by Appellants’ 

counsel during trial.

Appellee Le testified after the purchase and construction of the Georgia farm, Appellants 

Nguyen and Vu told her that although Le’s name and signature were not on the bank loan 

document; Le is still responsible for paying back the bank loan101.

Le testified that after the Georgia farm was sold, all of the family members had a meeting at 

Appellant Ngo’s house and all of the members decided to buy the property in Robertson County, 

Texas. The members also decided at this meeting the purchase price of the property and the 

member who will be responsible for the daily operation of this property102. Accordingly, Vu never 

contested that she was not present at this family meeting.

Respectfully submitted,

Bui & Nhan, PLLC.

By: /s/ Scott K. Bui

Scott Khoa Bui 

State Bar No.00789185

By: /s/ Charlie Nhan

Chalie Nhan

State Bar No.24025561

3921 Ocee Street

Houston, Texas 77063

Tel: 713-783-2466

Fax: 713-783-0787

Email: sbui@buinhanlaw.com

Email: cnhan@buinhanlaw.com

ATTORNEYS FOR APPELLEES

 

100 R.R. Vol. 3. 114: 11-19.

101 R.R. Vol. 2 45: 5-25

102 R.R. Vol. 2 17: 18-25; 18: 1-3; 18: 7-14
22

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.3, I certify that this Brief has 

6,635 words and otherwise complies with Rule 9.4(i). In making this Certification, I have 

relied on the word-count of Microsoft Word, v. 14.0.7128.5000.

/s/ Scott K. Bui_____________________

Scott Khoa Bui

CERTIFICATE OF SERVICE

I hereby certify that, on September 28, 2015, a copy of the foregoing was 

delivered in a manner prescribed by the Texas Rules of Appellate Procedure to:

Via Facsimile: (936) 559-0099 and Email: trorie@sbcglobal.net

Tom Rorie

210 NORTH STREET

NACOGDOCHES, TEXAS 75961

/s/ Scott K. Bui 

Scott Khoa Bui