Vo v. Vu
| Decision Date | 12 May 2016 |
| Docket Number | NO. 02-15-00188-CV,02-15-00188-CV |
| Parties | DIEP TUYET VO AND VAN BA NGUYEN APPELLANTS v. KAREN VU APPELLEE |
| Court | Texas Court of Appeals |
FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
Appellants Diep Tuyet Vo (Diep) and Van Ba Nguyen (Van) appeal from a jury verdict and subsequent judgment entered against them in favor of appellee Karen Vu (Karen). Because we find no reversible error based on Van and Diep's issues, we affirm the trial court's judgment.
Diep and Karen met in 2005 when they both worked for a nail salon as nail technicians. Approximately three years later, they decided to open their own nail salon in Trophy Club, Texas. They chose Trophy Club because it was an affluent area, containing only two nail salons. On September 23, 2009, Diep and Karen signed a purchase agreement to buy one of the existing nail salons in Trophy Club—Luxury Nails—from the owner, Liem Nguyen (Liem). Diep and Karen orally agreed to operate Luxury Nails in Trophy Club as equal partners, sharing the profits and responsibilities. As such, Diep and Karen each paid half of the $63,000 purchase price. They assumed six months of Liem's existing lease and filed a certificate of assumed name, stating that they would conduct business under the name Luxury Nails. They opened a business checking account, and each assumed half of the responsibilities of paying bills, of purchasing supplies, and of profits or losses realized by Luxury Nails. Diep and Karen hired an employee, bought eight new pedicure chairs for the salon,2 and bought needed supplies.
At the expiration of the six months allowed for Diep and Karen to assume Liem's lease, Diep asked Van, Diep's longtime friend, and Van's wife to sign anew lease with the landlord on behalf of Diep and Karen.3 Because the landlord required that the lessee be an owner of the business, Van filed a certificate of assumed name for Luxury Nails on April 16, 2010, listing only himself as the "person conducting such business." On August 4, 2010, Karen and Diep formed K & DV Enterprises, LLC (the LLC), with each holding a 50% interest, as the entity under which they would operate Luxury Nails. Although they formed the LLC, Karen and Diep's agreement to operate Luxury Nails as equal partners remained unchanged. On October 11, 2010, Van and his wife signed a sixty-month, commercial lease for the space used by Luxury Nails, which began in December 2010. Diep and Karen each paid half of the $3,553.66 security deposit. Although Van and his wife previously only knew Diep, Karen trusted Van to act for her benefit as well as Diep's. All parties agree that neither Van nor his wife owned any interest in the salon and that Diep and Karen paid all lease payments directly to the landlord. Van knew Diep and Karen had an agreement to operate Luxury Nails in the leased space.
On October 22, 2010, Van, Diep, and Karen filed disposition-of-interest certificates showing that they each had withdrawn their interest in Luxury Nails. That same day, the LLC filed a certificate of assumed name for Luxury Nails. Karen signed a certificate of ownership, showing that the LLC owned LuxuryNails. In 2010, Luxury Nails realized a profit of $22,770, of which Karen received half. Karen also received a salary for her work as a nail technician in 2010 of $17,558 and in 2011 of $14,497. Karen's half of Luxury Nails' profits for 2011 was $17,467.
By 2012, animosity was brewing between Diep and Karen. On May 17, 2012, Diep, without informing Karen, withdrew $20,000 from the business checking account to satisfy any future lease payments as "protection" for Van and his wife. Unbeknownst to Karen and Van's wife, Van filed a certificate of formation for "Diep and Robert Enterprise, LLC" (Enterprise) on May 21, 2012.4 The registered agent was listed as Diep, the managers were listed as Diep and Van's wife, and the organizer was Van.5 Diep averred that she formed Enterprise with her children. On August 12, 2012, in a meeting between Karen, Diep, and Van, Van declared that either Diep or Karen had to leave Luxury Nails and that he needed their decision by the end of August. Karen contended that Diep responded she would let Karen keep the business. At a subsequent meeting on September 15, 2012, Van told Karen and Diep that he wanted Diep to "take over the store," but that he would change the locks if Karen and Diep did not resolve the issue. Karen sent Diep a letter around this time asking to buy her half of thebusiness. But Diep and Karen continued to operate Luxury Nails together for the next few months. Indeed, Karen's half of the profits realized by Luxury Nails for 2012 was approximately $26,000, and her income as a nail technician for 2012 was approximately $15,000.
On December 14, 2012, Van's attorney, Todd Hurd, served an eviction notice by certified mail on the LLC, in care of Karen and Diep6: It appeared from an invoice that Diep also hired Hurd to represent her in October 2012, but Diep maintained that she did not hire Hurd until early 2013. In any event, Karen and Diep continued to operate Luxury Nails together.
On January 31, 2013, Van and Hurd stood in front of Luxury Nails to prevent Karen and Diep from entering. Van and Hurd told Karen and Diep to remove their property and vacate the premises. Karen testified that Diep "put on a show like . . . barely cleaning up her things" and left to sit in her car. Although Diep testified that they both were evicted on January 31, 2013, sheacknowledged that she and Karen had never agreed who would continue to run Luxury Nails after their relationship soured. At the time of the eviction, Karen estimated that the total value of the LLC's equipment and supplies left at Luxury Nails or at Diep's house was approximately $36,182.8 In 2012, Luxury Nails' last full year of business, Luxury Nails realized a net profit of $52,518, and Karen's salary as a nail technician was approximately $15,000.
On February 6, 2013, Karen drove by the salon and saw a sign that said the salon was closed for remodeling but would reopen soon. At that point, she concluded that Diep and Van must have "conspired with one another to take over [her] business." On February 6 and 12, 2013, Karen withdrew a total of $26,000 from the LLC's bank account. Diep withdrew an additional $6,000 from the LLC's bank account on February 6, 2013. On February 15, 2013, Enterprise filed a certificate of assumed name for Trophy Nails and Spa, which began operating out of the space formerly leased by Van for Luxury Nails. Karen believed Trophy Nails and Spa was "improving or getting better as time goes" in 2013, 2014, and 2015; thus, she believed the profits she would have received in 2013, 2014, and 2015 would not have decreased from those she received in 2010, 2011, and 2012. Because of the eviction and losing her business, Karen lost her appetite, could not sleep, became depressed, and lost weight. Karen's lost profits fromthe LLC for 2013, 2014, and 2015 were calculated to be $53,579 in total. Her lost wages in 2013, 2014, and 2015 as a nail technician totaled $45,747.
In May 2013, Karen filed suit against Diep and Van, raising claims against both for breach of fiduciary duty and civil conspiracy, against Van for tortious interference with an existing contract, and against Diep for breach of contract. Karen sought actual and punitive damages. A jury unanimously found that Diep breached her agreement with Karen to operate Luxury Nails, Van had a fiduciary duty to Karen that he breached,9 Van tortuously interfered with Diep and Karen's agreement to operate Luxury Nails, Diep and Van were part of a conspiracy that damaged Karen, and Diep and Van acted with malice or reckless indifference regarding Van's tortious interference, Van's breach of fiduciary duty, and Van and Diep's civil conspiracy. The jury also unanimously found that (1) Diep's breach of contract resulted in $53,579 in lost profits and $53,213 in attorney's fees to Karen; (2) Van's breach of fiduciary duty and tortious interference resulted in $53,579 in lost profits, $45,747 in lost wages, and $19,867 in lost investment to Karen; and (3) Karen was entitled to $31,500 in exemplary damages on Karen's claims for breach of fiduciary duty, tortious interference, and conspiracy based on clear and convincing evidence that Van or Diep acted with malice or with reckless indifference to Karen's "right . . . to be free of suchpractices." The trial court rendered judgment in Karen's favor on May 28, 2015,10 awarding $119,193 in actual damages11 and $31,500 in punitive damages against Van and Diep jointly and severally. The trial court ordered that Karen recover her attorney's fees—in the amount of $53,213—from Diep.12
Van filed a motion for new trial, arguing that the evidence was legally and factually insufficient to support the jury's findings. See Tex. R. Civ. P. 320, 324(b). Diep filed a motion for new trial and a motion to modify the judgment, raising the same arguments proffered by Van in his motion and asserting that the attorney's-fee award against her violated the one-recovery rule and Karen's election of remedies. See Tex. R. Civ. P. 329b(g). The motions were overruled by operation of law. See Tex. R. Civ. P. 329b(c). Diep and Van appeal.
In a portion of their fourth issue13 and in their sixth issue, Van and Diep argue that the trial court erred by submitting questions regarding (1) Karen's lost wages because "lost wages [was] not an element of damages for the tort claims asserted" and (2) conspiracy because a principal and an agent cannot conspire as a matter of law.
Karen argues that...
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