no. 2014-24030 v. § shandon phan law firm pllc ...tac-7.com/unified/2014-06-29-counterclaim.pdf ·...

Defendant’s Original Answer, Counterclaim and Discovery Requests /24

No. 2014-24030

NAM NGUYEN, § IN THE DISTRICT COURT OF

Plaintiff §

§

V. §

§ HARRIS COUNTY, TEXAS

SHANDON PHAN LAW FIRM PLLC §

and SHANDON PHAN, §

Defendants § 281ST

JUDICIAL DISTRICT

DEFENDANTS SHANDON PHAN AND SHANDON PHAN LAW FIRM, PLLC’S

ORIGINAL ANSWER, ORIGINAL COUNTERCLAIM, AND REQUEST FOR

DISCLOSURE

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Shandon Phan and Shandon Phan Law Firm, PLLC, Defendants in the

above-entitled and numbered cause, and files their Original Answer, Original Counterclaim and

Request for Disclosure and would show the Court as follows:

I.

GENERAL DENIAL

1. Defendants generally deny each and every allegation set forth in Plaintiff’s petition and

demand strict proof thereof by a predonderance of the evidence as required by the Texas

Rules of Civil Procedure and the laws of the state of Texas.

2. Defendants reserve their right to amend their Answer pursuant to Rule 63 of the Texas

Rules of Civil Procedure.

II.

AFFIRMATIVE AND OTHER DEFENSES

3. Plaintiff’s claims are barred, in whole or in part, by accord and satisfaction.

6/29/2014 11:22:46 PMChris Daniel - District Clerk Harris County

Envelope No. 1675976By: DAVIA FORD

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


4. Plaintiff’s claims are barred, in whole or in part, by ratification.

5. Plaintiff’s claims are barred, in whole or in part, by assumption of risk.

6. Plaintiff’s claims are barred, in whole or in part, by contributory negligence or

proportionate responsibility. Under the law of proportionate responsibility, a claimant

may not recover damages if its percentage of responsibility for causing the claimed

damages is greater than fifty percent. Tex. Civ. Prac. & Rem.Code Ann. § 33.001.

7. Plaintiff’s claims are barred, in whole or in part, by estoppel.

8. Plaintiff’s claims are barred, in whole or in part, by setoff and recoupment.

9. Plaintiff’s claims are barred, in whole or in part, because Plaintiff did not satisfy the

conditions precedent to bringing its contract claim.

10. Plaintiff’s claims are barred, in whole or in part, because Plaintiff failed to mitigate his

damages.

III.

COUNTERCLAIMS FOR BREACH OF CONTRACT, BREACH OF FIDUCIARY

DUTY, AND DEFAMATION AGAINST DEFENDANT NGUYEN, AND MOTION

FOR SANCTIONS

11. Defendants and Counter-Plaintiffs Shandon Phan and Shandon Phan Law Firm PLLC file

their Original Answer and Original Counterclaims against NAM NGUYEN as Plaintiff

and Counter-Defendant.

12. It is anticipated that discovery in this case will be conducted under Level 2, Rule 190 of

the Texas Rules of Civil Procedure.

13. Counter-Plaintiff Shandon Phan (hereinafter referred to as “Phan”) is an individual

resident of Harris County, Texas.

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


14. Counter-Plaintiff Shandon Phan Law Firm, PLLC (hereinafter referred to as “SPL”) is a

New Jersey Professional Limited Liability Company registered to do business in Texas

with its principal office in Harris County, Texas.

15. Counter-Defendant Nam Nguyen (hereinafter referred to as “Nguyen”) is an individual

who resident in Harris County, Texas. He may be served through his counsel of record in

this case.

16. This court has jurisdiction and venue over this case, because the amount in controversy is

within the jurisdictional limits of this court. Venue is proper in Harris County because all

or a substantial part of the acts or omissions giving rise to the claim occurred in Harris

County, Texas and involved residents who live in Harris County, Texas.

A. FACTUAL BACKGROUND

17. Phan was licensed to practice law in New Jersey and the principal of his law firm. Phan

had previously spent two years working full-time without compensation and personally

loaned the firm over $60,000 to finance his BP claims operation, which at the time had

accumulated over a hundred BP Oil Spill cases that were already in the settlement claim

process with the Deepwater Horizon Settlement Program and await settlement offers.

Phan took on all of these cases on contingency fee arrangement, and after two years of

investing everything he had into them, expected to settle some of the best ones and used

his earned attorney fees to build up his law firm and launch new business ventures.

18. Nguyen was a Texas local counsel for another out-of-state attorney. He used to

volunteer at a nonprofit organization of which Phan previously served as a director and

knew about Phan’s multiple-year work on BP cases, including Phan’s expected

settlements.

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


19. In November 2012, Nguyen met Phan and complained that he was not happy at his work

place, was not paid any salary as a full-time employee, except for a 30% contingent fee

arrangement for any case he successfully resolved. Nguyen shared with Phan that he had

worked only a few cases and resolved none of them, thus he was not making any money

during his one year working for that firm and desperate for a new opportunity. Nguyen

wanted to revisit the offer Phan made to him over a year ago to work with Phan on BP

cases.

20. During that conversation, Nguyen learned about Phan’s new business plan to open a

Sandy claims office in the East Coast. After following Phan to a few negotiation

meetings with other Houston attorneys, making a fact-finding trip with Phan to the New

York, New Jersey and Pennsylvania, meeting Phan’s network of business contacts, and

studying Phan’s confidential business plan, Nguyen offered to join Phan as a junior

partner and co-venturer by investing into Phan’s Sandy claims operation and using his

Texas law license to start a Houston office for SPL (hereinafter “SPL Houston”).

Nguyen also asked to help Phan with processing Phan’s remaining BP cases in exchange

for 10% of the earned attorney fees on cases he successfully resolved, subject to the same

“ no recovery, no fee” contingency fee arrangement Phan had with his clients.

21. As part of their agreement, Nguyen agreed to the following key terms:

a. Nguyen would commit to work full-time as the local counsel for Phan’s Houston

office for at least one year or until Phan is officially licensed to practice law in

Texas. Nguyen’s commitment was a crucial element and a condition precedent to

Phan’s engagement with him as well as to SPL’s plan to open its Houston office.

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


b. Nguyen would contribute at most $25,000 and since he didn’t have all the funds

available, he would contribute $$10,000-$12,000 as an initial amount to cover the

fact finding trip to the East Coast and some initial costs in setting up the new

Houston office. The remaining amount was to be made available as

circumstances arise.

c. Nguyen would be responsible for handling Texas cases that Phan brings in and

assigns to him and share profit earned from those cases. The exact percentage of

profit he is entitled to change from 30% to 70% as he could not make up his mind

whether he would be responsible for the same percentage share of SPL Houston’s

costs of operation.

d. Nguyen would also work on BP cases as assigned and get 10% of the contingency

fees earned when cases are successfully settled. The arrangement was deemed to

be fair by both parties because Phan had spent two years working exclusively full-

time and invested significant amount of his own money into these cases while

Nguyen incurred no risk, brought in no clients, and made no financial investment,

except for working part-time for a few months to push through remaining BP

cases.

e. Nguyen would take the Pennsylvania bar exam so he could assist with running the

Sandy claims office there.

f. In exchange for his commitments and “prudent person” performance, Nguyen

would obtain all access to Phan’s business plan, business bank accounts, network

of other counsel and resources, library of legal practice and business training

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


resources, a partner’s share of profit in Phan’s business ventures, and the prospect

of increasing his ownership equity and become a named partner in SPL.

22. Phan agreed to the following key terms:

a. Phan would also work full-time in the SPL Houston office and traveling to other

locations, including to the Gulf Coast and the East Coast as needed.

b. Phan would be responsible for all of SPL’s operations, including business

development for SPL Houston, practice development, marketing, general

administration of the firm, and special projects in the Gulf Coast and in the East

Coast.

c. Phan would take the Texas bar exam in February 2013.

d. Phan would sign all of SPL Houston’s contracts with vendors and be ultimately

responsible for the office’s profit and loss.

e. Phan would commit his own personal fund, up to $150,000.00 to financially back

SPL Houston with a fail-proof reservation fund during its first two years of

operation and to provide SPL the capital it needs to grow into a regional firm with

multiple offices. Even under the worst scenario that SPL could not expand as

planned due to market conditions, Phan’s substantial personal fund contribution

commitment also assured Nguyen of a fail-proof operation for him to commit to

SPL Houston.

f. Phan would also coach Nguyen on personal and business development and

provide partnership opportunities in future business ventures.

24. As a new business, SPL Houston is expected not to make any profit during its first year

of operation. Phan and Nguyen, as co-venturers in launching SPL Houston, agreed not to

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


take any salary or compensation until SPL Houston becomes profitable. In exchange,

SPL would pay for all of their basic personal expenses, including meals and travel

expenses, out of the firm’s account.

25. Phan followed up on all his commitments – bringing in sufficient clients for SPL Houston

to break even the first few months, securing several high net worth clients or cases with

substantial legal fees, and passing the Texas bar exam in February 2013. Phan also

eventually contributed over $100,000 of his personal fund into SPL Houston. Phan’s

substantial contribution, however, was not used to expand the firm as agreed to under

their business plan but instead, was wasted in covering significant damages caused by

Nguyen’s multiple breaches of his contractual and fiduciary duties as a co-venturer.

26. Nguyen performed poorly on or failed to carry out his key promises. Nguyen spent

January and February to study for the Pennsylvania bar exam in late February 2013,

which he failed to pass. His New York law license did not get approve until June 2013,

which affected Phan’s Sandy Claims business plan. At SPL Houston, Nguyen neglected

or refused to work on most BP cases, once he found out how much work was involved.

On a few a few BP cases which he actually worked on, his work was minimal and of non-

legal, secretarial data-entry in nature. Regardless, Nguyen did not complete his work and

secure any of them to final settlement as agreed to with Phan in order to earn a share of

contingency fees that he bargained for. He also did not handle well Texas cases assigned

to him and refused to take on difficult cases, which consequentially caused SPL Houston

to lose a significant amount of potential revenues. Most importantly, his mistakes in

business judgment cost SPL Houston at least seven hundred thousand dollars in potential

attorney fees from a few serious big-fee cases which Phan worked hard to secure.

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


27. Nguyen didn’t speak much Vietnamese, could not communicate well to close deals with

clients, and entirely relied on Phan to bring in clients.

28. Nguyen made poor business decisions that were irresponsible and adverse to the firm’s

economic wellbeing, including repeatedly refusing to take on cases which Phan

successfully brought in because Nguyen deemed them to be too difficult or too risky for

him. On numerous occasions, Nguyen impulsively lowered the firm’s billing rates to

unreasonably low amounts to accommodate bargaining clients.

29. On one occasion, Nguyen presumptuously circumvented Phan’s economic interests by

unreasonably intervening into Phan’s pre-existing contract with one of his BP client,

which Nguyen had no role in or relationship with.

30. Nguyen was enthusiastic about the prospect of sharing the BP attorney fees to be earned

from Phan’s BP case load. However, once he discovered how much work was involved,

he attempted to renegotiate his share, which Phan denied because Nguyen did not provide

any substantial legal work or show any result yet.

31. As a result of Nguyen’s immature conduct, nonsensical business practice and under-

performance, the office lost significant revenue, including the business of several high-

fee clients which Phan had worked hard to secure.

32. Phan was gravely concerned and discussed at length with Nguyen over ways to improve

his performance. Phan made his best efforts to realize their business plan under the

circumstances. Significant investments were made to purchase additional resources,

including an expensive law business development and practice training program as well

as bringing in business coaches to help Nguyen and put the two parties on the same level

of business thinking.

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


33. At all firm meetings as well as daily personal communications with Phan, who lived in

the same apartment with him, Nguyen did not raise any concerns about any of Phan’s

fiduciary duties which he later accused Phan of breaching in his complaint. In fact, it was

the other way around. Phan had to repeatedly explain to Nguyen about how his immature

behavior harmed the firm’s interests and reputation and would eventually lead it to

failure.

34. In early April 2013, Nguyen unilaterally terminated his involvement in the joint venture,

calling it quit, without any proper notice, explanation or discussion with Phan as to why

he breached his promise to stay on until Phan obtains his Texas law license or until the

expiration of one year period as they had agreed to. Nguyen simply told Phan that

someone, whose identity he could not disclose to Phan, instructed him to cease working

with Phan. Nguyen also informed Phan that he already applied for and accepted work at

another firm. Nguyen refused to work out a transition plan with Phan to mitigate

damages caused to SPL Houston because of his abrupt, unforeseeable departure. Nguyen

demanded his contribution money back, without taking responsibility for SPL Houston’s

monthly financial obligation of at least $10,000 in costs and expenses that must be paid

out under contracts they had previously committed to in setting up SPL Houston office.

35. Nguyen’s termination of performance was carried out in bad faith and with reckless

disregards for Counter-Plaintiffs’ interests. While Phan tried to solve numerous

operational, financial and legal problems caused by Nguyen’s withdrawal from the joint

venture, Nguyen refused to collaborate or even communicate with Phan in good faith.

36. As Nguyen left SPL Houston, he took all the firm’s Texas clients with him, claiming that

they were all his clients. Phan accommodated Nguyen’s demand and proposed that

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


Nguyen that if Nguyen decides to keep all SPL Houston clients along with all attorney

fees from those cases, estimated at that time to be approximately $10,000, the two parties

can call it even and move forward with their own lives. Nguyen kept all SPL Houston

cases to himself.

37. In the following months, while Phan moved forward to his life and business, Nguyen

wanted his contribution money back and proceeded to spread false, defamatory

statements against Phan to many friends in their common circle and the community at

large. Specifically, Nguyen stated to different individuals that Phan “bullied and

defrauded him,” and that “Phan’s office would go bankrupt soon.” Nguyen even sought

to persuade a support staff in SPL Houston office that she should also quit working for

the office.

38. Nguyen’s misconduct caused SPL Houston to suffer a serious setback and significant

financial loss. Phan lost over $100,000 of his personal money to cover their joint

venture’s substantial monthly bills. Phan also had to let go all marketing materials which

referenced Nguyen in their contents and which Phan spent months and thousands of

dollars to develop. In addition, Phan also spent substantial personal efforts and

organizational resources to mitigate damages and fix the chaotic trail of client complaints

about Nguyen’s representation.

39. In September 2013, Phan secured his Texas law license and resumed the business

operation of SPL Houston. Consistent with his entrepreneurial and civic involvement

record, Phan continues to get involved in the community and, among the many hats that

he wears, serves as president of the Vietnamese Community of Houston and Vicinities

(VNCH).

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


40. Based on information and belief, Nguyen not only spread false and malicious rumors

against Phan at the time he quit the joint venture but also intensified his acts of

defamation during the time Phan ran for the community leadership position. Members,

supporters, and allies of Phan’s campaign reported to Phan that they were approached,

fed with defamatory information about Phan’s character and financial situation, and

encouraged not to associate themselves with or support Phan by Nguyen or Nguyen’s

agents.

41. Based on information and belief, Nguyen has recently commenced a campaign, in

coordination with several others, to publicize defamatory allegations contained in his

frivolous suit by mass emailing the complaint to numerous members in the Vietnamese

community, including friends and supporters of Phan, with the intent to harm Phan’s

reputation and standing in the Vietnamese community and to cause damages to his law

practice.

B. COUNT 1: BREACH OF CONTRACT

42. Under the agreement he made with Phan, in exchange for being appointed a partner or

co-venturer in the joint venture SPL Houston with all associated rights, privileges and

benefits, Nguyen had a clear duty to maintain SPL Houston office for at least one year or

until Phan obtains his Texas law license, whichever is sooner. Nguyen’s self-serving

argument that he only intended to commit to the partnership temporarily for only three

months was a dishonest claim to cover up his own immature and irresponsible conduct

and to deny his contractual responsibilities to the joint venture. Considering the extent of

Nguyen’s involvement with and investments into SPL Houston, including quitting the

associate position at his former firm, taking out personal loans from his own family to

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


contribute to the joint venture, taking the Pennsylvania bar exam in February 2013 at the

same time Phan took his Texas bar exam, Nguyen clearly knew and agreed to Phan’s

expectation of his commitment to be the local counsel for SPL Houston until Phan

obtains his Texas law license or for at least one year, whichever was sooner.

43. Nguyen intentionally breached that duty in bad faith. While Phan tried to help him

perform better for the sake of their joint venture, Nguyen took things personal and

became upset and resentful against his partner. In early April 2013, Nguyen unilaterally

and recklessly quit the joint venture without any regards for the resulting damages caused

to all parties involved, including his own.

44. Both Phan and SPL suffered significant monetary damages as a result of Nguyen’s

breach of his contractual duties. Because of Nguyen’s sudden withdrawal and taking all

of SPL Houston clients with him, the joint venture had no revenue to cover its monthly

expenses. In the following months, Phan was forced to spend over $100,000 of his

personal fund to cover these unexpected debts owed to the joint venture’s vendors and

creditors.

45. The entire purpose of Phan and SPL engagement with Nguyen was conditioned upon his

commitment to SPL Houston as its local counsel for a limited period of time. Nguyen’s

wrongful withdrawal effectively destroyed the purpose of the engagement, rendered all

parties’ investments worthless, and caused significant and unforeseeable material

damages to both Phan and SPL. Given the bad faith and malice demonstrated by Nguyen

in breaching his contractual promise and thereafter, Counter-Plaintiffs request punitive

damages.

C. COUNT 2: BREACH OF FIDUCIARY DUTIES

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


46. Nguyen’s role as a local counsel, shareholder partner, and co-venturer in the SPL

Houston joint venture gave rise to the following principal duties: duty of loyalty, duty of

obedience, duty of care, and duty of disclosure of all material information affecting his

role in the firm, which he owed to both SPL Houston and Phan as co-venturer.

47. By incorporating the actions alleged above in provisions 26-41, Nguyen breached all of

his fiduciary duties which he owed to Phan and SPL Houston. Nguyen breached his duty

of loyalty when he failed to act for and on behalf of Co-Plaintiffs in protecting their

business interests at business dealings and instead took advantage of his co-venturer

position and injured them for it. Nguyen breached his duty of obedience by refusing to

act within the bounds of authority and trust that had been entrusted to him by not

following the agreed upon business plan, by not respecting Phan’s business judgment and

guidance as the office’s managing director, by not discussing any of his issues or

concerns with Phan in good faith. Nguyen also breached his duty of care by failing to act

prudently both as an attorney to clients of SPL Houston and as a business partner to the

joint venture by ignoring clients’ cases for long period of time, leaking the office’s

confidential information and financial situation to outsiders with full knowledge that such

leaks would cause damages to both Phan and SPL Houston.

48. Nguyen’s breaches caused material damages to both Phan and SPL. Therefore, Nguyen

is liable for breach of fiduciaries duties.

D. COUNT 3: FRAUDULENT MISREPRESENTATION

49. Nguyen’s argument that he only intended to commit to the partnership temporarily for

only three months, if believed by the fact-finder to be true, gave rise to a claim for

fraudulent misrepresentation. Neither Phan nor Nguyen, or any person of ordinary

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


prudence, would invest such a significant amount of their time and resources, including

signing over a dozen contracts with numerous vendors, building up a new office,

launching a comprehensive marketing campaign on three TV stations, several

newspapers, and other means, and risking over a hundred thousand dollars just to

entertain a temporary partnership that may last only three months. The stakes were

simply too high.

50. Phan was clearly dependent, at his own detriment, to Nguyen’s promise and

representation. If the Court believes Nguyen’s recent version of the arrangement as he

argued in his complaint that he did not, in fact, make any promise to Phan to serve as his

local counsel until Phan obtains his law license or until the expiration of one year, to be

true, then the Court should find that Nguyen, with the calculation to share the success of

Phan’s business ventures, made a false representation to Phan regarding his intent and

commitment to the joint venture, knowing that such representation was false or with

reckless disregard for its truth, with the clear knowledge that Phan would rely on it.

Nguyen made such misrepresentation with the calculation that if Phan’s business ideas

worked out, he would reap great benefits from them and if things become more difficult

than he expected, he would simply call it quit and demand his money back.

51. Both Phan and SPL relied on Nguyen’s misrepresentation and as a result, suffered

significant material damages, including at least $100,000 in monetary damages, when

Nguyen quit in bad faith within four months of the joint venture. Nguyen is, therefore,

liable for his fraudulent misrepresentation.

E. COUNT 4: SLANDER AND DEFAMATION

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


52. Based on information and belief, Counter-Defendant Nguyen has actively spread false

and malicious rumors against Phan to many of Phan’s friends and members of the

Vietnamese community, damaging Phan’s reputation in the community and his

relationships with many other third party individuals. Nguyen also approached one of

Phan’s staff to encourage her not to work for Phan because SPL “would go bankrupt and

Phan would not pay her.” Nguyen’s active smear campaign has caused significant

damages to SPL and Phan, including loss of personal relationships and loss of income

and potential clients.

53. Based on information and belief, Nguyen, in coordination with several others in a civil

conspiracy, has also targeted Phan in his role as a leader in the Vietnamese community

during the heated campaign period and even after Phan was elected to be president of the

Vietnamese Houston community. Nguyen and others have commenced a campaign to

publicize this frivolous law suit to harm Phan’s reputation and standing in the Asian

community. Despite filing his complaint on April 29, 2014, Nguyen delayed serving

process on Defendants for more than a month while actively distributing the complaint

via mass email and rumors to a large number of community members, including many

clients, friends and supporters of Phan. Given Phan’s sensitive public role as president of

the Vietnamese community, the frivolous suit was a mere tool to launch a character

assassination campaign against Phan in the court of public opinion and constitutes a clear

abuse of the judicial process. Defamatory and unsubstantiated allegations were then used

as contends for attack articles the unlawful purposes of harassment, defamation and

causing actual damages to Phan’s professional reputation and law practice business.

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


54. Counter-Defendant Nguyen made those defamatory statements with actual malice or

gross negligence, causing Phan actual damages.

55. Nguyen’s misconduct constitutes slander per se and/or defamation per quod, for which

Counter-Plaintiffs hereby sue and seek damages.

F. COUNT 5: TORTIOUS INTERFERENCE INTO ANOTHER’S EXISTING

RELATIONS

56. After terminating his association with SPL Houston, Counter-Defendant Nguyen

intentionally and maliciously spread false and defamatory statements about Phan to at

least one of SPL staff and several employees of a media station which was also a business

client of Phan, stating that Phan and the firm would go bankrupt, that Phan is not a good

person to do business with and they should not associate with or support Phan.

57. Based on information and belief, Nguyen also employed the same defamation tactic to

turn many members, volunteers and supporters of the non-profit community organization

which Phan serves as president from supporting or working with him. Nguyen’s

statements attacked Phan’s character directly, for the sole purpose of reducing the level of

trust these third-party individuals had in Phan, negatively affecting the work morale and

performance of Phan’s law firm staff, and diminishing the support and commitment that

volunteers and supporters had maintained toward VNCH.

58. Nguyen’s interference has caused both Phan and SPL actual damages and is unjustified

because no legitimate interests, including Nguyen’s desire to get back the money he

invested into the joint venture, could be advanced through such interference.

G. MOTION FOR SANCTIONS

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


59. Plaintiff’s claims against Defendants are groundless, baseless, and frivolous such that

Defendants Phan and SPL are entitled to recover attorney’s fees and costs pursuant to

TEX. CIV. PRAC. & REM. CODE §§ 9.001 and 10.0001 and Tex. R. Civ. P. 13.

60. Defendants seek the recovery of attorney’s fees, costs, and expenses from Plaintiff. It

was necessary for Defendants to spend significant time and expenses to prepare and

defend this suit. A judgment for attorneys’ fees and expenses through final judgment after

appeal should be granted against Plaintiff and in favor of Defendants for time and legal

services required to defend against Plaintiff’s suit. In the alternative, Defendants request

that reasonable attorneys’ fees and expenses through final judgment after appeal be taxed

as costs and be ordered paid directly to Defendants or Defendants’ attorney, who may

enforce the order for fees in the attorney’s own name.

IV.

RIGHT TO AMEND

61. Counter-Plaintiffs specifically reserve their right to later amend their pleadings.

V.

REQUEST FOR DISCLOSURE

62. Counter-Plaintiffs request that Defendant discloses, within 30 days of service of this

request, all information and documents required under Rule 194, Texas Rules of Civil

Procedure.

VI.

DEFENDANT PHAN’S FIRST SET OF REQUESTS FOR PRODUCTION OF

DOCUMENTS

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


63. Produce all agreements, including any partnership agreement, allegedly entered into

between Phan and you that are related to the causes of action herein.

64. Produce all agreements entered into between the Shandon Phan Law Firm and you that

are related to the causes of action herein.

65. Produce all documents you received from Phan with respect to the subject matter of this

lawsuit.

66. Produce all documents you produced to Phan with respect to the subject matter of this

lawsuit.

67. Produce all correspondence or communications between the parties regarding financial

contributions and loans alleged in your complaint.

68. Produce any and all documents that support your contention that Phan breached his

contract with you, including the alleged contract and any documents that reference the

alleged contract.

69. Produce all documents that support your contention that you only intended to enter the

partnership or joint venture on a temporary “three-month” basis.

70. Produce all documents that support your contention that Phan ignored or breached his

fiduciary duties toward you or the joint venture SPL Houston.

71. Produce all documents you intend to introduce as trial exhibit during the trial of this

cause.

72. Pursuant to Tex. R. Civ. P. 192.3(h), produce all written statements of any defendant.

SHANDON PHAN’S FIRST SET OF INTERROGATORIES TO NAM NGUYEN

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


73. Identify all facts and legal bases that support your contention that Phan breached a

contract he had with you. In answering this interrogatory, identify the contract you

contend was executed between you and Phan, the terms of the contract, the date the

contract was executed, the consideration you provided to Phan for the contract, what acts

committed by Phan violated the contract.

74. Identify all fiduciary duties you have toward Phan and the joint venture SPL Houston.

75. Identify all fiduciary duties you contend Phan owed to you and the facts and legal bases

that you contend would create such a fiduciary duty.

76. Identify all facts and legal bases that support your contention that Phan breached his

fiduciary duties toward you. In answering this interrogatory, identify the specific

fiduciary duty you contend was violated, and the specific act(s) you contend violated

such fiduciary duty.

77. Identify the time, location, and context of your contention that you ever informed Phan

that you only wanted to form a joint venture on a temporary basis, subject to a three-

month period review.

78. Identify every act or failure to perform a contractual obligation on which you base your

breach of contract claim against Defendants. In answering this interrogatory, state the

specific act or failure to perform, the name of the individual responsible for the act or

nonperformance, the date of the act or nonperformance, and any loss or damages you

contend you suffered due to the act or nonperformance.

79. Identify all communications you have had with any person relating to Shandon Phan.

Please include in your answer (a) the date of the communication, the name of the

individual with whom you exchanged the communication, (c) the substance of what you

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


or each person said or wrote. If the communication was in written form, you may answer

this interrogatory by producing the document.

80. Identify all instances where you have had with any person relating to the firm. Please

include in your answer (a) the date of the communication, the name of the individual with

whom you exchanged the communication, (c) the substance of what you or each person

said or wrote. If the communication was in written form, you may answer this

interrogatory by producing the document.

81. Identify all BP Oil Spill cases which you have worked on to successful settlement and

what exactly you have done on each of them.

SHANDON PHAN’S FIRST SET OF REQUESTS FOR ADMISSION TO NAM

NGUYEN

82. Admit that you intended to commit to SPL Houston, Sandy Claims project, BP

Claims project, or any business involvement with Phan and/or SPL for only three

months.

83. Admit that you did not intend to commit as Texas local counsel for SPL Houston

for at least one year or until Phan obtains his Texas law license.

84. Admit that you represented to Phan that you would commit to work as Texas local

counsel for SPL Houston for at least one year or until Phan obtains his Texas law

license.

85. Admit that you represented to Phan that you would only commit as Texas local

counsel for SPL Houston for three months and would revisit the joint venture

thereafter.

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


86. Admit that you spent time in January and February 2013 and used resources of

SPL Houston to study for your February 2013 Pennsylvania bar exam.

87. Admit that you failed the Pennsylvania bar exam in February 2013.

88. Admit that you applied for your New York law license in late 2012 or early 2013

and did not receive it until June 2013.

89. Admit that you withdrew from the joint venture SPL Houston in early April,

before Phan’s Texas bar exam result becomes available.

90. Admit that you used SPL resources to work on your own cases taken from your

previous employer.

91. Admit that Phan brought in most, if not all, clients of SPL Houston.

92. Admit that you requested and were allowed to attend one negotiation meeting to

work on a potential multi-million dollar claim with a high net worth client which

Phan brought in.

93. Admit that some of your daily meals and personal expenses were paid for with

SPL debit or credit cards.

94. Admit that you attended CLE courses, used legal education and business

development materials, including training and coaching programs paid for by SPL

Houston fund.

95. Admit that SPL was breaking even or sustaining losses during its first four

months of operation as a start-up business.

96. Admit that you got paid when Phan obtained his first BP settlement money and

contributed that money into the joint venture’s bank account.

97. Admit that Phan never got paid out of all Texas cases which he brought in.

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


98. Admit that attorney fees collected from Texas cases you worked on were used to

cover the start-up and operational costs of launching SPL Houston.

99. Admit that you knew or were aware of Phan’s wearing many hats and his record

of holding many civic leadership positions and engaged in various entrepreneurial

ventures before starting the joint venture SPL Houston with him.\

100. Admit that you complained to Phan that your former boss did not treat you fairly,

did not teach you much in law and in business, did not pay you fairly, and you

wanted to work with Phan because you appreciated and wanted Phan to push you

to take risks and get out of your comfort zone.

101. Admit that you agreed to share your proportionate percentage of SPL Houston

office’s financial obligations in exchange for taking the same proportionate share

in attorney fees.

102. Admit that you agreed to share your proportionate percentage of SPL Houston

office’s financial obligations in exchange for taking the same proportionate share

in its profit.

103. Admit that you had an ongoing depression problem that affected your personality,

focus, and performance at work.

104. Admit that Phan and SPL Houston continued to provide support to you in

representing SPL Houston clients you took, including staff time, Phan’s time, and

other firm resources.

105. Admit that you did not raise any complaint to Phan about any breach of duty on

his part during your time with the firm, even at the time of your withdrawal in

April 2013.

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


PRAYER

WHEREFORE, Counter-Plaintiffs Shandon Phan and Shandon Phan Law Firm, PLLC

respectfully request Counter-Defendant be cited to appear and answer, and on final trial,

Counter-Plaintiffs have the following:

1) Judgement that this action is dismissed and/or Counter-Defendant take nothing by this

suit;

2) Judgment for Counter-Plaintiffs’ actual damages of at least $100,000;

3) Judgment for pre-and post judgment interest at the highest amount allowed by law,

4) Judgment for reasonable and necessary attorney’s fees, and all costs and expenses

incurred herein;

5) Injunction against Counter-Defendant to cease his defamation and harrassment campaign

against Counter-Plaintiffs;

6) Such further relief at law or in equity, to which Counter-Plaintiffs may, by this pleading

or proper amendment, thereto, show themselves justly entitled.

Respectfully submitted,

BY: /s/ Shandon Phan

Shandon Phan, Pro Se and

Counsel for Shandon Phan Law Firm, PLLC

State Bar No. 24086794

11205 Bellaire Blvd, Ste. B-31

Houston, TX 77072

T: 281-407-5622

F: 281-407-5623

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k


CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing documents has been

served to Crystal Le, attorney for Plaintiff, via the method below on this 29th day of June, 2014.

/s/ Shandon Phan Shandon Phan

Via FAX 713-646-2992

Crystal Le

4912 Mount Vernon

Houston, TX 77006

Unoffic

ial C

opy O

ffice o

f Chr

is Dan

iel D

istric

t Cler

k

no. 2014-24030 v. § shandon phan law firm pllc ...tac-7.com/unified/2014-06-29-counterclaim.pdf ·...

Documents