Preview
FILED
DALLAS COUNTY
3/4/2015 3:34:58 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-15-02008
EDWARD JUN, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§ 101st JUDICIAL DISTRICT
DAVID Y. HAN, JUNG AH KIM, and §
GOOD SEED CONSULTING §
GROUP, INC., §
§
Defendants. § DALLAS COUNTY, TEXAS
DEFENDANTS’ TRCP 91a MOTION TO DISMISS,
ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE
COME NOW David Y. Han, Jung Ah Kim, and Good Seed Consulting Group, Inc.,
Defendants in the above-styled and numbered cause (collectively, “Defendants”), and make and
file this, their TRCP 91a Motion to Dismiss, Original Answer, and Request for Disclosure, and
in support thereof would respectfully show the Court the following:
I.
TRCP 91a MOTION TO DISMISS
1. Edward Jun, Plaintiff in the above-styled and numbered cause (“Plaintiff”), has
asserted the following causes of action against Defendants: (1) Failure to Provide Books and
Records;1 and (2) Declaratory Judgment. See Plaintiff’s Original Petition, ¶¶ 26, 36.
2. Plaintiff has also asserted the following causes of action against Defendant Han:
(1) Fraud; (2) Fraud by Nondisclosure; (3) Violation of Texas Securities Act; (4) Breach of
Contract; (5) Partner Oppression/Oppressive Conduct; (6) Conversion; and (7) Breach of
Fiduciary Duty. Id. at ¶¶ 27-33.
1
This “cause of action” is actually a potential remedy and not a recognized cause of action or ground for relief.
DEFENDANTS’ TRCP 91a MOTION TO DISMISS,
ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 1 OF 10
3. Pursuant to Rule 91a of the Texas Rules of Civil Procedure, Defendants seek to
dismiss all of Plaintiff’s causes of action against Defendants because such causes of action have
no basis in law or fact. See TEX. R. CIV. P. 91a.1, 91a.2. All of Plaintiff’s causes of action
against Defendants have no basis in law because the allegations, taken as true, together with
inferences reasonably drawn from them, do not entitle Plaintiff to the relief sought. See TEX. R.
CIV. P. 91a.1. Additionally or alternatively, all of Plaintiff’s causes of action against Defendants
have no basis in fact because no reasonable person could believe the facts pleaded. Id.
4. Defendants have not yet been served with citation; therefore, Defendants are
filing this Motion to Dismiss within the time prescribed. See TEX. R. CIV. P. 91a.3(a).
5. On February 17, 2015, Plaintiff executed a settlement agreement, which
memorialized Plaintiff’s agreement to settle any claims that he might have had with respect to
“iHEART KOLACHE,” in exchange for the return of his investment of $50,000.00 (the
“Settlement Agreement”). See Exhibit A, ¶ 4; Exhibit A-1; Exhibit B, pp.3-4.2 In the Settlement
Agreement, Plaintiff “confirmed that [he is] not involved or connected in any business of Good
Seed Consulting [Group], Inc. and i Heart Kolache.” See Exhibit A-1; Exhibit B, pp.3-4.
Plaintiff drafted the Settlement Agreement. See Exhibit A, ¶ 4.
6. In accordance with the terms of the Settlement Agreement, on February 17th,
Defendant Han delivered two cashier checks to Plaintiff in the total sum of $20,000.00. See
Exhibit A, ¶ 5; Exhibit A-2. The remaining sum of $30,000.00 is due on June 30, 2015. See
Exhibit A-1; Exhibit B, pp.3-4.
7. Therefore, all of Plaintiff’s causes of action against Defendants have already been
settled and/or released by Plaintiff, and the Settlement Agreement bars all of Plaintiff’s causes of
action against Defendants.
2
All exhibits attached to this Motion to Dismiss are attached pursuant to TEX. R. CIV. P. 59 and 91a.6.
DEFENDANTS’ TRCP 91a MOTION TO DISMISS,
ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 2 OF 10
8. Based on the foregoing, Defendants request the Court to grant their TRCP 91a
Motion to Dismiss and dismiss all of Plaintiff’s causes of action against Defendants, with
prejudice. Also, pursuant to Rule 91a.7 of the Texas Rules of Civil Procedure, Defendants
request the Court to award Defendants all of their reasonable and necessary attorney’s fees and
costs incurred with respect to the challenged causes of action.
II.
GENERAL DENIAL
9. Pursuant to Rule 92 of the Texas Rules of Civil Procedure Pursuant to Rule 92 of
the Texas Rules of Civil Procedure, Defendants generally deny each and every, all and singular,
the allegations contained in the live petition filed by Plaintiff, along with any other pleading
seeking affirmative relief subsequently filed by Plaintiff, whether amended, supplemental, and/or
otherwise, and Defendants hereby demand strict proof thereof by a preponderance of the credible
evidence.
III.
SPECIFIC AND/OR VERIFIED DENIALS
10. Defendants deny that all conditions precedent to Plaintiff’s right to the relief
sought against Defendants have been performed or have occurred or have been excused.
Defendants specifically deny: (a) the formation or existence of any partnership between Plaintiff
and one or more of the defendants, as alleged in Plaintiff’s live petition; (b) the formation or
existence of a legally binding agreement between Plaintiff and one or more of the defendants,
other than the Settlement Agreement; and/or (c) Plaintiff provided the requisite notice,
presentment, and/or proof of loss or claim to assert his claims against and/or to recover
attorneys’ fees from Defendants.
DEFENDANTS’ TRCP 91a MOTION TO DISMISS,
ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 3 OF 10
IV.
AFFIRMATIVE DEFENSES
11. Defendants, still urging and relying on the matters alleged above, further allege by
way of affirmative defenses (and/or as any other appropriate pleading) the following, and to the
extent necessary, each of the defenses set forth below are pleaded in the alternative.
12. Plaintiff’s claims are barred, in whole or in part, by settlement and/or release.
Additionally or alternatively, the Settlement Agreement bars Plaintiff’s claims, in whole or in
part.
13. Plaintiff’s claims are barred, in whole or in part, by accord and satisfaction.
14. Plaintiff’s claims are barred, in whole or in part, by novation, modification, and/or
ratification.
15. Plaintiff’s claims are barred, in whole or in part, because the purported agreement
upon which his claims against Defendants are founded is without consideration, or the
consideration of the same has failed, in whole or in part.
16. Plaintiff’s claims are barred, in whole or in part, because Plaintiff has failed to
provide a value equal to the monetary value that he seeks.
17. Plaintiff’s claims are barred by, in whole or in part, by the statute of frauds.
18. Plaintiff’s claims are barred as a result of his acts or omissions, which caused or
contributed, in whole or in part, to Plaintiff’s alleged injuries and/or damages, and Defendants
reserve the right to submit issues of comparative causation.
19. The claims alleged and/or the recovery sought by Plaintiff are barred or limited by
the doctrine of proportionate responsibility and/or pursuant to Chapter 33 of the Texas Civil
Practice and Remedies Code. Additionally or alternatively, Plaintiff’s acts or omissions are the
cause of any harm that Plaintiff claims, and the trier of fact must determine the relative
DEFENDANTS’ TRCP 91a MOTION TO DISMISS,
ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 4 OF 10
responsibility of each claimant, defendant, settling person, and responsible third-party who may
be joined or designated.
20. Plaintiff’s claims are barred, in whole or in part, by credit, offset, and/or payment.
21. Plaintiff’s claims are barred, in whole or in part, by estoppel, waiver, and/or
laches.
22. Plaintiff’s claims are barred by, in whole or in part, by common law fraud
(fraudulent misrepresentation and/or fraudulent inducement), fraud by nondisclosure, and/or
negligent misrepresentation.
23. Plaintiff’s claims are barred, in whole or in part, due to Plaintiff’s failure to
mitigate. The damages, if any, recoverable by Plaintiff must be reduced by any amount of
damages legally caused by Plaintiff’s failure to mitigate such damages, in whole or in part.
24. All conditions precedent to Plaintiff’s right to the relief sought against Defendants
have not been performed, have not occurred, and/or have not been waived.
25. To the extent that Plaintiff seeks equitable relief, such relief is barred, in whole or
in part, by the doctrine of unclean hands.
26. To the extent applicable, Defendants invoke the evidentiary requirements set forth
in Section 18.091 of the Texas Civil Practice and Remedies Code regarding any and all damages
that fall within the scope of such provision.
27. Plaintiff may not recover attorneys’ fees for his tort claims against Defendants,
and as such, Plaintiff must segregate the attorneys’ fees incurred as a result of his tort claims
from the attorneys’ fees incurred as a result of his claims that permit the recovery of attorneys’
fees, if any.
DEFENDANTS’ TRCP 91a MOTION TO DISMISS,
ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 5 OF 10
28. Any award of pre-judgment interest on an award of future damages against
Defendants, if any, would deprive Defendants of property without due process and course of law,
and further, such interest would constitute an excessive and/or unreasonable fine or penalty,
which is prohibited by the state and federal constitutions.
29. Any pre-judgment and post-judgment interest awarded against Defendants, if any,
is limited and/or subject to the limitations set forth in common law, statute, state and federal
constitutions and/or the Texas Finance Code.
30. Any punitive and/or exemplary damages awarded, if any, are limited and/or
subject to the limitations set forth in common law, statute, state and federal constitutions, and/or
Chapter 41 of the Texas Civil Practice and Remedies Code. Also, Plaintiff must prove the
elements requisite to an award of punitive and/or exemplary damages by clear and convincing
evidence.
V.
ATTORNEYS’ FEES AND COSTS
31. Defendants have retained the undersigned counsel to represent them in connection
with this lawsuit, and Defendants have agreed to pay for such reasonable and necessary services.
Defendants are entitled to and/or seek to recover their attorneys’ fees and costs, incurred and to
be incurred in this lawsuit and in all appeals of this lawsuit, from Plaintiff: (1) as permitted by
law or in equity; (2) pursuant Sections 37.009 and/or 38.001 of the Texas Civil Practice and
Remedies Code.
32. Defendants also seek to recover all costs of court and all recoverable or taxable
costs from Plaintiff.
DEFENDANTS’ TRCP 91a MOTION TO DISMISS,
ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 6 OF 10
VI.
DEMAND FOR JURY TRIAL
33. Pursuant to Rule 216 of the Texas Rules of Civil Procedure, Defendants request a
jury trial and will tender the requisite fee.
VII.
REQUEST FOR DISCLOSURE
34. Pursuant to the Texas Rules of Civil Procedure, Defendants request Plaintiff to
disclose the information and material set forth in and required by Rule 194.2(a)-(l) of the Texas
Rules of Civil Procedure. Plaintiff is directed to serve his disclosure responses to the
undersigned counsel within the time prescribed by the Texas Rules of Civil Procedure.
VIII.
NOTICE OF INTENT TO USE DISCOVERY
35. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Defendants file and
serve this, their Notice of Intent to Use Discovery against Plaintiff. By and through this notice,
Defendants hereby give actual notice to Plaintiff that they intend to use any and all documents
and tangible things produced by Plaintiff against Plaintiff in all pre-trial proceedings and at the
time of trial.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants pray that upon hearing or
consideration, the Court grant Defendants’ TRCP 91a Motion to Dismiss, in all things, and
dismiss all of Plaintiff’s causes of action asserted against Defendants, with prejudice. Also,
pursuant to Rule 91a.7 of the Texas Rules of Civil Procedure, Defendants pray that the Court
award Defendants all of their reasonable and necessary attorney’s fees and costs incurred with
respect to the challenged causes of action. Subject to and without waiving Defendants’ TRCP
91a Motion to Dismiss, Defendants pray that upon final hearing, the Court enter a judgment that
DEFENDANTS’ TRCP 91a MOTION TO DISMISS,
ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 7 OF 10
Plaintiff takes nothing by way of his claims against Defendants, Defendants recover their
attorneys ' fees and costs from Plaintiff, and Defendants be awarded such such other and further
relief, both general and special, at law and in equity, to which they may show themselves to be
justly entitled.
Respectfully submitted,
SUL LEEPLLC
Sul Lee
State Bar No. 24078844
2560 Royal Lane, Suite 202
Dallas, Texas 75229
(214) 206-4064
(214) 206-4068 Facsimile
sul@sull eelaw.co m
SCOTT VISCUSO, PLLC
Michael Y. Kim
State Bar No. 24039960
408 W. 8th Street, Suite 205
Dallas, Texas 75208
(214) 226-8314
(480) 393-5063 Facsimile
mki m sv-legal. com
ATTORNEYS FOR DEFENDANTS
D EFENDANTS' TRCP 9 la MOTION TO DI SMI SS,
ORIGINAL A NSW ER, AND REQU EST FOR DISC LOSU RE P AGE 8 OF 10
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was forwarded via electronic service and/or
electronic mail to the following counsel on this, the 4th day of March, 2015:
Tailim Song
TAILIM SONG LAW FIRM
13140 Coit Road, Suite 350
Dallas, Texas 75240
(214) 528-8402 Facsimile
tsong@tailimsong.com.
________________________________
Michael Y. Kim
DEFENDANTS’ TRCP 91a MOTION TO DISMISS,
ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 9 OF 10
VERIFICATION
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME. the undersigned Notary Public. on this day personally appeared Young
Kun Han aka David Y. Han. the affiant. known to me by the person whose name is subscribed
below. who after being by me duly sworn. stated under oath the following:
"My name is Young Kun Han. aka David Y. Han. I am over eighteen ( 18) years of age.
of sound mind, competent. and fully capable of making this verification. I have personal
knowledge of the facts stated herein. and all such facts, subject to inadvertent error, are true and
correct. I am a named defendant in the above-styled and numbered cause. I have read and/or
reviewed Defendants' Original Answer. and in particular. those matters required to be verified
pursuant to the Texas Rules of Civil Procedure. such as Paragraph 1O. and the facts stated therein
are within my personal knowledge and are true and correct."
Further affiant sayeth not.
-VL \
SUBSCRIBED AND SWORN BEFORE ME on this. the ¢ day of March. 2015. to
certify which witness my hand and official seal.
Notary P lie in and for the
State of Texas
PACJE IOm 10
Exhibit A
CAUSE NO. DC-15-02008
EDWARD JUN. lN THE DISTRICT COURT
Plaintiff.
v.
\Olst JUDICIAL DISTRICT
DA YID Y. HAN . JUNG AH KIM, and
GOOD SEED CONSULTING
GROUP. INC ..
Defendants. DALLAS COUNTY.TEXAS
AFFIDAVIT OF YOUNG KUN HAN AKA DAYID Y. HAN
STATE OF TEXAS §
§
COUNTY OF DALLAS §
BEFORE ME. the undersigned Notary Public, on this day personally appeared Young
Kun Han aka DA YlD Y. HAN. the affiant. known to me by the person whose name is subscribed
below. who after being by me duly sworn, stated under oath the following:
l. "My name is Young Kun Han aka David Y. Han. I am over eighteen (18) years
of age. of sound mind, and fully capable of making this affidavit. I am a named defendant in the
above-styled and numbered cause. I have personal knowledge of the facts stated herein. and all
such facts are true and correct.
2. On or about February 2. 2015. Yang Jhong Hee. who is the wife of Edward Jun.
Plaintiff in the above-styled and numbered cause ("Plaintiff"). stopped showing up to work at
1390 I Midway Road, Suite 10 I. Farmers Branch. Texas 75244. Plaintiff informed me that his
wife would not be working anymore .
3. A few days later. on or about February 5. 2015. Plaintiff informed me that he
would no longer be working at 13901 Midway Road. Suite I 0 I. Farmers Branch. Texas 75244.
4. Thereafter. on or about February 17. 2015 . Plaintiff executed a settlement
agreement. which memorialized Plaintiffs agreement to settle any claims that he might have had
with respect to "iHEART KOLACHE"" or Good Seed Consulting Group. Inc. (the "Settlement
Agreement""). Plaintiff hand wrote the Settlement Agreement. A true and correct copy of the
AFFIDAVIT OF DAVID Y. HAN Pi\CiE I OF 2
Settlement Agreement is attached hereto and fully incorporated herein by this specific reference
as Exhibit A-I.
5. [n accordance with the terms of the Settlement Agreement. on February I 7, 2015.
[ delivered two cashier checks to Plaintiff in the total sum of $20,000.00. True and correct
copies of the two cashier checks that I delivered to Plaintiff on February I 7. 20 I 5 are
collectively attached hereto and fully incorporated herein by this specific reference as Exhibit A-
2.
6. On or about February 26. 2015. Plaintiff came to 13901 Midway Road. Suite IOI.
Farmers Branch. Texas 75244. and since that date until March 3. 2015. Plaintiff has been coming
to 13901 Midway Road. Suite 10 I. Farmers Branch. Texas 75244. staying for approximately 10-
15 minutes and then leaving.
7. Since February 2. 2015. Plaintiff's wifo has not shown up to 13901 Midway
Road. Suite 101. Farmers Branch. Texas 75244 in order to work."
Further affiant saycth not.
STATE OF TEXAS §
§
COUNTY OF DALLAS §
SWORN TO AND SUBSCRIBED before me on the 4d~ day of March. 2015. to
certify which witness my hand and official seal.
Notary P ic in and for the
State of Texas
AITID/\VITOF DAVID Y. HAN Pi\(iF 2 OF :2
Exhibit A-1
I IL"'-<~ /.t:.C L,tit ("
~. -- 1-f .. / ~·· (,."71_,
.. ( -
! ,/
Exhibit A-2
cHASE O
Terms and Conditions (Remltter and Payee):
• Please keep this copy for your record of the transaction
• The laws of a specific state will consider these funds to be "abandoned"
if the Cashier's Check is not cashed by a certain time
- Please cash/deposit this Cashier's Check as soon as possible to
prevent this from occurring
- In most cases. the funds will be considered "abandoned"
before the "Void After" Date
• Placing a Stop Payment on a Cashier's Check
- Stop Payment can only be placed if the Cashier's Check
is lost, stolen, or destroyed
- We may not re-issue or refund the funds after the stop payment has
been placed until 90 days after the original check was issued
• Please visit a Chase branch to report a lost, stolen, or destroyed Cashier's Check
or for any other information about this item
FOR YOUR PROT CTION SAVE THIS COPY Cu•tomer Copy
CASHIER'S CHECK 9469417020
02117/2015
Remltter. HYOSCHO
s- 10,500.00 ••
Pay Ta The EDWARD JUN
Order Of:
Or-. JPMORGAN CH.&82 aAHK, H.A.
Merno::---------------
NOle: for only. Comment has no erfed on ba'*'c payment.
Information
NON NEGOTIABLE
282111107 NEW 01/08 8810004308
CASHIER"S CHECK 9469417020
CHASE ~' Date 02/17/2015
Rem tter. HYO S CHO
P•y To The EDWARD JUN
Ord..- Of:
P•y: TEN THOUSAND FIVE HUNDRED $.. 10,500.00 ....
DOLLARS AND 00 CENTS
_ , , JPMORGAN CHASE BANK, N.A.
~~
Mlmo:----------------
NO '""""e
Preview
FILED DALLAS COUNTY 3/4/2015 3:34:58 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-15-02008 EDWARD JUN, § IN THE DISTRICT COURT § Plaintiff, § § v. § § 101st JUDICIAL DISTRICT DAVID Y. HAN, JUNG AH KIM, and § GOOD SEED CONSULTING § GROUP, INC., § § Defendants. § DALLAS COUNTY, TEXAS DEFENDANTS’ TRCP 91a MOTION TO DISMISS, ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE COME NOW David Y. Han, Jung Ah Kim, and Good Seed Consulting Group, Inc., Defendants in the above-styled and numbered cause (collectively, “Defendants”), and make and file this, their TRCP 91a Motion to Dismiss, Original Answer, and Request for Disclosure, and in support thereof would respectfully show the Court the following: I. TRCP 91a MOTION TO DISMISS 1. Edward Jun, Plaintiff in the above-styled and numbered cause (“Plaintiff”), has asserted the following causes of action against Defendants: (1) Failure to Provide Books and Records;1 and (2) Declaratory Judgment. See Plaintiff’s Original Petition, ¶¶ 26, 36. 2. Plaintiff has also asserted the following causes of action against Defendant Han: (1) Fraud; (2) Fraud by Nondisclosure; (3) Violation of Texas Securities Act; (4) Breach of Contract; (5) Partner Oppression/Oppressive Conduct; (6) Conversion; and (7) Breach of Fiduciary Duty. Id. at ¶¶ 27-33. 1 This “cause of action” is actually a potential remedy and not a recognized cause of action or ground for relief. DEFENDANTS’ TRCP 91a MOTION TO DISMISS, ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 1 OF 10 3. Pursuant to Rule 91a of the Texas Rules of Civil Procedure, Defendants seek to dismiss all of Plaintiff’s causes of action against Defendants because such causes of action have no basis in law or fact. See TEX. R. CIV. P. 91a.1, 91a.2. All of Plaintiff’s causes of action against Defendants have no basis in law because the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle Plaintiff to the relief sought. See TEX. R. CIV. P. 91a.1. Additionally or alternatively, all of Plaintiff’s causes of action against Defendants have no basis in fact because no reasonable person could believe the facts pleaded. Id. 4. Defendants have not yet been served with citation; therefore, Defendants are filing this Motion to Dismiss within the time prescribed. See TEX. R. CIV. P. 91a.3(a). 5. On February 17, 2015, Plaintiff executed a settlement agreement, which memorialized Plaintiff’s agreement to settle any claims that he might have had with respect to “iHEART KOLACHE,” in exchange for the return of his investment of $50,000.00 (the “Settlement Agreement”). See Exhibit A, ¶ 4; Exhibit A-1; Exhibit B, pp.3-4.2 In the Settlement Agreement, Plaintiff “confirmed that [he is] not involved or connected in any business of Good Seed Consulting [Group], Inc. and i Heart Kolache.” See Exhibit A-1; Exhibit B, pp.3-4. Plaintiff drafted the Settlement Agreement. See Exhibit A, ¶ 4. 6. In accordance with the terms of the Settlement Agreement, on February 17th, Defendant Han delivered two cashier checks to Plaintiff in the total sum of $20,000.00. See Exhibit A, ¶ 5; Exhibit A-2. The remaining sum of $30,000.00 is due on June 30, 2015. See Exhibit A-1; Exhibit B, pp.3-4. 7. Therefore, all of Plaintiff’s causes of action against Defendants have already been settled and/or released by Plaintiff, and the Settlement Agreement bars all of Plaintiff’s causes of action against Defendants. 2 All exhibits attached to this Motion to Dismiss are attached pursuant to TEX. R. CIV. P. 59 and 91a.6. DEFENDANTS’ TRCP 91a MOTION TO DISMISS, ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 2 OF 10 8. Based on the foregoing, Defendants request the Court to grant their TRCP 91a Motion to Dismiss and dismiss all of Plaintiff’s causes of action against Defendants, with prejudice. Also, pursuant to Rule 91a.7 of the Texas Rules of Civil Procedure, Defendants request the Court to award Defendants all of their reasonable and necessary attorney’s fees and costs incurred with respect to the challenged causes of action. II. GENERAL DENIAL 9. Pursuant to Rule 92 of the Texas Rules of Civil Procedure Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants generally deny each and every, all and singular, the allegations contained in the live petition filed by Plaintiff, along with any other pleading seeking affirmative relief subsequently filed by Plaintiff, whether amended, supplemental, and/or otherwise, and Defendants hereby demand strict proof thereof by a preponderance of the credible evidence. III. SPECIFIC AND/OR VERIFIED DENIALS 10. Defendants deny that all conditions precedent to Plaintiff’s right to the relief sought against Defendants have been performed or have occurred or have been excused. Defendants specifically deny: (a) the formation or existence of any partnership between Plaintiff and one or more of the defendants, as alleged in Plaintiff’s live petition; (b) the formation or existence of a legally binding agreement between Plaintiff and one or more of the defendants, other than the Settlement Agreement; and/or (c) Plaintiff provided the requisite notice, presentment, and/or proof of loss or claim to assert his claims against and/or to recover attorneys’ fees from Defendants. DEFENDANTS’ TRCP 91a MOTION TO DISMISS, ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 3 OF 10 IV. AFFIRMATIVE DEFENSES 11. Defendants, still urging and relying on the matters alleged above, further allege by way of affirmative defenses (and/or as any other appropriate pleading) the following, and to the extent necessary, each of the defenses set forth below are pleaded in the alternative. 12. Plaintiff’s claims are barred, in whole or in part, by settlement and/or release. Additionally or alternatively, the Settlement Agreement bars Plaintiff’s claims, in whole or in part. 13. Plaintiff’s claims are barred, in whole or in part, by accord and satisfaction. 14. Plaintiff’s claims are barred, in whole or in part, by novation, modification, and/or ratification. 15. Plaintiff’s claims are barred, in whole or in part, because the purported agreement upon which his claims against Defendants are founded is without consideration, or the consideration of the same has failed, in whole or in part. 16. Plaintiff’s claims are barred, in whole or in part, because Plaintiff has failed to provide a value equal to the monetary value that he seeks. 17. Plaintiff’s claims are barred by, in whole or in part, by the statute of frauds. 18. Plaintiff’s claims are barred as a result of his acts or omissions, which caused or contributed, in whole or in part, to Plaintiff’s alleged injuries and/or damages, and Defendants reserve the right to submit issues of comparative causation. 19. The claims alleged and/or the recovery sought by Plaintiff are barred or limited by the doctrine of proportionate responsibility and/or pursuant to Chapter 33 of the Texas Civil Practice and Remedies Code. Additionally or alternatively, Plaintiff’s acts or omissions are the cause of any harm that Plaintiff claims, and the trier of fact must determine the relative DEFENDANTS’ TRCP 91a MOTION TO DISMISS, ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 4 OF 10 responsibility of each claimant, defendant, settling person, and responsible third-party who may be joined or designated. 20. Plaintiff’s claims are barred, in whole or in part, by credit, offset, and/or payment. 21. Plaintiff’s claims are barred, in whole or in part, by estoppel, waiver, and/or laches. 22. Plaintiff’s claims are barred by, in whole or in part, by common law fraud (fraudulent misrepresentation and/or fraudulent inducement), fraud by nondisclosure, and/or negligent misrepresentation. 23. Plaintiff’s claims are barred, in whole or in part, due to Plaintiff’s failure to mitigate. The damages, if any, recoverable by Plaintiff must be reduced by any amount of damages legally caused by Plaintiff’s failure to mitigate such damages, in whole or in part. 24. All conditions precedent to Plaintiff’s right to the relief sought against Defendants have not been performed, have not occurred, and/or have not been waived. 25. To the extent that Plaintiff seeks equitable relief, such relief is barred, in whole or in part, by the doctrine of unclean hands. 26. To the extent applicable, Defendants invoke the evidentiary requirements set forth in Section 18.091 of the Texas Civil Practice and Remedies Code regarding any and all damages that fall within the scope of such provision. 27. Plaintiff may not recover attorneys’ fees for his tort claims against Defendants, and as such, Plaintiff must segregate the attorneys’ fees incurred as a result of his tort claims from the attorneys’ fees incurred as a result of his claims that permit the recovery of attorneys’ fees, if any. DEFENDANTS’ TRCP 91a MOTION TO DISMISS, ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 5 OF 10 28. Any award of pre-judgment interest on an award of future damages against Defendants, if any, would deprive Defendants of property without due process and course of law, and further, such interest would constitute an excessive and/or unreasonable fine or penalty, which is prohibited by the state and federal constitutions. 29. Any pre-judgment and post-judgment interest awarded against Defendants, if any, is limited and/or subject to the limitations set forth in common law, statute, state and federal constitutions and/or the Texas Finance Code. 30. Any punitive and/or exemplary damages awarded, if any, are limited and/or subject to the limitations set forth in common law, statute, state and federal constitutions, and/or Chapter 41 of the Texas Civil Practice and Remedies Code. Also, Plaintiff must prove the elements requisite to an award of punitive and/or exemplary damages by clear and convincing evidence. V. ATTORNEYS’ FEES AND COSTS 31. Defendants have retained the undersigned counsel to represent them in connection with this lawsuit, and Defendants have agreed to pay for such reasonable and necessary services. Defendants are entitled to and/or seek to recover their attorneys’ fees and costs, incurred and to be incurred in this lawsuit and in all appeals of this lawsuit, from Plaintiff: (1) as permitted by law or in equity; (2) pursuant Sections 37.009 and/or 38.001 of the Texas Civil Practice and Remedies Code. 32. Defendants also seek to recover all costs of court and all recoverable or taxable costs from Plaintiff. DEFENDANTS’ TRCP 91a MOTION TO DISMISS, ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 6 OF 10 VI. DEMAND FOR JURY TRIAL 33. Pursuant to Rule 216 of the Texas Rules of Civil Procedure, Defendants request a jury trial and will tender the requisite fee. VII. REQUEST FOR DISCLOSURE 34. Pursuant to the Texas Rules of Civil Procedure, Defendants request Plaintiff to disclose the information and material set forth in and required by Rule 194.2(a)-(l) of the Texas Rules of Civil Procedure. Plaintiff is directed to serve his disclosure responses to the undersigned counsel within the time prescribed by the Texas Rules of Civil Procedure. VIII. NOTICE OF INTENT TO USE DISCOVERY 35. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Defendants file and serve this, their Notice of Intent to Use Discovery against Plaintiff. By and through this notice, Defendants hereby give actual notice to Plaintiff that they intend to use any and all documents and tangible things produced by Plaintiff against Plaintiff in all pre-trial proceedings and at the time of trial. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants pray that upon hearing or consideration, the Court grant Defendants’ TRCP 91a Motion to Dismiss, in all things, and dismiss all of Plaintiff’s causes of action asserted against Defendants, with prejudice. Also, pursuant to Rule 91a.7 of the Texas Rules of Civil Procedure, Defendants pray that the Court award Defendants all of their reasonable and necessary attorney’s fees and costs incurred with respect to the challenged causes of action. Subject to and without waiving Defendants’ TRCP 91a Motion to Dismiss, Defendants pray that upon final hearing, the Court enter a judgment that DEFENDANTS’ TRCP 91a MOTION TO DISMISS, ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 7 OF 10 Plaintiff takes nothing by way of his claims against Defendants, Defendants recover their attorneys ' fees and costs from Plaintiff, and Defendants be awarded such such other and further relief, both general and special, at law and in equity, to which they may show themselves to be justly entitled. Respectfully submitted, SUL LEEPLLC Sul Lee State Bar No. 24078844 2560 Royal Lane, Suite 202 Dallas, Texas 75229 (214) 206-4064 (214) 206-4068 Facsimile sul@sull eelaw.co m SCOTT VISCUSO, PLLC Michael Y. Kim State Bar No. 24039960 408 W. 8th Street, Suite 205 Dallas, Texas 75208 (214) 226-8314 (480) 393-5063 Facsimile mki m sv-legal. com ATTORNEYS FOR DEFENDANTS D EFENDANTS' TRCP 9 la MOTION TO DI SMI SS, ORIGINAL A NSW ER, AND REQU EST FOR DISC LOSU RE P AGE 8 OF 10 CERTIFICATE OF SERVICE I hereby certify that the foregoing document was forwarded via electronic service and/or electronic mail to the following counsel on this, the 4th day of March, 2015: Tailim Song TAILIM SONG LAW FIRM 13140 Coit Road, Suite 350 Dallas, Texas 75240 (214) 528-8402 Facsimile tsong@tailimsong.com. ________________________________ Michael Y. Kim DEFENDANTS’ TRCP 91a MOTION TO DISMISS, ORIGINAL ANSWER, AND REQUEST FOR DISCLOSURE PAGE 9 OF 10 VERIFICATION STATE OF TEXAS COUNTY OF DALLAS BEFORE ME. the undersigned Notary Public. on this day personally appeared Young Kun Han aka David Y. Han. the affiant. known to me by the person whose name is subscribed below. who after being by me duly sworn. stated under oath the following: "My name is Young Kun Han. aka David Y. Han. I am over eighteen ( 18) years of age. of sound mind, competent. and fully capable of making this verification. I have personal knowledge of the facts stated herein. and all such facts, subject to inadvertent error, are true and correct. I am a named defendant in the above-styled and numbered cause. I have read and/or reviewed Defendants' Original Answer. and in particular. those matters required to be verified pursuant to the Texas Rules of Civil Procedure. such as Paragraph 1O. and the facts stated therein are within my personal knowledge and are true and correct." Further affiant sayeth not. -VL \ SUBSCRIBED AND SWORN BEFORE ME on this. the ¢ day of March. 2015. to certify which witness my hand and official seal. Notary P lie in and for the State of Texas PACJE IOm 10 Exhibit A CAUSE NO. DC-15-02008 EDWARD JUN. lN THE DISTRICT COURT Plaintiff. v. \Olst JUDICIAL DISTRICT DA YID Y. HAN . JUNG AH KIM, and GOOD SEED CONSULTING GROUP. INC .. Defendants. DALLAS COUNTY.TEXAS AFFIDAVIT OF YOUNG KUN HAN AKA DAYID Y. HAN STATE OF TEXAS § § COUNTY OF DALLAS § BEFORE ME. the undersigned Notary Public, on this day personally appeared Young Kun Han aka DA YlD Y. HAN. the affiant. known to me by the person whose name is subscribed below. who after being by me duly sworn, stated under oath the following: l. "My name is Young Kun Han aka David Y. Han. I am over eighteen (18) years of age. of sound mind, and fully capable of making this affidavit. I am a named defendant in the above-styled and numbered cause. I have personal knowledge of the facts stated herein. and all such facts are true and correct. 2. On or about February 2. 2015. Yang Jhong Hee. who is the wife of Edward Jun. Plaintiff in the above-styled and numbered cause ("Plaintiff"). stopped showing up to work at 1390 I Midway Road, Suite 10 I. Farmers Branch. Texas 75244. Plaintiff informed me that his wife would not be working anymore . 3. A few days later. on or about February 5. 2015. Plaintiff informed me that he would no longer be working at 13901 Midway Road. Suite I 0 I. Farmers Branch. Texas 75244. 4. Thereafter. on or about February 17. 2015 . Plaintiff executed a settlement agreement. which memorialized Plaintiffs agreement to settle any claims that he might have had with respect to "iHEART KOLACHE"" or Good Seed Consulting Group. Inc. (the "Settlement Agreement""). Plaintiff hand wrote the Settlement Agreement. A true and correct copy of the AFFIDAVIT OF DAVID Y. HAN Pi\CiE I OF 2 Settlement Agreement is attached hereto and fully incorporated herein by this specific reference as Exhibit A-I. 5. [n accordance with the terms of the Settlement Agreement. on February I 7, 2015. [ delivered two cashier checks to Plaintiff in the total sum of $20,000.00. True and correct copies of the two cashier checks that I delivered to Plaintiff on February I 7. 20 I 5 are collectively attached hereto and fully incorporated herein by this specific reference as Exhibit A- 2. 6. On or about February 26. 2015. Plaintiff came to 13901 Midway Road. Suite IOI. Farmers Branch. Texas 75244. and since that date until March 3. 2015. Plaintiff has been coming to 13901 Midway Road. Suite 10 I. Farmers Branch. Texas 75244. staying for approximately 10- 15 minutes and then leaving. 7. Since February 2. 2015. Plaintiff's wifo has not shown up to 13901 Midway Road. Suite 101. Farmers Branch. Texas 75244 in order to work." Further affiant saycth not. STATE OF TEXAS § § COUNTY OF DALLAS § SWORN TO AND SUBSCRIBED before me on the 4d~ day of March. 2015. to certify which witness my hand and official seal. Notary P ic in and for the State of Texas AITID/\VITOF DAVID Y. HAN Pi\(iF 2 OF :2 Exhibit A-1 I IL"'-<~ /.t:.C L,tit (" ~. -- 1-f .. / ~·· (,."71_, .. ( - ! ,/ Exhibit A-2 cHASE O Terms and Conditions (Remltter and Payee): • Please keep this copy for your record of the transaction • The laws of a specific state will consider these funds to be "abandoned" if the Cashier's Check is not cashed by a certain time - Please cash/deposit this Cashier's Check as soon as possible to prevent this from occurring - In most cases. the funds will be considered "abandoned" before the "Void After" Date • Placing a Stop Payment on a Cashier's Check - Stop Payment can only be placed if the Cashier's Check is lost, stolen, or destroyed - We may not re-issue or refund the funds after the stop payment has been placed until 90 days after the original check was issued • Please visit a Chase branch to report a lost, stolen, or destroyed Cashier's Check or for any other information about this item FOR YOUR PROT CTION SAVE THIS COPY Cu•tomer Copy CASHIER'S CHECK 9469417020 02117/2015 Remltter. HYOSCHO s- 10,500.00 •• Pay Ta The EDWARD JUN Order Of: Or-. JPMORGAN CH.&82 aAHK, H.A. Merno::--------------- NOle: for only. Comment has no erfed on ba'*'c payment. Information NON NEGOTIABLE 282111107 NEW 01/08 8810004308 CASHIER"S CHECK 9469417020 CHASE ~' Date 02/17/2015 Rem tter. HYO S CHO P•y To The EDWARD JUN Ord..- Of: P•y: TEN THOUSAND FIVE HUNDRED $.. 10,500.00 .... DOLLARS AND 00 CENTS _ , , JPMORGAN CHASE BANK, N.A. ~~ Mlmo:---------------- NO '""""e