TAN DUC CONSTRUCTION LIMITED COMPANY, INC. AND HOANG-YEN THI DANG, Appellants
JIMMY TRAN, Appellee
Appeal from the 309th District Court Harris County, Texas
Trial Court Case No. 2010-48243
consists of Chief Justice Radack and Justices Higley and
MEMORANDUM OPINION ON REHEARING
Jimmy Tran has filed a motion for rehearing of our February
7, 2017 opinion and judgment. We grant the motion, withdraw
our opinion and vacate our judgment of February 7, 2017, and
issue this opinion and a new judgment in their stead.
appeal arises from common-law tort claims adjudicated as part
of a divorce proceeding. Appellee Jimmy Tran petitioned for
divorce from his wife, appellant Hoang-Yen Thi Dang. Tran
also asserted fraud and other tort claims against Dang and
Tan Duc Construction Limited Company, Inc. ("Tan
Duc"), a company Tran alleged was controlled by Dang.
The trial court entered a judgment based on the jury's
findings that Dang committed fraud and awarded Tran damages
to compensate him for the loss of his interest in their house
in Piney Point, plus exemplary damages.
challenges the trial court's judgment, contending, among
other things, that (1) legally insufficient evidence supports
the damages award, (2) Tran's damages expert's
testimony was unreliable, and (3) the trial court erred by
failing to submit a measure of damages. Tan Duc also
appealed, arguing that the trial court improperly denied its
request for attorney's fees.
affirm the trial court's judgment.
and Dang were married in 2007, after they executed a
premarital agreement. The agreement provided that all
then-existing separate property would remain separate
property, and that any assets or liabilities acquired by
either party during the marriage would remain separate
property. Each party waived any right to support from the
fall of 2010, Tran filed a petition for divorce and asserted
claims for breach of the premarital agreement, common-law
fraud, breach of fiduciary duty, and civil conspiracy. Tran
claimed that Dang breached the agreement by failing to give
him a gift of cash, stock, real estate or other assets worth
$1 million within 30 days of the consummation of the
marriage. Tran also alleged that Dang committed fraud and
breached her fiduciary duties to him with respect to several
properties that the couple jointly owned during their
marriage, including their house located at 11440
Tran also sued Tan Duc, contending that it was controlled by
Dang and had conspired with her to fraudulently transfer
tort claims were tried to a jury. At trial, Tran testified
that in October 2007, shortly after he and Dang married, he
transferred a 25% interest in the house to Dang and a 25%
interest to each of her two daughters. Tran did not allege
that these transfers were induced by fraud. Around this same
time, Tran mortgaged the house. He executed one promissory
note for $2.5 million and another for $500, 000. Both notes
were personally guaranteed by him alone, and both were
secured by the house.
testified that in the spring of 2010, Dang told him that they
should transfer their interests in the house to Tan Duc.
According to Tran, Dang told him that the transfer would be
financially advantageous and that he still would own his 25%
interest in the house, either by gaining ownership in the
entity that owned the house or by some other means. According
to Tran, Dang told him that Tan Duc would pay the mortgages
on the house. Tran signed a deed transferring his 25%
interest in the house to Tan Duc in April 2010, and it is the
ultimate loss of this 25% interest that forms the basis of
Tran's fraud claim related to the house. At trial, Tran
testified that at the time he transferred his 25% interest in
the house, it was worth approximately $5.5 million. He also
testified that he continued to be liable personally on the
mortgages secured by the house after the transfer of his
testimony conflicted with Tran's. Dang testified that in
the spring of 2010 Tran wanted to transfer his ownership in
the house to avoid foreclosure and avoid paying property
taxes. According to Dang, Tran wanted Tan Duc to assume
responsibility for the house because he could not pay for the
notes that burdened it.
Dang, and her two daughters executed a deed in April 2010
transferring each of their interests-in total, 100% of the
interest in the house-to Tan Duc. According to a document
executed in connection with the transfer, Tan Duc purchased
the house for $5.77 million, at least $2.77 million of which
was assuming the obligation to pay on Tran's two notes,
which had remaining balances of $2.27 million and $500, 000.
Dang produced this document during discovery and introduced
it into evidence at trial; Tran claimed he had never seen the
document and that it was fraudulent. He also testified that
Tan Duc did not assume his obligation to pay on the notes and
he remained obligated on them. Tan Duc initially did make
some mortgage payments, but eventually ceased, causing a
foreclosure in October 2011.
economic damages expert, Dr. Kenneth Lehrer, calculated his
damages from the alleged fraud. According to Lehrer,
Tran's 25% interest in the house was worth approximately
$800, 000 when Lehrer prepared his report in 2013. Lehrer
calculated this figure by determining the value of Tran's
interest in the property at the time the premarital agreement
was executed in 2007 and assuming a 20% increase in value
each year. Lehrer testified that this figure would compensate
Tran for the loss of the house to foreclosure in 2011. Lehrer
testified that he did not account for any debt on the
property and that he assumed that Tran had no obligation for
any debt on the property at any point. Lehrer also did not
calculate the value of the home at the time that Tran
transferred his 25% interest in 2010.
testified that Tran's interest alternatively could be
valued by calculating 25% of the $2.62 million 2011
foreclosure sales price of the house, which was $655, 000, or
25% of HCAD's assessed value of the house at the time of
the foreclosure in 2011, which was $625, 000. Tran also
testified about the value of his interest based on the 2011
foreclosure price, calculating that his interest was worth
25% of that price, around $600, 000.
jury found that Dang did not breach the premarital agreement
or breach a fiduciary duty to Tran, but found that Dang
committed fraud against Tran. The jury awarded Tran $650, 000
for fraud damages and $50, 000 in exemplary damages. The jury
found no liability on the part of Tan Duc.
asserts five issues in her appeal. She argues that (1) the
trial court erred by admitting unreliable testimony from
Tran's damages expert, (2) there is legally insufficient
evidence to support the damages award, (3) the trial court
erred by failing to submit a measure of damages for the
fraud, (4) the jury's fraud and damages findings were
rendered immaterial by others, and (5) the award of exemplary
damages should be reversed because no evidence supports the
actual damages award.
third issue, Dang contends that the trial court erred by
failing to submit a measure of damages for her alleged fraud
related to the house.
Standard of Review and Applicable Law
preserve an objection regarding charge error, the party
objecting to the charge "must point out distinctly the
objectionable matter and the grounds of the objection."
Tex.R.Civ.P. 274; Ford Motor Co. v. Ledesma, 242
S.W.3d 32, 43 (Tex. 2007). Moreover, the party's
objection must have "stated the grounds for the ruling
that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the
context." Tex.R.App.P. 33.1(a). A party must
"clearly designate the alleged error and specifically
explain the basis of its complaint in its objection to the
charge." Hamid v. Lexus, 369 S.W.3d 291, 296
(Tex. App.- Houston [1st Dist.] 2011, no pet.) (quoting
Carousel's Creamery, L.L.C. v. Marble Slab Creamery,
Inc., 134 S.W.3d 385, 404-05 (Tex. App.-Houston [1st
Dist.] 2004, pet. dism'd)).
to object timely to error in a jury charge constitutes a
waiver of that error. Tex.R.Civ.P. 272. "Any complaint
as to a question, definition, or instruction, on account of
any defect, omission, or fault in pleading, is waived unless
specifically included in the objections." Tex.R.Civ.P.
274; see Burbage v. Burbage, 447 S.W.3d 249, 255
(Tex. 2014) (party waives any objection to jury charge not
specifically raised in trial court); Hamid, 369
S.W.3d at 296 (same) (first citing Ledesma, 242
S.W.3d at 43; then citing State Dep't of Highways
& Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.
1992) (op. on reh'g)).
theory at trial was that Dang fraudulently induced him to
transfer his 25% interest in the house to Tan Duc in 2010.
Question 13, the damages question, asked the jury:
What sum of money, if any, if paid now in cash, would fairly
and reasonably compensate Jimmy Tran for his damages, if any,
that resulted from the conduct of Hoang-Yen Thi Dang?
If you answered "No" to Question 7, related to
fiduciary duty, you must further find that any resultant
damages were "proximately caused" by Hoang[-]Yen
"Proximate cause" means a cause that was a
substantial factor in bringing about an event, and without
which cause such event would not have occurred. In order to
be a proximate cause, the act or omission complained of must
be such that a person using the degree of care required of
him would have foreseen that the event, or some similar
event, might ...