Opinion

Opinion issued July 25, 2013

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00519-CV

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OKON EYO ONYUNG, M.D., THE LAW OFFICES OF YUEN &

ASSOCIATES, P.C., THE LAW OFFICES OF YUEN & ASSOCIATES,

PLLC, AND XENOS YUEN, Appellants

V.

COMFORT NKASI ONYUNG, CHRISTINE ENEBONG ONYUNG,

NNAEMEKA ODUNZE, INDIVIDUALLY AND AS TRUSTEE OF THE

ONYUNG LIVING TRUST, ODUNZE & LAZ, L.L.P., AND VICTOR

IHEZUKWU, Appellees

On Appeal from the 434th District Court

Fort Bend County, Texas

Trial Court Case No. 04-CV-140141

MEMORANDUM OPINION ON REHEARING *

Appellants Okon Eyong Onyung, M.D., The Law Offices of Yuen &

Associates, P.C., The Law Offices of Yuen & Associates, PLLC, and Xenos Yuen

appeal from a final judgment entered on two cases that were consolidated for a trial

by jury. In one of the cases, Dr. Onyung sued appellees Comfort Nkasi Onyung

(Dr. Onyung’s wife, hereinafter referenced as Mrs. Onyung), Christine Enebong

Onyung (the Onyungs’ adult daughter), Nnaemeka Odunze (individually and as

trustee of the Onyung Living Trust), Odunze & Laz, and Victor Ihezukwu, alleging

various causes of action arising out of conveyances of real property. The trial

court entered a take-nothing judgment on Dr. Onyung’s claims. In the other case,

Mrs. Onyung sued attorney Xenos Yuen and two law firms, The Law Offices of

Yuen & Associates, P.C. and The Law Offices of Yuen & Associates, PLLC (the

“Yuen law firms”), alleging various causes of action arising from their legal

*

This opinion was originally issued on January 31, 2013. This court was

subsequently notified that appellant Xenos Yuen had filed a Chapter 13

bankruptcy petition on January 21, 2013. We withdrew our opinion and abated

the appeal. See 11 U.S.C. § 362(a); Howell v. Thompson, 839 S.W.2d 92 (Tex.

1992) (order); TEX. R. APP. P. 8.2. The Bankruptcy Court then modified the

bankruptcy stay to permit the prosecution of this appeal, and we reissued our prior

opinion without change on June 6, 2013. The appellants moved for rehearing

arguing that there was an error in the court’s opinion reversing mental anguish

damages and raising an issue not previously presented to the court of appeals. We

deny appellants’ motion for rehearing. However, to clarify the limited scope of

our remand to the trial court, we withdraw our prior opinion and judgment of June

6, 2013, and we issue this opinion and judgment in their stead.

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representation of her and Dr. Onyung. The trial court entered a money judgment

against Yuen and the Yuen law firms on Mrs. Onyung’s claims.

We affirm in part and reverse and remand in part.

Background

Dr. and Mrs. Onyung, both Nigerian citizens, were married in 1981 and had

three children together. Dr. Onyung is a medical doctor who has participated in

several businesses in Nigeria including practicing medicine, hospital

administration, travel, shrimp trolling, and oil shipping. Mrs. Onyung assumed

various roles in Dr. Onyung’s businesses during their marriage. The couple had a

house in Sugar Land titled in both of their names that their family used during

school breaks. In 2000, the Onyungs purchased as investments four undeveloped

lots in a subdivision called Bridlewood Estates in Fort Bend County. The

Bridlewood lots were also titled in both of their names.

Dr. and Mrs. Onyung wanted to obtain residency in the United States for

themselves and their children by taking advantage of the “EB-5” immigration visa

program. According to testimony elicited at trial, a foreigner could obtain a

permanent residency “green card” by investing $500,000 in a business creating at

least ten jobs in a rural area. Mrs. Onyung was referred to Xenos Yuen, a Texas

attorney specializing in immigration services, and in January 2001 she met with

him in Texas to discuss the possibility of hiring him. She told Yuen that she and

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her family wanted to move to the United States in the next few years and that they

wanted to establish a real estate business to facilitate that move. Although Dr. and

Mrs. Onyung returned to Nigeria before they could both meet personally with

Yuen, they agreed together to hire him as their lawyer. Dr. Onyung, while in

Nigeria, wrote a letter to Yuen to confirm their interest in hiring him. The letter

stated, “My wife, Mrs. Onyung today informed me that she spoke to you about the

above subject [of obtaining permanent residency for the Onyung family]. I am

writing to confirm that we would like your law firm to handle our United States

residency application. . . . We would therefore be grateful if your law firm could

assist us in setting up this real-estate company and helping us in the United States

Permanent Residency application process.”

When Yuen had a client who was interested in the EB-5 program, his

practice was to put the interested client in contact with the president of a real estate

firm called CMC Development, Inc. Two days after Dr. Onyung wrote to Yuen,

the president of CMC Development sent a letter addressed to Dr. Onyung, but not

Mrs. Onyung, thanking him for “expressing your interest to join our EB5

(investment immigration) program.” The letter outlined the requirements of the

EB-5 program and proposed a limited partnership whereby Dr. Onyung, having a

99% interest in the limited partnership, would invest $500,000 as a limited partner,

and CMC Development, having a 1% interest in the limited partnership, would act

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as the general partner to conduct the business. The letter contained a signature line

with the preprinted names of both Dr. and Mrs. Onyung, where they could indicate

their acceptance of the proposal. Both Dr. and Mrs. Onyung signed the letter.

Around the time that CMC Development sent its letter to Dr. Onyung, Yuen

prepared and faxed two documents which were each titled “Attorney Consultation

and Fee Contract.” One reflected that the purpose of the representation was to

“apply US PERMANENT STATUS FOR Dr. Onyung, and his immediate family

by investment immigration visa (EB5) category.” The other reflected that the

purpose of the representation was to “draft, review all contracts, trust and escrow

agreement, business plan, formation of limited partnership and article of limited

partnership, to review and file lien and security documents provided by the CMC

Development as collateral to secure the funds invested as related to the investment

immigration (EB5) application.” The documents reflect that a $2,500 retainer was

required for the immigration matter and a $5,000 retainer was required for the

investment matter. The documents recited that the “undersigned, hereinafter

referred to as ‘Client’” and Yuen’s law firm, Yuen & Associates, PLLC, had

agreed to the terms of the document. At the end of each document was a signature

block designated for “Attorney,” “Client: O.E. Onyung,” and “Client: Nksai

Onyung.” Dr. and Mrs. Onyung signed the documents on the lines designated for

their respective names and faxed them back to Yuen, who then signed his name on

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the lines designated for “Attorney.” Dr. Onyung subsequently authorized a wire

transfer of $7,500 from the couple’s joint account to Yuen’s law firm.

At trial, Mrs. Onyung testified as to her understanding that the documents

were a contract between her, her husband, and Yuen’s law office, and that Yuen

would perform the immigration work for her, Dr. Onyung, and their children. Mrs.

Onyung further testified that she believed that Yuen was her attorney. Yuen,

however, testified that before they signed the documents, he told Dr. and Mrs.

Onyung that he had only one client, Dr. Onyung. According to Yuen, he put Mrs.

Onyung’s name on the documents only because Dr. Onyung insisted so

strenuously. When asked whether Mrs. Onyung was ever his client, he replied, “I

don’t know how to answer that question,” but he maintained that he never provided

legal services to her. He described the case as a “once in a lifetime situation.”

Sometime after the “Attorney Consultation and Fee Contract” documents

were signed, Dr. and Mrs. Onyung decided to form a company called Onyung

Development, Ltd. to act as their investment vehicle relating to the EB-5 process.

Dr. Onyung believed that there might be a conflict of interest in using CMC

Development as the general partner of the prospective limited partnership because

CMC Development was already engaged in obtaining immigrant visas for other

people. Yuen proposed that another entity, CMC Builders Ltd., substitute as the

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general partner. Yuen’s wife was then an officer of CMC Builders, but this fact

was never disclosed to Mrs. Onyung.

In June 2001, Dr. and Mrs. Onyung went to Yuen’s office to review a “Rider

Agreement of Articles of Limited Partnership [of] ONYUNG DEVELOPMENT

LTD.” The rider agreement was made between Dr. and Mrs. Onyung as limited

partners of Onyung Development, Ltd. and CMC Builders as general partner, and

it provided that Dr. and Mrs. Onyung owned 99% of the limited partnership while

CMC Builders owned the remaining 1%. The limited partners agreed to place an

“initial capital contribution” of $500,000 in an escrow account with their trustee,

“Mr. Xenos Yuen.” They also agreed to instruct Yuen to make the funds available

to CMC Builders once it pledged adequate security in the form of real estate.

CMC Builders agreed to produce a business plan that met the requirements of the

EB-5 visa program. At such time as Dr. Onyung, Mrs. Onyung, and their family

obtained permanent immigration status, Dr. and Mrs. Onyung would have had the

right to demand that CMC Builders purchase their holdings, assets, and balance of

the escrow account for $500,000. Mrs. Onyung understood that this agreement

meant that the investment money would be returned to her and her husband after

she and her family obtained permanent residency in the United States, and that

they could foreclose on CMC Builders’s pledged collateral if the repayment was

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not received. An officer of CMC Builders and Dr. and Mrs. Onyung signed the

agreement above their preprinted names.

Dr. Onyung and Yuen, but not Mrs. Onyung, signed a separate “Declaration

of Trust and Escrow Account” that was dated the same day that the limited

partnership agreement was signed. The document reflects that Dr. Onyung as

trustor had transferred $500,000 to “The Law Offices of Yuen & Associates” as

trustee for the benefit of Onyung Development, Ltd. The document recited that

“Trustor has stated to trustee, and trustee has no information to the contrary, that

all of the property transferred was the separate property of trustor on the date of the

transfer.” The document authorized the trustee to receive as compensation a fee of

1% of deposited funds. At trial Mrs. Onyung testified that she was unaware of the

existence of this document. Approximately two weeks after the document was

signed, Dr. Onyung authorized a U.S. bank to transfer $500,000 to Yuen from an

account jointly owned by him and Mrs. Onyung. According to Mrs. Onyung, the

bank would not have transferred such a large sum without her recorded oral

authorization.

Several weeks later, Yuen sent a proposed business plan to the Onyungs.

“Onyung Development, Ltd.” appeared in the letterhead along with the address for

Yuen’s law firm. The business plan stated that “Onyung Development, Ltd. is

being formed by Dr. Onyung and his wife Mrs. Onyung” and that they would

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together have 99% ownership of the company. The business plan outlined the

expected activities of the limited partnership in light of the requirements of the

EB-5 visa application process. Dr. and Mrs. Onyung discussed the business plan

and thought it was acceptable. Dr. Onyung handwrote a letter to Yuen

acknowledging and approving the plan, saying that he and his wife approved the

business plan and wanted him “to go ahead with the appraisal” of CMC Builders’s

proposed collateral properties.

In December 2001, Yuen sent appraisals of two properties to the Onyungs’

residence in Nigeria. In a cover letter addressed to Dr. and Mrs. Onyung, Yuen

asked, “Please advise you want to approve these collateral or not.” The properties

were then owned by one of Yuen’s clients. Mrs. Onyung testified at trial that Yuen

did not disclose to her who owned those properties. Dr. Onyung signed the letter

beneath the preprinted words “Approved for Collateral” and above his preprinted

name. There was no designated space in the letter for Mrs. Onyung’s signature,

and she did not sign it.

On several occasions in 2002, Mrs. Onyung went to Yuen’s law office to

inquire about the immigration matters, how the entity formation was progressing,

and whether collateral had been obtained for the $500,000 investment.

Mrs. Onyung was concerned about the lack of documentation for Onyung

Development, Ltd. and what was being done with the $500,000. During these

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discussions, Yuen told Mrs. Onyung that he was “working on it.” He never told

Mrs. Onyung that she was not his client.

The business plan for Onyung Development, Ltd. was never carried out as

written, and the partnership was never registered with the Texas Secretary of State.

Instead, in 2002, Dr. Onyung became president and a 65% percent owner of CMC

Builders. He eventually acquired 100% of the company. Dr. Onyung loaned to

CMC Builders at no interest the $500,000 that had been transferred to Yuen.

Shortly before trial and after he had obtained his permanent residency, Dr. Onyung

exercised his authority as 100% shareholder to transfer to himself the investment

property that CMC Builders had acquired, which he eventually resold for

$520,000.

Mrs. Onyung testified at trial that before the litigation she was unaware of

her husband’s ownership and role in CMC Builders, nor did she know about the

loan. She also testified that she would never have agreed to an arrangement in

which she was excluded. During the course of the litigation, Mrs. Onyung

demanded that CMC Builders return the $500,000 to her. The company’s attorney

wrote back that because the limited partnership was never formed, the company

was not obligated to return the money.

On August 25, 2003, the Economic Financial Crimes Commission of

Nigeria detained Dr. Onyung for interrogation relating to suspected illegal use of

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his oil shipping company. Mrs. Onyung testified that one of the couple’s

employees called to inform her that the EFCC had detained Dr. Onyung. Mrs.

Onyung immediately engaged a Nigerian lawyer, James Ezeike, to secure Dr.

Onyung’s release from detention. Ezeike later told Mrs. Onyung that he met with

her husband in prison, and he told him to instruct Mrs. Onyung to “secure” all of

their American properties.

After receiving this message, Mrs. Onyung retained another Texas attorney,

Victor Ihezukwu, to prepare documents to form the “Onyung Living Trust,”

transfer the Onyungs’ Sugar Land house to the newly formed trust, and transfer the

undeveloped Bridlewood lots to the Onyungs’ eldest daughter, Christine. An

attorney friend of Mrs. Onyung served without compensation as a trustee of the

Onyung Living Trust. The Onyungs’ son was the beneficiary of the trust. Mrs.

Onyung signed her own name and her husband’s name on the deeds transferring

the titles to those properties.

According to Mrs. Onyung’s trial testimony, she believed that she was

protecting the assets from seizure by the EFCC, that she had authority to sign her

husband’s name on the deeds as a limited partner of Onyung Development, Ltd.,

and that she additionally had her husband’s consent to do so. Although she

understood that the name of the grantee on the deed was the legal owner of the

property, she also testified that in accordance with her cultural beliefs, she

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considered the property to be owned by the entire family. She testified that it was

not her intention to deprive her husband of ownership of those properties.

Christine similarly testified that her parents often put property in the children’s

names and that by accepting the Bridlewood lots she had no intention to deprive

her father of his ownership interest.

In addition to executing the property transfers, Mrs. Onyung attempted to

regain control of the $500,000 that had been entrusted to Yuen. On September 3,

Mrs. Onyung went to Yuen’s law office to retrieve her documents. Yuen refused

to hand over the documents, told Mrs. Onyung to leave, and threatened to call the

police if she did not. That same day, Mrs. Onyung sent two letters by fax to

Yuen’s law office. One letter, titled “Notice of Withdrawal,” stated that Dr. and

Mrs. Onyung no longer wished to be represented by Yuen’s law office and that

they were revoking the two “Attorney Consultation and Fee Contracts” that they

had previously signed. Mrs. Onyung signed her name and her husband’s name at

the bottom of the letter. The other letter, titled “Revocation of the Declaration of

Trust & Escrow Account,” stated that Dr. Onyung was revoking the trustee’s

powers under the corresponding document that he had previously signed. Mrs.

Onyung signed her husband’s name to that letter as well. Her attorney, who was

associated with the trustee of the Onyung Living Trust, sent Yuen another letter by

fax. That letter stated that the attorney’s firm was retained by Dr. and Mrs.

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Onyung to represent them in their business and legal transactions, and it demanded

that Yuen transfer his records to the firm.

The following day, Yuen sent a letter by fax to Mrs. Onyung’s attorney

stating that “we do not recognize Dr. Onyung’s signature in Notice of Withdrawal

and Revocation of the Declaration of Trust & Escrow Account to be his genuine

signature.” The letter further stated “As such, without a[n] original power of

attorney from Dr. Onyung, we [are] afraid we cannot honor your request until we

have a chance to clarify with [our] client, Dr. Onyung. This is especially true

when Dr. Onyung and his wife have been having marital problems.”

In a letter to Yuen dated September 30, 2003, Dr. Onyung stated that the

instruments sent by Mrs. Onyung and purportedly bearing his signature were not

signed by him. Dr. Onyung instructed Yuen to disregard the “phony letter” from

Mrs. Onyung’s lawyer and to “pursue with utmost vigor the Petition filed with

[the] Bureau of Citizenship & Immigration Services so as to receive a positive

response.”

From late August until October 2003, Mrs. Onyung believed that her

husband was in detention in Nigeria. In fact, the EFCC detained Dr. Onyung for a

period of 18 days until September 12. In October, for the first time, Mrs. Onyung

heard that her husband was actually in the Houston area. She did not believe it at

first because she anticipated that Dr. Onyung would come to their family’s house

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in Sugar Land if he were in the area. She hired a private investigator whose

investigation led to recording a video of Dr. Onyung and a Nigerian woman

staying at a hotel.

In November, Dr. Onyung called Mrs. Onyung from Nigeria to ask her to

visit him there. Mrs. Onyung arrived in Nigeria where the couple discussed what

she had done to secure their American assets. According to Mrs. Onyung, Dr.

Onyung was pleased with what she had done. However, Dr. Onyung “wasn’t

happy” that Mrs. Onyung refused to hand over the evidence that her private

investigator had collected. He demanded that she sign a document known as a

“head deed.” A head deed, according to the testimony of Dr. Onyung’s Nigerian

lawyer, is a contractual instrument that requires the parties to “perfect” the transfer

of properties. The head deed effectively divided the Onyung family’s properties—

including real properties located in Texas and Nigeria and various financial

assets—between Dr. Onyung, Mrs. Onyung, and their children. The head deed

reflected that the Sugar Land house would belong to Mrs. Onyung while the

Bridlewood lots and the $500,000 investment related to the EB-5 application

would belong to Dr. Onyung. According to Mrs. Onyung, when she refused to

sign the document, Dr. Onyung threatened to implicate her in the EFCC

investigation. Mrs. Onyung, fearing for her life, departed the country.

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Shortly after Mrs. Onyung’s return to Texas, she learned that her husband

had filed several lawsuits in Nigeria against her and her children. As a result of

that litigation, several financial assets were frozen including a Barclays trust

account located on the Isle of Man. Previously, Barclays had transferred $240,000

from that account to a U.S. account twice a year. The money was used in part to

pay for the Onyung children’s tuition at private schools which would become due

shortly after the transfers. The Onyungs’ eldest daughter, Christine, testified that

she spoke with her father by telephone in December 2003. She said her father was

aware of what her mother had done with the family’s properties and he was not

upset about it. He instructed Christine to sell the Bridlewood lots for cash to pay

for their family expenses. The Onyungs’ middle daughter, Amore, testified that

she had participated in that phone call and confirmed that her father told them to

sell the Bridlewood lots to take care of themselves. Christine sold the Bridlewood

lots to third parties for $240,000. Mrs. Onyung and Christine testified at trial that

the proceeds were used for tuition and other family expenses, except that a portion

of the proceeds were temporarily deposited in Mrs. Onyung’s account so that she

could sponsor Amore’s student visa.

Unable to remain in the United States on a tourist visa, Mrs. Onyung

returned to Nigeria in January 2004. She testified that her husband and his lawyer

demanded that she sign the head deed, and when she refused they beat her so badly

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that she required hospitalization. After that, Mrs. Onyung returned to the United

States.

Mrs. Onyung and her children went to Nigeria in the summer of 2004 to see

if Dr. Onyung would “have a change of heart.” While in the country, she was

arrested for illegal oil brokering and put in prison. Mrs. Onyung testified that

Dr. Onyung’s lawyer visited her in prison multiple times and told her that she

would stay there until she signed the head deed. Although Mrs. Onyung at first

refused, she eventually agreed to sign it, and she was released after having spent

two months in prison.

Dr. Onyung testified to a different version of events than the one that

Mrs. Onyung and the couple’s children presented at trial. Dr. Onyung admitted

that his attorney, James Ezeike, had visited him in detention in Nigeria, but he

denied that he instructed Ezeike to tell Mrs. Onyung to secure their American

properties. Dr. Onyung claimed that he was unaware of the property transfers at

the time they were made and that he had no idea why Mrs. Onyung made them.

He testified that when he got out of detention, he tried to contact his wife, but she

did not answer or return his calls. With regard to the head deed, he testified that he

and Mrs. Onyung held a meeting with several family members and their pastor in

Nigeria to determine how to save their marriage. The agreed solution was to

divide the family assets. Dr. Onyung denied that any threats were made against

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Mrs. Onyung to force her to sign the head deed. Dr. Onyung testified that he

would not have signed the head deed if he had known about the transfers of the

real properties in Texas to the Onyung Living Trust and to the couple’s daughter,

Christine.

Dr. Onyung filed suit in Fort Bend County against Mrs. Onyung, Christine,

the trustees of the Onyung Living Trust, the individual attorney who had formed

the trust and prepared the deeds conveying the Sugar Land house and the

Bridlewood lots, the firm whose attorneys represented Mrs. Onyung, and

individual attorneys of that firm who had represented or assisted Mrs. Onyung (the

“Dr. Onyung v. Mrs. Onyung suit”). Dr. Onyung alleged that Mrs. Onyung and his

daughter, with the assistance of Mrs. Onyung’s attorneys, had fraudulently and

without his knowledge conveyed their Sugar Land house to the Onyung Living

Trust and their Bridlewood lots to Christine. He also accused Mrs. Onyung of

concealing what she had done when she signed the head deed under which the

couple agreed that Dr. Onyung would acquire the Bridlewood lots. Dr. Onyung

asserted claims against all the defendants for theft under the Texas Theft Liability

Act, filing a fraudulent claim against real property, civil conspiracy, aiding and

abetting, and trespass to try title. Against Mrs. Onyung only, he also asserted

claims for breach of fiduciary duty, fraud and intentional deceit, and anticipatory

breach of the head deed contract. He requested that a constructive trust be placed

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upon all the conveyed properties. Yuen and his law firm represented Dr. Onyung

in that suit from the filing of the original petition through trial.

In a separate suit filed in Harris County district court, Mrs. Onyung sued

Yuen, his two law firms, and CMC Builders (the “Mrs. Onyung v. Yuen” suit). She

alleged that Yuen had breached his fiduciary duty as her attorney by, among other

things, failing to advise her of conflicts of interest that arose during the

representation, representing her husband in a suit against her, failing to account for

the $500,000 entrusted to him, and refusing to return his work file to her. She also

alleged breach of contract by failing to form Onyung Development, Ltd. and carry

out the related business plan, and that he also breached his contract by failing to

apply for an EB-5 visa. Against CMC Builders, she alleged a breach of its

fiduciary duties as a general partner, breach of contract, and violation of the Texas

Uniform Fraudulent Transfer Act.

By agreement of the parties, the Harris County district court ordered that

Mrs. Onyung’s suit against Yuen and his law firms be transferred and consolidated

with the case filed in Fort Bend County district court. Both cases were tried in the

same proceeding to the same jury. At the time of trial, a divorce proceeding

between Dr. and Mrs. Onyung was pending in Nigeria.

The jury answered two sets of questions, each corresponding to one of the

consolidated cases. In the Dr. Onyung v. Mrs. Onyung suit, the jury found that

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Mrs. Onyung did not have express authority to “use her best endeavors to secure

[the Onyungs’] assets,” but that she did have implied and apparent authority to do

so. On Dr. Onyung’s claims for theft, filing a fraudulent deed, and trespass to try

title, the jury answered the questions against Dr. Onyung and in favor of the

defendants. The trial court entered a take-nothing judgment in favor of the

defendants.

In the Mrs. Onyung v. Yuen suit, the jury found that Mrs. Onyung was

Yuen’s client, Yuen was a trustee of the $500,000 with respect to Mrs. Onyung,

and Yuen and his law firms both failed to comply with their agreements with

Mrs. Onyung and committed fraud against her. The jury also found that Yuen did

not comply with his fiduciary duties owed to Mrs. Onyung as an attorney and as a

trustee. For Yuen’s breach of fiduciary duty as an attorney, the jury awarded

Mrs. Onyung damages of $7,500 for the difference in value between the services

that Yuen agreed to perform and what he actually performed, as well as mental

anguish damages of $50,000. For Yuen’s breach of fiduciary duty as a trustee, it

awarded no damages for the value of unperformed services, but it awarded her

mental anguish damages of $2,500. For the fraud committed by Yuen or his law

firms, the jury awarded her $100,000 in damages. The jury also found that the

agreed fee to provide legal service to Mrs. Onyung was $3,750, while Yuen’s fee

to serve as trustee was $5,000. The trial court entered a money judgment in Mrs.

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Onyung’s favor of $100,000 plus interest and court costs against Yuen and his law

firms. The court also awarded an additional $68,750 (plus interest and court costs)

against Yuen individually, representing Yuen’s agreed fees and the amounts

awarded as damages for his breaches of fiduciary duty.

Analysis

Dr. Onyung, Yuen, and the Yuen law firms have identified eleven issues on

appeal. The first ten pertain to the part of the judgment entered against Yuen and

the Yuen law firms (the “Yuen entities”). The eleventh pertains to the part of the

judgment entered against Dr. Onyung.

I. Two final judgments

In the first issue, the Yuen entities argue that the trial court erred by

rendering two final judgments. They rely on Texas Rule of Civil Procedure 301

which provides, in relevant part, “Only one final judgment shall be rendered in any

cause except where it is otherwise specifically provided by law.” TEX. R. CIV.

P. 301. Based upon the file-stamped dates on the judgments, according to which

the judgment in the Mrs. Onyung v. Yuen suit was filed one day before the

judgment in the Dr. Onyung v. Mrs. Onyung suit, the Yuen entities argue that the

“second judgment” was intended to replace the “first judgment,” and thus the

Mrs. Ongyung v. Yuen judgment entered against them is a nullity. Mrs. Onyung

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argues that the Yuen entities waived any error by failing to object to the rendition

of two judgments.

“Because the law does not require that a final judgment be in any particular

form, whether a judicial decree is a final judgment must be determined from its

language and the record in the case.” Lehmann v. Har-Con Corp., 39 S.W.3d 191,

195 (Tex. 2001). A judgment is final if it disposes of all pending parties and

claims. Id. A judgment rendered following trial on the merits is presumed to be

final. Moritz v. Preiss, 121 S.W.3d 715, 718–19 (Tex. 2003). In some

circumstances, “a final judgment may consist of several orders that cumulatively

dispose of all parties and issues.” Noorian v. McCandless, 37 S.W.3d 170, 173

(Tex. App.—Houston [1st Dist.] 2001, pet. denied).

The heading of the Mrs. Onyung v. Yuen judgment reflects the style and

cause number of that case, and that it was consolidated with the Dr. Onyung v.

Mrs. Onyung case. It identifies each party to the Mrs. Onyung v. Yuen suit:

“Plaintiff Nkasi Comfort Onyung,” “Defendant Xenos Yuen,” “Defendants The

Law Offices of Yuen & Associates, P.C. and The Law Offices of Yuen &

Associates, PLLC,” and “Defendant CMC Builders Co., Ltd.” The body of the

judgment does not mention any party to the Dr. Onyung v. Mrs. Onyung suit that

was not also a party to the Mrs. Onyung v. Yuen suit. At the end of the judgment, it

states, “This judgment is final, disposes of all claims and all parties, and is

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appealable.” The document reflects that judgment was signed and filed on March

16, 2010.

The Dr. Onyung v. Mrs. Onyung judgment reflects the style and cause

number of that case. It identifies each party to that suit: “Plaintiff Dr. Onyung,”

“Defendant Nkasi Mrs. Onyung,” “Defendant Christine Enebong Onyung,”

“Defendant The Onyung Living Trust appear[ing] through trustee Nnaemeka

Odunze,” “Defendant Nnaekmeka Odunze,” “Defendant Odunze & Laz, L.L.P.,”

and “Defendant Victor Ihezukwu.” The body of the judgment does not mention

any party to the Mrs. Onyung v. Yuen suit that was not also a party to the

Dr. Onyung v. Mrs. Onyung suit. At the end of the judgment, it states, “This

judgment is final, disposes of all claims and all parties, and is appealable.” The

document reflects that the judgment was signed on March 16, 2010, but not filed

until March 17.

We conclude that the two judgments, signed the same day, together

constitute one final judgment for the consolidated cases, despite the fact that one

judgment was filed a day after the other. When considered individually, neither

judgment expressly addresses all parties and all claims. Only when considered

together do they expressly address all parties and all claims. There is nothing in

the record to suggest which judgment was signed first or that on March 17 the trial

court intended to supersede the judgment filed the previous day. See Quanaim v.

22

Frasco Rest. & Catering, 17 S.W.3d 30, 37 (Tex. App.—Houston [14th Dist.]

2000, pet. denied) (“It has long been the rule in Texas that a court must be ‘express

and specific’ in vacating, setting aside, modifying, or amending a judgment.”).

There is no language in either judgment suggesting that one was intended to

vacate, modify, correct, or reform the other, see TEX. R. CIV. P. 329b(d), (e), nor is

there any particular finding or order in one judgment that conflicts with a finding

or order in the other judgment such that an intent to vacate, modify, correct, or

reform may be inferred.

The two judgments, which correspond respectively to the parties and claims

in the two cases that were consolidated for trial, together dispose of all pending

parties and claims in the two consolidated cases. Nothing in the record would

preclude us from reading the two documents together to constitute a single final

judgment. Accordingly, we overrule the first issue.

II. Enforceability of final judgment

In the second issue, the Yuen entities argue that the Mrs. Onyung v. Yuen

judgment is so ambiguous that it is unenforceable. They focus on the part of that

judgment ordering that “Plaintiff recover damages from Defendants Xenos Yuen,

The Law Offices of Yuen & Associates, P.C., and The Law Offices of Yuen &

Associates, PLLC” for $100,000, plus interest and court costs. The Yuen entities

note that the jury found in two separate questions that Yuen individually had

23

committed fraud and that his law firms had committed fraud, but when asked what

amount would compensate Mrs. Onyung for such fraud, they answered “$100,000”

on a single line without apportioning the amount among the defendants. Thus they

contend that there is no way to know for what amount each Yuen entity is liable, or

whether the judgment intended to make them jointly and severally liable for the

$100,000 award.

Mrs. Onyung interprets the judgment as making the Yuen entities jointly and

severally liable for the $100,000 award. She argues that because the jury found

that Yuen and the Yuen law firms had engaged in the same fraud, by law they must

be jointly and severally liable for the corresponding damages. She suggests that

this court could modify the judgment to clarify that Yuen and the Yuen law firms

are jointly and severally liable.

The same rules of interpretation apply in ascertaining the meaning of

judgments as in ascertaining the meaning of other written instruments. Lone Star

Cement Corp. v. Fair, 467 S.W.2d 402, 405 (Tex. 1971); Garcia v. Kubosh, 377

S.W.3d 89, 98 (Tex. App.—Houston [1st Dist.] 2012, no pet.). “A judgment

should be construed as a whole toward the end of harmonizing and giving effect to

all the court has written.” Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277,

278 (Tex. 1987) (per curiam). “The entire content of the written instrument and

the record should be considered.” Id. (citing Lone Star, 467 S.W.2d at 405).

24

“When an ambiguous order is susceptible to two reasonable constructions, an

appellate court should adopt the construction that correctly applies the law.”

MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam); see also State

Farm Lloyds, Inc. v. Williams, 791 S.W.2d 542, 546 (Tex. App.—Dallas 1990,

writ denied) (“If the language of the judgment is susceptible to more than one

interpretation, the one which renders the judgment more reasonable, effective, and

conclusive, and which harmonizes it with the facts and the law of the case, should

be adopted.”).

When injuries resulting from the conduct of multiple tortfeasors cannot be

apportioned with reasonable certainty, the plaintiff’s injuries are indivisible and the

tortfeasors are jointly and severally liable for the whole. See Amstadt v. U.S. Brass

Corp., 919 S.W.2d 644, 654 (Tex. 1996) (citing Landers v. E. Tex. Salt Water

Disposal Co., 248 S.W.2d 731, 734 (Tex. 1952)). The Yuen entities impliedly

argue, however, that the jury could have found each of them responsible for a

proportional share of Mrs. Onyung’s fraud-related damages. Chapter 33 of the

Civil Practice and Remedies Code provides rules for determining a tortfeasor’s

proportionate responsibility and whether the tortfeasor may be held jointly and

severally liable for harm attributable to other parties. See TEX. CIV. PRAC. & REM.

CODE ANN. §§ 33.001–.017 (West 2008 & Supp. 2011). But that chapter only

applies to “any cause of action based on tort in which a defendant, settling person,

25

or responsible third party is found responsible for a percentage of the harm for

which relief is sought . . . .” Id. § 33.002; see also F.F.P. Operating Partners, L.P.

v. Duenez, 237 S.W.3d 680, 687 (Tex. 2007) (“Chapter 33 of the Texas Civil

Practice and Remedies Code governs the apportionment of responsibility in cases

within its scope.”). The percentage of responsibility is determined for purposes of

Chapter 33 by the trier of fact. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.003(a). In this case, the jury was not asked to find the percentage of fraud-

related harm for which each Yuen entity was responsible. Thus, Chapter 33’s

provisions concerning proportionate responsibility do not apply. Cf. Tex. Capital

Sec., Inc. v. Sandefer, 108 S.W.3d 923, 926 (Tex. App.—Texarkana 2003, pet.

denied) (holding that Chapter 33 did not apply when defendants were found jointly

and severally liable); accord Barnett v. Home of Tex. & Warranty Underwriters

Ins. Co., Nos. 14-09-01005-CV & 14-10-00197-CV, 2011 WL 665309, at *7 (Tex.

App.—Houston [14th Dist.] Feb. 24, 2011, no pet.) (mem. op.). Thus, assuming

that the Yuen entities might have been entitled to have their separate percentages

of responsibility determined by the jury, they waived appellate review of such an

error by failing to object to the jury charge on the basis that the necessary questions

were not included. See Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d

864, 868 (Tex. 2007).

26

In this case, there was no allegation or evidence presented at trial that

Mrs. Onyung had contact with any attorney at the Yuen law firms other than Yuen

himself. Therefore Yuen, acting for himself or for the law firms, made the

misrepresentations that form the basis of Mrs. Onyung’s fraud claims. A factfinder

could have reasonably concluded that Mrs. Onyung’s injuries are indivisible and

cannot be apportioned with reasonable certainty between Yuen and his law firms.

See Amstadt, 919 S.W.2d at 654.

To the extent there is any ambiguity as to joint and several liability, in light

of the record, the language of the judgment, and the common law of tort liability,

we adopt the most reasonable construction which is that Yuen and the Yuen law

firms are jointly and severally liable for the damages occasioned by the fraud. See

MacGregor, 941 S.W.2d at 75. Moreover, we hold that as a whole, the judgment

as written is not so ambiguous that it cannot be carried into execution. See Stewart

v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994). We

overrule the second issue.

III. Breach of fiduciary duty

In the fourth and ninth issues, Yuen argues that the evidence adduced at trial

shows as a matter of law that he could not have breached any fiduciary duty to

Mrs. Onyung in his capacity as her attorney. He contends that for there to be a

breach of fiduciary duty as an attorney, there must have been a substantial

27

relationship between his representation of Mrs. Onyung in the immigration-related

work and his representation of Dr. Onyung in the lawsuit against her. See, e.g.,

Metro. Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 320–21 (Tex. 1994)

(citing Tex. Disciplinary R. Prof. Conduct 1.09(a)(3) (1989), reprinted in TEX.

GOV’T CODE ANN., tit. 2, subtit. G. app. (West 2005) (State Bar Rules art. X, § 9)).

Yuen argues that there was no such substantial relationship between the investment

immigration application and Dr. Onyung’s suit relating to the fraudulent

conveyances, and furthermore, that there was no evidence that he used or disclosed

any confidences that he learned from Mrs. Onyung in the suit against her. He also

argues that the trial court erred by failing to enter a directed verdict on Mrs.

Onyung’s claim for breach of fiduciary duty because there was no evidence that he

breached any duty before Mrs. Onyung terminated the representation. Yuen does

not challenge the jury’s separate finding that he breached his fiduciary duty as a

trustee.

Mrs. Onyung argues that the substantial relation test referenced by Yuen is a

test that is primarily relevant to whether an attorney should be disqualified from

representation rather than whether an attorney breached his fiduciary duty. She

argues that the evidence proved that Yuen breached his fiduciary duty in several

ways beyond representing Dr. Onyung in the lawsuit against her: Yuen agreed but

failed to create a limited partnership in which Mrs. Onyung would have been a

28

limited partner; he agreed but failed to obtain real estate as collateral for the

$500,000 immigration-related investment; he failed to disclose to her that one of

his clients owned the properties that he recommended as collateral for the

$500,000 investment; he failed to disclose to her that his wife was an officer of

CMC Builders, the proposed general partner of the limited partnership; he failed to

provide her an accounting of the $500,000 investment; and he agreed but failed to

apply for permanent immigration status for Mrs. Onyung and her children.

These issues effectively present a challenge to the legal sufficiency of the

evidence to support the jury’s finding that Yuen breached his fiduciary duty as an

attorney. In a legal sufficiency, or “no-evidence” review, we determine whether

the evidence would enable reasonable and fair-minded people to reach the verdict

under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In

making this determination, we credit favorable evidence if a reasonable fact-finder

could, and we disregard contrary evidence unless a reasonable fact-finder could

not. Id. We consider the evidence in the light most favorable to the finding under

review and indulge every reasonable inference that would support it. Id. at 822.

So long as the evidence falls within the zone of reasonable disagreement, we may

not substitute our judgment for that of the fact-finder. Id. The trier of fact is the

sole judge of the credibility of the witnesses and the weight accorded to their

testimony. Id. at 819. Although we consider the evidence in the light most

29

favorable to the challenged findings, indulging every reasonable inference that

supports them, we may not disregard evidence that allows only one inference. Id.

at 822.

“A fiduciary relationship exists between attorneys and clients as a matter of

law.” Kennedy v. Gulf Coast Cancer & Diagnostic Cntr. at Southeast, Inc., 326

S.W.3d 352, 359 (Tex. App.—Houston [1st Dist.] 2010, no pet.). “[A] lawyer

must conduct his or her business with inveterate honesty and loyalty, always

keeping his client’s best interest in mind.” Hoover Slovacek LLP v. Walton, 206

S.W.3d 557, 561 (Tex. 2006) (quoting Lopez v. Muñoz, Hockema & Reed, L.L.P.,

22 S.W.3d 857, 867 (Tex. 2000) (Gonzales, J., concurring and dissenting)). The

attorney-client relationship is thus one of most abundant good faith, requiring

absolute candor, openness, and honesty, and prohibiting any concealment or

deception. Kennedy, 326 S.W.3d at 359. “Breach of fiduciary duty by an attorney

most often involves the attorney’s failure to disclose conflicts of interest, failure to

deliver funds belonging to the client, placing personal interests over the client’s

interests, improper use of client confidences, taking advantage of the client’s trust,

engaging in self-dealing, and making misrepresentations.” Goffney v. Rabson, 56

S.W.3d 186, 193 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

Generally, a lawyer’s fiduciary duties to a client extend only to dealings

within the scope of the underlying representation. Joe v. Two Thirty Nine Joint

30

Venture, 145 S.W.3d 150, 159 (Tex. 2004). “As a fiduciary, an attorney is

obligated to render a full and fair disclosure of facts material to the client’s

representation.” Willis v. Maverick, 760 S.W.2d 642, 646 (Tex. 1988). When

interpreting and enforcing attorney-client agreements, “it is ‘not enough to simply

say that a contract is a contract’” because “‘[t]here are ethical considerations

overlaying the contractual relationship.’” Hoover Slovacek, 206 S.W.3d at 560

(quoting Lopez, 22 S.W.3d at 868 (Gonzales, J., concurring and dissenting)). Also,

“the work product generated by the attorney in representing the client belongs to

the client.” Kennedy, 326 S.W.3d at 360.

The jury question regarding whether Yuen complied with his fiduciary duty

as an attorney provided, in relevant part, as follows:

To prove he complied with his [fiduciary] duty, Mr. Yuen must show:

a. the transaction in question was fair and equitable to

Ms. Onyung;

b. Mr. Yuen made reasonable use of the confidence that

Ms. Onyung placed in him;

c. Mr. Yuen acted in the utmost good faith and exercised the most

scrupulous honesty toward Ms. Onyung;

d. Mr. Yuen placed the interests of Ms. Onyung before his own,

did not use the advantage of his position to gain any benefit for

himself at the expense of Ms. Onyung, and did not place

himself in any position where his self-interest might conflict

with his obligations as a fiduciary;

31

e. Mr. Yuen fully and fairly disclosed all important information to

Ms. Onyung concerning the transaction;

f. Mr. Yuen represented Ms. Onyung with undivided loyalty; and

g. Mr. Yuen timely informed Ms. Onyung of all conflicts of

interest[.]

Yuen did not object to this description of fiduciary duty and, accordingly, it is by

this standard that the sufficiency of the evidence is measured. See Osterberg v.

Peca, 12 S.W.3d 31, 55 (Tex. 2000).

Based on his arguments on appeal, Yuen apparently assumes that the jury

found that he breached his fiduciary duty as an attorney to Mrs. Onyung solely by

representing Dr. Onyung in the lawsuit against her. However, as Mrs. Onyung

notes, the evidence would permit a jury to find that Yuen breached his fiduciary

duty owed to her even before representing her husband in the lawsuit. Based upon

the evidence adduced at trial, the jury could have believed that Yuen altered the

legal structure of the immigration investment to exclude Mrs. Onyung’s equal

ownership interest and participation and that he did so without informing her.

Also, according to Mrs. Onyung’s testimony, Yuen did not disclose the fact that

his wife was an officer of CMC Builders, the proposed general partner of the

limited partnership in which Mrs. Onyung was supposed to become a limited

partner, nor did he disclose that one of his clients owned properties that he

proposed as collateral for the $500,000 investment. Moreover, it is undisputed that

32

when Mrs. Onyung demanded documents relating to Yuen’s representation, he

refused to comply. Measured against the jury charge’s description of fiduciary

duty, these facts would support a finding that Yuen breached his fiduciary duty as

an attorney.

We overrule the fourth and ninth issues.

IV. Inconsistent jury findings

In the fifth and seventh issues, Yuen argues that jury rendered contradictory

findings in response to questions on whether he breached his agreements and

fiduciary duties owed to Mrs. Onyung. In response to questions 1 and 1-A, the

jury found that although the Yuen law firms agreed with Mrs. Onyung to prepare

the limited partnership documents and apply for permanent residency status, Yuen

did not agree to render these services individually. Yuen contends that the jury

thus contradicted itself in answering question 2 by finding that Yuen “fail[ed] to

comply with [his] agreements with Ms. Onyung.” He challenges the judgment that

he is liable for the $100,000 in fraud damages based on the instruction

accompanying question 20:

What sum of money, if any, if paid now in cash, would fairly and

reasonably compensate Mrs. Onyung for her damages, if any, that

resulted from such fraud?

Consider the following elements of damages, if any, and none

other.

33

The difference, if any, between the value of the services

Mr. Yuen or Yuen & Associates, P.C., and Yuen & Associates,

PLLC agreed to perform under the agreement and the value of

the services performed by Mr. Yuen or Yuen & Associates,

P.C., and Yuen & Associates, PLLC, if any. The difference in

value, if any, shall be determined at the time and place the

services were performed.

(Emphasis supplied.) Yuen argues that because the jury found in response to

questions 1 and 1-A that Yuen individually had not entered into an agreement with

Mrs. Onyung, the jury’s finding that she suffered $100,000 in fraud damages

cannot be applied to him.

Mrs. Onyung argues that Yuen’s brief is inadequate in its failure to provide

any supporting authorities. She also argues that Yuen failed to preserve any

alleged error with respect to the language of the jury charge by failing to object in

the trial court. On the merits, Mrs. Onyung argues that Yuen, in his capacity as an

attorney, can owe fiduciary duties to her even though he was not a party to any

agreement in his individual capacity, and that it would be incorrect to premise a

finding of fraud or breach of fiduciary duty on a finding of breach of contract.

As indicated by Mrs. Onyung, Yuen’s appellate brief does not provide

citations to any authorities with respect to issues five and seven. Without citations

to legal authorities, we are unable to ascertain with certainty the legal foundation

for his complaints on appeal. See TEX. R. APP. P. 38.1(i). Nevertheless, in the

34

interest of justice, we construe Yuen’s brief as arguing that the jury rendered

inconsistent findings.

Rule 295 of the Texas Rules of Civil Procedure provides a mechanism for

remedying inconsistent jury findings in the trial court:

If the purported verdict is defective, the court may direct it to be

reformed. If it is incomplete, or not responsive to the questions

contained in the court’s charge, or the answers to the questions are in

conflict, the court shall in writing instruct the jury in open court of the

nature of the incompleteness, unresponsiveness, or conflict, provide

the jury such additional instructions as may be proper, and retire the

jury for further deliberations.

TEX. R. CIV. P. 295. The failure to utilize this mechanism may be fatal to an

appeal of any alleged inconsistency, because “[t]o preserve error that the jury’s

findings are inconsistent, the complaining party must raise an objection in the trial

court before the jury is discharged.” Izen v. Comm’n for Lawyer Discipline, 322

S.W.3d 308, 324 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). The record

does not reflect that Yuen or any other party objected to any inconsistencies in the

jury’s verdict before the jury was discharged. Accordingly, we hold that Yuen

waived appellate review of any alleged inconsistencies in the jury’s verdict. See

id.

We overrule the fifth and seventh issues.

35

V. Exemplary damages, mental anguish, and fraud

In the sixth issue, Yuen and the Yuen law firms challenge the sufficiency of

the evidence to support the trial court’s judgment for exemplary damages, mental

anguish, and fraud. The jury answered the questions about actual malice and

exemplary damages in the negative, and the judgment did not award any amount of

money for exemplary damages. We therefore overrule any issue pertaining to the

award of exemplary damages.

a. Mental anguish

The jury awarded mental anguish damages against Yuen only in his

individual capacity. In particular, the jury found that Yuen breached his fiduciary

duty as a lawyer and that Mrs. Onyung suffered $7,500 in actual damages and

$50,000 in mental anguish damages as a result of that breach. The jury also found

that Yuen breached his fiduciary duty as a trustee of the $500,000 investment, and

that Mrs. Onyung suffered no actual damages but $2,500 in mental anguish

damages as a result of that breach. The jury also found that Mrs. Onyung’s agreed

legal fees were $3,750 and her trustee fees were $5,000. Simple arithmetic shows

that the trial court included all of these sums found by the jury in the judgment

against Yuen.

Yuen contends that the awards of $50,000 for mental anguish arising from

his breach of fiduciary duty as a lawyer and $2,500 for mental anguish arising from

36

his breach of fiduciary duty as a trustee fail as a matter of law because mental

anguish damages are not recoverable based on an award of purely economic

damages or in the absence of an award of actual damages. Yuen relies on Douglas

v. Delp, 987 S.W.2d 879 (Tex. 1999), in which the Supreme Court of Texas held

that “when a plaintiff’s mental anguish is a consequence of economic losses caused

by an attorney’s negligence, the plaintiff may not recover damages for that mental

anguish.” 987 S.W.2d at 885.

Mrs. Onyung argues that Douglas is not controlling because her mental

anguish was caused by fraud, which is more than mere negligence. But the jury

was not asked to determine if she suffered mental anguish as a result of the fraud

committed by Yuen and the Yuen law firms or what amount of money would

compensate her for any such mental anguish. Rather, the jury was asked only to

determine what amount of money would compensate her for mental anguish

caused by Yuen’s breach of his individual fiduciary duties as a lawyer and as a

trustee.

Mrs. Onyung further argues that because Yuen did not object to the

inclusion of mental anguish damages in the jury charge, he has not preserved the

error on appeal. Addressing the merits, Mrs. Onyung maintains that the law

permits her to recover mental anguish damages for the fraud that Yuen committed.

37

She does not, however, address Yuen’s argument that there was no evidence that

she suffered mental anguish as a result of his conduct.

“No evidence’ points may be raised by either (1) a motion for instructed

verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to

the submission of the issue to the jury, (4) a motion to disregard the jury’s answer

to a vital fact issue or (5) a motion for new trial.” Cecil v. Smith, 804 S.W.2d 509,

510–11 (Tex. 1991). Yuen raised the argument that there was legally insufficient

evidence that he caused Mrs. Onyung mental anguish in both his motion for

judgment notwithstanding the verdict and motion for new trial. Although he could

have preserved the issue by objecting to the submission of the issue to the jury, his

post-trial motions were sufficient to preserve the error for appellate review. See id.

“Courts should ‘closely scrutinize’ awards of mental anguish damages.”

Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 860 (Tex. 1999) (quoting Universe

Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex. 1997)). “[A]n award of mental

anguish damages will survive a legal sufficiency challenge when the plaintiffs have

introduced direct evidence of the nature, duration, and severity of their mental

anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine.”

Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). In the absence of

such direct evidence, “we apply traditional ‘no evidence’ standards to determine

whether the record reveals any evidence of ‘a high degree of mental pain and

38

distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or

anger’ to support any award of damages.” Id. (quoting J.B. Custom Design &

Bldg. v. Clawson, 794 S.W.2d 38, 43 (Tex. App.—Houston [1st Dist.] 1990, no

writ)). “As a general rule, evidence to establish ‘adequate details to assess mental

anguish claims’ can be demonstrated by ‘the claimants’ own testimony, that of

third parties, or that of experts.’” N.N. v. Inst. for Rehab. & Research, 234 S.W.3d

1, 9 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting Parkway, 901 S.W.2d

at 444).

Mrs. Onyung testified that when she went to Yuen’s office to retrieve her

documents, Yuen became angry and threatened to call the police if she did not

leave. His letter addressed to Mrs. Onyung’s attorneys asserts that she “verbally

assaulted” his colleagues during that visit. Based on this evidence, Mrs. Onyung

may well have been angry and upset as a result of Yuen’s breach of fiduciary duty.

However, we find no evidence in the record demonstrating that Mrs. Onyung

experienced an emotional response meeting the legal standard for mental anguish,

and Mrs. Onyung has identified none in her briefing. Accordingly, we hold that

the evidence is legally insufficient to support a finding that Mrs. Onyung

experienced a high degree of mental pain and distress that disrupted her daily

routine as a result of Yuen’s conduct. See Parkway, 901 S.W.2d at 444. Absent

such proof, the jury’s award for mental anguish damages cannot stand. See Finger

39

v. Ray, 326 S.W.3d 285, 294 (Tex. App.—Houston [1st Dist.] 2010, no pet.)

(holding that client failed to present sufficient proof of mental anguish when her

testimony established only “that she felt worry, anxiety, and stress due to [her

attorney’s] conduct]”).

We sustain Yuen’s sixth issue insofar as he challenges the awards for mental

anguish damages.

b. Fraud

The Yuen entities also challenge the judgment awarding Mrs. Onyung

$100,000 in fraud damages because there is no evidence that she was injured and

injury is an element of her cause of action for fraud. They argue that she cannot

show that she was injured by any fraudulent act because the $500,000 entrusted to

the firm to be invested in furtherance of the EB-5 visa was returned to Dr. Onyung

and thus to the marital estate. Put another way, they allege the complete absence

of a vital fact, i.e., evidence of injury. See City of Keller, 168 S.W.3d at 811.

A person commits fraud by (1) making a representation of material fact

(2) that is false (3) and was known to be false or asserted recklessly without

knowledge of its truth (4) with the intent that the misrepresentation be acted upon,

(5) and the person to whom the misrepresentation is made justifiably relies upon it

(6) and is injured as a result. Aquaplex, Inc. v. Rancho La Valencia, Inc., 297

S.W.3d 768, 774 (Tex. 2009). “An injury is suffered when a legally protected

40

interest is wrongfully invaded.” Nabours v. Longview Savs. & Loan Ass’n, 700

S.W.2d 901, 909 (Tex. 1985) (citing RESTATEMENT (SECOND) OF TORTS § 7

(1965)). The concept of injury is not restricted to monetary loss. Anderson,

Greenwood & Co. v. Martin, 44 S.W.3d 200, 212 (Tex. App.—Houston [14th

Dist.] 2001, pet. denied); see also Lee v. Killian, 761 S.W.2d 139, 141 (Tex.

App.—Fort Worth 1988, no writ) (holding that fraudulently induced legal waiver

barring person from bringing lawsuit constituted an injury); RESTATEMENT

(SECOND) OF TORTS § 7 cmt. a. (noting distinction between injury, which is the

“invasion of a legally protected interest,” and harm, which is “loss or detriment in

fact”).

The evidence at trial showed that Dr. Onyung transferred $500,000 from a

joint account to Yuen, as trustee, to be invested for an EB-5 visa, which would

enable his family members to apply for visas as derivative beneficiaries. Yuen

invested the money with CMC Builders, which later returned the money by

pledging assets, which Dr. Onyung liquidated. Because the evidence also showed

that Dr. and Mrs. Onyung were married at the time of trial, the money was returned

to the marital estate. To the extent that Mrs. Onyung sought return of the

$500,000—or a share of it—her remedy lies in a divorce proceeding. See Chu v.

Hong, 249 S.W.3d 441, 445 (Tex. 2008) (holding that either spouse can seek

41

recovery from a defrauding third party but a third party cannot be held liable in tort

when community property is taken by one of the spouses).

However, it is not at all clear on appeal that Mrs. Onyung alleges that her

injury from Yuen’s fraudulent activities was the loss of the $500,000 investment.

She does not make such an argument in her brief. Rather, she argues that her loss

was “paying for an attorney to represent her and receiving no representation, no

return on her investment, no green card, no lien on collateralized property, no

ownership interest in an ongoing venture, and no security that her interests were

being handled by an advocate with a duty to look out for those interests.”

There was no evidence introduced at trial as to the projected but unrealized

return on her investment, or the economic value of a green card, a lien on

collateralized property, or an ownership interest in what she had hoped would

become an ongoing venture. See, e.g., City of Keller, 168 S.W.3d at 811

(discussing complete absence of evidence of a vital fact). And there is also nothing

in the record to suggest that she had a legally protected interest in obtaining a green

card or realizing a return on her investment. See RESTATEMENT (SECOND) OF

TORTS § 7 cmt a.

As to Mrs. Onyung’s contentions that she was injured by not receiving the

legal representation and services that she believed Yuen agreed to provide, she

relies on her testimony and that of Yuen. Her testimony establishes that she had an

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attorney-client relationship with Yuen and that he failed to perform the services

that he agreed to perform. She testified that she and her husband paid Yuen $7,500

for his promised legal services and that they had previously been informed that

Yuen’s fee for such services would be $15,000. Separate and apart from the award

of fraud damages, Mrs. Onyung was compensated for the attorney’s fees that she

paid by way of the award of a disgorgement of Yuen’s fees. She is not entitled to

recover the same element of damages twice. And there is no other evidence to

support the jury’s award of $100,000 as fraud damages. As such, we conclude that

the trial court’s judgment awarding Mrs. Onyung $100,000 is not supported by

legally sufficient evidence, and we sustain this part of issue six.

VI. Deposition testimony

In the tenth issue, the Yuen law firms argue that the trial court erred by

denying their motion to strike the deposition testimony of a former officer of CMC

Builders. Yuen, who served as counsel during this litigation representing the Yuen

law firms, personally did not receive formal notice of that deposition, although the

lawyer representing Yuen did receive notice. The Yuen law firms contend that the

challenged testimony was highly prejudicial to their case and should not have been

admitted.

Mrs. Onyung contends that the Yuen law firms received actual notice of the

deposition but instead chose not to attend, and that they were afforded the

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opportunity to redepose the witness but chose not to do so. Mrs. Onyung argues

that the Rules of Civil Procedure were therefore satisfied with respect to the

admissibility of the deposition testimony.

We review a trial court’s decision to admit evidence over a party’s objection

for an abuse of discretion. Service Corp. Int’l v. Guerra, 348 S.W.3d 221, 235

(Tex. 2011); Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009).

“[U]nder an abuse of discretion standard, the court of appeals cannot overrule the

trial court’s decision unless the trial court acted unreasonably or in an arbitrary

manner, without reference to guiding rules or principles.” Butnaru v. Ford Motor

Co., 84 S.W.3d 198, 211 (Tex. 2002). “Moreover, the court of appeals cannot

substitute its judgment for the trial court’s reasonable judgment even if it would

have reached a contrary conclusion.” Id.

The Rules of Civil Procedure provide that a “notice of intent to take an oral

deposition must be served on the witness and all parties a reasonable time before

the deposition is taken.” TEX. R. CIV. P. 199.2(a). Rule 203.6(b), concerning when

deposition testimony may be used in a proceeding, provides:

All or part of a deposition may be used for any purpose in the same

proceeding in which it was taken. . . . “Same proceeding” includes a

proceeding in a different court but involving the same subject matter

and the same parties or their representatives or successors in interest.

A deposition is admissible against a party joined after the deposition

was taken if . . . that party has had a reasonable opportunity to

redepose the witness and has failed to do so.

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TEX. R. CIV. P. 203.6(b).

Before the notice of deposition was served, Yuen’s personal counsel sent a

letter to Mrs. Onyung’s counsel stating that she represented both Yuen and the

Yuen law firms. Accordingly, Mrs. Onyung’s counsel sent formal notices for the

deposition of CMC Builders’s former officer only to Yuen’s personal counsel. It is

undisputed that Mrs. Onyung’s counsel did not serve notices to Yuen, who

represented the Yuen law firms.

On the day of the deposition, neither Yuen nor his personal counsel

attended. Two days later, Yuen’s personal counsel wrote a letter to Mrs. Onyung’s

counsel to “clarify” that she only represented Yuen, and she acknowledged that she

may have caused the confusion and apologized for not clearing it up earlier. She

took responsibility for not informing Yuen about the notices that were sent to her

office.

Several weeks later, Mrs. Onyung’s counsel wrote to the parties, including

Yuen at his law office, expressing his willingness to redepose CMC Builders’s

former officer and suggesting dates, but he also asserted his intention to use the

existing deposition testimony at trial. Several weeks later, after the dates

suggested by Mrs. Onyung’s counsel had passed, Yuen asserted that Mrs. Onyung

would have to pay the expenses for a new deposition of the witness. Opposing

counsel responded to reiterate his intention of using the existing deposition

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testimony and to express his refusal to pay for a court reporter in the event that a

new deposition occurred.

Prior to the presentation of the deposition videotape to the jury, the trial

court heard and denied the Yuen law firms’ objection to the admission of the

deposition testimony. The trial court observed that the parties did not avail

themselves of the opportunity to request that the redeposition be compelled, and

when Mrs. Onyung’s lawyer provided the “opportunity to cure” the notice issue,

“nobody got in line to get that done.” The court stated that “[i]t’s more important

that everyone was given the opportunity to follow up on the deposition” and that

its ruling “was based upon the fact that the overture was made to give anyone who

hadn’t taken part in the depositions the chance to do so, and no one did that.”

Although the Yuen law firms, through Yuen, did not receive formal notices

of the first deposition, they did receive a letter from Mrs. Onyung’s counsel

inviting them to redepose the witness and suggesting possible dates. The record

does not reflect that the Yuen law firms responded to that invitation. Rule 203.6(b)

provides that a “deposition is admissible against a party joined after the deposition

was taken if . . . that party has had a reasonable opportunity to redepose the witness

and has failed to do so.” TEX. R. CIV. P. 203.6(b). The rule is premised on the

principle that parties should have the opportunity to cross-examine deponents

before such deposition testimony is admitted against them at trial. See Stevenson v.

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Koutzarov, 795 S.W.2d 313, 317 (Tex. App.—Houston [1st Dist.] 1990, writ

denied). But the rule also provides that if a party joined after a deposition was

taken has a reasonable opportunity to redpose the witness and fails to do so, that

party bears the burden of its inaction and cannot oppose admission of the

deposition testimony on the ground that it was not present at the deposition. See

TEX. R. CIV. P. 203.6(b).

Although Rule 203.6(b) does not directly apply to this situation because the

Yuen law firms were not parties “joined after the deposition was taken,” the

principle undergirding the rule applies nevertheless. The trial court evidently

concluded that the Yuen law firms had a reasonable opportunity to redepose CMC

Builders’s former officer but failed to do so, which is a conclusion supported by

the record. The consequence of their inaction is that they could not oppose

admission of that testimony on the ground that they were not present at the

deposition. See id. If the Yuen law firms believed that they were not provided a

reasonable opportunity to depose the witness, they could have moved to compel

another deposition. See TEX. R. CIV. P. 215.1. Moreover, if they believed that

Mrs. Onyung’s counsel had abused the discovery process, they could have moved

for sanctions. See TEX. R. CIV. P. 215.3. The Yuen law firms pursued neither of

these potential remedies.

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On this record, we hold that the trial court’s ruling was not unreasonable or

arbitrary, nor was it made without reference to guiding principles. See Butnaru, 84

S.W.3d at 211. We overrule the tenth issue.

VII. Waived and moot issues

A. Yuen entities

In the third issue, the Yuen entities argue that the trial “abused its discretion

by holding up the entire jury, over the objection of the defendants, for a marathon

deliberation” that resulted in a verdict rendered at 3:00 a.m. They argue that this

predicament “likely caused [the jury’s] desire to end the deliberation prematurely

and involuntarily.” The brief does not reflect any citations to the record or

authorities on this issue. Accordingly, the brief does not comply with the Texas

Rules of Appellate Procedure, and we overrule issue three. See ERI Consulting

Eng’rs v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010); TEX. R. APP. P. 38.1(i).

In their eighth issue, the Yuen entities argue that the trial court erred by

awarding Mrs. Onyung attorney’s fees. The judgment does not reflect that the trial

court awarded attorney’s fees to any party. Because the record plainly refutes the

factual premise of the argument, we overrule the eighth issue.

The Yuen entities advance several arguments in their reply brief that were

not presented in their first brief on appeal. To the extent that the Yuen entities

attempted to raise issues for the first time in their reply brief, we do not consider

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those issues. McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied) (“An issue raised for the first time in

a reply brief is ordinarily waived and need not be considered by this Court.”).

B. Dr. Onyung

In the eleventh issue, Dr. Onyung argues that the trial court erred by

submitting jury questions concerning whether Mrs. Onyung had express, implied,

or apparent authority to use her best efforts to secure the couple’s assets.

Dr. Onyung argues that his express written authority was legally required for

Mrs. Onyung to transfer the Sugar Land and Bridlewood real properties and that

inclusion of questions and corresponding definitions concerning implied authority

and apparent authority “obviously confused the jury and led to a great miscarriage

of justice.”

To preserve for appeal an alleged error in the jury charge, Dr. Onyung was

required to timely object so as to make the trial court aware of his complaint.

Equistar Chems., 240 S.W.3d at 868 (citing TEX. R. CIV. P. 272 & 274); see also

TEX. R. APP. P. 33.1(a). Otherwise, any such error is waived. See TEX. R. CIV. P.

272, 274. Our examination of the record reveals that Dr. Onyung objected to the

definition of “express authority” in the jury charge. The definition provided, in

relevant part: “Express Authority means that Authority [is] given to the agent by

explicit agreement, either orally or in writing.” Dr. Onyung argued that the

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inclusion of the words “orally or in writing” would be confusing to the jury

because “it doesn’t make a difference unless there is a writing authorizing [the

express authority].” His counsel proposed removing the words “either orally or in

writing” from the jury charge. The trial court declined to change the definition of

express authority. The record does not reflect that Dr. Onyung specifically

objected to the inclusion of questions and definitions in the jury charge concerning

implied and apparent authority. Consequently, he has failed to preserve for

appellate review any alleged error resulting from the inclusion of those charges.

See Equistar Chems., 240 S.W.3d at 868. We overrule the eleventh issue.

Conclusion

Having concluded that the evidence was legally insufficient to support the

trial court’s judgment awarding Mrs. Onyung a total of $52,500 for mental anguish

and $100,000 for fraud, we reverse the trial court’s judgment insofar as it awards

those mental anguish and fraud damages, and we render judgment that Mrs.

Onyung take nothing on her mental anguish and fraud claims. We affirm the trial

court’s judgment as to all other causes of action, and we remand this case to the

trial court for recalculation of pre- and post-judgment interest and entry of

judgment in accordance with this Court’s opinion, judgment, and mandate. See

Phillips v. Bramlett, No. 12-0257, 2013 WL 2664056, at *3–4 (Tex. June 7, 2013).

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Michael Massengale

Justice

Panel consists of Justices Bland, Massengale, and Brown.

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