charge objected to and thus review was against proper legal standard
How later courts described this case
- charge objected to and thus review was against proper legal standard
- review against charge in absence of objection
Written by the judges who cited it.
The opinion
ACCEPTED
01-14-00539-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/21/2015 11:34:29 AM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00539-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE FIRSTHOUSTON, TEXAS
SUPREME JUDICIAL DISTRICT OF TEXAS
10/21/2015 11:34:29 AM
CHRISTOPHER A. PRINE
Clerk
HOANG-YEN THI DANG,
and
TAN DUC CONSTRUCTION LIMITED COMPANY,
Appellants
v.
JIMMY TRAN,
Appellee and Conditional Cross-Appellant
TRAN’S BRIEF AS APPELLEE,
RESPONSIVE TO THE BRIEF OF APPELLANT DANG
Matthew S. Muller
1445 North Loop West, Ste. 760
Houston, Texas 77008
713 227 1888
713 227 1881 fax
Finis Cowan
One Greenway Plaza, Ste. 100
Houston TX 77046
832 341 4599
713 561 3691 fax
OF COUNSEL:
William Bowers
Olney G. Wallis
Attorneys for Appellee Tran
ORAL ARGUMENT REQUESTED
(a) Identity of Parties and Counsel
Appellee/Conditional Cross-Appellant: Jimmy Tran
counsel on appeal:
Matthew Muller
Finis Cowan
William Bowers
Olney Wallis
Appellant/Conditional Cross-Appellee: Hoang-Yen Thi Dang
counsel on appeal:
Alan Daughtry
3355 West Alabama, Suite 444
Houston, Texas 77098
(b) Table of Contents
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Index of Authorities
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Certificate under T.R.A.P. 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Index to Appendix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(c) Index of Authorities
§23.001, Tex.Prop.Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
City of Brownsville v. Alvarado, 897 S.W.2d 750 (Tex. 1995). . . . . . . . . . . . . . . . 28
C&R Transport v. Campbell, 406 S.W.2d 191 (Tex. 1966).. . . . . . . . . . . . . . . . . . 28
Ernst & Young, L.L.P. v. Pac. Mut. Life Ins., 51 S.W.3d 573(Tex. 2001). . . . . . 32
Formosa Plastics Corp. USA v. Presidio Engineers, 960 S.W.2d 41 (Tex.1998)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 201 S.W.3d 272, 283–86 (Tex.
App.—Houston [14th Dist.] 2006, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). . . . . . . . . . . . . . . . 31
MCN Energy Enters., Inc. v. Omagro De Colombia, LDC, 98 S.W.3d 766, 771
(Tex. App.—Fort Worth 2003, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002). . . . . . . . . . . . . . . . . . 25
Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379,
385 (Tex. App.- Houston [14th Dist.] 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . 32
3
(d) Statement of the Case
Jimmy Tran (Appellee, “Tran”) sued his (then-) wife Hoang-Yen Thi Dang
(Appellant, “Dang”) for divorce, and inter alia for fraud, breach of fiduciary duty,
civil conspiracy, violations of the Fraudulent Transfer Act, and breach of a
prenuptial agreement in the District Court of Harris County, 309th Judicial District.
Dang asserted in bar a default judgment she alleged she had taken in Vietnam
against Tran; the District Court of Harris County refused to find comity, after a
multi-day evidentiary proceeding, and declined to recognize the alleged foreign
default judgment; Appellant raises no issue on appeal about the alleged foreign
judicial proceeding. After a six week jury trial in January-February 2014, the trial
Court rendered Judgment for Appellee upon the Jury’s unanimous verdict finding,
by clear and convincing evidence, that Appellant Dang committed fraud against
her (then-) husband Appellee. The Judgment awards actual damages of $650,000,
and exemplary damages of $50,000, the amounts found by the Jury. No relief was
granted to Tran against co-Respondent Tan Duc Construction Limited Company.
4
(e) Statement Regarding Oral Argument
Appellee Tran requests Oral Argument. The trial record is lengthy. Appellee
believes the opportunity of Oral Argument will support his presentation of the case
to this Honorable Court.
(f) Issues Presented1
Appellee’s Counterpoint No. 1 (In response
to Appellant’s Issue I2, Page 14 of Appellant’s Brief) –
Appellant’s “Issue I” declares simply “the verdict cannot
stand” but in itself presents no legal argument and serves
merely as a generic umbrella for its specific sub issues, which
Appellant numbers A1, A2, A3 and A4. Nor does Appellant
list any section “IB.”
Appellee’s Counterpoint No. 2 (In response
to Appellant’s Issue IA3, Page 14 of Appellant’s Brief) –
Dr. Lehrer was not called as a real estate appraiser but as an
expert on the economic damages Tran sustained because of
Tran’s conduct; he followed generally accepted methodologies
of estimating such damages.
1
Appellant’s brief contains (on its page 2) a list of issues presented but that list does not
correspond to the issues Appellant actually argues in her Brief. The points which Appellant
argues in her Brief are those which appear in Appellant’s Table of Contents. Appellee responds
to those points in this Brief.
2
“I. The Jury’s Finding of $650,000 in Damages for the 11440 Memorial Property
Cannot Stand.”
3
“Lehrer’s Opinion Testimony on the Damages for Tran’s Lost Equity Interest in the
Memorial Is Unreliable and Does Not Comport with Any Recognized Methodologies for
Assessing the Value of Real Property.”
5
Appellee’s Counterpoint No. 3 (In response
to Appellant’s Issue IA14, Page 19 of Appellant’s Brief) –
Dr. Lehrer’s opinion of economic damages was not an
appraisal of Tran’s former undivided 25% fee title interest in
the Memorial Property; the value of the Memorial Property
that Dr. Lehrer used in his calculation of damages was taken
from other, independent, evidence of value in the record,
including, inter alia, the value agreed to in the parties’
Prenuptial Agreement, documents introduced in evidence by
Dang and other evidence of value.
Appellee’s Counterpoint No. 4 (In response
to Appellant’s Issue IA25, Page 24 of Appellant’s Brief) –
Dr. Lehrer did in fact calculate the net value of Tran’s 25%
interest in the Memorial Property, using evidence in the
record, including independently established value evidence
and evidence of the obligations against the property; Dr.
Lehrer used the undisputed foreclosure sale price as part of
the evidence of the encumbrance and obligations against the
property.
4
“Lehrer’s opinion hinges on his valuation of Tran’s 25% equity interest of the 14110
Memorial property, but Lehrer did not even do an appraisal of the property—this is pure
speculation.”
5
“Lehrer did not consider the “net” value of Jimmy Tran’s equity interest: The
foreclosure sales price did not reflect any equity and this is not reliable or sufficient evidence of
damages.”
6
Appellee’s Counterpoint No.5 (In response
to Appellant’s Issue IA36, Page 37 of Appellant’s Brief) –
The appraisal techniques of using comparable sales and
making appropriate adjustments are not applicable to Dr.
Lehrer’s opinion of damages since he did not testify as a real
estate appraiser but as an expert on economic damages.
However, the relevant values were established by independent
evidence (See Appellee’s Counterpoint No.3), and his opinion
took into account sales data of comparable properties in the
Memorial area of Houston.
Appellee’s Counterpoint No. 6 (In response
to Appellant’s Issue IA47, Page 47 of Appellant’s Brief) –
Dr. Lehrer’s opinion of damages (which was not an appraisal)
properly used HCAD and other data to study trends of real
estate values in the Memorial Area of Houston to determine
if the damages factors should consider increases in value of
property in that area; in any event, any incorrect application
of this data was harmless because the amount of the jury’s
award is consistent with the values given in independent
evidence without upward adjustment for HCAD and sales
trend data described by Dr. Lehrer.
6
“Contrary to established authority, Lehrer did not consider any “comparable sales”:
He did not look at sales, did not make any adjustments at all, and did not consider the unique
value of Tran’s 25% minority equity interest.”
7
“Lehrer improperly took HCAD data and applied global percentage increases in
valuations county-wide to establish value.”
7
Appellee’s Counterpoint No.7 (In response
to Appellant’s Issue II8, Page 57 of Appellant’s Brief ) –
The award of fraud damages to Tran was not contingent on
proof of the formation of any agreement between Tran and
Dang regarding her interest in other businesses; rather, the
damages were awarded on the basis of an independent cause
of action that Tran pled, proved, submitted separately in Issue
9, and obtained a jury verdict on that cause. To the extent
that Appellant implies any conflict, there was none because
the jury refused to find the agreement to which Appellant
refers.
Appellee’s Counterpoint No. 8 (In response
to Appellant’s Issue III9, Page 61 of Appellant’s Brief) –
The District Court instructed the jury on the damage issue in
the Charge of the Court; to the extent that there may have
been any error, it was waived intentionally or not properly
preserved and in any event was harmless.
(g) Statement of Facts
1. Jimmy Tran, Appellee (“Tran”) met Hoang-Yen Thi Dang, Appellant (“Dang”) in
Houston. Tran and Dang did business together, and decided to marry in 2007.
2. Prior to marriage Dang and Tran signed a prenuptial agreement on August 13, 2007
(PX 1). Tran once individually solely owned the property at 11440 Memorial Drive
8
“Judgment Should Be Rendered Against Tran: the Damages Awarded Tran Were
Contingent upon an Agreement for Interests in Tan Duc, Which the Jury Refused to Find.”
9
“The Judgment must Be Reversed Due to Charge Error: There Was No Measure of
Damages for the Memorial Property.”
8
in Houston (“Memorial property”) in fee, which Dang and Tran agreed was worth
$5.8 million on August 13, 2007 (PX 1, p. 21, n. 6).
3. “Tran” and “Dang” were married on September 19, 2007, at the Memorial property.
4. At the time of their marriage, Tran, a citizen of the United States, was a general
contractor, and was developing projects in the Houston area.
5. On October 10, 2007, Dang10 got Tran to transfer his sole ownership in the
Memorial property to Dang, her two grown daughters, and Tran, 25 % to each. (PX
9). Dang promised Tran that she would take care of their11 outstanding debts12,
including the note on the Memorial property, and continued to do until March 2010
(5 RR 123-124).
6. During 2008, the housing and building market in Houston was depressed. “Dang”,
a Vietnam citizen and a woman of substantial means and prominence in Vietnam,
10
Dang decided at one time to divide fee title ownership of 11440 Memorial into four
equal shares (CR: 120, Vol. 3)
11
Dang asked Tran to join a real estate development partnership in 2005 (CR: 94, Vol. 3).
Tran invested $220,000 for a 20% share of a shopping center and subdivision. (CR: 97, Vol. 3)
He became a limited partner in Venus Plaza LP whose general partner was Dang's company,
Handsel. (CR: 122, 127, Vol. 3) He managed the construction and she "kept all the financing"
and "handled all of the paperwork." (CR: 102, 105) She was his "boss." (CR: 106, Vol. 3). Dang
and Tran were also partners in the 11440 Memorial Drive property. (Vol. 7, CR: 122). Tran
loved and trusted Dang, "everything she say is right to me . . ." (CR: 107, 115, Vol. 3)
12
Dang paid the debts (including the interim and permanent financing) on all their jointly
held property through a company she controlled, U.S. Southern Homes. (CR: 117, Vol. 3)
9
convinced “Tran”, her spouse, to return with her to Vietnam. “Tran” agreed and went
to Vietnam to be and work with “Dang.”
7. “Dang” and “Tran” arrived in Vietnam during September 2008, and settled in
around the Ho Chi Minh City (“Saigon”) area, “Dang” told “Tran” that she had
created a company, Vietnam Land (“VNL”), that would build big projects and
business complexes and buildings in Vietnam, and that he (Tran) was to be the
President of VNL.
8. During the first few weeks of his arrival in Vietnam, Tran was taken to a
Government office by “Dang” in connection with the formation of VNL. Shortly
afterwards, Tran was taken to an office building on 300 hectares (“300 hectares”)
owned by Tan Tao Investment and Industry Corporation (“ITA), named in the
prenuptial agreement, and Tran received an official document designating him as
President of Vietnam Land.
9. In September 2008, VNL was a new Vietnam company, wholly owned by ITA.
ITA was a Vietnam company controlled by “Dang”, who along with companies
controlled by her owned 66% of the shares of ITA. Dang was Chairman of the Board
of ITA. ITA is identified in the schedules of the prenuptial agreement.
10. Tran had an office at the “300 Hectares” in a then existing office building.
During the first six months after his arrival, Tran hired a superintendent and workers,
10
started and finished fourteen condominiums and completed an eight story office
building, and a shell for about sixty apartments on the “300 Hectares”.
11. “Dang” wanted to build a university (Tan Tao University) on the “300 Hectares”,
and Tran, through VNL built roads and a bridge to connect the Phase I complex, with
office and residential buildings, to the Phase II complex, which was to house the
university. ITA owned both the land and the buildings constructed by VNL while
Tran was President.
14. During March 2010, Dang told Tran that she wanted to convey the Memorial
property to Tan Duc Construction, a company controlled by ITA. Dang variously told
Tran that she would see that their individual interests would be protected13 by Tan
Duc, and that he would not lose any of his interests as a result of the transfer, that for
tax reasons and loan reasons he should do as she instructed, and that he would have
25% of Tan Duc if he did as she instructed, and relying on those representations or
some of them, Tran conveyed his 25% interest in the Memorial property by Deed
signed at the US Embassy in Ho Chi Minh City (Saigon), Vietnam, to Tan Duc
Construction in April, 2010.
13
Dang already managed Tran's financial interest in the Venus Park and 11440 Memorial
Drive properties. CR: 40-41 , Vol. 4, 1/15/14). Tran let his wife manage his financial interests in
these jointly held properties, because he loved and trusted her. (Vol. 4, CR: 43)
11
15. Tran was asked to leave VNL during 2010 by Dang, who claimed that she had
the authority to discharge Tran. Tran left VNL when Dang discharged him. In June
2010, Tran left Vietnam and returned to Texas, his home.
16. Tan Duc Construction made mortgage payments on the Memorial property until
September 2010, at which time they discontinued payments, and the Memorial
property foreclosure was posted in April 2011 (PX 17A), and a deed of foreclosure
was executed in October 2011 (PX 11A, 15).
17. At trial, Dr. Kenneth Lehrer was called as an expert witness on economic
damages, not as a real estate appraiser. He formed an opinion that Tran had suffered
approximately $800,000 in damages related to the Memorial Property because of
Dang’s fraudulent conduct. He based his opinion on a number of facts in evidence,
including, inter alia, the value of the property agreed to by Tran and Dang in their
Prenuptial Agreement, which both Dang and Tran introduced, the foreclosure price
as an indication of the debt against the house, in view of his knowledge and
experience of banking foreclosure practices and other evidence discussed under
Tran’s Counterpoints, infra.
18. Tran and Dang were divorced in 2014 after a five week jury trial ending in a
unanimous judgment of $650,000 for Tran’s actual damages related to his interest in
12
the Memorial property proximately caused by Dang’s fraud, and $50,000 in punitive
damages.
Dang's Appeal to Prejudice
The jury's finding that there were no fault grounds for divorce clearly reflect
the Jurors’ unanimous rejection of Dang's florid testimonial allegations, made from
the defamation-immune zone of the witness stand, of adultery, embezzlement,
gambling, incest, pedophilia, shoplifting, sloth, poor workmanship and traffic
violations. Dang's regurgitation of these false allegations can only be an appeal to
prejudice, since she presents no issues on appeal to which they could possibly be
relevant. Dang does not challenge on appeal the Jury’s finding that there were no
fault grounds for divorce. These loathsome allegations should be stricken from this
proceeding.
(h) Argument
ARGUMENT FOR APPELLEE’S COUNTERPOINTS 214 - 6:
Dr. Lehrer was not called as a real estate appraiser but as an
expert on the economic damages Tran sustained because of
Tran’s conduct; he followed generally accepted methodologies
of estimating such damages.
14
Counterpoint One is a numbering placekeeper for Appellant’s placekeeper point I, and
presents no argument because Appellant’s point I presented no argument.
13
Dr. Lehrer’s opinion of economic damages was not an
appraisal of Tran’s former undivided 25% interest in the
Memorial Property; the value of the Memorial Property that
he used in his calculation of damages was taken from other,
independent, evidence of value in the record, including, inter
alia, the value agreed to in the parties’ Prenuptial Agreement,
documents introduced by Dang and other evidence of value.
Dr. Lehrer did in fact calculate the net value of Tran’s 25%
interest in the Memorial Property, using evidence in the
record, including independently established value and the
obligations against the property; his use of the undisputed
foreclosure sale price was used as part of the evidence of the
obligations against the property.
The appraisal techniques of using comparable sales and
making appropriate adjustments are not applicable to Dr.
Lehrer’s opinion of damages since he did not testify as a real
estate appraiser but as an expert on economic damages.
However, the relevant values were established by independent
evidence (See Appellee’s Counterpoint No.3), and his opinion
took into account sales data of comparable properties in the
Memorial area of Houston.
Dr. Lehrer’s opinion of damages (which was not an appraisal)
properly used HCAD and other data to study trends of real
estate values in the Memorial Area of Houston to determine
if the damages factors should consider increases in value of
property in that area; in any event, any incorrect application
of this data was harmless because the amount of the jury’s
award is consistent with the values given in independent
evidence without upward adjustment for HCAD and sales
trend data described by Dr. Lehrer.
To argue for reversal Appellant pretends that Tran called Dr. Lehrer for
purposes he did not. To conceal in plain sight the ample independent evidence in the
14
record of the market value of the 11440 Memorial Drive project, Appellant must
pretend that Lehrer’s sole role was to create value evidence rather than to evaluate
and interpret it. Moreover, Dr. Lehrer’s opinion testimony regarding damages related
to 11440 Memorial was reliable, because that testimony did comport with recognized
methodologies for the preparation of opinions regarding actual economic damages
related to a commercial transaction and beginning with reliable data obtained from
reliable independent sources, notably instruments reciting, assigning and/or
stipulating value and to which Appellant was signatory. Appellant’s misphrasing of
her arguments include the false premise that Dr. Lehrer’s function was an appraisal
function and that the question of damages for which Dr. Lehrer’s opinion assisted the
Jury was an appraisal question. Neither is true.
Dr. Lehrer calculated and testified to Tran’s loss of economic beneficial
interests arising from the prenuptial agreement. 13RR: 131. His supplemental report
did address the real estate appraisal standards (13RR: 43) including actual sales of the
subject properties (13RR: 127), the cost and income methods, and sales of
comparable properties in Memorial (13RR: 129-130). "There are many homes being
sold on a weekly basis in Piney Point (Memorial subdivision)” 13RR: 93. Dr. Lehrer
did not do a formal real estate appraisal because it would be too expensive to do so
15
for the more than one hundred tracts of property and multiple years involved in the
litigation. 13RR: 42.
He also relied on Harris County Central Appraisal District ("HCAD")
government derived valuation data and mass computer analysis (13RR: 128). He
testified that these sources and methods are reliable (13RR: 129, 198) and generally
accepted and used by experts in his field (13RR: 46). Dr. Lehrer holds a Ph.D. in
Urban Economics from the New York University.
He also relied heavily on the values agreed on by the parties to the lawsuit, who
were respectively, a real estate developer (Dang), and former realtor and builder of
the subject properties (Tran). Lehrer testified that “[t]he difference between the
agreed value and the value at the time of the foreclosure shows gains or losses during
the marriage "(t)o show if the person has more equity or value from (the) Prenup or
less. There's no other way of determining it." 13RR:130-31.
One reason Dr. Lehrer used valuation trend data on the actual properties in
dispute from the Harris County Central Appraisal District ("HCAD") was because
Tan Duc failed to produce actual sales contracts on numerous properties. 13RR: 21.
It was also appropriate and within the trial court's discretion to allow estimates based
on such data where the court has ordered a party to produce actual real estate sales
records and it has failed to do so. 13RR: 46.
16
Under TRE 703, it was appropriate for Dr. Lehrer to rely on the prenuptial
agreement, others' appraisals, actual sales of the properties in dispute, HCAD and
other governmental real estate documentation, banking and real estate documents, and
online real estate databases that collect comparable sales information. 13RR: 44-47.
These are the type of data that urban economists rely on in forming opinions and
inferences. 13RR: 46.
Dr. Lehrer’s opinion as to Tran's damages regarding the Memorial property was
based on his research and calculations and was approximately $800,000. He also
testified that Tran's share of the fair market value of Memorial at the time of the 2011
foreclosure was $625,000. 13RR: 104-05. Dr. Lehrer explained the definition of fair
market value and that his damages opinion complied with the definition of fair market
value. 13RR: 90. It was within the jury's province to decide whether the loss
occurred at the time of the 2009 fraud, the 2010 fraud or at the 2011 foreclosure since
that was a matter in dispute. Id.
Dr. Lehrer also testified as to economic beneficial interest increases Dang
obtained as a result of her economically eliminating Tran's share of the Memorial
property. 13RR:105-06. By transferring it to Tan Duc, a company there was evidence
she controlled (9RR: 86-94), Dang’s constructive interest went from 75% to 100%.
13RR: 106-07.
17
Dang's company US Southern originally owed the construction loan on
Memorial. This was converted to a permanent mortgage to Countrywide/BOA owed
solely by Tran. 13RR: 107. This shifting of debt to Tran from US Southern (which
Dang owned and controlled independent from Tran) created economic benefits to
Dang. 13RR: 108.
Dr. Lehrer did, also, consider debt Bank of America loaned on the Memorial
home reflected in Respondent's Exhibit 84, which was used to estimate the value of
Tran's interest of $831,000. 13RR: 119. Another alternative measure Lehrer testified
to that the jury could have considered was to take Dang at her word to Tran that
Dang’s companies would pay off US Southern’s development costs for Memorial
(which had by then been converted into Countrywide mortgage debt against Tran’s
credit), and then simply multiply the declared Memorial 2011 foreclosure sale price
of $2,620,000 by Tran's 25% interest to view his damages as $655,000. 13RR:
117-18. This provided “additional support” for Dr. Lehrer's calculation using HCAD
data which came to $625,000 in 2011. 13RR: 118. This opinion of an alternative
method for evaluating economic damages opinion depended on the assumption the
Jury would agree Dang was bound by her promise to pay loans on properties in which
Tran held beneficial interests.
18
Lehrer testified that his formulae were based on banking rules and regulations
and federal banking authorities, and that based on his experience as a bank chairman,
banks could not issue FDIC insured debt for more than 80% of the value of the
collateral. This "gives the Court another method of valuation and support" for Dr.
Lehrer's work. Id.
Dr. Lehrer also compared the 2007 and 2011 HCAD appraisal valuations to
determine if an increase in value had occurred and he applied it to Jimmy Tran's
interest. 13RR: 148. Dang misrepresented that her company US Southern would
continue paying all the Memorial house bills. 6 RR: 73-75. Ms. Dang promised the
bank and Mr. Tran that she would pay the mortgage and Mr. Tran "relied upon it."
13RR: 184-85. Dr. Lehrer testified that Ms. Dang, who was indisputably the only
spouse who had control of the several entities easily capable of paying the debts on
the jointly owned properties, "was supposed to protect the house” (13RR: 71), and
if she had done so based on a 2013 approximate $4,000,000 value, she "would have
made a good benefit of the bargain."
The HCAD value at the end of 2012 was $3,938,000. Increasing that by 20%
due to the "lag" in HCAD values, and based on the opinion of a consulting expert
Buddy Trotter who was then President of the Harris County Appraisal Society, led
to Dr. Lehrer's opinion that the house was worth as a locus of damages between $4
19
and $4.5 Million in 2013. 13RR: 175. Dr. Lehrer also relied on a Houston Chronicle
article that Piney Point (Memorial) properties had lately increased by 30 to 40
percent. 13RR: 176.
The bank foreclosed it in 2011 for $2,659,000 and resold it for approximately
$3,325,000. 13RR: 245-46. The jury is entitled to consider subsequent transactions
and trends as relevant as to the amount of the loss. 13RR: 194-95. Appellant’s
argument that compulsory bank foreclosure bids are fair market value ignores that
foreclosing banks are compelled to buy if there are no better bids.
Dr. Lehrer testified that his overall report (regarding over one hundred
properties) was based in part on the Prenup, and an important aspect of his Expert
testimony was to help the Jury understand the capital structures the Prenup
referenced and to analyze how different readings of Prenup language could produce
different results. Dr. Lehrer offered testimony to interpret how the Prenup "needs to
work to make sense." 14 RR: 60. For example, Dr. Lehrer explained to the Jury that
unless the Prenup were interpreted to permanently fix Tran's starting percentage
interests in entities and projects, then the Prenup’s asset allocations would be illusory
and have no value, because the controlling spouse (Dang) could by accounting
expedients, for future debt service, new investment inflows, or carrying or
development costs, unilaterally declare Tran’s fractional interests "diluted to zero."
20
14RR: 65 and 87-89. The agreements between the spouses showing the same
ownership percentages even after ongoing payment of debts supported this principle.
14RR: 65 and 79. The Prenup and subsequent instruments all showed Tran's
ownership interest in 11440 Memorial Drive at 25%, despite Dang's ongoing
payment of the mortgage. 22RR: 22 and 79. That was consistent with the spouses’
fundamental agreement that he would build and she would fund their jointly held
properties. 14RR: 68-69. A primary purpose of the Prenup was to stipulate values of
their respective beneficial interests. 14RR: 65. The jury was certainly entitled to
consider those repeatedly stipulated values as well as all the other data considered by
an expert in the witness’s demonstrated field of expertise.
Appellant is not entitled to relief under her point claiming Dr. Lehrer’s
testimony was incompetent for the question of Appellee’s economic damages related
to 11440 Memorial Drive. Dr. Lehrer’s testimony is probative, competent evidence
that supports the Jury’s verdict on actual damages.
Appellant argues there was no evidence beside Dr. Lehrer’s expert evidence
to support the actual damage verdict:
...[T]here is certainly no evidence to support the $650,000
in damages awarded to Tran for the loss of his interest in
the 11440 Memorial property.
21
The claim is patently wrong. The Prenuptial Agreement, signed by two fee title
owners of 11440 Memorial Drive, market valued 11440 Memorial Drive at $5.8
Million. Appellant herself introduced several pieces of documentary evidence
bearing her signature and purportedly bearing Tran’s signature, and these evidenced
the market value of 11440 Memorial at $5 Million and $5.77 Million, respectively.
[R-52, R-53, RR023, pdf pp.233ff.] Also in evidence is Countrywide’s
“LANDSAFE” third party appraisal setting the value at $4.8 Million. [P-124, RR022,
at page 1063].
22
All this evidence usefully fits Appellant’s own15 theory for a proper measure
for damages relating to 11440 Memorial. Appellant’s Brief, beginning at page 55:
... Lehrer maintained that the property was worth $3.68
million on HCAD at the time Tran lost his interest.
Subtracting the $2.65 million in debt owed on the
property, left around $1 million, of course, excluding
other debts, taxes and costs for the property. Ignoring
that there would be sales costs and discounts for the
minority percentage as a tenant in common, Tran’s
25% interest in the Memorial property could have been
worth no more than $250,000 — although Dang contends
that this record does not reflect any competent evidence of
equity at all. It certainly cannot support, under any theory,
the $650,000 in damages awarded by the jury....There is no
competent basis for the jury to have awarded $650,000 as
15
Tran does not endorse Dang’s view that her damage-calculation formula is the sole
proper method for assessing Tran’s actual damage related to 11440 Memorial Drive. However,
the use of Dang’s own formula for calculating damages does produce answers that support the
Jury’s verdict based on unobjected-to evidence amply in the record. regarding the market value
of 11440 Memorial, and this disposes of the appeal. Dang’s brief wilfully distorts Tran’s theory
of the case by pretending to believe that Tran wanted to sort his damages into the narrowed
categories in which they were submitted to the jury, and by then pretending to reverse-engineer
the reason Tran must have called an expert to testify as if to fit narrowed damage definitions Tran
did not prefer. Perhaps the Jury may have decided that Dang was more or less telling the truth
when she told Tran his deeding his legal interest would not instantly change his “real” ownership
through her oversight and protection as major domo over all his and her properties and interests,
and then later changed her mind and decided to use the greater degree of control she had
acquired when he parted with his legal interest by deed, to seize an interest she’d continued to
conceive of herself as having once held beneficially for him. It was for the Jury, once they
decided not to believe Dang, to decide from the evidence what Dang had actually been up to, and
when it was she had got up to it, in terms of actually snapping shut the trap on her husband. The
Jury was not charged to declare separately the precise date on which Tran suffered the actual
damages the Jury found he had suffered, yet the date the damage occurred is a coordinate the Jury
must likely have decided for itself when making its determinations. It is unreasonable for Dang
now to suggest this Court must review damages as of only some single date or event extracted
from the entire range of permissible conclusions that the jury may have reached from the
expansive evidence.
23
damages. Accordingly, the Court reverse [sic], and
certainly could uphold no damages in excess of $250,000
even if Tran could show that somehow there was legally
sufficient evidence to support this amount. [emphasis
added]
Appellant advanced the same measure of damage in the charge conference. The
following excerpt is from the charge discussions is at RR017, p 138, commencing at
line 5:
MR. FLOWERS: And if we go into the component of: You take the fair
market value, you subtract out the debt and the net equity, that's the
damages.
THE COURT: Well, that's up to the jury to decide what it's going to be,
but I'm just saying they've got to start with the value to get to the end.
MR. FLOWERS: That's right.
Using Appellant’s Brief’s formula, and the evidence Appellant seems unaware is in
the record, the parties may, in fact, agree that the Jury could properly have awarded
Tran the difference between the value of the property and “the $2.65 million in debt
owed16 on the property.” Since the record includes evidence – apart from the expert
testimony – that the property was valued, around the time Tran deeded away his
16
This ad arguendo, since Tran also testified that Dang misrepresented to him that her
company US Southern would continue paying all the Memorial house bills (mortgage too) as part
of her overall promises to him in exchange for his compliance with, for instance, deeding legal
title on demand to her, her family members or entities she controlled. (Vol. 6, CR: 73-75)
24
undivided fee interest, variously at $4.8 Million, $5 Million, $5.77 Million and $5.817
Million, using Appellant’s formula which includes “ignoring that there would be sales
costs and discounts18 for the minority percentage as a tenant in common,” produces
quarter-interest valuations as follows:
evidenced value less stipulated19 debt differential (in 25% of
(in Millions of (in Millions of Millions of differential (in
Dollars) Dollars) Dollars) Dollars)
5.7720 2.65 3.12 780,000
17
P-1, the Pre-nuptial agreement signed by the parties, described the market value of
11440 Memorial Drive as $5.8 Million Dollars.
18
Appellee does not concede the accuracy of this statement, which in fact seems patently
counterfactual. Owners of undivided fractional interests in fee title are tenants in common who
by statute have an absolute right of Partition, including the absolute right to compel sale for
Partition by the whole when necessary for division of the cotenancy. §23.001, Tex.Prop.Code.
There thus would not be any“discount for a minority interest” in a partition by sale of the whole.
Presumably in referring to discounts for fractional interests Appellant was thinking of non-fee-
title situations where what a seller has to offer is merely a non-controlling minority fractional
interest in a fictive entity, an interest lacking the power to compel liquidation. For purposes of
this appeal, however, Appellee can take the assertion at face value for demonstrating there was
more than adequate evidentiary support for the jury’s actual damage award.
19
Appellant's brief, page 11, erroneously conflates an equation using the $2.66 million
foreclosure price with Dr. Lehrer's calculation of Tran's economic loss based on the agreed
Prenup value, subsequent increases based on HCAD appraisals and comparable sales and
consulting expert's input. The $55,000 difference in the different calculations' results makes plain
the false comparison. The Jury was free to disregard the former.
20
Exhibit R-53, contained in the clerk’s pdf file RR023 at page 238
25
5.0021 2.65 2.35 587,500
4.822 2.65 2.15 537,500
Perhaps Appellant will complain in a Reply Brief that none of these numbers is
sufficiently precisely close to the Jury’s calculation to stand review either under the
question as it was submitted or23 under the question however Appellant would now
say (but, she doesn’t say) she thinks it should have been presented. Where Appellant
will err24 in that argument is the considerable body of other financial data about the
financial dealings of the spouses submitted into evidence, which places the Jury well
21
Exhibit R-52, contained in this Court’s record’s pdf file named RR023 at page 233.
22
Exhibit P-124, at page 1063 of the pdf file named RR022 in the clerk’s electronic
record on appeal
23
The Texas Supreme Court has repeatedly stated that the sufficiency of the evidence will
be measured against a defective jury charge—if it is not objected to. See St. Joseph Hosp. v.
Wolff, 94 S.W.3d 513, 530 (Tex. 2002) (charge objected to and thus review was against proper
legal standard); Sturges, 52 S.W.3d at 715 (review against charge in absence of objection);
Osterberg, 12 S.W.3d at 55–56 (review against charge in absence of objection); Hirschfeld Steel
Co. v. Kellogg Brown & Root, Inc., 201 S.W.3d 272, 283–86 (Tex. App.—Houston [14th Dist.]
2006, no pet.) (reviewing sufficiency of evidence based on unobjected-to jury instruction and
rejecting various arguments based on different legal standards); MCN Energy Enters., Inc. v.
Omagro De Colombia, LDC, 98 S.W.3d 766, 771 (Tex. App.—Fort Worth 2003, pet. denied)
(holding that without objection, instruction that defined misrepresentation as words or conduct
did not limit evidentiary review to affirmative misrepresentations).
24
The Jury was as free to ignore Dang's argument that the transfer of 11440 Memorial to
Tan Duc relieved Tran of debt as they were to agree with Dr. Lehrer that relief from a Seven (7)
figure obligation, whose only possibility of being repaid was by Appellant or her companies, was
insufficient to compensate Tran for his damages. Tran had come into the marriage with $1
million of beneficial interests in properties, residential and commercial, developed with Dang
directly and through her companies, and less than three years later, Dang had deprived him of all
of it.
26
within their discretion in calculating damages from the all the evidence of the roiling
marital enterprises. For only one example, the foreclosure “bid in” deed [Exhibit P-
17A, found in this record at page 106 ff. of the pdf file the clerk labeled as RR022]
recited the bid-in at $2.619 Million, not $2.65 Million. Correcting for this, but
otherwise using Appellant’s own formula, increases the three different figures each
by $7,750. However, the Jury also received evidence that the amount due on the
mortgages at the date Tran deeded out his interest (a year before the foreclosure date)
(Tran’s conveyance out of his interest was dated March 31, 2010; the Substitute
Trustee’s foreclosure deed was dated April 5, 2011) was not $2.65 or 2.619 Million,
but, $2.27 Million Dollars [at page “3” of Exhibit R-53, found in this appellate record
at page 240 of the pdf file named RR023, Eighth line in English from the top of the
page]. Using that number, the deltas, again using the Appellant’s Brief’s own
formula, calculate to:
evidenced value less debt per R-53 (in differential (in 25% of
(in Millions of Millions of Dollars) Millions of differential (in
Dollars) Dollars) Dollars)
5.77 2.27 3.5 875,000
5.00 2.27 2.73 682,500
4.8 2.27 2.53 632,500
27
Appellant’s claim that there was no evidence except expert evidence on the value of
11440 Memorial Drive is contradicted by the record.
Even if Appellant were correct that Lehrer’s testimony were insufficient
evidence in se to support the damages verdict, the abundant independent value
evidence means the Judgment should be sustained because plugging that independent
evidence into Appellant’s own formula for calculating these damages supports the
Jury’s fraud actual damage amount of $650,000.00.
ARGUMENT FOR APPELLEE’S COUNTERPOINT 7:
The award of fraud damages to Tran was not contingent on
any agreement between Tran and Dang regarding her interest
in other businesses; rather, the damages were awarded on the
basis of an independent cause of action that Tran pled,
proved, submitted separately in Issue 9, and for which Tran
obtained an affirmative jury verdict. To the extent that
Appellant implies any conflict among questions, Appellant
errs; there was no conflict, because the jury refused to find
formation of the proffered agreement to which Appellate
refers.
Appellant claims that the fraud question was “contingent upon an agreement
for interests in Tan Duc.” That is a false premise, and a cunningly misleadingly
phrased25 one at that. If not a deliberate misconstruction of the record, Appellant has
25
The Jury in Question 1 was asked to decide if the “parties reached an agreement,” not
whether Dang had made an offer she couldn’t keep (at trial, Dang denied having had the power to
bind Tan Duc) or couldn’t be forced to keep (the Jury heard heated argument that the Prenup
controlled all dealings of the spouses and explicitly forbad oral modifications). Tran’s claim to
28
misunderstood her record. Based on this false premise, Appellant says this Court
should discard as “immaterial” the Jury’s damage verdict.26 In fact, even were there
a material conflict among answers, the “immateriality” doctrine would forbid its use
for disregarding the verdict. C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 194
(Tex.1966). Appellee does not agree that the immateriality doctrine fits this case.
But if it did, it could not be used as Appellant seeks.
The doctrine of immateriality is not often used. A standard definition for
‘immaterial’ in the context of jury charges is, “[a] jury question is considered
immaterial when its answer can be found elsewhere in the verdict or when its answer
cannot alter the effect of the verdict.” Fleet v. Fleet, 711 S.W.2d 1, 2 (Tex.1986);
C. & R. Transp., Inc. v. Campbell, infra. The last detailed27 discussion of the doctrine
appears to have been C & R Transport, id., in 1966, where Justice Calvert cited
have been deceived by a false offer of an agreement is not contingent on such a deception’s
having matured into an “agreement.” What Appellant wants this Court to read instead of the
word “agreement” is the word “offer.”
26
The jury charge does not appear formally in the record on appeal, though the copy
attached to Appellant’s brief bears the markings of a copy certified from the district clerk.
27
The doctrine was discussed in passing by our Supreme Court in 1995 in an opinion,
here not on point, in a jail suicide case, holding that a reviewing intermediate Court of Appeals
erred by giving a new trial to the Plaintiff after an adverse jury verdict of no governmental
employee wrongdoing merely because the jury charge also contained a spurious question about
the suicide’s own negligence. However, a close reading of the opinion suggests the true basis for
decision was simply one of ‘harmless error.’ City of Brownsville v. Alvarado, 897 S.W.2d 750
(Tex. 1995).
29
approvingly even older authority explicitly forbidding28 application of the
immateriality doctrine to reverse a judgment in any situation involving a[n asserted
or real] conflict of answers within the verdict. C&R Transport, id.
If not “immateriality,” then what is the crux of Appellant’s complaint?
Appellant argues in fact that the Jury’s answer to Question 1 conflicts with the answer
to Question 9.
To make the argument, Appellant strains to rewrite Tran’s claim contrary to the
record, and seems almost wilfully to read “agreement” as “proposal” or “promise.”
To do so, Appellant asks this Court to rewrite Question 9 to a single theory excerpted
from Tran’s counsel’s opening statement on the first day of a Six Week trial. Worse,
this contorted reading is directly contrary to a position Appellant took before the trial
Court, in her Motion for Judgment Non Obstante Veredicto. This is in the record,
CR(1 of 1), commencing at page 69 as marked by the District Clerk, likewise found
at pages 69-70 of the pdf file named CR(1 of 1) in the record. In that motion,
Appellant complained that Tran’s testimony provided multiple explanations for his
signing the deed conveying out his legal title in 11440 Memorial Drive to Tan Duc
Construction Limited Company [“CLC”]. Appellant cannot now argue that the only
28
“A trial court thus has no authority because of other apparently conflicting jury
findings to disregard a finding with legal significance which has support in the evidence.” C&R
Transport, infra., at 194.
30
possible reason for Tran to have signed the deed was a promise he would receive an
equal interest in the Tan Duc CLC investment vehicle. The jury was free to accept the
other evidence Appellant concedes – complains even, in her trial Court Motion JNOV
– that the Jury heard. Worse still, the Appellant’s Brief (in this section) even quotes
testimonial excerpts to the same effect.
Even if the only evidence the Jury heard regarding why Tran signed the deed
conveying his interest in 11440 Memorial Drive to Tan Duc CLC was the testimony
that Appellant promised him an interest in Tan Duc CLC, the jury could have
answered “no” to Question 1 without impliedly finding that Tran was not defrauded,
because Appellant’s position at trial was that she had no authority to convey an
interest in Tan Duc CLC because, she claimed, she did not own or control Tan Duc
CLC. The Jury may have believed that Appellant had made a false promise she could
never have kept by promising Tran something she could never deliver. Promissory
fraud is fully actionable29 in Texas. The Jury also heard that Tran received the
promise30 orally from Appellant, and may have believed that the promise could not
form an agreement for that reason. Appellant argued as much at trial, when she was
29
Formosa Plastics Corp. USA v. Presidio Engineers, 960 S.W.2d 41 (Tex.1998)
30
The jury was free to consider as evidence of Dang’s continuing intent to defraud Tran
her deliberate choice to allow a foreclosure of 11440 Memorial despite her incontrovertible
ability to continue paying the mortgage on it.
31
still afraid the Jury would order her to pay Tran 25% of the very considerable value
of Tan Duc CLC.
Beyond all this, Appellant’s implied view of the interplay of the common law
of contract and of fraud is almost inexplicably, wilfully numb. Promissory fraud is
fraud. Formosa Plastics, id. Appellant’s comment that if Tran had gotten 25% of Tan
Duc CLC he would not have been able to claim he was defrauded is beside the point,
since the record makes clear Tran didn’t get 25% of Tan Duc – or of anything else.
Tran pled an independent cause of action for common law fraud in his Second
Supplement to his Fifth Amended Original Petition as follows:
3. Fraud
Based on the foregoing, Petitioner also asserts claims for
common law and statutory fraud involving real estate and
breach of fiduciary duty. All Respondents knowingly
participated in the fraud and breach of fiduciary duty.
Tran submitted evidence in support of his fraud claims which was submitted to jury
as Question 9. The jury answered "yes." to Question 9. The Jury awarded damages
in the amount of $650,000, and Tran recovered the judgment now before this Court.
The record clearly reflects the pleading, proof and verdict on Tran's separate and
distinct cause of action for fraud against Dang.
The Texas Supreme Court has defined a cause of action for common law fraud
in In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001) as follows:
32
The elements of fraud are: (1) that a material representation was made;
(2) the representation was false; (3) when the representation was made,
the speaker knew it was false or made it recklessly without any
knowledge of the truth and as a positive assertion; (4) the speaker made
the representation with the intent that the other party should act upon it;
(5) the party acted in reliance on the representation; and (6) the party
thereby suffered injury.
See also Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.
2001), Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d
379, 385 (Tex. App.- Houston [14th Dist.] 2007, no pet.)
The fraud-existence issue that Dang requested the Court to submit (a ‘pure’
PJC form submission) which the Court did submit was not conditioned on the
existence of a contract between Dang and Tran, and the elements of fraud in the
accompanying instruction followed those enumerated in In re FirstMerit Bank, N.A.,
supra., at 385. Tran's theory was that he relied on untrue statements made by Dang,
and on Dang’s fraudulent failure to disclose material facts, which caused him to
convey his record fee legal title in the Memorial residence to an entity which she
controlled and thereby lost the rights, inter alia to compel a partition by the whole,
inherent in the status of holding fee legal title interest and subsequently (if that were
not a loss yet) indeed lost even residual equitable claims against the title upon the
event of an unrelated, independent substitute trustee’s foreclosure deed into a genuine
independent third party fee holder. The record before this Court clearly shows the
33
pleading, proof, and jury verdict in Tran's favor on a classic common law fraud claim.
There is no way that the jury's fraud verdict is "immaterial" and the judgment should
stand.
ARGUMENT ON APPELLEE’S COUNTERPOINT 8:
The District Court instructed the jury on the damage issue in
the Charge of the Court; to the extent that there may have
been any error, it was waived intentionally or not properly
preserved and in any event was harmless.
Appellant’s alleged charge instruction error point rests on the false premises
(1) that the fraud actual damage question submitted to the jury exactly tracked the
language of PJC 115.19, and (2) that no instructions whatsoever were given. In fact,
the Charge does include instructions that sharply narrowed and limited the scope of
the jury’s damage-finding assignment, and PJC 115.19 was not tracked. The trial
Court chose to place all her charge instructions together at the beginning of her
Charge, before any questions. Nor did the damage question submitted materially
track PJC115.19.
Appellant does not appeal the submission of the fraud-existence question, nor
does she appeal its form.
34
Predicated on an affirmative answer to the fraud-existence question, the Charge
then instructed the Jury to answer a separate question (Question 12A) whether the
fraud proximately caused damages to Tran.
The record of the Charge conference suggests that the inclusion of a proximate
cause qualifier for fraud damages may have been a typographic31 error by the person
[Appellant’s counsel Todd Frankfort] who was assisting the Court’s clerk as a typist
for preparation of the final version of the proposed charge. Regardless of the reason
why the Jury was charged not to award fraud damages unless they were substantially
and necessarily32 caused by fraud and were foreseeable to the tortfeasor, the Court’s
charge did provide the standard definition:
“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 mut be such that a
person using the degree of care required of him would have
foreseen that the event, or some similar event, might
reasonably result therefrom. There may be more than one
proximate cause of an event.”
Then, to further guide the Jurors, the trial Court instructed them:
31
The event is reflected in the record of the charge conference, RR023, Page 51, Line
18ff, where Mr. Frankfort proposes to add proximate causation language to the portion of the
damages question intended to be triggered by an affirmative finding of breach of fiduciary duty.
32
i.e., “but for”
35
“Property” means an interest, present or future, legal or equitable, vested or
contingent, in real or personal property, including income and earnings.
The value of an asset is its fair market value unless it has no fair market value.
“Fair market value” means the amount that would be paid in cash by a willing
buyer who desires to buy, but is not required to buy, to a willing seller who
desires to sell, but is under no necessity of selling.
If an asset has no fair market value, its value is the value of its current
ownership as determined from the evidence.
In valuing an asset to be received in the future, you are to find its present value
as determined from the evidence.
Then, to further guide the Jurors, the Court instructed the Jurors only to award
damages limited by all the above factors if those damages also “related to” 11440
Memorial Drive. In short, the trial Court did narrow and limit the range of
considerations the jury was instructed to use when forming their answer to the
damage question. In contrast, the straight PJC 115.19 fraud damage question would
have asked the Jury only to award a dollar amount for damage that “resulted from”
fraud. This is the Pattern Jury Charge form to which Appellant’s Brief refers. It is not
what went to the Jury. References to the form’s calling for use of instructions to
narrow the focus from “resulted from” do not apply to this Charge, which did not
instruct the Jury to determine damages that “resulted from” fraud. This Jury was
instructed to determine damages that were “proximately caused” by fraud. Proximate
36
causation is a narrowing instruction, and went to the Jury along with all the other
instructions (“value,” “fair market value,” value for “asset to be received in future,”
etc.) This Jury was also instructed to award only damages “related” to 11440
Memorial. The Jury’s answer to the damage question was well within the parameters
of these instructions.
By arguing in response to this complaint, Appellee does not concede that he
was obliged to do so. Appellee does not concede that this point was preserved.
Appellee submits the point was intentionally waived. Nor does Appellee concede, if
Appellant is suggesting, that it would have been fundamental error even if the Charge
said what Appellant says it said. Appellant calls its alleged instruction deficit a “fatal
defect,” which is not, so far as Appellee knows, a term of art for unwaiveable error.
Regarding error preservation and waiver, the trial Court entertained bench
discussions with counsel regarding matters concerning the forthcoming Charge at
length, over multiple days, before tendering to Counsel the Court’s proposed Charge
and conducting a standard “charge conference,” which is in the record. The Court
went through her proposed Jury Charge in order from front to back. When the Court
got to the damage question whose form Appellant now challenges, the trial Court
specifically asked Appellant if she had any objections to the form of the question, and
Appellant demurred and stood silent. The following excerpt is from the reporter’s
37
record of the charge conference, and it contains no ellipses. It commences at RR Vol
18 P51 L 14. The context of the excerpt demonstrates that the Court and counsel were
discussing Question 13.
MR. FRANKFORT: Next is the damage question.
THE COURT: All right. And we need to add "gift." I've got that.
MR. FRANKFORT: We need to add "gift." What Mr. Muller and I
discussed before the Court came out was modifying the language that's
contained in here on this page to say: What sum of money, if any, paid
now in cash, would fairly and reasonably compensate Jimmy Tran for
his damages, if any, that resulted from the conduct of Ms. Dang? And
then add another paragraph to say: If you answered yes to question
whatever relating to fiduciary duty, you must find that such damages
were proximally caused by Ms. Dang and then again insert the definition
of proximate cause contained in pattern jury charge 100.12.
THE COURT: Okay.
MR. FLOWERS: Your Honor, we object to this damage question in that
there's been no showing of a damage to Mr. Tran. The evidence in this
case has been that none of these properties had any value whatsoever
based on the competent evidence that has been disclosed to us prior to
trial and not on the evidence that was constructed and made up at trial,
that the evidence that was presented was not sufficient and should never
have been admitted. I further object that the fraud finding and the
fiduciary duty question, that there's no -- there's no basis. It is perfectly
possible for a person to breach a fiduciary duty but not cause damage.
And there's a -- there can be a finding of a breach of fiduciary duty, but
there's no tie-in to the damages at all.
THE COURT: Anything else, Counsel? I've got it.
It is not fair to the trial Court or to Appellee for Dang now to complain that
something is missing from Question 13 when her counsel passed up the direct
invitation to say so during the charge conference. Appellant enjoyed capable trial
38
counsel, and there were sound tactical reasons for that counsel to stand silent on the
issue when the question was posed to him in the charge conference.
Finally, if arguendo the form of Question 13 were error, it was harmless here.
Appellant’s own formula produces answers in the same range as the Jury’s award,
using precisely the formula for calculating those damages advanced by Appellant
both in her Brief to this Court, and in her arguments to the trial Court.
The Judgment should be sustained.
(i) Conclusion
The Jury spent five weeks with Ms. Dang and unanimously they did not believe
her testimony. Appellant waived the alleged charge error, which was anyway
harmless. Appellee did not make his fraud claim contingent on a Jury finding that an
enforceable agreement had formed between him and his then-wife regarding his
receiving an interest in Tan Duc. The expert economist did not submit improper
evidence requiring reversal because he testified as a damages expert regarding an
overall series of commercial transactions, not as the appraiser Appellant claims. The
expert’s damages opinions related to 11440 Memorial Drive started with data points
independent of his own testimony, including valuations in multiple pieces of
documentary evidence signed and offered into evidence by the Appellant herself.
The Jury and trial Court worked hard and reached a fair enough result after a lengthy
39
proceeding. The product of their hard work, a fair enough33 Judgment, should be
Affirmed.
33
“Fair enough,” because Tran has elected to accept the present Judgment if it be his to
accept even though he complained in the trial Court for seven months before trial that his new
counsel were being denied the leave freely to amend his pleadings promised by the Rules of Civil
Procedure, that inflammatory uncorroborated testimony was permitted, that his damages
evidence was restricted, that de facto spoliation had occurred, that Tan Duc’s counsel’s prior
representation of US Southern Corporation in transactions with Metro Bank involving the
foreclosure from Tan Duc and rapid reacquisition (at par!) by US Southern of the Venus Park
properties should not have been concealed from the Jury as relevant to breach of fiduciary duty
and other claims, that fraudulent inducement of the prenuptial agreement should have at least
been placed before the Jury because of Dang’s expert’s testimony, among his complaints of error
tending sharply to diminish his remedies and damages in a hard-fought divorce trial not lacking
for emotion and lasting five-plus weeks. Even on his pleading the trial Court deemed live, Tran’s
ad damnum exceeded the Jury’s award by an order of magnitude, not because the ad damnum
was irrationally large, but because the Jury award was reduced by an order of magnitude when
the Jury grew confused about their ability to remedy the title-washing exercise of the foreclosure-
reacquisition exchange in which title to the Venus Park properties shifted without material
consideration from Tan Duc to US Southern Corporation. At trial, Tran fairly argued for a much
larger verdict and Judgment than he received, and he deems the extant Judgment “fair enough” at
this juncture only because of the hard realities of foreign collections practice (the Venus Park
properties were being liquidated during the trial) and because it is some compensation, for much
greater losses, if proceedings were thus drawn to a close.
40
(j) Prayer
Appellee prays that the Court sustain the trial court’s judgment, but if – and
only if – this Honorable Court were to decide to grant any relief to Appellant, then
to consider and grant Cross Appellant’s points of error as to Dang (to be presented
separately in a later Brief pursuant to this Court’s recent scheduling order).
Respectfully submitted,
/S/ Matt Muller
Matthew S. Muller
Texas Bar No. 14648450
1445 North Loop West, Suite 760
Houston, Texas 77008
Tel. (713)227-1888
Fax. (713)227-1881
Attorney for Tran
41
(k) Certificate under T.R.A.P. 9.4(i)(3): By signing this Brief, and filing it via
the Texas Online portal, Appellee’s counsel certifies pursuant to T.R.A.P. 9.4(i)(3)
that the word processor software used to prepare this Brief (Word Perfect x6)
reports the word count of this Brief is 9948 words, inclusive of everything.
/S/ Matt Muller
Matthew S. Muller
42
(l) Certificate of Service
I will cause the e-filing system by instructing my vendor “Filetime” to serve
a true copy of this instrument on all counsel this 20th day of October, 2015 being
Mr. Daughtry and Ms. Douglass.
/S/ Matt Muller
Matthew Muller
(m) Index to Appendix.
1. Exhibit R52
2. Exhibit R53
3. Courtesy copy of appellee’s counsel’s working index to exhibits in
reporter’s record
4. PX-19A (Tracing of Memorial transactions)
C:\Users\Home\Dropbox\TRAN Appellate\Brief 9.wpd
43
APPENDIX
Exhibit R-52
Exhibit R-53
Index to exhibits in
reporter’s record
RR022 of 023
Pet 1 (P1) premarital agreement page 1 of pdf
P2 marriage license p 28 of pdf
P3 (=R61) Tran check $20k to US p30
Southern Corp dated
111605
P4 Tran check 51006 to US p31 of pdf
Southern Homes $30,000
P5 deed of trust Mem house US p32
southern homes LP grantor
83105
P5A Deed into U S Southern p36
reciting $1.8 Million Memorial
prop 83005
P5B guaranty Agreement to p45
MetroBank $11111.8m from
Dang and US Southern Corp
P6 seond lien p47
P7 WDVL US Sthn Homes LP to p62
Tran, Memorial
P8 DT Tran to countrywide p64
Memorial
P9 GWD Memorial Tran to Tran p79
and Dang and her daughters
P10 WD Memorial, Tran and p81
Dang and Daughters to Tan
Duc Construction Limited Co
P11A photos Memorial House p85
P12 Tan Duc CLC CHECK to p95
BAC Home Loans Servicing
P15A HCAD valuations history, p103
Memorial house
P17A foreclosure deed Memorial p106
$2,619,060.50
P17B SWD BOA to Mangalji p110
$2,659,930.00, Memorial
P19A tracing summary of Memorial p112
house
P24 photos Tan Duc University p113
etc
32A Texas records Sec State Tan p121
Duc CLC
P32B cert formation Tan Duc CLC p122
P32C Tan Duc reg agent change p123
P32D franchise tax public p125
information report Tan Duc
P37C sec state re Royal Crystal Co p126
P37B PIR Royal Crystal Co signed p127
Helen Ngo
P37A certif formation Royal Crystal p129
Co
P42FF index to deed records , p130
grantor Tan Duc
P45 SWD U S Southern Corp to p135
Tan Duc Vietnam conveying
lots 178 and 131 blocks 1
nad 2 Venus Park
P46 SWD Venus Park (all) from p140
Tan Duc VN to Tan Duc TX
P47 a retail deed, Venus Park p145
P48 " (wdvl) p149
FOR SPEED MATT IS TO SKIP INDEXING THE ..........
GOING REMAINING NUMBEROUS
RETAIL DEEDS FOR
VENUS PARK
..... ...... ......
P48ZZ index to real property records p281
where Tan Duc is Grantor
P49 retail deed Tan Duc p286
P50B Title co statement for a retail p296
Tan Duc sale
...more retail deeds ... ... ...
P50E summary of tan duc sales p447
records
P50F list of missing records p448
... .... ...
P59B D/T U S Southern grantor p481
VenusPark
P59G D/T venus park p490
P59L sub Trustee Deed David p502
Smith to MetroBank
venuspark
P59L first modifcation extension p508
renewal agreement US
Southern MetroBank (venus
park)
P64 HCAD real property search p522
records tan duc grantor
P64A " p527
P93 foreclosure sale deed p532
P118 Buddy Trotter data p537
P122 photos Mem House, Venus p538
Plaza, Venus Park
P170A foreclosure sale deed, venus p549
park reserve
follows extensive venus park foreclosure records not well marked as exhibits
P171 (marking uncertain) CPA Ningang Yao records p623
affidavit
P171A Venus K1 p624
P180 LEHRER REPORT p627
P181C Lehrer Supp Rpt response to p644
Schulz
P?259 (hand marked with Bank Statement joint BOA p661
numerals only)
P265 regarding sale of VP from p688
MetroBank to US Southern
Homes
P266 more of sale VP from p699
MetroBank to U S Southern,
attaches retail house leases
from lessor MetroBank to
condo renters
P267 letter accompanying US p813
Southern $2M option strike
price to MetroBank
P268 release settlement p815
agreement among
MetroBank, US Southern
entities, Handsel, and Dang
P269 internal record MetroBank re p837
VP loan classification
P270 metrobank records p838
P271 extension and renewal p842
agreement metrobank, U S
Southern
P272 loan app to metrobank p850
P273 metrobank loan renewal p854
P274 metro bank records
P275 "
P274 return of our subpoena on p874
Dan Kelley of metrobank
P279 release lis pendens of
litigation US SthnMetroBank
P280 metrobank records
P281 screenprint of website of p890
Vietnamland
P281A screenprint of Vietnamland p900
website
"282" more of website screenprint
"283" "
P284 IRS form 8821 p924
P287 photos of some of Jimmy p926
projects
P288 P291 "
P293 assignment rents by Baco p931
P294 vietnamese divorce petition p957
by Mrs
P296 Judge Sheri Dean's notice of p970
decision that Vietnam did not
have jurisdiction, that she
does, and that the parties are
still married
P297 franchise tax PIR, Tan Duc p975
texas
P298 photo of a vietnamese couple p977
P300 news release from Tan Tao p978
Group "What is the Truth"
P303 photo of billboard of UHY p987
Mann Frankfort "Hired Guns"
P308 HCAD report venus park 0989
P309 "
P310 realty listing Venus Plaza
retail slots
P311 retail rent listing VP
L1 Lehrer CV p999
L5 handwritten notes re VP p1001
tracts, summary Pham's disk
L3 Lehrer July supplemnent
report
"201" listing for a condo p1012
P204 Zwillow condo listing
P207 " p1014
P130 news report property values p1019
on the rise
P13 HCAD 2009 $4,029,154 p1021
P80 loopnet rental posting for p1024
Venus Plaza $15sf
P125 zwillow Memorial p1025
$3,665,788 , and
comparables
"200" calculation of totals of venus p1052
park values last time owned
by ...[HCAD]
P124 updated countrywide p1063
appraisal, Memorial,
Landsafe, 2009,
$4,800,000.00
"201" zwillow re a venus park home p1086
P69 valuation township grove p1089
lane
P80 loopnet listing venus plaza p1097
P14 HCAD listing of properties p1100
taxed to Tan Duc as owner
L2 july 2013 initialpreliminary p1101
Lehrer report and apparent
extensive attachments or
else are mislabeled,
documents re Dinh depo
end RR22 end RR22 page 1185
THAT ENDS THE EXHIBITS IN RR22
HERE COMMENCES THE EXHIBITS IN
RR 23:
(several of the following exhibits duplicate items that appear in the above list bearing Petitioner
Exhibit numbers)
exhibit # description page of the pdf
1 prenup 3
2 deed, Memorial, to US 26
Southern (2005)
3 D/T Memorial 2005 28
4 guaranty agreement Dang 37
guarantor loan to MetroBank
5 deed to Tran from U S 41
Southern of Memorial
6 D/T Memorial , Tran's 43
homme sole Countrywide
loan
7 "purchase money security 57
document (second lien)"
Memorial House
8 Deed from Jimmy to Jimmy 72
and Dang and her daughters,
MEMORIAL
9 Deed by Jimmy giving away 74
his interest in Memorial
10 SWD to US Southern 80
appears to be initial purchase
of Venus Park
11 Deed into US Southern 19.5 83
acres
12 Deed US Southern Corp to 87
US Southern LLP, venus
park
13 substitute trustees deed 2009 89
venus park
14 SWD MetroBank back to US 98
Southern, VenusPark
14A SWD MetroBank to US 103
Southern, Venus Park
15 substitute trustees deed into 108
MetroBank
16 anothre substitute trustee 113
deed into MetroBank
17 another sub trustee deed into 120
MetroBank
18 SWD april 2010 US Southern 126
Corp to Tan Duc
CLCSaigon, Venus Park
19 Deed Tan Duc Vietnam to 131
Tan Duc Texas, Venus Park
20 UCC Financing Statement, 136
City Bank to Venus Plaza LP
21 Deed 2007 U S SOuthern to 138
Venus Plaza LP
22 D/T given by Venus Plaza LP 141
23 Foresclosure Sale Deed, on 162
the City Bank loan 2,4M to
Venus Plaza LP
28 $2M check US Southern for 165
Venus Plaza
2932 BOA wire transfer report VN 167
Land to US Sthn Homes LP
34 2007 Jimy Tran FIT 1040 171
36 Tran responses to requests 180
for admissions
"51" fax from Jimmy to Martha 185
Turner properties, 93008
"83" (? hard to read) substitute trustees deed 188
MEMORIAL 2011
84 SWD from Bank of America 192
to purchaser Mr Mangali
86 Morris Architects floor plan, 194
Tan Duc University main bldg
87 Order regarding motion to 199
compel discovery
"89" plat map of Venus Park and 202
photos
"R50" plat map VP 231
R52 Loan Agreement, Jimmy 233
and Dang borrowing $2M
US from Tan DucRECITES
HOUSE VALUE IS $5M USD
(at page 235)
R53 "Settling Agreement" 2010 for 238
"the Loan Agreement"
Values house at $5.770 M
USD [AT PAGE 240]
R54 "International Payment 244
Order" MULTIPLE
R57 MetroBank loan maturity 276
notice for about half a million
USD, Dec 2008, hand signed
Dang
R58 refi title co settlement 280
statement 2006 re venus
park
R59 "Agreement for Multiple 281
Parties" between US
Southern LP and Tan Duc in
VN. 2009, Tan Duc lending,
with Vietnam Land named as
"wiring party" sending $3.2
Million
60 "international Payment 286
Order"
R61 Past Due Notice from 300
MetroBank re Memorial
House loan
R62 metrobank past due notice to 308
US Southern
R63 metrobank past due notice to 316
US Southern
R67 loan payment notice hand 323
signed by Dang 2007, venus
plaza
68 U S Southern earnest money 357
contracts for a retail sale
69 US Southern Homes 371
cancelation forms (home not
ready claim)
71A 71O checks to Jimmy from US 380
Southern
73 list of checks to vendor US 394
SOuthern $262,500, perhaps
cred card payments for
Jimmy alleged
79 report letter Ed Schulz to 410
Todd Frankfort
R80A rebuttal report of Saul 418
Solomon
R87A respondent Tan Duc wreitten 438
offer of proof Petitioner
Expert lacks qualifications
88 Tan Duc motion to redact all 441
causes of action from 5th
amended petition re
community property
89 Tan Duc written objection to 444
inclusion of causes of action
regarding community
property
R90 earnest money contract for 447
retial sale in venus park
R92 handwritten notes on 457
Houstonian stationery re
Venus Plaza foreclosures
P93 foreclosure sale deed VP 458
with handwriting on it
R93 handwritten notes about VP 461
on Houstonian stationery
R94 handwritten notes on 463
Houstonian Stationery
about Tran's interest in
Memorial Home.
P18 Tran calculation of Value 464
increase Mmeorial, with
handwriting on it
sec state texas
cert filing art 465
CR
1 (note that this formation Tan Duc texas
indicates a shift to
"CoRespondent's" evidence
markings
CR2 sec state record re filing 466
article incorp US SOuthern
Crp
CR3 sec state record articles 467
incorp US Southern Homes
Inc
CR4 deed 2005 into US Southern 468
Corp of 9.8168 acres around
Dairy Ashford
CR5 GWD into US SOuthern 473
Homes LP from US Southern
Corp of lots in block 1 of
Venus Park
CR7 deed into US Shtn Homes 475
LP. more of Venus Park
CR9 "oral deposition of Dinh Thi 477
My Dung" unclear why this
is in the Reporter's Record
CR14 trustee deed to MetroBank 642
Venus Park
CR15 trustee deed to MetroBank 649
more Venus Park
CR16 trsutee deed Venus Park, is 655
deuplicate?
CR18 deed US Southern Corp to 661
Tan Duc VN, dated 2010,
Venus Park and the 19.5
acres
CR19 deed Tan Duc VN to Tan Duc 666
Texas
CR20A "Agreement for Multiple 671
Parties" Loan fro Tan Duc VN
to US Southern Homes LP
with "wiring party" Vietnam
Land, $3.2M USD
CR20B Tan Duc check to Tax 690
Assessor
CR20C purported summary of Tan 694
Duc expenses for Venus,
$0.807 M USD and alleged
backup documents
CR20D Tan Duc list of payments for 724
tax insurance etc Venus Park
CR20F 118 photos Venus 742
CR21 2006 deed to US Southern 760
Homes MEMORIAL House
CR22 deed US Southern to Jimmy, 762
homme sole
CR23 deed from Jimmy to Jimmy, 764
Dang, and Dang daughters
CR24A fax from Jimmy back to 766
Martha Turner properties
where the Realtor wrote
Jimmy "I would
recommend a listing of
$9,999,000.00" Note
attachments show was
listed at $10,000,000.00
CR24BB envelope addressed to 782
Jimmy from COuntywide
MOrtgage return to sender
CR25 purported email from Jimmy 784
to USHomes proposing they
show the Mem house to a
prospective buyer
CR26 purported email from Jimmy 788
instructing "you guys use
Maya signature stamp on the
contract va give it to mary"
CR26A purported email suggesting 790
that Tracy Nguyen was at US
Southern Homes
CR27 email Tracey to Jimmy "no 792
money in your bank"
CR28A deed from Jimmy, etc to Tan 793
Duc (2010) ["the" deed
involved in the fraud
claim](this is about the third
copy in this reporter's record
of exhibits of this same deed)
CR29B BOA envelope addressed to 797
Jimmy in Dallas on Belt Line
Rd
CR30 purported Jimmy email "don't 805
tell Maya"
CR31 purported email Jimmy to US 809
Southern about paying prop
tax
CR32 purported email JT to USSH 811
about wedding deposits
CR36 deed CityBank ot Baco 813
Investments 1.17 acres
CR38A Jimmy's prior divorce decree 817
CR50 handwritten notes of Jimmy's 831
CR50A more of handwritten notes of 843
Jimmy
CR51 52 statement of joint bank 855
account
CR60 purported NaviBank record 863
CR61 mechanic lien claiming 873
affidavit for Tan Duc
Company against US
Southern for building Venus
Park
CR62 "Economic Contract" Tan 875
Duc Co to build houses and
provide materials to US
Southern
CR71 "list of bank transfers to 885
Jimmy Tran"
CR81, 82, 85 BOA check to pay prop tax 887
CR 90 Textbook "Litigation Services 892
Handbook, the role of the
Financial Expert"
CR91 Tan Duc written offer of proof 898
Tan Duc USA checks for
Venus Park expenses
CR92 Tan Duc written offer of 900
proof, contract between
Jimmy and Tan Duc Vietnam
CR93 Tan Duc written offer of proof 902
sumary of expense for Venus
Park
CR94 Tan Duc offer of proof 904
regarding Dang testimony
and emails including exhibits
25 72 30 31 32
CR95 Tan Duc offer of proof of 908
testimony of Maya Dang
CR96 Tan Duc offer of proof about 911
Dinh Thi My Dung
CR97 Tan Duc offer of proof arrest 922
warrant for Jimmy Tran
CR98 Tan Duc offer of proof of 926
international payment orders
and evidence of signatures of
Jimmy and Mayua
CR99 Tan Duc offer of proof re 929
mechanic lien claim
HERE ENDS RR23
TRACING