                                                                             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 Duc​RECITES 
                         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 
 
 
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