Opinion issued February 7, 2017




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-14-00539-CV
                           ———————————
 TAN DUC CONSTRUCTION LIMITED COMPANY, INC. AND HOANG-
                YEN THI DANG, Appellants
                                       V.
                           JIMMY TRAN, Appellee


                   On Appeal from the 309th District Court
                            Harris County, Texas
                      Trial Court Case No. 2010-48243


                         MEMORANDUM OPINION

      Appellee Jimmy Tran has filed a motion for en banc reconsideration of our

October 6, 2016 opinion and judgment. We withdraw our opinion and judgment of

October 6, 2016, and issue this opinion and a new judgment in their stead.

Accordingly, we dismiss the motion for en banc reconsideration as moot. See, e.g.,
Brookshire Bros. v. Smith, 176 S.W.3d 30, 41 (Tex. App.—Houston [1st Dist.] 2005,

pet. denied).

      This appeal arises from common-law tort claims adjudicated as part of a

divorce proceeding. Appellee Jimmy Tran petitioned for divorce from his wife,

appellant Hoang-Yen Thi Dang. Tran also asserted fraud and other tort claims

against Dang and Tan Duc Construction Limited Company, Inc. (“Tan Duc”), a

company Tran alleged was controlled by Dang. The trial court entered a judgment

based on the jury’s findings that Dang committed fraud and awarded Tran damages

to compensate him for the loss of his interest in their house in Piney Point, plus

exemplary damages.

      Dang challenges the trial court’s judgment, contending, among other things,

that (1) legally insufficient evidence supports the damages award, (2) Tran’s

damages expert’s testimony was unreliable, and (3) the trial court erred by failing to

submit a measure of damages. Tan Duc also appealed, arguing that the trial court

improperly denied its request for attorney’s fees.

      Because the jury’s award of actual damages was not supported by legally

sufficient evidence, we reverse the portion of the judgment awarding actual and

exemplary damages to Tran and render judgment that Tran take nothing on his

causes of action against Dang. We affirm the remainder of the trial court’s judgment.




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                                    Background

      Tran and Dang were married in 2007, after they executed a premarital

agreement. The agreement provided that all then-existing separate property would

remain separate property, and that any assets or liabilities acquired by either party

during the marriage would remain separate property. Each party waived any right

to support from the other.

      In 2010, Tran filed a petition for divorce and asserted claims for breach of the

premarital agreement, common-law fraud, breach of fiduciary duty, and civil

conspiracy. Tran claimed that Dang breached the agreement by failing to give him

a gift of cash, stock, real estate or other assets worth $1 million within 30 days of

the consummation of the marriage. Tran also alleged that Dang committed fraud

and breached her fiduciary duties to him with respect to several properties that the

couple jointly owned during their marriage, including their house located at 11440

Memorial.1 Tran also sued Tan Duc, contending that it was controlled by Dang and

had conspired with Dang to fraudulently transfer property.

      Tran’s tort claims were tried to a jury. At trial, Tran testified that in October

2007, shortly after he and Dang married, he transferred a 25% interest in the house

to Dang and a 25% interest to each of Dang’s two daughters. Tran did not allege


1
      The jury did not find any damages with respect to the commercial properties;
      accordingly, we focus on the claims and trial evidence pertaining to the couple’s
      house.
                                          3
that these transfers were induced by fraud. Around this same time, Tran mortgaged

the house. He executed one promissory note for $2.5 million and another for

$500,000. Both notes were personally guaranteed by him alone, and both were

secured by the house.

      Tran testified that in March of 2010, Dang told him that they should transfer

their interests in the house to Tan Duc. According to Tran, Dang told him that the

transfer would be financially advantageous and that he would still own his 25%

interest in the house, either by gaining ownership in the entity that owned the house

or by some other means. According to Tran, Dang told him that Tan Duc would pay

the mortgages on the house. Tran transferred his 25% interest to Tan Duc in March

2010, and it is the ultimate loss of this 25% interest that forms the basis of Tran’s

fraud claim related to the house.

      Dang’s testimony conflicted with Tran’s. Dang testified that in 2010 Tran

wanted to transfer his ownership in the house to avoid foreclosure and avoid paying

property taxes. According to Dang, Tran wanted Tan Duc to assume responsibility

for the house because he could not pay for the notes that burdened it.

      Tran, Dang, and Dang’s two daughters executed a deed in March 2010

transferring each of their interests—in total, 100% of the interest in the house—to

Tan Duc. According to a document executed in connection with the transfer, which

Tran claims he never saw and is fraudulent, Tan Duc purchased the house for $5.77


                                         4
million, $2.77 million of which was assuming the obligation to pay on Tran’s two

notes, which had remaining balances of $2.27 million and $500,000. Tan Duc

initially made payments on the mortgages, but eventually ceased, causing a

foreclosure in October 2011.

      Tran’s economic damages expert, Dr. Kenneth Lehrer, calculated Tran’s

damages from the alleged fraud. According to Lehrer, Tran’s 25% interest in the

house was worth approximately $800,000 when Lehrer prepared his report in 2013.

Lehrer calculated this figure by determining the value of Tran’s interest in the

property at the time the premarital agreement was executed in 2007 and assuming a

20% increase in value each year. Lehrer testified that this figure would compensate

Tran for the loss of the house to foreclosure in 2011. Lehrer testified that he did not

account for any debt on the property and that he assumed that Tran had no obligation

for any debt on the property at any point. Lehrer also did not calculate the value of

the home at the time that Tran transferred his 25% interest in 2010.

      Lehrer testified that Tran’s interest could alternatively be valued by

calculating 25% of the $2.62 million 2011 foreclosure sales price of the house, which

was $655,000, or 25% of HCAD’s assessed value of the house at the time of the

foreclosure in 2011, which was $625,000. Tran also testified about the value of his

interest based on the 2011 foreclosure price, calculating that his interest was worth

25% of that price, around $600,000.


                                          5
         The jury found that Dang did not breach the premarital agreement or breach a

fiduciary duty to Tran, but found that Dang committed fraud against Tran. The jury

awarded Tran $650,000 for fraud damages and $50,000 in exemplary damages. The

jury found no liability on the part of Tan Duc.

                                     Dang’s Appeal

         Dang asserts five issues in her appeal. She argues that (1) the trial court erred

by admitting unreliable testimony from Tran’s damages expert, (2) there is legally

insufficient evidence to support the damages award, (3) the trial court erred by

failing to submit a measure of damages for the fraud, (4) the jury’s fraud and

damages findings were rendered immaterial by others, and (5) the award of

exemplary damages should be reversed because no evidence supports the actual

damages award.

                              Sufficiency of the Evidence

         In her second issue, Dang contends that legally insufficient evidence supports

the $650,000 fraud damages award. Because this issue is dispositive, we address it

first.

A.       Standard of Review

         In conducting a legal sufficiency review, we review the evidence presented

below in a light most favorable to the jury’s verdict, crediting favorable evidence if

reasonable jurors could and disregarding contrary evidence unless reasonable jurors


                                             6
could not. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 770 (Tex. 2010); City

of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We set aside the verdict only

if the evidence at trial would not enable reasonable and fair-minded people to reach

the verdict under review. See City of Keller, 168 S.W.3d at 827. If more than a

scintilla of evidence exists to support the finding, the legal sufficiency challenge

fails. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005).

      The evidence is legally insufficient only if (a) there is a complete absence of

evidence of a vital fact; (b) the court is barred by rules of law or of evidence from

giving weight to the only evidence offered to prove a vital fact; (c) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence

establishes conclusively the opposite of the vital fact. See City of Keller, 168 S.W.3d

at 810; King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). The trier

of fact may choose to “believe one witness and disbelieve others” and “may resolve

inconsistencies in the testimony of any witness.” McGalliard v. Kuhlmann, 722

S.W.2d 694, 697 (Tex. 1986).

B.    Applicable Law

      There are two measures of direct damages in a fraud case: out-of-pocket and

benefit-of-the-bargain. Formosa Plastics Corp. USA v. Presidio Eng’rs &

Contractors, Inc., 960 S.W.2d 41, 49 (Tex. 1998) (citing Arthur Andersen & Co. v.

Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997)). Out-of-pocket damages


                                          7
measure the difference between the value paid and the value received. Id.; see

Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 373 (Tex. 1984) (out-of-

pocket damages allow injured party “to recover the actual injury suffered measured

by the difference between the value of that which he parted with, and the value of

that which he has received”).      Benefit-of-the-bargain damages measure the

difference between the value as represented and the value received. Formosa

Plastics Corp., 960 S.W.2d at 49. Both measures are determined at the time of the

transfer of the interest induced by the fraud. Id.; Arthur Andersen, 945 S.W.2d at

817; Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390, 395 (Tex. App.—

Houston [1st Dist.] 2013, pet. denied). Furthermore, losses beyond the difference

between the amount the plaintiff gave and the value he received can be recovered

only as consequential damages, which must be explicitly premised on findings that

the losses were foreseeable and directly traceable to the misrepresentation. See

Arthur Andersen, 945 S.W.2d at 817; Fazio, 403 S.W.3d at 395.

      In the absence of an objection to the court’s charge, we evaluate the

sufficiency of the evidence in light of the court’s charge as given to the jury.

Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). Where a party does not complain

that the charge’s measure of damages was improper or provide a proper measure of

damages, an appellate court measures the sufficiency of the evidence for damages




                                        8
based on the language in the jury charge that was given. See Faucette v. Chantos,

322 S.W.3d 901, 912 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

C.    The Charge and Charge Conference

      Tran’s fraud theory at trial was that Dang fraudulently induced him to transfer

his 25% interest in the house to Tan Duc in 2010. Question 13, the damages

question, asked the jury:

      What sum of money, if any, if paid now in cash, would fairly and
      reasonably compensate Jimmy Tran for his damages, if any, that
      resulted from the conduct of Hoang-Yen Thi Dang?

      If you answered “No” to Question 7, related to fiduciary duty, you must
      further find that any resultant damages were “proximately caused” by
      Hoang[-]Yen Thi Dang.

      “Proximate cause” means a cause that was a substantial factor in
      bringing about an event, and without which cause such event would not
      have occurred. In order to be a proximate cause, the act or omission
      complained of must be such that a person using the degree of care
      required of him would have foreseen that the event, or some similar
      event, might reasonably result therefrom. There may be more than one
      proximate cause of any event.

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

      Do not add any amount for interest on damages, if any.

      Answer separately in dollars and cents for damages, if any, related
      to each of the following at the time of the failure to comply or fraud:

      1.     11440 Memorial                  Answer $ 650,000

      2.     Venus Plaza. LP                 Answer $ 0
      3.     Venus Park Subdivision          Answer $ 0

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      4.    Furniture and Fixtures           Answer $ 0

      5.    Gift (Question 4)                Answer $ 0

Question 13 was predicated on the jury’s affirmative answer to any one of three

liability questions: failure to comply with the premarital agreement, breach of

fiduciary duty, or fraud. The jury answered “no” to the failure to comply and breach

of fiduciary duty questions, so the damages award can be affirmed only if there is

sufficient evidence of fraud damages.

      Although Tran’s theory of the case was that Dang defrauded him in March

2010 when she persuaded him to transfer his 25% interest in the house to Tan Duc,

her proposed instruction at the charge conference focused on the house’s value in

October 2011. Dang requested that the jury be instructed that the proper measure of

fraud damages was “the difference between the value of the property in question at

the date of foreclosure [in 2011] and the remaining balance due on the indebtedness

[in 2011].” The trial court thus correctly denied this request. See Formosa Plastics

Corp., 960 S.W.2d at 49 (out-of-pocket damages measure difference between value

paid and received and benefit-of-the-bargain damages measure difference between

value represented and received; both are determined at time of transfer of interest

induced by fraud); Arthur Andersen, 945 S.W.2d at 817 (same); Fazio, 403 S.W.3d

at 394–95 (same).




                                        10
      Dang did not otherwise object to the damages question in the charge.

Accordingly, we will measure the sufficiency of the evidence of fraud damages

based on the language in the jury charge that was given. See Faucette, 322 S.W.3d

at 912 (where party fails to provide proper measure of damages, appellate court

measures sufficiency based on language in jury charge as given).

D.    Analysis

      With respect to fraud damages, Question 13 told the jury to assess fraud

damages “at the time of the . . . fraud.” The jury was instructed that:

      Fraud occurs when—

      1.     A party makes a material misrepresentation, and
      2.     The misrepresentation is made with knowledge of its falsity or
             made recklessly without any knowledge of the truth and as a
             positive assertion, and
      3.     The misrepresentation is made with the intention that it should
             be acted on by the other party, and

      4.     The other party relies on the misrepresentation and thereby
             suffers injury.

Thus, the jury was instructed to measure fraud damages at the time that Tran acted

on Dang’s alleged misrepresentation—which, according to Tran, was when he

transferred his 25% interest to Tan Duc in March 2010. See Arthur Andersen, 945

S.W.2d at 817 (fraud damages are measured at time of sale induced by fraud); Fazio,

403 S.W.3d at 395 (fraud, and fraud damages, occur at time plaintiff transfers his

interest due to fraud, and “not at some future time”).

                                          11
      Tran argues that the damages award is supported by evidence of the house’s

value at various points in time, including when the parties first married in 2007,

when the house was foreclosed in October 2011, and when Lehrer prepared his

expert report in 2013. But in order to show that he was damaged by the fraud, Tran

was required to put on damages evidence regarding the value of the home in March

2010, when he was purportedly fraudulently induced to transfer his interest. See

Formosa Plastics Corp., 960 S.W.2d at 49; Arthur Andersen, 945 S.W.2d at 817;

Fazio, 403 S.W.3d at 395. Tran put on no such evidence. Neither Tran nor Lehrer

testified about the value of the house in 2010.2 Thus, Tran did not adduce any

evidence to permit the jury to calculate damages based on the allegedly fraudulently

induced transfer.

      Viewing the evidence in a light most favorable to the jury’s verdict, crediting

favorable evidence if reasonable jurors could and disregarding contrary evidence

unless reasonable jurors could not, there is no legally sufficient evidence of the value

of the home in March 2010 at the time that Tran transferred his 25% interest. See

City of Keller, 168 S.W.3d at 810. Accordingly, we hold that the evidence is legally


2
      The only record evidence pertaining to the value of the home in 2010 is a document
      allegedly executed in connection with the transfer which states that Tan Duc paid
      $5.77 million for the home. Tran maintained throughout trial, on appeal, rehearing,
      and in his motion for reconsideration en banc that this document is a sham,
      fraudulent, and cannot be relied upon for any purpose. Dr. Lehrer did not testify
      about or rely upon this document in any way when opining regarding Tran’s
      damages.
                                          12
insufficient to support the $650,000 fraud damages award. See id. at 827; see, e.g.,

Fazio, 403 S.W.3d at 395–96 (legally insufficient evidence supported damages

award based upon evidence of property value three years after fraud, and trial court

properly disregarded jury’s finding and awarded $0 in fraud damages). Because

Tran did not adduce evidence regarding the value of the home at the time that he

transferred his interest due to the alleged fraud, we will render judgment that Tran

take nothing by his fraud claim. See Guevara v. Ferrer, 247 S.W.3d 662, 669–70

(Tex. 2007).

      We sustain Dang’s second issue.

                              Exemplary Damages

      In her fifth issue, Dang argues that the award of $50,000 in exemplary

damages to Tran must be reversed because the underlying actual damages award is

supported by legally insufficient evidence. Exemplary damages may not be awarded

without an award of actual tort damages. See Twin City Fire Ins. Co. v. Davis, 904

S.W.2d 663, 665 (Tex. 1995). Because we hold that legally insufficient evidence

supports the award of actual damages, we must also reverse the award of exemplary

damages. See id.; see also Paradigm Oil, Inc. v. Retamco Operating, Inc., 242

S.W.3d 67, 75 (Tex. App.—San Antonio 2007, pet. denied) (reversing award of

exemplary damages because insufficient evidence supported award of actual

damages).


                                        13
      We sustain Dang’s fifth issue.

      Because we have concluded that the awards of actual and exemplary damages

must be reversed and a take-nothing judgment rendered, we do not reach Dang’s

first, third, and fourth issues, which would afford her no greater relief.3

                                  Tan Duc’s Appeal

      In four issues, Tan Duc argues that the trial court erred by denying it attorney’s

fees. Tan Duc contends that it timely counterclaimed for attorney’s fees and costs

and timely submitted a motion requesting fees to the trial court. Although the record

contains a petition with a counterclaim for fees, Tan Duc does not identify any

motion for fees in the appellate record, and we have found none. Because the record

does not reflect that Tan Duc asked the trial court to award attorney’s fees on any of

the bases raised in its brief on appeal, we hold that it has waived its appellate

arguments regarding fees. See TEX. R. APP. P. 33.1 (to preserve complaint for

appellate review, record must show that party made request to trial court and that

trial court ruled on request); Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d

547, 549–50 (Tex. 2004) (party bears burden to request items in clerk’s record not




3
      In her first issue, Dang contends that the trial court erred by admitting Tran’s
      damages expert’s testimony. In her third issue, Dang contends that the trial court
      erred by failing to submit a measure of damages. In her fourth issue, Dang argues
      that the jury’s findings regarding fraud and fraud damages were rendered immaterial
      by the jury’s negative response to a question regarding the basis for Tran’s decision
      to deed his interest in the house to Tan Duc.
                                           14
included pursuant to Texas Rule of Appellate Procedure 34.5); Christiansen v.

Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (burden is on appellant to present

sufficient record to show error requiring reversal).

      We overrule Tan Duc’s four issues.

                                     Conclusion

      We reverse the portion of the judgment awarding $650,000 in actual damages

and $50,000 in exemplary damages to Tran and render judgment that Tran take

nothing on his causes of action against Dang. We affirm the trial court’s judgment

as to Tan Duc. The remainder of the trial court’s judgment, which no party attacked

on appeal, is undisturbed. The clerk of the trial court shall release Dang from further

liability on the supersedeas bond she filed in the case.




                                               Rebeca Huddle
                                               Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.




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