Opinion
NO. 01-14-00539-CV
06-13-2017
On Appeal from the 309th District Court Harris County, Texas
Trial Court Case No. 2010-48243
MEMORANDUM OPINION ON REHEARING
Appellee Jimmy Tran has filed a motion for rehearing of our February 7, 2017 opinion and judgment. We grant the motion, withdraw our opinion and vacate our judgment of February 7, 2017, and issue this opinion and a new judgment in their stead.
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.
We affirm the trial court's judgment.
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 the fall of 2010, Tran filed a petition for divorce and asserted claims for breach of the premarital agreement, common-law fraud, breach of fiduciary duty, and civil conspiracy. Tran claimed that Dang breached the agreement by failing to give him a gift of cash, stock, real estate or other assets worth $1 million within 30 days of the consummation of the marriage. Tran also alleged that Dang committed fraud and breached her fiduciary duties to him with respect to several properties that the couple jointly owned during their marriage, including their house located at 11440 Memorial. Tran also sued Tan Duc, contending that it was controlled by Dang and had conspired with her to fraudulently transfer property.
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.
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 her two daughters. Tran did not allege that these transfers were induced by fraud. Around this same time, Tran mortgaged the house. He executed one promissory note for $2.5 million and another for $500,000. Both notes were personally guaranteed by him alone, and both were secured by the house.
Tran testified that in the spring of 2010, Dang told him that they should transfer their interests in the house to Tan Duc. According to Tran, Dang told him that the transfer would be financially advantageous and that he still would own his 25% interest in the house, either by gaining ownership in the entity that owned the house or by some other means. According to Tran, Dang told him that Tan Duc would pay the mortgages on the house. Tran signed a deed transferring his 25% interest in the house to Tan Duc in April 2010, and it is the ultimate loss of this 25% interest that forms the basis of Tran's fraud claim related to the house. At trial, Tran testified that at the time he transferred his 25% interest in the house, it was worth approximately $5.5 million. He also testified that he continued to be liable personally on the mortgages secured by the house after the transfer of his interest.
Dang's testimony conflicted with Tran's. Dang testified that in the spring of 2010 Tran wanted to transfer his ownership in the house to avoid foreclosure and avoid paying property taxes. According to Dang, Tran wanted Tan Duc to assume responsibility for the house because he could not pay for the notes that burdened it.
Tran, Dang, and her two daughters executed a deed in April 2010 transferring each of their interests—in total, 100% of the interest in the house—to Tan Duc. According to a document executed in connection with the transfer, Tan Duc purchased the house for $5.77 million, at least $2.77 million of which was assuming the obligation to pay on Tran's two notes, which had remaining balances of $2.27 million and $500,000. Dang produced this document during discovery and introduced it into evidence at trial; Tran claimed he had never seen the document and that it was fraudulent. He also testified that Tan Duc did not assume his obligation to pay on the notes and he remained obligated on them. Tan Duc initially did make some mortgage payments, but eventually ceased, causing a foreclosure in October 2011.
Tran's economic damages expert, Dr. Kenneth Lehrer, calculated his damages from the alleged fraud. According to Lehrer, Tran's 25% interest in the house was worth approximately $800,000 when Lehrer prepared his report in 2013. Lehrer calculated this figure by determining the value of Tran's interest in the property at the time the premarital agreement was executed in 2007 and assuming a 20% increase in value each year. Lehrer testified that this figure would compensate Tran for the loss of the house to foreclosure in 2011. Lehrer testified that he did not account for any debt on the property and that he assumed that Tran had no obligation for any debt on the property at any point. Lehrer also did not calculate the value of the home at the time that Tran transferred his 25% interest in 2010.
Lehrer testified that Tran's interest alternatively could be valued by calculating 25% of the $2.62 million 2011 foreclosure sales price of the house, which was $655,000, or 25% of HCAD's assessed value of the house at the time of the foreclosure in 2011, which was $625,000. Tran also testified about the value of his interest based on the 2011 foreclosure price, calculating that his interest was worth 25% of that price, around $600,000.
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.
Charge Error
In her third issue, Dang contends that the trial court erred by failing to submit a measure of damages for her alleged fraud related to the house.
A. Standard of Review and Applicable Law
To preserve an objection regarding charge error, the party objecting to the charge "must point out distinctly the objectionable matter and the grounds of the objection." TEX. R. CIV. P. 274; Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007). Moreover, the party's objection must have "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX. R. APP. P. 33.1(a). A party must "clearly designate the alleged error and specifically explain the basis of its complaint in its objection to the charge." Hamid v. Lexus, 369 S.W.3d 291, 296 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (quoting Carousel's Creamery, L.L.C. v. Marble Slab Creamery, Inc., 134 S.W.3d 385, 404-05 (Tex. App.—Houston [1st Dist.] 2004, pet. dism'd)).
Failure to object timely to error in a jury charge constitutes a waiver of that error. TEX. R. CIV. P. 272. "Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections." TEX. R. CIV. P. 274; see Burbage v. Burbage, 447 S.W.3d 249, 255 (Tex. 2014) (party waives any objection to jury charge not specifically raised in trial court); Hamid, 369 S.W.3d at 296 (same) (first citing Ledesma, 242 S.W.3d at 43; then citing State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (op. on reh'g)).
B. Analysis
Tran's 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 |
4. | Furniture and Fixtures | Answer $ 0 |
5. | Gift (Question 4) | Answer $ 0 |
Although Tran's theory of the case was that Dang defrauded him in the spring of 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. Regarding Question 13, Dang's two lawyers argued:
Mr. Frankfort: [W]e disagree with the wording of this, the value of the separate property at the time of the breach. That's not property. That's not the accurate measure of damages. It should be the lost equity, claimant's lost equity in the property.
Mr. Flowers: If any—
Mr. Frankfort: If any.
Mr. Flowers: And this is a comment on the weight of the evidence.
. . . .
Mr. Frankfort: I want in there the correct measure of damage—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].
Mr. Flowers: If any.
Mr. Frankfort: If any. . . .
The trial court correctly denied this request because it improperly sought to have the jury measure damages at the incorrect point in time. See Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 49 (Tex. 1998) (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 & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997) (same); Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390, 394-95 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (same). Dang did not offer a correct damages question or otherwise object that the question lacked a measure of damages. None of the cases that Dang cites suggest that failure to submit a proper measure of damages to the jury is reversible absent a party's objection on that ground.
Because Dang requested an improper measure of damages and did not raise the objection to the charge that she now raises on appeal, we hold that Dang waived this objection. See TEX. R. CIV. P. 272, 274; Burbage, 447 S.W.3d at 255; Hamid, 369 S.W.3d at 296. Accordingly, we will measure the sufficiency of the evidence of fraud damages based on the language in the jury charge that was given. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); Faucette v. Chantos, 322 S.W.3d 901, 912 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (where party fails to provide proper measure of damages, appellate court measures sufficiency based on language in jury charge as given).
We overrule Dang's third issue.
Sufficiency of the Evidence
In her second issue, Dang contends that legally insufficient evidence supports the $650,000 fraud damages award.
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 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., 960 S.W.2d at 49 (citing Arthur Andersen, 945 S.W.2d at 817). Out-of-pocket damages 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, 403 S.W.3d at 395.
Where a party does not provide a proper measure of damages for submission in the charge, an appellate court measures the sufficiency of the evidence for damages based on the language in the jury charge that was given. See Osterberg, 12 S.W.3d at 55; Faucette, 322 S.W.3d at 912.
C. Analysis
With respect to fraud damages, Question 13 instructed the jury to assess fraud damages "at the time of the . . . fraud." The jury was instructed that:
Fraud occurs when—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 the spring of 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").
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.
Much of the testimony at trial, including Lehrer's testimony, focused on the value of the house at other points in time, particularly near the 2011 foreclosure. However, reviewing the evidence in the light most favorable to the jury's verdict, as we must, we conclude that the record contains more than a scintilla of evidence of the value of the house and Tran's interest in it at the time that he transferred his interest in the spring of 2010. See Del Lago Partners, 307 S.W.3d at 770; City of Keller, 168 S.W.3d at 827; Haggar Clothing Co., 164 S.W.3d at 388.
First, Dang introduced a document that she claimed Tran executed at the time of the transfer in spring 2010, which stated that the home was being purchased by Tan Duc for $5.77 million. Thus, Dang's own document was some evidence of the value of the home at the time of the alleged fraud. Second, Tran testified that based on Dang's past payments of debt on the home and tax valuations, the home was worth approximately $5.5 million when he transferred his interest. See Nat'l Gas Pipeline Co. v. Justiss, 397 S.W.3d 150, 159 (Tex. 2012) (property owner may testify to value of property based upon, among other things, tax valuations). Together, this evidence constitutes more than a scintilla of evidence of the value of the home in the spring of 2010, when Tran was purportedly fraudulently induced to transfer his interest. See Haggar Clothing Co., 164 S.W.3d at 388.
25% of $5.5 million is $1.375 million, and 25% of $5.77 million is $1.44 million. The jury awarded Tran $650,000 for the loss of his 25% interest, which is below both of these numbers. However, the jury generally has broad discretion to award damages within the range of evidence presented at trial. Weeks Marine, Inc. v. Salinas, 225 S.W.3d 311, 319-20 (Tex. App.—San Antonio 2007, pet. dism'd) (first citing Gulf States Utils., Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002); then citing Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37, 49 (Tex. App.—San Antonio 2006, no pet.)). A jury is entitled to disbelieve or discount any part of opinion testimony even though the basis of the jury's specific calculation cannot be determined from the record. Salinas, 225 S.W.3d at 320; see, e.g., Pleasant v. Bradford, 260 S.W.3d 546, 560 (Tex. App.—Austin 2008, pet. denied) (citing Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86, 91-92 (Tex. App.—El Paso 1995, writ denied)). A jury is also entitled to make credibility determinations and weigh the variables and assumptions upon which that testimony is based. Salinas, 225 S.W.3d at 320. And a jury "may disregard even uncontradicted and unimpeached testimony from disinterested witnesses," so long as the decision to disregard is reasonable. City of Keller, 168 S.W.3d at 820.
Here, the jury could have concluded that Tran's 25% interest should be calculated after accounting for $2.77 million in debt for which he was liable at the time that he transferred his interest. And the document purportedly executed in connection with the transaction contained some evidence that Tran's outstanding debt at the time of the transfer was closer to $3 million. Reducing $5.5 million and $5.77 million by $2.77 million or $3 million and taking 25% of the remainders results in figures of $625,000, $682,500, $692,500 and $750,000. The amount the jury awarded, $650,000, falls within the range of these numbers.
We need not know precisely how the jury actually arrived at its award, but 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, we hold that the record contains evidence that would permit a rational jury to conclude that Tran's 25% interest was worth $650,000 in the spring of 2010 when he transferred his interest. See id. at 810.
We overrule Dang's second issue.
Admission of Lehrer's Expert Testimony
In her first issue, Dang contends that the trial court erred by admitting Lehrer's expert testimony regarding damages. Dang contends that admission of this testimony was harmful because it is the only evidence supporting the jury's damages award.
A. Standard of Review and Applicable Law
The admission of expert testimony is governed by Texas Rule of Evidence 702, which provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.TEX. R. EVID. 702; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995). "Expert testimony is admissible if (1) the expert is qualified, and (2) the testimony is relevant and based on a reliable foundation." Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006) (first citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); then citing Robinson, 923 S.W.2d at 556).
Expert testimony is unreliable if it is no more than "subjective belief or unsupported speculation." Robinson, 923 S.W.2d at 557 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 2795 (1993)). Expert testimony is also unreliable if there is too great an analytical gap between the data the expert relies upon and the opinion offered. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998). In applying this reliability standard, the trial court determines whether the analysis used to reach the expert's conclusions is reliable. Id. at 728.
Generally, rulings on objections as to the admissibility of evidence, including whether expert testimony is reliable, are reviewed for an abuse of discretion. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009). To obtain reversal based upon the erroneous admission of evidence, the complaining party must show that the trial court erred and that such error probably resulted in an improper judgment. Fairmont Supply Co. v. Hooks Indus., Inc., 177 S.W.3d 529, 532 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing TEX. R. APP. P. 44.1); Prestige Ford Co. Ltd. P'ship v. Gilmore, 56 S.W.3d 73, 78 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); see also TEX. R. APP. P. 44.1(a)(1) (requiring that before a judgment can be reversed on appeal it must be determined that the error probably caused rendition of an improper judgment or prevented the appellant from properly presenting the case on appeal). To determine whether the erroneously admitted evidence probably resulted in an improper judgment,"[w]e review the entire record, and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted." Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 883 (Tex. 2014) (quoting Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004)); see also State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009) (if erroneously admitted evidence was crucial to key issue, error was likely harmful); Fairmont Supply Co., 177 S.W.3d at 532 (to determine whether erroneously admitted evidence probably resulted in improper judgment, appellate court examines entire record to determine whether judgment is controlled by complained-of evidence).
B. Analysis
Assuming without deciding that the trial court erred in admitting Lehrer's challenged testimony, we conclude that the error was harmless. In our analysis of Dang's challenge to the sufficiency of the evidence to support the damages award, we concluded that the jury's damages award is supported by legally sufficient evidence apart from Lehrer's testimony. Dang ignores this other evidence and argues that Lehrer's testimony is the only support for the jury's damages award, and therefore the admission of his testimony was harmful. We already have detailed the other evidence that provides a rational basis for the jury's award. We note also that in closing, Dang's lawyer told the jury that Lehrer's testimony was unreliable and reminded the jury that her damages expert had criticized Lehrer's methodology.
Because the jury's damages award is supported by evidence other than Lehrer's opinion testimony, Dang cannot show that the judgment turned on Lehrer's testimony. See Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 608-09 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) ("Because the jury's damages award is supported by a calculation and related evidence not specifically relied upon by DX's expert, it cannot be shown that the ensuing judgment turned on the expert's testimony."); Fairmont Supply Co., 177 S.W.3d at 531-32 (holding that possibly erroneous admission of expert testimony on damages was harmless where other evidence supported jury's damages award); see also Kia Motors, 432 S.W.3d at 883 (to show harm in erroneous admission of evidence, complaining party must show judgment turned on erroneously admitted evidence); State v. Chana, 464 S.W.3d 769, 785-87 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (assuming that evidence of five of ten comparable sales relied upon were inadmissible, but holding that error was harmless because five remaining comparable sales supported jury's damages finding in accordance with expert's opinion); cf. State v. Schaefer, 530 S.W.2d 813, 817 (Tex. 1975) (erroneous admission of evidence was harmful where it "put before the jury the only possible basis for the award that was made"). Because Dang has failed to show that Lehrer's testimony probably caused the rendition of an improper judgment, we hold that the admission of Lehrer's testimony, even if erroneous, did not amount to harmful error. See Bayer Corp., 214 S.W.3d at 608-09 (holding admission of damages expert's testimony, even if erroneous, was not harmful because other evidence supported jury's damages award); Fairmont Supply Co., 177 S.W.3d at 531-32 (same).
We overrule Dang's first issue.
Immaterial Findings
In her fourth issue, Dang argues that the jury's findings regarding fraud and fraud damages were rendered immaterial by the jury's response to Question 1, which asked the jury:
Was there an agreement by Hoang Yen Thi Dang to convey to Jimmy Tran an interest in Tan Duc USA in exchange for his deeding his 25% interest in the Memorial house to Tan Duc Vietnam?The jury answered, "No." Dang argues that Tran's fraud claim was premised on the existence of this agreement. Tran responds that his fraud claim did not depend on Dang promising him an interest in Tan Duc USA, but instead, on promising him that he would still maintain his 25% interest in the house either through ownership in Tan Duc USA or by some other means.
A. Standard of Review and Applicable Law
A question is immaterial: "(1) if the question should not have been submitted; (2) if the question was rendered immaterial by other findings, or (3) if the question called for a finding not within the jury's province, such as presenting a question of law for the court." Vecellio Ins. Agency, Inc. v. Vanguard Underwriters Ins. Co., 127 S.W.3d 134, 140 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994)). A jury finding may be disregarded if it is unsupported by the evidence or if the issue is rendered immaterial. Nat'l City Bank of Ind. v. Ortiz, 401 S.W.3d 867, 883 (Tex. App.—Houston [14th Dist.] 2013, pet. denied.). We review de novo whether a question was rendered immaterial. See Hall v. Hubco, Inc., 292 S.W.3d 22, 27-28 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
B. Analysis
Dang does not cite any authority to support her claim that the jury's fraud and fraud damages findings were rendered immaterial by its answer to Question 1, and we conclude they were not. Tran's testimony at trial varied—he testified both that he was promised a 25% interest in Tan Duc (without specifying whether it was the U.S. or Vietnamese company), and also that Dang promised him that he would maintain his 25% interest in the house through some other unspecified means. The jury was entitled to believe or disbelieve any part of Tran's testimony and resolve any conflicts in the evidence. It reasonably could have found fraud absent the existence of the specific agreement described in Question 1. It did, and we must defer to this resolution. The jury's fraud findings, therefore, were not rendered immaterial by the jury's response to Question 1. See Spencer, 876 S.W.2d at 157.
We overrule Dang's fourth 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 have held that legally sufficient evidence supports the award of actual damages, and Dang does not attack the exemplary damages award on any other basis, Dang has not shown that the award of exemplary damages was erroneous. See id.
We overrule Dang's fifth issue.
Tan Duc's Appeal
In four issues, Tan Duc argues that the trial court erred by denying it attorney's fees (1) under Texas Rule of Civil Procedure 167 and Chapter 42 of the Civil Practice and Remedies Code, (2) under Texas Rules of Civil Procedure 131 and 141 and section 38.001 of the Civil Practice and Remedies Code, and (3) as sanctions pursuant to Chapters 9 and 10 of the Civil Practice and Remedies Code. Tan Duc contends that it timely counterclaimed for attorney's fees and costs and timely submitted a motion requesting fees to the trial court. However, the trial court did not award Tan Duc fees in the final judgment. When, as here, a judgment is rendered in a case where there has been a conventional trial on the merits, we presume for purposes of determining our jurisdiction that the trial court intended to and did dispose of all parties and claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 198 (Tex. 2001). Accordingly, we presume the trial court denied Tan Duc's claims for fees and costs.
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 Hous. v. Barrios, 156 S.W.3d 547, 549-50 (Tex. 2004) (party bears burden to request items in clerk's record not 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 affirm the trial court's judgment.
Rebeca Huddle
Justice Panel consists of Chief Justice Radack and Justices Higley and Huddle.