Qui Phuoc Ho and Tong Ho v. MacArthur Ranch, LLC

REVERSE and REMAND; Opinion issued February 7, 2013.

in
rj,
QJuurt uf Appiati
Fift1! thtrirt uf ixa at a1Ia6
No. 05-I l-00967-CV

QUI PIIUOC HO AND TONG HO, Appellants

V.

MACARTHUR RANCH, LLC, Appellee

On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 094)5369-A

OPINION
Before Justices O’Neill. Francis, and Murphy
Opinion By Justice Murphy

Qui Phuoc Ho and Tong Ho appeal the trial court’s judgment in favor of MacArthur
Ranch,
LLC on its fraudulent transfer claims under the Texas Uniform Fraudulent Transf
er Act. See TEx.
Bus. & C0M. CODE ANN. § 24.00 1—0l3 (West 2009) (TUFTA). Appellants
complain in three
issues about the legal and factual sufficiency of the evidence, the finding ofjoin
t and several liability
for the full amount of the debt, and the failure to join Mau Thi Nguyen as a necess
ary party. We
reverse and remand the case for a new trial.

BACKGROUND

Toan Ho and his wife. Nhung Truong, leased commercial space from MacAr
thur Ranch for
a nail salon. After the couple became delinquent on their rent, MacArthur Ranch
sued for breach
 of contract. Just before a summary judgment hearing in that case, the couple
conveyed their
ownership interests in two different properties to their relatives. Specifically,
thirteen days before.
the summary judgment hearing, Toan Ho deeded his interest in a house located
at 171 5 Princess
Place in Arlington, Texas—the Princess house—to his parents, Qui Phuoc Ho (one
of the appellants)

and Man Thi Nguyen. The day before the summary judgment hearing, the couple
deeded their
interest in a second house— —the Clint house—to Foan Ho’s brot her, Tong lb (the
other appellant).
The trial court granted surnmaryjudgment br MacArthur Ranch against Toan
Ho and Nhung Triiong
(debtors> for $150,000 plus attorney’s fees.

When MacArthur Ranch learned about the transfer of the Princess and Clint
houses, it filed

a fraudulent transfer suit against appellants and debtors. MacArthur subsequently
nonsuited debtors
clue to their bankruptcy, leaving only appellants as party defendants in the
trial court.

The case was tried in a one-day bench trial in which MacArthur Ranch presen
ted two
witnesses—its property manager and its attorney—and both appellants testified.
The evidence also

included deemed admissions by both appellants. The trial court concluded
the conveyances of the
two houses were fraudulent transfers under TUFTA and rendered judgment agains
t appellants jointly
and severally in the amount of $180,171, enjoined appellants from disposing
of or allowing any
encumbrance against the properties, ordered that MacArthur Ranch could levy
execution on the
houses, and ordered the sheriff to post both houses for sale and transm
it the net proceeds to

MacArthur Ranch to be applied against the judgment. This appeal followed.

DISCUSSION

Appellants’ first two issues require a sufficiency review. Appellants claim
in their first issue

—9—
 that Mat’Ariliur Ranch’s evidence was lactuallv and legally insulficient to prove Iratidulent transfers

tinder TUVl’A. In their second issue, they contend the trial court erred in granting a joint
and
several judgment against them for the full amount of the debt, arguing in part that MacArthur Ranch

otlered no evidence or insufficient evidence to prove fair market value ot the properties at the time

of the transfer,

Standard of Review

Appellants, as the parties challenging the legal sufficiency of the evidence on a matter for

which they did not hear the hurden of proof, must demonstrate on appeal there is no evidence to

support the trial court’s adverse findings. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).

Under a noevidence point, we consider the evidence in the light most favorable to the verdict,

indulging every reasonable inference in support. City of Keller t’. Wilson. 168 S.W.3d 802, 822

(Tex. 2005). Appellant’s legal sufficiency challenge fails if there is more than a scintilla of evidence

to support the judgment. BMC Software Beig., N. V. v. Marchand, 83 S.W.3d 789, 795
(Tex. 2002).
More than a scintilla of evidence exists when the evidence is such that reasonable and fair minded

people could differ in their conclusions. Ford Motor Co. v. Ridgwav, 135 S.W.3d 598, 60! (Tex.

2004). Evidence that does no more than create a mere surmise or suspicion is insufficient to rise
to
the level of a scintilla. Id.; Kindredv. ‘oWChem, Inc., 650 S.W.2d 61,63 (Tex. 1983).

To evaluate appellants’ factual sufficiency challenges, we must consider and weigh all of the

evidence; the judgment can be set aside only if the evidence is so weak or if the trial court’s finding

is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.

Although not a sufficiency issue, they also assert in their first issue that the award of attorney’s
t
fees against them is not equitable and just
under the circumstances.

—3—
 Dow Chern. Co. v Francis, 46 S.W.3d 237. 242 (2001): Pool . h,rd Motor Co., 715 S.W,2d 629.

635 (Tex, 1986). We may not substitute our judgment for that of the trial court, as fact
finder, and
should remain cognizant that the trial court was the sole judge of witness credibility.
Golden Eagle
Archery, Inc. v. Jackson, 116 S.W3d 757, 761 (Tex. 2003).

[‘he trial court concluded the transfers of both the Princess house and the Clint house violate
d
two provisions of TIJF1’A—subscction 24.005(a)( I ) and section 24.006. Subsec
tion 24.005(a)( I
provides that a transfer made or obligation incurred by a debtor is fraudulent as to
a creditor if the
debtor made the transfer or incurred the obligation with actual intent to hinder, delay,
or defraud any
creditor of the debtor. TEx. Bus. & COM. C ODE ANN. § 24.005(a)( 1). Actual intent to defraud
creditors ordinarily is a fact question. Walker v. Anderson, 232 S .W.3d 899, 914 (Thx. App.—Dallas

2007, no pet.). Circumstantial proof may he used to prove fraudulent intent because
direct proof is
often unavailable. See i)oyle v. Konteniporarv Builders, Inc., 370 S.W.3d 448, 454 (Tex.

App.—Dallas 2012, pet, denied). Facts and circumstances that may be considered
in determining
fraudulent intent include a non-exclusive list of “badges of fraud” prescribed
by the legislature in
section 24.005(b). Those include, for example, transfer to an insider, suit or threate
ned suit against
the debtor before the transfer, transfer of substantially all of the debtor’s assets, debtor
’s insolvency
at the time of transfer or shortly afterwards, concealment of the transfer,
and whether the
consideration the debtor received was reasonably equivalent to the asset transferred.
See TEx. Bus.
& COM. CODE ANN. § 24.005(b). The presence of several of these factors is suffici
ent to support a
fact finder’s reasonable inference of fraudulent intent. See Miadenka v. Miadenka,
130 S.W.3d 397,

-4-
 405 (Tex. App. llotiston 114th l)ist j 2004. no pet.).

The trial court also found fraudulent transfers under section 24.006. That section provides

that a debtor s transfer is fraudulent as to a creditor whose claim arose before the transfer if the

debtor did not receive a reasonably equivalent value in exchange for the transfer and the debtor was

insolvent at that time or became insolvent as a result ol the transfer. See TEX. BUS, & COM. CoDu

ANN, § 24.006. “Reasonably equivalent value” is defined as including a transfer that is within the

range of values for which the transferor would have sold the asset in an arm’s length transaction,

1(1. § 24.004.

Appellants challenge the legal and factual sufficiency of the evidence on the following

elements of MacArthur Ranch’s TUFA claim: (1) that debtors were left insolvent as a result of the

conveyances (section 24,006); (2) the fair market value of either property at the time of the transfer

(section 24.006 and damages); (3) that tile Princess and Clint houses constituted substantially all of

debtors’ assets (section 24.006): and (4) the transfers were made with actual intent to hinder, delay,

or defraud MacArthur Ranch (subsection 24.005(a)(l)). They also argue there was no evidence as

to the nature and extent of Toan Ho’s interest in the Princess house at the time of transfer.

If the evidence supports a fraudulent transfer claim under either subsection 24.005(a)( 1) or

section 24.006, the court may affirm the trial court’s judgment. See Corpus v. Arriaga, 294 S.W.3d

629, 637 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (determining transfer fraudulent under

section 24.006 precluded court’s reaching challenge under section 24.005). We first address

appellants’ evidentiary challenge to debtors’ intent to hinder, delay, or defraud MacArthur Ranch

because our analysis of this evidence disposes of the first issue.

—5—
 The evidence consisted ol testimony froni MacArthur Ranch’s propeil v manager. Susan

Gregory: its attorney. Kent Davenport; both appellants, as interpreted by debtor loan Ho; and

exhibits admitted by the trial court. The exhibits included both appellants’ deemed admissions. Any

matter admitted through those admissions was conclusively established as being true. Oliphan! Fin.,

LLC i. Gnlaei:, 299 S.W.3d 829. 838 (Tex. App. —Dallas 2009, no pet.); see also TEX. R. (‘iv. P.

198.2(c),

Appellant Qui Phuoc Ito’s deemed admissions included the following: he is the father of

Toan Ho (debtor); he and Toan Ho purchased the Princess house on or about October 9, 1991; Toan

Ho conveyed all of his right, title, and interest in the Princess house to his father on or about January

31, 2008; he paid nothing for acquiring Toan Ho’s right, title, and interest in the Princess house; at

the time he acquired Toan Ho’s title to the Princess house, he knew that MacArthur Ranch had asked

for ajudgment against Toan Ho and he knew a hearing had been scheduled regarding the judgment;

he intended to acquire loan Ho’s title to the Princess house to delay MacArthur Ranch’s collection

of its judgment; he intended to acquire loan Ho’s title to hinder MacArthur Ranch’s collection of

its judgment and to defraud MacArthur Ranch: and he accepted title to the Princess hOuSe to help
Toan Ho escape his responsibilities for MacArthur Ranch’s judgment.

Similarly, appellant Tong Ho’s deemed admissions included the following: Tong Ho is Toan

Ho’s brother; debtors conveyed to him all of their right, title, and interest in the Clint house by deed,

which was recorded on February 11, 2008; he paid nothing for debtors’ title to the Clint house; he

intended to acquire debtors’ title to the Clint house to delay MacArthur Ranch’s collection of its

judgment; he was aware MacArthur Ranch had requested ajudgrnent against debtors and knew that

-6-
a hearing date had been scheduled regardmg the lawsuit: he acquired (lebtors title to the Clint house

to hinder MacArti ur Ranch’s collection of its judgment; he intended to acquire debtors’ title to the

(‘lint house to defraud MacArthur Ranch: and he accepted title to the Clint house to help his brother

escape his responsibilities for MacArthur Ranch’s judgment.

I3oth Gregory and Davenport also test ified that MacArthur Ranch had tried to collect on the

judgment against debtors and had been unable to do so because the transfers of the Princess and Clint

houses left them with no assets. Gregory testified further that nothing had been collected against the

judgment.

Although appellants each testified through debtor Toan Ho as the interpretor, the testimony

was brief and much of the testimony is unclear. Both appellants referenced “the house” in their

testimony, but the house was never identified specifically. Appellant Qui Phuoc Ho testified that

he came to the United States in 1989 and had to buy the house in debtor Toan Hos name because

appellant had no credit. He claimed he paid all the money for the house. Appellant Tong [lo

testified about a house he bought in connection with a Fort Worth case that had been on the market

“for a long time ago” for $80,000 and he offered the attorney in the Fort Worth case $70,000. He

testified that no money “was from Toan Ho.” At most, this testimony suggests Toan Ho never paid

anything for his interest in one or both of the houses.

The testimony of Gregory and Davenport, together with the deemed admissions, provide

proof of several factors that show debtors made the transfers with actual intent to hinder, delay, or

defraud MacArthur Ranch. Specifically, both transfers were to insiders (debtor Toan Ho’s father and

brother), the transfers were just prior to the summary judgment hearing at which the trial court

—7—
 rendered a S 1 50O00 judgment against debtors, the transfers left debtors with no assets agains
t which

MacArthur Ranch con Id satisly the judgment, debtors received nothing for the transfe
rs, appellants

knew about the pending judgment and accepted the transfers with the intent of hinder
ing MacArthur

Ranch’s collection of its judgment, and appellants were attempting to help debtor Toan
Ho escape

his responsibilities for the judgment. See Tnx. Bus. & C0M. CODE ANN, 24.005(b). Eviden
§ ce of
these factors is sufficient for a reasonable fact finder to infer debtors’ fraudulent
intent. See
M!adenki, 1 30 S.W.3d at 405.

Appellants argue that evidence of transfer to an insider is but one factor to consider and the

appellants’ deemed admissions regarding their intentions arc not relevant to debtors’ intenti
ons.

While we agree that a transferee’s awareness of the fraudulent nature of a transfer is not
one of the
elements of a subsection 24.005(a)(1) claim and that evidence of one “badge of fraud”
is not
conclusive, the evidence includes several factors relevant to MacArthur Ranch’s claim.
Appellants’
deemed admissions also conclusively established several of those factors—that the transfe
rs were
made to insiders: with no payment or consideration; just before the substantial judgment was
taken
against debtors: and the purpose of the transfers was to hinder, delay, and defraud MacAr
thur Ranch.
This conclusive evidence, which was not rebutted or contradicted, is legally and factually
sufficient
to support the trial court’s finding of the requisite intent under subsection 24.005(a)(1). Accord
ingly,
we overrule appellants’ first issue regarding the legal and factual sufficiency of the eviden
ce to
support the trial court’s finding under subsection 24.005(a)( 1). We therefore do not addres
s whether
the evidence was legally sufficient to support a finding that the transfers were also fraudu
lent under
section 24.006. See Arriaga, 294 S.W.3d at 637.

—8—
 Joint and Several Liability

Appellants slate in their second issue that the trial court erred in granting a joint and
several
judgment against them for the full amount of the debt. Specifically, they contend
any judgment
against a specific transferee must be based on the value of the asset transferred
to him—not the
combined value of two transfers. The parties agreed at oral submission that the judgm
ent for joint
and several liability should he reversed on this basis. Appellants also challenge the legal
and factual
sufficiency of the evidence regarding the fair market value of the properties. We therefo
re turn to
this portion of appellants’ second issue.

MacArthur Ranch relies on the testimony of Gregory to establish the fair market
value of
each property on the date of transfer—determined by the trial court to be $1 10.000 for
the Princess
house and $100,000 for the Clint Rouse. Gregory testified that she is a property manag
er and her
company provided third-party property management services to MacArthur Ranch. She
testified that
she authorized the summary-judgment motion in the underlying lawsuit against debtor
s, referenced
them as her tenants, and identified the deeds transferring debtors’ interests in the Prince
ss and Clint
houses just prior to the summary-judgment hearing. Her testimony, in its entiret
y, regarding the
value of the houses followed:

Q. [BY MACCARTHUR RANCH’S COUNSEL] Now, Ms. Gregory, with respect
to the value of the Clint house back in at the time of the conveyance, in early 2008,
--

do you understand that the --that the appraised value of the house was 78,900
dollars?

A. Yes.

Q. Is it your belief and testimony that the fair market value of the house would be
higher than that since the appraised values are typically lower than the fair market
value’?

—9--
 A. Yes.

Q.Would your testimony on the fair market value of the Clint house at 2303 Clint
Court be one hundred thousand dollars?

A, Yes,

Q. Back in January of 200X’?

A. Yes. it was.

Q. And particularly on February the 6th, 2008, the date of the conveyance. Is that a
“yes”?

A, Yes, yes.

Q. And then let me direct your attention to this other house at 1715 Princess Place
in Arlington, Texas. On the house that’s at 1715 Princess Place, was your
recollection that the appraised value of the house back in January of 2008 was
$95,300?

A. Yes.

Q. And is your testimony that the fair market value of the house back on the January
31st of 2008 date, the date of the conveyance would be $1 10.000?

A. Yes.

Q. Is it your testimony that the total appraised value of both houses back in -- at the
times of the conveyance would be $210,000?

A. Yes.

Q. Would that be the fair market value’?
A. Yes.

Appellants argue this testimony is nothing more than unsupported speculation and should be

disregarded. Specifically, they emphasize that counsel asked no questions attempting to establish

Gregory’s qualifications to opine about the value of real property in Tarrant County in 2008 and the

—10—
 foundation for her opinion ol fair market value “was nomexistent MacArthur Ranch responds that

appellants waived their arguments because they tailed to object bel ore trial or when
the evidence was
offered. See Guadalupe4Ila,ico R1VL’rAuth. r. KratI. 77 S,W.3d 805. 807 (Tex. 2002)
(“To preserve

a complaint that an expert’s testimony is unreliable, a party must object to the testimony before
trial
or when it is offered.”).

Appellants assume in their argument that Gregory testified as an expert under rule 702
of the
Texas Rules of Evidence .See Thx. R. EVID. 702 (providing that witness qualified as by
knowledge,
skill, experience, training, or education may testify in the form of an opinion or otherw
ise).
MacArthur Ranch responds by standing on its waiver argument and does not addres
s the merits of
appellants’ argument. Neither the testimony nor the trial court’s findings and conclu
sions suggest
Gregory testified as a lay witness under rule 701, and we therefore address the issue as presen
ted.
See Tax. R. EVID. 701 (providing that witness’s testimony limited to opinions or
inferences

rationally based on perception of witness if not testifying as expert).

Replying to MacArthur Ranch’s waiver argument, appellants rely on Coastal Transp
. Co.,
Inc. v. Crown Cent. Petroleum Thrp., 136 S.W.3d 227 (Tex. 2004), arguing that no objecti
on was

necessary to preserve its complaint that Gregory’s conclusory statements cannot
support the
judgment. In Coastal, the Texas Supreme Court drew a distinction between challenges
to an expert’ s
methodology, technique, or foundational data and no-evidence challenges restricted
to the face of
the record, as follows:

When the expert’s underlying methodology is challenged, the court necessarily looks
beyond what the expert said to evaluate the reliability of the expert’s opinion. .

When the testimony is challenged as conclusory or speculative and therefore
non-probative on its face, however, there is no need to go beyond the face of the

—11—
 record to lest its reliability. We therefore conclude that when a reliability challenge
requires the court to evaluate the underlying methodology, technique, or foundational
data used by the expert, an objection must he timely made so that the trial court has
the opportunity to conduct this analysis. I lowever. when the challenge is restricted
to the face of the record—for example, when expert testimony is speculative or
conclusory on its face—then a party may challenge the legal sufficiency of the
evidence even in the absence of any objection to its admissibility.

Id. at 233 (internal quotations omitted). Accordingly, no objection was required at the time of

admission of Gregory’s testimony for appellants to challenge that testimony as speculative or

conclusory on its face.

An expert’s testimony is conclusory as a matter of law if the witness simply states a

conclusion without an explanation or factual substantiation. Natural Gas Pipeline Co. of Am. v.

Justiss, No. i0045 1,2012 WL6214635, at *5 (Tex. Dec. 14,2012); See’ also Coastal Transp. Co.,

136 S.W.3d at 232. When a scientific opinion is admitted without objection. it may be considered

probative evidence even if the basis for the opinion is unreliable. Cit’ ot5an Antonio v. Pollock, 284

S.W.3d 809, 818 (Tex. 2009). But if no basis for the opinion is offered, or the basis offered provides

no support, the opinion is merely a conclusory statement and cannot be considered probative

evidence, regardless of whether there is no objection. Id. Stated differently, an expert’s simple ipse

dixit is insufficient to establish a matter; rather, the expert must explain the basis of the statements

to link the conclusions to the facts. Id.

Gregory responded to leading questions regarding an appraised value and a fair market value

for both properties. Regarding appraised values, she responded “yes” to each question—that she

“recollected” the appraised value of the Princess house was $95,300 back in January of 2008 and

“understood” the appraised value of the Clint house was $78,900 dollars sometime in early 2008.

—12—
 But the record is silent regarding where she derived these numhers She provided nothin
g to show
the houses were appraised, by whom, or the method of appraisal. Based on her testimo
ny, it is not
even clear if Gregory is referring to a property appraisal at all, An unspecified “appraised
salue -—without more- -provided nothing on which t& trial court could rcly
and will not support
a verdict. See, Jusliss. 2012 WI. 6214635, at *7 (noting that “naked assertion of rnarket value’

is not enough” to support verdict). We conclude Gregory’s testimony regarding the
appraised value
of the (lint and Princess houses is speculative and conclusory on its face, and
as a result, is not
legally valid evidence. See Pollock, 284 S.W.3d at 818.

Gregory also answered “yes” to counsel’s leading questions regarding market value
for the
houses, never offering a basis or knowledge for the number counsel suggested. A witnes
s, regardless
of whether the person is testifying as a property owner or an expert witness, may
not simply echo
the phrase “market value” and state a number to substantiate the value claim. Instead
the witness
must provide the factual basis for the opinion. See Justiss, 2012 WL 6214635, *7
at Gregory’s
“yes” answer to counsel’s estimated value is conclusory and purely speculative.
Id. at *9
(concluding no evidence where landowners answered “yes” to question of whethe
r numbers were
based on market value but never explained basis for figures); Royce Homes, LP.
v. Humphrey, 244
S.W.3d 570, 579 (Tex, App.—Beaumont 2008, pet. denied) (concluding owner’s
testimony that
flooding of home reduced value by $30,000 was speculative when owner conced
ed he calculated
post-flood value by “pulling [it] out of the air.”); Lefton v. Griffith, 136 S.W.3d
271, 277 (Tex.
App.—San Antonio 2004, no pet.) (concluding owner’s testimony that sale resulte
d in $60,000 loss
was conclusory where owner failed to explain basis for figure).

—13—
 MacArthur Ranch argues Gregory’s testimony is suthcieni to support the damages awarded.

Citing this Court’s decision in Davis i’. lkrgcr, 05—99-003 1 S-CV, 200() WL 3%() (Tex.

App.—Dallas Jan. 20, 2000, no pet.) (not designated for publication), it asserts “the amount
of
evidence required for legal and factual sufliciency to uphold a TUFTA judgment isj very small.”
I
In Davis, the witness was asked if a company translerred $ I 17,00010 her commodities account, and

she testified. “Yes. Well I don’t know that it was exactly $1 17,000, the exact amount.” Id. at *2

On redirect examination, the witness admitted that she testified at her deposition that she believed

about $1 17,000 was originally transferred into her account. Id. This Court concluded the testimony

was a scintilla of evidence of the asset’s value, rejecting a noevidence argument grounded on the

lack of documentary evidence and the witness’s inability to state the exact value. Id.

Davis not only is a nonpublished opinion, but it is distinguishable from the current case. In

Davis, the witness was testifying regarding assets in her own commodities account, a fixed account.

She was not offering an opinion, either as an expert or otherwise, regarding the fair market value
of
real property. See Justiss. 2012 WL 6214635, at *7 (concluding property owner testimony
is
functional equivalent of expert testimony and must be judged by same standards requiring factual

basis on which opinion rests). Thus, the testimony in Davis was not judged under the Coasta
l rule
that opinion testimony, whether by a property owner or an expert, that is conclusory or speculative

will not support a judgment. See id. (citing Coastal, 136 S.W.3d at 233). Accordingly, Davis does

not change our analysis or the conclusion that Gregory’s testimony was insufficient as a matter
of
law to support the trial court’s findings regarding the fair market value of the Princess and Clint

houses. We therefore sustain appellants’ second issue.

—14-
 Remedies under TUFTA for a fraudulent transt’cr include (1) avoidance of the transfer to the

extent necessary to satisfy the creditor’s claim; (2> an attachment or other provisional remedy;
(3)
other equitable remedies such as inuncI ions and appointment of receivers; or (4) execution
on the

asset transferred or its proceeds. TEX. Bus. & CoM. CoDE, ANN. 23.008. Under section 24.009(b

of TUFTA. MacAurthur Ranch could alternatively recover judgment for the value of the asset

transferred or the amount necessary to satisfy its claim, whichever is less. Id. 24.009(b),
§
The tria) court in this case ordered an injunction, ordered the sheriff to post both houses for

sale, ordered that MacArthur Ranch could levy execution on both the Princess and Clint houses,
and
also rendered judgment for $ 180,171 against appellants jointly and severally. To assess damages

under TUFTA. the trial court was required to compare two numbers: the value of the underlying

judgment ($172.17 I prior to additional attorney’s fees) and the combined fair market value of
the
Clint and Princess houses ($210,000). The trial court assessed damages of $172,171, the lesser
of
the two numbers. See Id. § 24.009(b). Yet the trial court’s finding regarding the amount of damages

recoverable was dependent in part on the fair market values of the Princess and Clint houses. Having

concluded the evidence is legally insufficient regarding fair market value, we must consider
the
proper disposition of this appeal.

Appellants argue that “this case is so fraught with insufficiencies. errors and omissions, the

only option is to reverse the trial court’s judgment and render a take-nothing judgment.” In
the
alternative, they ask us to reverse and remaid the case for a new trial. At oral argument, MacArthur

Ranch argued that if we find insufficient evidence regarding the value of the transferred assets,
we

—15—
 should reverse and remand, citing Pkzvbuv biters., Inc. i’. Ld,!oruil (nba//cm. .S.A. de C. V.,202

S.W.3d 250 (Tex. App.—Corpus Christi 2006, pet. denied).

Generally, we render judgment when a no evidence issue is sustained following a trial on the

merits. Guevara r. [crrcr, 247 S.W.3d 662, 670 (‘[cx. 2007): Dou’,iin . hums, 346 S.W.3d 415,

427 (Tex. App. —Houston [14th Dist. I 2011, no pet.). But when there is evidence to support some

damages it is not appropriate to render judgment. Guewira, 247 S.W.3d at 670. Here, we
can
determine the value of the underlying judgment, but we cannot determine the t’air market
value of
the two properties fraudulently transferred. While there is no evidence of tiir market value,
that
value is only part of the statutory equation for determining a moneydamages judgment if that is
the
remedy awarded. The record also contains some evidence that the Princess and Clint houses
have
some value. Because some evidence supports damages, we should not render judgment and

therefore must reverse that portion of the judgment. See Guevara, 247 S.W.3d at 670.

This case presents the unusual circumstance where the trial court had the option of choosing

from various remedies allowed under sections 24.008 and 24.009. Only one of those options
was

a money judgment, which we have concluded must he set aside. Yet, where liability is contested,

we are required to remand the entire proceeding for a new trial on both liability and damages.
See
TEx. R. App. P. 44.1(b) (prohibiting separate trial solely on unliquidated damages when liability
is
contested). We therefore reverse the trial court’s judgment and remand this case for a new trial.

Based on this disposition, we do not address appellants’ remaining issue in which they urge the
trial
court was required sua sponte to mandate joinder of Mau Thi Nguyen as a necessary party.
TEx.
R. App. P.47.1.

—16—
 CONCLUSION

Legally sufficient evjdence supports the trial court’s hnding that appellants’ transfer of the

Princess and Clint houses violated TUFTA subsection 24OO5(a)( 1). The parties agree that the

judgment for joint and several liability must be reversed because appellants liability for any money

udgrnent must he based on the value of the asset transferred to each of them. l3ecause the evidence

is legally insufficient to support the finding regarding the fair market value of the houses, we cannot

reform the judgment regarding joint and several liability and must reverse that portion of the

judgment. Further, because liability was contested, a new trial is required pursuant to Texas Rule

of Appellate Procedure 44.1(b). Accordingly, we do not reach appellants’ remaining issues. This

case is reversed and remanded for a new trial.

1

MARY it RPHY
JUSTICE

1 10967EU05

—17—
 Qutrt nf Appat1
3iftI! JiIrict uf ixa’i it Ja[[Lu

JUDGMENT
QUI PIIUOC HO AND TONG [10, Appeal from the 14th Judicial District Court
Appellants of Dallas County, Texas. (Tr.Ct.No. 09—
05369-A).
No, 051 i-00%7-CV V. Opinion delivered by Justice Murphy,
Justices O’Neill and Francis participating.
MACARTHUR RANCH, LLC, Appellee

Lu accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANI)ED to the trial court for a new trial. it is ORI)ERED
that appellants Qui Phuoc Ho and Tong Ho recover their costs of this appeal from appellee
MacArthur Ranch, LLC.

Judgment entered February 7, 2013.

/
MARY MpRPHY
JUST1CE’