The Danger of Guessing Wrong on the Valuation Date for Fraud Damages
The First Court of Appeals (Houston) issued a new opinion yesterday highlighting the danger of getting the date wrong on your fraud measure of damages. The court held that proving up damages for the wrong date is the same thing as introducing no evidence of damages at all and reversed a $650,000 jury verdict and rendered a take nothing judgment. Plaintiffs need to be aware of this exceptionally harsh trap.
TAN DUC CONSTRUCTION LIMITED COMPANY, INC. AND HOANGYEN THI DANG, Appellants V. JIMMY TRAN, Appellee, 01-14-00539-CV, 2017 WL 491289 (Tex. App.—Houston [1st Dist.] Feb. 7, 2017, no. pet. h.), involved a fraud claim arising out of a divorce. The husband sued the wife and a company controlled by her for fraudulently inducing his transfer of his 25% interest in their home. The jury found that the defendants committed fraud and that the value of the lost interest in the real estate was $650,000. The court of appeals reversed the judgment for $650,000 in actual damages and $50,000 in punitive damages, and rendered a take nothing judgment in favor of the defendants on the ground of no legally sufficient evidence of damages.
Measure of Damages For Fraud
The court held that there are two measures of direct damages in a fraud case: out-of-pocket and benefit-of-the-bargain. "Out-of-pocket damages" measure the difference between the value paid and the value received. "Benefit-of-the-bargain damages" measure the difference between the value as represented and the value received. Both measures are determined at the time of the transfer of the interest induced by the fraud. Any additional losses may be recovered as consequential damages, which must be explicitly premised on findings that the losses were foreseeable and directly traceable to the misrepresentation.
Citing Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41 (Tex. 1998); Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997); Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369 (Tex. 1984); Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).
No Evidence of Fraud Damages
In Tan Duc Construction v. Tran, the transfer of the interest occurred in March 2010. Therefore, the plaintiff had the burden to prove the value of the house as of that date. The plaintiff claimed that the value of the house as a whole exceeded $1 million and introduced evidence of the value of the house when the parties first married in 2007 (presumably the purchase price), when the house was foreclosed on in October 2011, and an expert appraisal of the house as of 2013. The court of appeals' opinion does not state the what the values were that were put into evidence, but it is a fair assumption that the values both before and after the date of the fraudulent transaction were consistent with a finding of $650,000 in fraud damages. Nevertheless, the court held: "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. Tran put on no such evidence. Neither Tran nor Lehrer [the expert] testified about the value of the house in 2010. Thus, Tran did not adduce any evidence to permit the jury to calculate damages based on the allegedly fraudulently induced transfer."