Appellanl, Appellee.

Transcription

1 IN THE COURT OF APPEALS FOR THE FIFTH SUPREME mdicial DISTRICT AT DALLAS, TEXAS ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 January 16 A10:29 Lisa Matz CLERK NO CV QUI PHUOC HO AND TONG HO Appellanl, v. MACARTHUR RANCH, LLC. Appellee. On Appeal from the 14th District Court of Dallas County, Texas Trial Court Cause No. DC A, The Honorable Eric Moye Presiding BlUEF OF APPELLEE MACARTHUR RANCH, LLC ORAL ARGUMENT REQUESTED Leonard Epstein State Bar No Kent Davenport State Bar No DAVENPORT & EPSTEIN, P.C. Two Forest Plaza Merit Drive Suite 230 Dallas, TX Phone:(214) FAX: (214) ATTORNEYS FOR APPELLEE MACARTHUR RANCH, LLC

2 TABLE OF CONTENTS TABLE OF CONTENTS... i INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 STATEMENT REGARDING ORAL ARGUMENT... 1 ISSUES PRESENTED FOR REVIEW... 1 STATEMENT OF FACTS... 2 A. The Family Relationship between the Appellants and original judgment debtors Toan Ho and Nhung Truong... 2 B. Original Acquisitions of Clint House and the Princess House... 2 C. The Prior Litigation... 2 D. MacArthur Ranch files a Summary Judgment Motion in the Prior Litigation....3 E. Toan 1-10 and Nhlmg Truong convey their ownership interests in Princess House and Clint House to Qui and Tong for no consideration shortly before Summary Judgment Hearing Clint House transferred to Appellantfbrother Tong Ho Princess House transferred to Appellant father Qui Phuoc Ho... 3 F. Judgment in the Prior Case for MacArthur Ranch against Toan Ho and Nhung Truong... 3 G. This Suit was Filed....3 H. The Bench Trial--Tong's deemed admissions....4 The Clint House Conveyance to Tong was a Fraudulent Conveyance....4 I. The Bench Trial--Qui's deemed admissions....5 Toan Ho's Conveyance of the Princess House to Qui was a Fraudulent Conveyance... 5

3 J. Evidence of the Value of the Properties at the time of the ConveyanceslReasonable and Necessary Attorneys Fees... 5 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 7 ISSUE NUMBER ONE: APPELLEE OFFERED SUFFICIENT EVIDENCE TO PROVE THE ELEMENTS NECESSARY TO ESTABLISH FRAUDULENT TRANSFERS OF BOTH PROPERTIES UNDER TUFTA... 7 A. STANDARDS OF REVIEW... 7 B. THE TRIAL COURT'S JUDGMENT MUST BE AFFIRMED IF IT IS SUPPORTED UNDER THE TRIAL COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW UNDER EITHER TUFT A (a)(I) OR (a)... 8 I) Finding of Fact 20 and Conclusion of Law 7 support a judgment against Tong as transferee of the Clint House in violation of (a), and there is evidence that the transfer was made with the actual intent to defraud the MacArthur Ranch in support of that finding and conclusion ) Finding of Fact 2 I and Conclusion of Law 8 additionally support a judgment against Tong as transferee of the Clint House in violation of (a), and there is evidence to support that finding and conclusion... I I 3) Finding of Fact 17 and Conclusion of Law 4 support a judgment against Qui as transferee of the Princess House in violation of (a), and there is evidence to support that finding and conclusion ) Finding of Fact #18 and Conclusion of Law #5 support a judgment against Qui as transferee of the Princess House in violation of (a), and there is evidence to support that finding and conclusion... I 4 5) Findings of Fact 13 and 19 and Conclusions of Law 6 support a judgment against Tong as transferee of the Clint House in violation of (a), and there is evidence to support these findings and conclusion... I 5 ii

4 6) Finding of Fact 16 and Conclusion of Law 3 support a judgment against Qui Phuoc Ho as transferee of the Princess House in violation of (a), and there is evidence to support these findings and conclusion ) Appellant wrongly contends there is no evidence of the value of the properties as any objection to the valuation testimony was waived. There is evidence to support Findings of Fact 14 and 15 and Conclusions oflaw# ) Attorneys Fees were properly awarded by the Court ISSUE NUMBER TWO: APPELLANTS WAIVED THEIR RIGHT TO COMPLAIN ABOUT THE GRANTING OF A JOINT AND SEVERAL JUDGMENT AGAINST APPELLANTS ISSUE NUMBER THREE: APPELLANTS WAIVED THEIR RIGHT TO COMPLAIN ABOUT ANY FAILURE TO JOIN A PARTY UNDER RULE PRA YER... : CERTIFICATE OF SERVICE l

5 INDEX OF AUTHORITIES CASES Anderson v. City a/seven Points, 806 S.W. 2d 791, 794 (Tex. 1991)... 7 Cain v. Bain, 709 S.W. 2d 175 (Tex. 1986)... 7 Calsaro Old KatyLtd. v. State, 2010 Tex. App. LEXIS 3665 (Houston [1'1 Dist.], no pet.) Central Power & Light Co. v. Bullock, 696 S.W. 2d 30, 33 (Tex. App. -Austin 1984, no writ)... 8 Commission a/contracts a/the Gen. Exec. Conlin. a/the Petroleum Workers Union v. Arriba, Ltd., 882 S.W. 2d 576, 582 (Tex. App. -Houston [1'1 Dist.] 1994, no writ)... 7 Corpus v. Castillo, 294 S.W. 3d 629, 637 (Tex. App. -Houston [1'1 Dist.] 2009, no pet)... 8, 16, 17, 18 Davis v. Berger, 2000 Tex. App. LEXIS 448 (Dallas 2000, no pet.) Esse v. Empire Energy, 333 S.W. 3d 166,183 (Tex. App.-Houston [1'1 dist.] 2010, pet. denied) Flores and Flores v. Robinson Roofing & Construction Company, Inc., 161 S.W. 3d 750, (Tex. App.-Fort Worth, 2005, pet. denied) Guadalupe-Blanco River Authority v. Krafi 77 S.W. 3d 805, 707 (Tex. 2002) Guerra v. Brumlow 630 S.W. 2d 425, In re Commitment 0/ Mason, 2011 Tex. App. LEXIS 8531 (Tex. App. -Beaumont 2011, no pet.) In re: Pace, 456 B.R. 253, 273 (W.D. Tex. 2011)... 16, 21 In re: Sullivan 161 B.R. 776, 784 (N.D. Tex. 1993)... 19, 19 Maritime Overseas Corp. v. Ellis, 971 S.W. 2d 402, (Tex. 1998) cert. denied, 525 U.S. 1017, 119S.Ct.541, 142 L. Ed. 2d450 (1998)... 7,20, 21 McGalliard v. Kuhlmann, 722 S.W. 2d 694, (Tex. 1987)... 7 Metal Building Components, L.P. v. Raley, 2007 Tex. App. LEXIS 186 (Amarillo 2007, no pet.)... 16, 17, 18 iv

6 Mid-Continent Group v. Goode, 2011 Tex. App. LEXIS 6695 (Tex. App. -Amarillo 2011, no pet.) National Loan Investors, L..P. v. Robinson, 98 S.W.3d 781, 783 (Tex. App.-Amarillo 2003, pet. denied) Norstrud v. Trinity University Insurance Company, 97 S.W. 3d 749, 755 (Tex. App. 2003, Fort Worth, no pet.) Nguyen v. Meri/ex Investments, Inc Tex. App. LEXIS 8708 at n. 2 ( Tex. App. - Houston [1 Sl dist.] 2003, pet. denied) Sam Kane Bee/Processors, Inc. v. Manning 601 S.W. 2d 93 (Tex. Civ. App.-Corpus Christi 1980, no writ) Selgas and Selgas v. Henderson COl/nty Appraisal District 2011 Tex. App. LEXIS 9091 (Tyler 2011, no pet.) Seaman v. Neel, 480 S.W. 2d 430,438 (Tex. App. -Corpus Christi 1972, no writ) State v. Heal, 917 S.W. 2d 6, 9 (Tex. 1996)...,...,.. ".".,',.,""""",...,8 Tidelands Life Ins. Co, v. Franco, 711 S,W. 2d 728,729 (Tex. App. -Corpus Christi 1986, writ refd n,r.e.)..,...,... "...,...,...,...,... "...,... "...,.. "...,...,...,..,.. "... "... 7 Walker v, Anderson, 232 S.W. 3d 899, 939 (Tex, App, -Dallas 2007, no pet.) Weaver v, Kellogg 216 B.R, 564, 576 (S.D. Tex. 1997) STATUTES AND RULES Tex, R. Civ. P. 39,...,...,...,... "...,..,... "...,',.. "...,...,..,...,6, 22 Tex. Bus, & Comm, Code Ann, 24,002(7)...,12, 14 Tex. Bus, & Comm. Code Ann, (a)...,..., Tex, Bus, & Comm, Code (a)... 1, 6, 8, 11, 12, 13, 14 Tex. Bus, & Comm, Code 24,005(b)...,9 Tex. Bus. & Comm, Code Ann., 24,006(a)... 2, 6, 8 Tex. Bus. & Comm, Code Ann. 24, , 22 Tex. Bus. & Comm, Code Ann 24, v

7 STATEMENT OF THE CASE This is a suit filed by Appellee MacArthur Ranch, LLC ("Appellee" or "MacArthur Ranch") against Appellants Qui Phuoc Ho ("Qui") and Tong Ho ("Tong"), for recovery under Tex. Bus. & Comm. Code Ann., (J) and (a) et. seq., the Texas Unifonn Fraudulent Transfer Act ("TUFT A"). After a non-jury trial, the court found that two real property conveyances-one to Qui and one to Tong- at issue, were fraudulent transfers under TUFT A, and granted judgment to MacArthur Ranch (CR 26-27). Findings of Fact and Conclusions of Law were entered (CR 28-32). Appellants each filed motions for new trial (CR33-38), both of which were overruled by the trial court after a hearing (CR44). Notice of appeal was timely filed, and this appeal ensued. STATEMENT REGARDING ORAL ARGUMENT Pursuant to TRAP 39.7, Appellee requests oral argument as it will materially aid the court in understanding the complex issues in this case. ISSUE NUMBER ONE: ISSUES PRESENTED FOR REVIEW APPELLEE OFFERED SUFFICIENT EVIDENCE TO PROVE THE ELEMENTS NECESSARY TO ESTABLISH FRAUDULENT TRANSFERS OF BOTH PROPERTIES UNDER TUFTA ISSUE NUMBER TWO: APPELLANTS WAIVED THEIR RIGHT TO COMPLAIN ABOUT THE GRANTING OF A JOINT AND SEVERAL JUDGMENT AGAINST APPELLANTS ISSUE NUMBER THREE: APPELLANTS WAIVED THEIR RIGHT TO COMPLAIN ABOUT ANY F AlLURE TO JOIN A PARTY UNDER RULE 39. J

8 STATEMENT OF FACTS Appellee MacArthur Ranch seeks affirmance of the trial court's judgment in favor of Appellee affirmed on its suit for recovery under TUFT A. A. The Family Relationship between the Appellants and original jndgment debtors Toan Ho and Nhnng Truong. The persons involved in this matter are as follows: Appellant Qui Phuoc Ho------Mau Thi Nguyen (parents) Toan Ho and Nhung H. Truong alk/a Nancy Nhung Truong (See RR4-PX7) (Son and daughter-in-law, and original judgment debtors of MacArthur Ranch) Appellant Tong Ho (Other son) B. Original Acquisitions of Clint House and the Princess House. On March 14,2001, the real property located at 2303 Clint Court, Arlington, Texas ("Clint I-louse") was acquired in the names of Toan Ho and his wife Nhung Truong (RR2-17, RR4--PX6) who respectively are Tong Ho's brother and sister in law (Appellants' brief at 2-3). On September 30, 1991, the real property located at 1715 Princess Lane, Arlington, Texas ("Princess House") was acquired in the names of Appellant Qui Phuoc Ho, Mau Thi Nguyen and their son Toan Ho (RR2-16, RR 4-PX4). It is undisputed that Toan Ho is also the son of Appellants Qui Phuoc Ho and Mau Thi Nguyen (Appellant's brief at 2-3). C. The Prior Litigation In the prior litigation, a landlord-tenant suit filed on May 11, 2007 in the 116 th Judicial District Court of Dallas County, Texas, MacArthur Ranch as Plaintiff sued Defendants Toan Ho and Nhung Truong to collect sums owed to MacArthur Ranch under a lease agreement (RR4- PXl) (the "Prior Litigation"). 2

9 D. MacArthur Ranch files a Summary Judgment Motion in the Prior Litigation. On December 19, 2007, MacArthur Ranch filed a motion for summary judgment in the Prior Litigation against Toan Ho and Nbung Truong for $95, plus attorneys fees (RR4- PX2). That summary judgment motion was set for hearing on January 29, 2008 (RR4-PX-2) then rescheduled to February 7, 2008 (RR4-PX3). E. Toan Ho and Nhung Truong convey their ownership interests in Princess House and Clint House to Qui and Tong for no consideration shortly before Summary Judgment Hearing. Toan Ho and Nbuong Truong made the following conveyances for no consideration shortly before the hearing date on the MacArthur Ranch's Motion for Summary Judgment in the Prior Litigation: I. Clint House transferred to Appellantlbrother Tong Ho: On February 6, 2008, one day before the scheduled summary judgment hearing, Toan Ho and Nhung Truong deeded their interest in the Clint House to their brotherlbrother in law Appellee Tong Ho (RR4-PX7), for no consideration. (RX4-PXII)(Req. Admission 3). 2. Princess House transferred to Appellant father Qui Phuoc Ho: On January 25, 2008, thirteen days before the scheduled summary judgment hearing, underlying defendant Toan Ho deeded his interest in the Princess House to his parents Qui Phuoc Ho and Mau Thi Nguyen (RR4-PX5), for no consideration. (RR4-PXI 0)( Req. Admission 4) F. Judgment in the Prior Case for MacArthur Ranch against Toan Ho and Nhung Truong. On July 30, 2008, Appellee, MacArthur Ranch, LLC obtained a judgment in the 116'h Court of Dallas County Texas against defendants Toan 1-10 and Nbung Truong for $150,000 plus attorneys fees (RR4-PX9). G. This Suit was Filed After learning about the transfers of the Clint House and Princess House, MacArthur Ranch filed this current suit on July 29, 2009 in the 14th District Court of Dallas County, Texas 3

10 against Toan Ho, Nhung Truong, and appellants Tong and Qui, seeking damages and other relief under TUFTA (CR 7-11). On March 29,2010, MacArthur Ranch non-suited Nhung Truong from the lawsuit due to her bankruptcy (CR 23-25). MacArthur Ranch then non-suited Toan Ho due to his bankruptcy as well (RR , 27, CR 44). H. The Bench Trial--Tong's deemed admissions At the bench trial on May 17,2011, Tong admitted the following matters through deemed admissions (RR4-PX II): The Clint House Conveyance to Tong was a Fraudulent Conveyance I. Toan Ho was the brother of Tong (RR4-PX 10) (RIA I). 2. Tong entered into a contract on February 6, 2008 to acquire legal title to the Clint House (RR4-PXII) (RIA 4). 3. Toan Ho and Nancy Nhung Truong conveyed to Tong all of their right, title and interest in the Clint House by deed which was recorded on Feb. II, 2008 (RR4- PXII) (RIA 2). 4. Tong paid nothing for Toan Bao and Nancy Nhung Truong's title to the Clint House (RR4-PX11) (RIA 3). 5. Tong intended to acquire Toan Bao Ho's and Nancy Nhumg Truong's title to the Clint House to delay the MacArthur Ranch's collection of its Judgment (RR4- PX11)(RlA7). 6. At the time he acquired the Clint House on or about February 6, 2008, Tong knew that the MacArthur Ranch had asked the judge in the Prior Lawsuit to give it a judgment on February 7, 2008, against Toan Ho and Nancy Nhung Truong (RR4- PXII) (RIA 8). 7. At the time he acquired Toan Bao Ho's and Nancy Nhung Truong's title to the Clint House on or about February II, 2008, Tong knew that the judge had scheduled a hearing date for February 7, 2008, to consider the MacArthur Ranch LLC"s request that the Judge in the Prior Lawsuit give it a judgment against Toan Bao Ho and Nancy Nhung Truong. (RR4-PXII) (RlA9) 4

11 8. Tong intended to acquire Toan Ho and Nancy Nhung Truong's title to the Clint House to hinder the MacArthur's Ranch's collection of its Judgment (RR4-PXll) (RJA 10). 9. Tong intended to acquire Toan Bao Ho's and Nancy Nhung Truong's title to the Clint house to defraud the MacArthur's Ranch's collection of its Judgment (RR4- PXll) (RJA 11). 10. Tong has paid nothing to Toan Bao Ho or Nancy Nhung Truong since January 2008 (RR4-PXll) (RJA 13). 11. Tong accepted title to the Clint House to help his brother Toan Bao Ho escape his responsibilities for the judgment in the Prior Lawsuit (RR4-PX 11 )(RJ A 14). I. The Bench Trial--Qui's deemed admissions. At the bench trial on May 17, 2011, Appellant Qui admitted the following through deemed admissions (RR4-PX-I0): Toan Ho's Conveyance of the Princess House to Qui was a Fraudulent Conveyance 1. Qui was the father of To an Ho (RR4-PX 10) (RJA 1). 2. Qui paid nothing for acquiring Toan Ho's right, title and interest in the Princess House (RR4-PX10) (RJA 4). 3. Qui intended to acquire Toan Ho's Title to the Princess House to delay the MacArthur Ranch's collection of its Judgment (RR4-PX10) (RJA7). 4. At the time he acquired Toan Ho's title to the Princess House on or about January 31, 2008, Qui knew that the MacArthur Ranch LLC had asked the Judge in the Prior Lawsuit to give it a judgment against Toan Bao Ho and Nancy Nhung Truong (RR4- PXI0) (RJA 8). 5. At the time he acquired Toan Bao Ho's title to the Princess House on or about January 31, 2008, Qui knew that the judge had scheduled a hearing date for February 7, 2008, to consider the MacArthur Ranch LLC's request that the Judge in the Prior Lawsuit give it a judgment against Toan Ho and Nancy Nhung Truong (RR4-PX10) (RJA 9). 6. Qui intended to acquire Toan Ho's title to the Princess house to hinder the MacArthur's Ranch's collection of its Judgment (RR4-PXI0) (RJA 10). 5

12 7. Qui intended to acquire Toan Ho's title to the Princess House to defraud the MacArthur's Ranch's collection of its Judgment (RR4-PXIO) (RIA II). S. Qui has paid nothing to Toan Ho since January 200S (RR4-PXIO) (RIA 13). 9. Qui accepted title to the Princess house to help Toan Bao Ho escape his responsibilities for the Judgment in the underlying lawsuit (RR4-PXIO) (RIA 14). J. Evidence ofthe Valne of the Properties at the time of the Conveyances/Rcasonable and Necessary Attorneys Fees. In early 200S, at the same time period of the conveyances, the Clint House was valued on the tax rolls at $78, 900 and its fair market value was $100,000 (RR2-IS, 19). In early 200S, the Princess House was valued on the tax rolls at $95,300, and its fair market value was $110,000 (RR2-19). Reasonable and necessary attorneys' fees in this cause were $S,OOO (RR2-29, 30). SUMMARY OF THE ARGUMENT The trial court correctly rendered judgment for MacArthur Ranch on the TUFT A claims as Appellants admitted all the conduct to support the requisite findings of fact and there was sufficient evidence to support the findings of fact underlying the judgment under both (a) and (a). Appellants waived their right to complain about the reliability of MacArthur Ranch's valuation testimony. Appellants waived their right to complain about the judgment amount under TUFTA , and to the alleged failure to join a party under Tex. R. Civ. P. 39. The trial court's judgment should be affirmed. 6

13 ARGUMENT ISSUE NUMBER ONE: APPELLE OFFERED SUFFICIENT EVIDENCE TO PROVE THE ELEMENTS NECESSARY TO ESTABLISH FRAUDULENT TRANSFERS OF BOTH PROPERTIES UNDER TUFT A A. STANDARDS OF REVIEW Findings of fact have the same force and dignity as a jury verdict and are reviewable for legal and factual sufficiency. Anderson v. City of Seven Points, 806 S.W. 2d 791, 794 (Tex. 1991); McGalliard v. Kuhlmann, 722 S.W. 2d 694, (Tex. 1987). When the appellate record includes a complete transcript of the trial court proceedings, the trial court's findings of fact are subject to the same standards that govern legal and factual sufficiency challenges to jury findings. Commission ofcon/rac/s of the Gen. Exec. Comm. of/he Petroleum Workers Union v. Arriba, L/d., 882 S.W. 2d 576, 582 (Tex. App. -Houston [1 51 Dist.] 1994, no writ). In reviewing the legal sufficiency of the evidence, the Appellee's evidence, including the deemed admissions, is viewed in the light most favorable to the judgment, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not. Anderson at 807. In reviewing the factual sufficiency of the evidence, all evidence in the record is considered and weighed, and the fact findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Maritime Overseas Corp. v. Ellis, 971 S.W. 2d 402, (Tex. 1998) cert. denied, 525 U.S. 1017,119 S. Ct. 541, 142 L. Ed. 2d 450 (1998); Cain v. Bain, 709 S.W. 2d 175 (Tex. 1986); Tidelands Life Ins. Co. v. Franco, 711 S.W. 2d 728,729 (Tex. App. -Corpus Christi 1986, writ refd n.r.e.). If there is some evidence of a substantial and probative character, the findings control the reviewing court even if the appellate court might have reached a different conclusion on the 7

14 evidence. Central Power & Light Co. v. Bullock, 696 S.W. 2d 30, 33 (Tex. App. -Austin 1984, no writ). The trial court's conclusions of law are reviewed de novo as legal questions. State v. Heal, 917 S.W. 2d 6,9 (Tex. 1996). Appellants raise legal and factual sufficiency challenges on pages 9-11 of Appellants' Brief, but wholly fail to acknowledge the deemed admissions admitted into evidence at the trial (PX 10 and 11; RR Vo1.2, pages 25, 26 and 31). Appellants further do not reference in their brief any evidence adduced at trial disputing that the conveyances of the houses were not fraudulent transfers; disputing the valuation of the transferred houses, disputing that the conveyances of the houses were not of substantially all of the assets of the original judgment debtors, or that the conveyances did not leave the original judgment debtors insolvent. B. THE TRIAL COURT'S JUDGMENT MUST BE AFFIRMED IF IT IS SUPPORTED UNDER THE TRIAL COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW UNDER EITHER TUFTA (a)(l) OR (a). When suit is filed under TUFTA asserting claims under (a) and (a) it is only necessary to find that the transfers were fraudulent under one section of the statute for the judgment to be affirmed. Corpus v. Castillo, 294 S.W. 3d 629, 637 (Tex. App.-Houston [J'I Dist.] 2009, no pet.) TUFTA (a) provides that: A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or within a reasonable time after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (I) with actual intent to hinder, delay, or defraud any creditor of the debtor;(emphasis added) (b) provides: In determining actual intent under Subsection (a) (I) of this section, consideration may be given, among other factors, to whether: 8

15 (I) the transfer or obligation was to an insider; (2) before the transfer was made or obligation was incurred, the debtor, had been sued or threatened with suit; (3) the transfer was of substantially all ofthe debtor's assets; (4) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (5) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (6) the transfer occurred shortly before a substantial debt was incurred. 1) Finding of Fact 20 and Conclusion of Law 7 support a judgment against Tong as transferee of the Clint House in violation of (a), and there is evidence that the transfer was made with the actual intent to defraud the MacArthur Ranch in support of that finding and conclusion. Finding of Fact #20 provides: The conveyance of the Clint House by Toan Ho and Nhung Truong to Toan Ho's brother-tong 1-10 was fraudulent as to the MacArthur Ranch since Toan Ho and Nhung Truong made the transfer, and Tong Ho accepted the transfer, with the achtal intent to hinder, delay or defraud the MacArthur Ranch, a creditor of Toan Ho and Nhung Truong. Conclusion of law #7 provides: The conveyance of the Clint House by Toan Ho and N11ung Truong to Toan I-Io's brother-tong 1-10 was fraudulent as to the MacArthur Ranch in violation of (a)(l) Tex. Bus. & Comrn. Code since Toan Ho and Nhlmg Truong made the transfer, and Tong Ho accepted the transfer, with the achtal intent to hinder, delay or defraud the MacArthur Ranch, a creditor of To an Ho and Nhung Truong. It is undisputed that Transferors Toan Ho and Nancy Nhung Truong were commercial tenants of Appellee MacArthur Ranch LLC (RR4-PX2). They were sued by MacArthur Ranch for failure to make lease payments (RR4-PXI). In the face of an upcoming hearing on MacArthur Ranch's motion for sununary judgment on the debt (RR4-PX3), Transferors Toan Ho and Nancy Nhumg Truong transferred the Clint House to Tong for no consideration (RR4-PX5, RR4-PXII). Appellant Tong admitted that (RR4, PXI I): 9

16 (1) Toan Ho and Nancy Nhung Truong conveyed to him all of their right, title and interest in the Clint House by deed which was recorded on Feb. II, 2008 (RIA 2). (2) He paid notlling for Toan Bao Ho and Nancy Nhung Truong's title to the Clint House (RIA 3). (3) When he entered into a contract to acquire the Clint House on or about February 6, 2008, he knew that MacArthur Ranch LLC had asked the judge to give it a judgment on February 7, 2008 against Toan Ho and Nancy Nhung Truong (RIA 8). (4) When he acquired Toan Ho and Nancy Nhung Truong's title to Clint House on or about February II, 2008, he knew that ilie Judge had scheduled a hearing date for February 7, 2008 to consider the MacArthur Ranch LLC's request that the Judge give it a judgment against Toan Ho and Nancy Truong (RIA 9). (5) He intended to acquire Toan Ho and Nancy Truong's title to the Clint House to delay the MacArthur Ranch's collection of its Judgment (RIA 7). (6) He intended to acquire Toan Ho and Nancy Truong's title to the Clint House to hinder the MacArthur Ranch's collection of its Judgment (RIA-I 0). (7) He intended to acquire Toan Ho and Nancy Truong's title to the Clint House to defraud the MacArthur Ranch's collection of its Judgment (RIA-II). (8) He accepted title to ilie Clint House to help his brailier escape his responsibilities for the Judgment in the Prior Lawsuit (RI A-14). On July 30, 2008, MacArthur Ranch then obtained a judgment in the I I 6 th Court of Dallas County Texas against Toan Ho and Nancy Nhung Truong for $150,000 plus attorneys fees (RR4-PX9). Efforts were made to collect on the judgment, but those efforts were unsuccessful because they had no assets (RX2, 20). Indeed, due to their insolvency as a result of these conveyances, both Nhung Truong (prior to March, 20 I 0), and Toan Ho, filed for bankruptcy, so iliat any judgment against them is uncollectable (RX2-22, 23). Not one penny was collected from either Nhung Truong or Toan Ho (RX2-22,23). The evidence is undisputed that ilie Clint House transfer to Tong from Toan Ho and Nhung Truong was fraudulent as to MacArthur Ranch as it was made with actual intent to 10

17 hinder, delay or defraud MacArthur Ranch. Further, the transfer was to Tong who was Toan Ho's brother and Nhung Truong's brother in law. Toan Ho had been sued before the transfer, Tong paid Toan Ho and Nhung Truong nothing for the property, and both Toan Ho and Nancy Truong were insolvent as evidenced by their bankruptcies shortly after the transfer. Even less evidence than this has been held to be more than a scintilla of evidence to support a judgment of a fraudulent transfer. Flores and Flores v. Robinson Roofing & Construction Company, Inc., 161 S.W. 3d 750, (Tex. App.-Fort Worth, 2005, pet. denied). As there is evidence to support finding of fact #20, and it supports conclusion of law #7, the judgment must be affirmed against Tong for violation of TUFT A (a) for the conveyance of the Clint House. 2) Finding of Fact 21 and Conclusion of Law 8 additionally support a judgmcnt against Tong as transferee of the Clint House in violation of (a), and there is evidencc to support that finding and conclusion. Finding of Fact #21 is as follows: The conveyance of the Clint House by Toan Ho and Nhung Truong to Toan Ho's brother-tong Ho was fraudulent as to the MacArthur Ranch since Toan Ho and Nhung Truong made the transfer to Toan Ho's brotller-tong 1-10, an insider; before the transfer was made, Toan Ho and Nhung Truong had been sued by the MacArthur Ranch; tlje transfer was of substantially all of Toan 1-10 and Nhung Truong's assets and tlje transfer occurred shortly before a substantial judgment was rendered against Toan Ho and Nhung Truong in favor of the MacArthur Ranch. Conclusion of Law #8 is as follows: The conveyance of the Clint House by Toan 1-10 and Nhung Truong to Toan Ho's brotljer-tong Ho was fraudulent as to the MacArthur Ranch in violation of (b) Tex. Bus. & Comm. Code since Toan Ho and Nhlmg Truong made tlje transfer to Toan Ho's brotljer-tong Ho, an insider; before tlje transfer was made, Toan Ho and Nhung Truong had been sued by tlje MacArtlJur Ranch; the transfer was of substantially all of To an Ho and Nhung Truong's assets and the transfer occurred shortly before a substantial judgment was rendered against Toan Ho and Nhung Truong in favor of tlje MacArtlJur Ranch. Finding of Fact #211Conc1usion of Law #8 provide additional findings in support of the judgment under (a) since they are supported by evidence at trial of the following (b) factors: 11

18 (b)(1) Transfer was to Tong, the brother and brother in law of the judgment debtors and an insider. See Tex. Bus. & Comm. Code Ann (7) (Defines an "insider" as including a relative of the debtor) and RlA#1 admitting that they were relatives. (b)(4) before the transfer was made in February, 2008, Toan Ho and Nancy Nhung Truong had been sued by MacArthur Ranch (RR4-PXI). (b)(5) the transfer of the two properties was of substantially all the debtor's assets; both Nancy Nhung Truong and Toan Ho, went bankrupt shortly thereafter (RR ,27, CR44) (b) (10) the transfer occurred shortly before a substantial debt was finalized in the form of a judgment (RR4-PX3). Accordingly, there was evidence to support Finding of Fact 21 and it supports Conclusion of Law 8. The judgment must be affirmed against Tong for the fraudulent conveyance of the Clint House. 3) Finding of Fact 17 and Conclusion of Law 4 support a judgment against Qui as transferee of the Princess House in violation of (a), and there is evidence to support that finding and conclusion. Finding of Fact #17 provides: The conveyance of the Princess House by Toan Ho to his father Qui Phuoc Ho was fraudulent as to the MacArthur Ranch since Toan Ho made the transfer, and Qui Phuoc Ho accepted the transfer, with the actual intent to hinder, delay or defraud the MacArthur Ranch, a creditor of To an Conclusion of law #4 provides: The conveyance of the Clint House by Toan Ho to his father Qui Phuoc Ho was fraudulent as to the MacArthur Ranch in violation of (a)(1) Tex. Bus. & Comm. Code since Toan Ho made the transfer, and Qui Phuoc Ho accepted the transfer, with the actual intent to hinder, delay or defraud the MacArthur Ranch, a creditor of To an Ho. The TUFTAjudgment against transferee Qui under (a) is supported by and based on Finding of Fact #17 and Conclusion of Law #4. It is undisputed that Transferor Toan Ho was a commercial tenant of Appellee MacArthur Ranch (RR4-PXI). Toan Ho was behind on the rent, and was sued by Appellee (RR4-PXI-2). In the face of an upcoming summary judgment hearing on the debt (RR4-PX3), Transferor Toan Ho transferred his interest in the Princess House to Qui 12

19 for no consideration (RR4-PX5). In responses to requests for admission, (RX4, PX1 0) Appellee Qui admitted that (I) Toan Ho conveyed all of his right, title and interest in the Princess House to Qui on or about January 31, 2008 (RIA 3). (2) Qui paid nothing for acquiring Toan Ho's right, title and interest in the Princess House (RIA 4). (3) At the time Qui acquired Toan Ho's title to the Princess House on or about January 31, 2008, Qui knew that the Judge had scheduled a hearing date for February 7, 2008 to consider the MacArthur Ranch LLC's request that the Judge give it a judgment against Toan Ho and Nancy Truong (RlA-9). (4) when he acquired Toan Ho's title to the Princess House on or about January 31, 2008, Qui knew that MacArthur Ranch LLC had asked the judge to give it a judgment on February 7, 2008 against Toan Ho and Nancy Nhung Truong (RlA- 8). (5) Qui intended to acquire Toan I-Io's title to the Princess House to delay the MacArthur Ranch's collection of its Judgment. (RlA-7) (6) Qui intended to acquire Toan Ho's title to the Princess House to hinder the MacArthur Ranch's collection of its Judgment (RlA-1 0). (7) Qui intended to acquire Toan Ho's title to the Princess House to defraud the MacArthur Ranch's collection of its Judgment (RIA-II). (8) Qui accepted title to the Princess House to help Toan Ho escape his responsibilities for the Judgment in the Lawsuit (RlA-14). On July 30, 2008, MacArthur Ranch obtained a judgment in the 116 1h Court of Dallas County Texas against Toan Ho and Nhung Truong for $150,000 plus attorneys fees (RR4-PX9). Efforts were then made to collect on the judgment, but those efforts were unsuccessful because they had no assets (RX2, 20). Indeed, due to their insolvency as a result of these conveyances both Nhung Truong (prior to March, 201O)(CR23) and Toan Ho filed for bankruptcy, so that any judgment against them is uncollectable (RX2-22,23). Not one penny was collected from either 13

20 Nhung Truong or Toan Ho (RX2-22, 23). As there is evidence to support finding of fact #17, and it supports conclusion of law #4, the judgment must be affirmed. 4) Finding of Fact #18 and Conclusion of Law #5 support a judgment against Qui as transferee of the Princess House in violation of (a), and there is evidence to support that finding and conclusion. Finding of Fact #18 provides: The conveyance of the Princess House by Toan Ho to his father Qui Phuoc Ho was fraudulent as to the MacArthur Ranch since Toan Ho made the transfer to his father, an insider; before the transfer was made, Toan Ho had been sued by the MacArthur Ranch; the transfer was of substantially all of Toan Ho's assets and the transfer occurred shortly before a substantial judgment was rendered against Toan Ho in favor of the MacArthur Ranch. Conclusion of Law #5 provides: The conveyance of the Princess House by Toan Ho to his father-qui Phuoc Ho was fraudulent as to the MacArthur Ranch in violation of (b) Tex. Bus. & Comm. Code since Toan Ho made the transfer to his father, an insider; before the transfer was made, Toan Ho had been sued by the MacArthur Ranch; the transfer was of substantially all of To an Ho's assets and the transfer occurred shortly before a substantial judgment was rendered against Toan Ho in favor of the MacArthur Ranch. Finding of Fact #18 Conclusion of Law #5 provides additional evidence in support of the judgment against Qui for the Princess House transfer in violation of (a). (b) factors: The evidence at trial shows that the Princess House transfer met the following (b)(i) Transfer was to an insider See (7)(Qui is Toan Ho's father, a relative.(rx4-px-io)(rja#i), (Appellant's Brief 2-3). (b)(4) before the transfer was made in January, 2008, Toan Ho had been sued (RR4- PXI). (b)(5) the transfer was of substantially all the debtor's assets-toan Ho, went bankrupt shortly thereafter (RR ,27, CR 44) (b) (10) the transfer occurred shortly before a substantial debt was finalized in the form of ajudgment (RR4-PX3). 14

21 Accordingly, there was evidence to support Finding of Fact 18 and it supports Conclusion of Law #S. The judgment should be affirmed against Qui for the Princess House transfer in violation of 24.00S(a). 5) Findings of Fact 13 and 19 and Conclusions of Law 6 support a judgment against Tong as transferee of the Clint House in violation of (a), and there is evidence to support these findings and conclusion. Finding of Fact #13 provides: As a result of the conveyances of the Princess House to Toan I-Io's father-qui Phuoc Ho, and of the Clint House to Toan Ho's brother-tong Ho, Toan Ho and Nhung Truong were left insolvent and unable to pay any monies to the MacArthur Ranch in satisfaction in whole or in part of the Judgment. Finding of Fact #19 provides: The conveyance of the Clint I-louse by Toan Ho and Nhung Truong to Toan Ho's brother-tong Ho was fraudulent as to the MacArthur Ranch since Toan Ho and Nhung Truong made the transfer, and Tong Ho accepted the transfer, without receiving a reasonably equivalent value in exchange for the transfer and Toan Ho and Nhung Truong were insolvent at that time or became insolvent as a result of the transfer. Conclusion of Law #6 provides: The conveyance of the Clint House by Toan Ho and Nhung Truong to Toan Ho's brother-tong Ho was fraudulent as to the MacArthur Ranch in violation of Tex. Bus. & Comm. Code since Toan Ho and Nhung Truong made the transfer, and Tong Ho accepted the transfer, without receiving a reasonably equivalent value in exchange for the transfer and Toan Ho and Nhung Truong were insolvent at that time or became insolvent as a result of the transfer. It is undisputed that there was no reasonably equivalent value paid in exchange for the Clint House transfer. Tong admitted that (1) Toan Ho and Nancy Nhung Truong conveyed to him all of their right, title and interest in the Clint House by deed which was recorded on Feb. II, 2008 (RX-4, PXll)(RlA 2). (2) Tong paid nothing for Toan Bao Ho and Nancy Nhung Truong's title to the Clint House. (RIA # 3). In contrast, the evidence is that the Clint House was a house (R4-PXS), that it was valued on the tax rolls at $78,900, that the fair market value of the Clint House was $100,000 (RR ), and that Tong paid nothing for it (RIA #3). Clearly, there was no equivalent value paid in exchange for the Clint House. IS

22 Contrary to Appellants' argument that there was no evidence that the conveyance of the Clint House and Princess House made the judgment debtors insolvent, there was testimony that it did so. (RR2:20 and RR2:22-23). Additionally, (a) of TUFT A provides that a debtor is insolvent when the sum of his debts was greater than all of his assets at a fair valuation, or when he is generally not paying his debts as they became due. National Loan Investors, L..P. v. Robinson, 98 S.W.3d 781, 783 (Tex. App.-Amarillo 2003, pet. denied); Metals Building Components, L.P. v. Raley, 2007 Tex. App. LEXIS 186 (Amarillo 2007, no pet.)(holding that the failure to pay one debt when it was due, meant that the trial court could properly presume that the debtor was insolvent within the meaning of TUFT A. Id. at 24-27). Further, some COlITtS have found that a debtor's insolvency at a particular time may be established through the process of retrojection, by "showing that the debtor was insolvent a reasonable time... after the transfer and that the debtor's financial condition did not materially change during the intervening period." In re: Pace, 456 B.R. 253, 273 (W.D. Tex. 2011); Weaver v. Kellogg 216 B.R. 564, 576 (S.D. Tex. 1997); In re: Sullivan 161 B.R. 776, 784 (N.D. Tex. 1993). Here, there is evidence that both of the original debtors filed for bankruptcy shortly after the transfers, (RR , 27, CR44), and that they weren't paying the rent debt as it came due. From this evidence, the trial court can infer that they were insolvent on the dates of the conveyances. In re: Sullivan, sllpra. In Corpus v. Castillo, supra. at 637, the Arriagas had a judgment against them at the time their property transfers to their children were recorded. The evidence was that the transfers left them with no non -exempt assets with which to pay the judgment and that they went into bankruptcy shortly thereafter. The court found this was evidence that the Arriagas "became 16

23 insolvent as a result of the transfer" of the property and judgment was rendered by the Court of Appeals under (a). [d. at 637. Similarly here, the evidence shows that after the January/February 2008 transfer of the Clint and Princess houses, Appellee MacArthur Ranch obtained a judgment on July , in the 116 th Court of Dallas County Texas against Toan Ho and Nancy Nhung Truong in the total amount of $150,000 plus attorneys fees (RR4-PX9). Efforts were made to collect on the judgment (RX2, 20), but those efforts were unsuccessful because the judgment debtors had no assets (RX2, 20). Due to their insolvency as a result of these conveyances, both Nhung Truong, and Toan Ho filed for bankruptcy, so that any judgment against them is uncollectable (RX2-22,23). Not one penny was collected from either Nhung Truong or Toan Ho. (RR ). Clearly, the transfers made them insolvent. As there is evidence to support Findings of Fact # 13 and #19, and they support Conclusion #6, the judgment must be affirmed. Metal Builders; Castillo, supra. 6) Finding of Fact 16 and Conclusion of Law 3 support a judgment against Qui Phuoc Ho as transferee of the Princess House in violation of (a), and there is evidence to support these findings and conclusion. Finding of Fact #16 provides: The conveyance of the Princess House by Toan Ho to his father-qui Phuoc Ho was fraudulent as to the MacArthur Ranch since Toan Ho made the transfer, and Qui Phuoc Ho accepted the transfer, without receiving a reasonably equivalent value in exchange for the transfer and Toan Ho was insolvent at that time or became insolvent as a result of the transfer. Conclusion of Law #3 provides: The conveyance of the Princess House by Toan Ho to his father-qui Phuoc Ho was fraudulent as to the MacArthur Ranch in violation of Tex. Bus. & Comm. Code since Toan Ho made the transfer, and Qui Phuoc Ho accepted the transfer, without receiving a reasonably equivalent value in exchange for the transfer and Toan Ho was insolvent at that time or became insolvent as a result of the transfer. It is again undisputed that there was no reasonably equivalent value in exchange for the Princess House transfer. Qui Phuoc Ho admitted that: 17

24 (1) Toan Ho conveyed to Qui all of his right, title and interest in the Princess House on or about January 31, 2008 (RR4-PXl 0, RIA 3). (2) Qui paid nothing for acquiring Toan Bao Ho's right, title, and interest in the Clint House (pxi0, RIA #4). Further, the Princess I-louse was a house (RR4-PX5), it was valued on the tax rolls at $95,300; its fair market value was $110,000 (RR2-18, 19), and Qui paid nothing for it. (RIA 4) Clearly, there was no equivalent value paid in exchange for the Princess House. The evidence also shows that after the January/February 2008 transfers of the Clint and Princess Houses, Appellee MacArthur Ranch obtained a judgment on July 30, 2008 in the 116'h Court of Dallas County Texas against Toan Ho and Nancy Nhung Truong in the total amount of $150,000 plus attorneys fees (RR4-PX9). Efforts were made to collect on the judgment (RX2, 20), but those efforts were unsuccessful because the judgment debtors had no assets (RX2, 20). Indeed, due to their insolvency as a result of these conveyances, both Nhung Truong, and Toan Ho filed for banlauptcy, so that any judgment against them is uncollectable (RX ). Not one penny was collected from either Nhung Truong or Toan Ho. (RR ). As there is evidence to support finding of fact # 16 and it supports conclusion #3, the judgment must be affirmed. Metal Builders; Castillo, supra. 7) Appellant wrongly contends there is no evidence of the value of the properties as any objection to the valuation testimony was waived. There is evidence to support Findings of Fact 14 and 15 and Conclusions of law #9. 1. Finding of Fact 14 provides: The fair market value of the Princess House on the date of Toan Ho's conveyance to Toan Ho's father-qui Phuoc Ho was $110, Finding of Fact #15 provides: The fair market value of the Clint House on the date of Toan Ho's and Nhung Truong's conveyance to Toan Ho's brother- Tong Ho was $100, Conclusion of Law #9 provides: The MacArthur Ranch's damages caused by the Defendants' violations of et seq Tex. Bus. & Comm. 18

25 Code, the Texas Unifonn Fraudulent Transfer Act, are $172, which is the lesser of the current Judgment amount of$i72, or the fair market value of the properties transferred on the dates of transfer of $210,000 as detennined by (b) Tex. Bus. & Comm. Code. Appellants incorrectly contend there is no competent evidence to support findings of fact 14 and 15. In Davis v. Berger, 2000 Tex. App. LEXIS 448 (Dallas 2000, no pet.), this court held that the amount of evidence required for legal and factual sufficiency to uphold a TUFT A judgment was very small. In Davis, in fact, only one question and answer provided legally and factually sufficient evidence to uphold the trial court's $117,000 TUFTA judgment on damages. Appellants here acknowledge there is testimony in the record to support the valuations of the properties both on the tax rolls and the fair market values thereof. (Appellants' brief at 15 citing to RR2, ) Specifically, the Clint House was appraised at $78,900 at the time in question, and its fair market value was $100,000. The testimony was that the Princess House was appraised on the tax rolls at the time in question at $95,300 and its fair market value was $110,000. (RR2-19). Evidence of a property's appraisal on the tax rolls, is evidence of its fair market value. Selgas and Selgas v. Henderson County Appraisal District 2011 Tex. App. LEXIS 9091 (Tyler 2011, no pet.); In re: Sullivan, supra. There is more than a scintilla of evidence of the value of these properties to support the judgment. Appellants next contend, five separate times in their brief, that Susan Gregory's valuation testimony does not constitute any evidence to support the judgment because it was unreliable expert testimony. Courts must detennine reliability..., (Appellants' brief at 14) Admission of expert testimony that does not meet the reliability... ( Appellants' brief at 14 When the experts' underlying scientific technique or principle is unreliable... (Appellants' brief at 14) 19

26 Moreover and irrespective of Ms. Gregory's qualifications, the "reliable fouudation" upon which Ms. Gregory based her fair market value opinion apparently was nonexistent. It appears that Ms. Gregory's reliable foundation was that "appraised values are typically lower than the fair market value". Without any qualifications or reliable foundation... ( Appellants' briefat 16.) This argument, as to reliability, however, has been waived. To preserve a complaint that expert evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered. Ellis at, 409; Guadalupe-Blanco River Authority v. Kraji 77 S.W. 3d 805, 707 (Tex. 2002). Without requiring a timely objection to the reliability of the evidence, the offering party is not given an opportunity to cure any defect that may exist, and will be subject to trial and ambush, by appeal. Ellis, supra; Mid-Continent Group v. Goode, 2011 Tex. App. LEXIS 6695 (Tex. App. -Amarillo 2011, no pet.). When a reliability challenge requires the court to evaluate the underlying methodology, tec1mique, or foundation data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis. In re Commitment of Mason, 2011 Tex. App. LEXIS 8531 (Tex. App. -Beaumont 2011, no pet.). Reviewing courts may not exclude expert evidence after trial to render a judgment against the offering party because that party relied on the fact that the evidence was admitted. Ellis, supra at 409. To hold otherwise, is simply "unfair" (Ellis, supra, cites omitted). Permitting a party to challenge on appeal the reliability of opposing party's evidence in the guise of an insufficiency-of the-evidence argument, would give appellant an unfair advantage. Id. Appellant would be free to gamble on a favorable judgment before the trial court, knowing that it could seek reversal on appeal despite its failure to object at trial. Id. Thus, to prevent trial or appeal by ambush, the complaining party must object to the reliability of expert evidence before trial or when the evidence is offered. Id. 20

27 Absent proper objection, valuation evidence is otherwise admissible. Calsaro Did Katy Ltd v. State, 2010 Tex. App. LEXIS 3665 (Houston [1" Dist.], no pet.). Absent objections to Gregory's qualifications or the reliability of her opinions, the proper weight to give her opinions is for the trier of fact to decide. Norstrud v. Trinity University Insurance Company, 97 S.W. 3d 749, 755 ( Tex. App. 2003, Fort Worth, no pet.). Here, Appellants cite to no objection at or before trial to Ms. Gregory's qualifications, or the reliability of her opinion. Accordingly, any objection to the reliability of her testimony as to property valuation has been waived. Ellis,supra at 409. The trial court properly admitted Appellee's evidence of value, and gave it credence, and the admitted evidence supports Findings of Fact 14 and 15 as to valuation of the properties. Id. Those findings support Conclusion of Law #9. The judgment should be affirmed. 8) Attorneys Fees were properly awarded by the Court Section of TUFTA allows the court to award costs and reasonable attorneys fees as are equitable and just. Walker v. Anderson, 232 S.W. 3d 899, 939 (Tex. App. -Dallas 2007, no pet.); Esse v. Empire Energy, 333 S.W. 3d 166, 183 (Tex. App.-Houston [1" dist.] 2010, pet. denied). Courts award reasonable attorneys fees to the prevailing party in TUFT A actions regardless of whether the conduct at issue was egregious. In Re Pace, 456 BR 253, 283 ( BR S.D. Tex. 2011). Because Appellee prevailed on its TUFTA claim, and Finding of Fact #23 is supported by competent evidence (RR2-29, 30), the award of attorneys fees was valid and should be affirmed. Walker, supra. 21

28 ISSUE NUMBER TWO: APPELLANTS WAIVED THEIR RIGHT TO COMPLAIN ABOUT THE GRANTING OF A JOINT AND SEVERAL JUDGMENT AGAINST APPELLANTS Appellants next complain that the trial court erred in granting judgment in the amount in did against the two appellants. This complaint, however, has been waived. Nguyen v. Meritex Investments, Inc Tex. App. LEXIS 8708 at n. 2 ( Tex. App. -Houston [151 dis!.] 2003, pet. denied) (Complaint to reduce judgment amount pursuant to Tex. Bus. & Comm. Code Ann , cannot be raised for the first time on appeal). Further, Appellants' argument about the evidence of the fair market value of the properties has been previously addressed in this brief. Appellants' second issue must be overruled. ISSUE NUMBER THREE: APPELLANTS WAIVED THEIR RIGHT TO COMPLAIN ABOUT ANY FAILURE TO JOIN A PARTY UNDER RULE 39 Appellants next contend that the trial court erred in not requiring the joinder of Mau Thi Nguyen under Tex. R. Civ. P. 39. MacArthur Ranch disagrees. Appellants' complaint under Rule 39 is a complaint that there was a defect in parties. The failure to object at trial to the alleged lack of joinder resulted in a waiver of the right to complain. Guerra v. Brumlow, 630 S.W. 2d 425, 430, (Tex. App. -San Antonio 1982, no writ); Sam Kane Beef Processors, Inc. v. Manning 601 S.W. 2d 93 (Tex. Civ. App.-Corpus Christi 1980, no writ). A defendant may not complain on appeal of the non-joinder of a proper party when he could have impleaded the party himself. Seaman v. Neel, 480 S.W. 2d 430, 438 (Tex. App. -Corpus Christi 1972, no writ). Appellants' third issue must be overruled. 22