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Reversed=20 and Remanded and = Memorandum Opinion filed March 11, 2008.

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-06-00579-CV

____________

 

MAGGIE FENG=20 HONG, BO HONG, IAE SUPPLY, INC. AND IAE ENERGY & SUPPLIES,=20 INC.,=20 Appellants

 

V.

 

INTEGRATED=20 APPLICATIONS ENGINEERING, INC. AND DAVID = HOWE, = Appellees

 

 

On Appeal from the = 268th District Court

Fort=20 Bend=20 County, Texas

Trial Court Cause = No. 04-CV-138184

 

 

M E M O R=20 A N D U M   O P I N I O N

Appellants=20 appeal from the trial court=3Ds judgment=20 awarding appellees $9,186,835.50 in damages based on the = unchallenged=20 testimony of appellees=3D = expert,=20 and certain other orders recited in the judgment.  In two = issues,=20 appellants contend that (1) the evidence is legally insufficient = to=20 support the judgment, and (2) the trial court rewrote portions of = the=20 parties=3D = settlement agreement.  We conclude that the expert testimony = on which=20 the court relied is not supported by legally sufficient = evidence.  In=20 addition, both parties agree that the judgment does not accurately = reflect=20 one aspect of the parties=3D = agreement.  As a result, we reverse and remand.

Factual and=20 Procedural Background

I.       =20 The Factual Background

For twenty=20 years, David Howe has been the president, a director, and a = shareholder of=20 Integrated Applications Engineering, Inc. (AIAE@), a=20 Houston-based company that provides oil field equipment to = customers in=20 China.  In 1995, Maggie Feng Hong came to Houston from China, = and=20 began working for IAE on its Chinese equipment sales.  = Several months=20 later, Howe and Hong were married.  Hong continued to work = for IAE,=20 eventually serving as the vice-president of the company and = obtaining=20 fifty percent of the shares of IAE.

Not long=20 after the marriage, Howe and some partners began a new company in = Nigeria=20 called IAE Nigeria.  The purpose of IAE Nigeria was to assist = Chinese=20 oil companies with Nigerian oil contracts.  Howe spent much = of his=20 time living in Nigeria and working on IAE Nigeria=3Ds=20 business.  Eventually, Howe bought out his partners, and had = all of=20 the company=3Ds shares=20 transferred to Hong.[1]=20

While Howe=20 was in Nigeria, Hong and her brother, Bo Hong, formed IAE Supply, = Inc. and=20 IAE Energy & Supplies, Inc., allegedly to compete with = IAE.  They=20 ran these companies out of Howe=3Ds home in=20 Sugar Land.  Hong contacted the buyers and vendors of IAE and = diverted IAE=3Ds business=20 to IAE Supply, Inc. and IAE Energy & Supplies, Inc.  Hong = also=20 deposited IAE money into the bank account of Chinatech Services, = Ltd., a=20 Chinese company owned by Hong=3Ds mother=20 and uncle.[2]=20

Howe and=20 Hong divorced in 2003, but they agreed to continue owning their = property=20 jointly and sharing the earnings of the business = fifty-fifty. =20 However, in 2004, Howe discovered the competing companies.  = He=20 suspected that profits from contracts diverted from IAE were going = to=20 Hong=3Ds=20 companies, while IAE was being charged with the associated = expenses. =20 He also suspected that Hong used Chinatech to divert funds from=20 IAE.

II.      =20 The Procedural Background

In the=20 fall of 2004, Howe and IAE sued Hong, her brother Bo Hong, IAE = Supply,=20 Inc. and IAE Energy & Supplies, Inc., alleging several causes = of=20 action and seeking temporary and permanent injunctions against the = defendants.  Trial began on August 30, 2005.  At the = start of=20 the trial, numerous exhibits were admitted without objection, = including an=20 expert report and supplemental report prepared by IAE and = Howe=3Ds damages=20 expert.  Four witnessesCHowe,=20 Hong, Bo Hong, and, by deposition, the financial controller for = IAE=20 NigeriaCtestified=20 during four days of trial.  On September 7, 2005, the parties = entered=20 into a Rule 11 agreement that was read into the record.  The = Rule 11=20 agreement resolved most of the issues between the parties, = providing that=20 assets would be divided and a receiver would be appointed to = collect=20 receivables and money from the sale of certain of the = assets.  At the=20 time of the settlement, no expert witnesses had testified = concerning=20 damages.

As part of=20 the settlement agreement, Hong agreed Ato obtain=20 all Chinatech bank records within 20 business days.@ =20 Once the records were obtained, the parties agreed to make a = presentation=20 to the trial court to determine whether any money had been = diverted from=20 IAE.  Hong would then pay half of the diverted funds to = Howe. =20 However, Hong did not comply with this provision of the agreement; = instead, she returned to China.  Before she left, Hong = severely=20 damaged the Sugar Land residence awarded to Howe by destroying the = interior, spraying brown paint on the walls, removing curtains,=20 chandeliers, and fixtures, and spreading urine on the = carpets. =20 Hong=3Ds counsel=20 moved to withdraw.  His reasons for seeking to withdraw were=20 Hong=3Ds=20 inability to obtain Chinatech=3Ds bank=20 records and her allegedly late payment of attorney=3Ds fees.[3] =20

Howe then=20 filed a ASecond=20 Supplemental Petition@ = alleging,=20 among other things, breach of the Rule 11 agreement, conversion, = and=20 claims for damages and exemplary damages.  Howe also filed a=20 AMotion to=20 Enforce Rule 11 Agreement and Motion to Enter Judgment@ = with a=20 notice of hearing set for November 29, 2005.  = Hong=3Ds counsel=20 was still counsel of record at the time of these = filings.

At the=20 start of the hearing, Hong=3Ds counsel=20 raised the issue of his motion to withdraw.  After = admonishing=20 Hong=3Ds counsel=20 that he had Aan=20 obligation to represent [Hong] until you are officially off the=20 case,@ = the trial=20 court granted the motion.[4] =20

Immediately=20 after granting Hong=3Ds=20 counsel=3Ds motion=20 to withdraw, the trial court took up Howe=3Ds motion=20 to enforce the Rule 11 agreement and the claims in his = supplemental=20 petition.  One of the witnesses to testify was = Howe=3Ds expert,=20 John Madsen, a Certified Public Accountant.  Madsen testified = that he=20 was asked to evaluate the potential for fraud and to calculate the = amount=20 of damages with regard to IAE and the related companies.  He=20 testified that he reviewed the financial statements of IAE and the = other=20 companies, and all of the supporting documents that were = available. =20 He also had Asignificant=20 discussions@ = with Howe=20 regarding how the companies operated.  In addition, Madsen = testified=20 that the information he relied upon was the type reasonably relied = upon by=20 C.P.A.s in rendering opinions regarding financial matters.  = He also=20 stated that his review was Avery=20 extensive@ = and=20 estimated that he spent Aprobably=20 four hundred hours@ = reviewing=20 the documents. 

Madsen=20 testified without objection that, based on the records and = documents=20 provided to him by the companies and Hong, the total amount of = funds=20 diverted to Chinatech was $18,329,921.00.  He also testified = that the=20 amount of IAE accounts receivable included in that figure was=20 $14,799,299.00.[5] =20 He did not explain what the remaining $3,530,622.00 in damages=20 represented.  No contracts or other documents were offered = into=20 evidence to support these figures.

Howe then=20 testified concerning the breach of the Rule 11 agreement and the = damage to=20 the Sugar Land residence awarded to him in the agreement.  = Howe=20 testified that the $18 million figure Madsen reached did not = represent all=20 of the money that had been diverted to Chinatech, but only that = which=20 could be determined from Athe=20 contracts signed and the payments that were made@ = in the=20 absence of the Chinatech records that Hong failed to provide as=20 agreed.  Howe added that he believed Hong had actually = diverted more=20 than $18 million.

Hong later=20 secured new attorneys, and asserted in additional briefing to the = trial=20 court that, among other things, no evidence supported the total = amount of=20 damages testified to by Madsen.  Hong also requested that the = trial=20 court allow the defendants to present their own evidence at a new=20 evidentiary hearing.  Following the entry of a judgment on = December=20 16, 2005, the trial court held a hearing on the issues Hong = raised. =20 The trial court denied most of Hong=3Ds=20 requests, but ordered the amount of damages divided fifty-fifty as = provided in the Rule 11 agreement and a remittitur of the punitive = damages=20 awarded against Hong.[6]

On March=20 24, 2006, the trial court entered an amended final judgment = awarding,=20 among other things, actual damages of $9,186,835.50Cone-half=20 of the amount Madsen had testified to at the hearingCagainst=20 Hong.  The trial court also filed findings of fact and = conclusions of=20 law.  This appeal followed. 

Analysis

I.       =20 The Legal Sufficiency of the Evidence of Damages

Hong=20 argues the evidence is legally insufficient to support the award = of=20 damages of $9,186,835.00 based on Madsen=3Ds=20 testimony, because it was speculative, conclusory, and unsupported = by any=20 exhibits.  Specifically, Hong challenges the following facts = found by=20 the trial court concerning the amount of damages = awarded:

The Court=20 finds that the issues addressed in the Court=3Ds=20 determination included the following:  the amount of funds = deposited=20 into and withdrawn from the Chinatech account(s) and wrongfully = diverted=20 by Maggie Feng Hong was the total sum of $18,329,921.00; those = funds were=20 generated by IAE or its related companies (as opposed to = independent=20 business activities of the owners of Chinatech Services Limited, = if any);=20 the amount of funds, if any, used to purchase the Beijing house; = the=20 amount of funds paid by Chinatech to Beijing Aieryi Petrotech, = Ltd., and=20 whether those payments were a legitimate business expense, the = breach of=20 the Rule 11 Agreement of September 7, 2005, the damages to 518 = Sugar=20 Creek, Sugar Land, Texas, the conversion of property, diversion of = funds=20 and receivables, and theft of property by Maggie Feng Hong in a = total sum=20 $21,875.00.

Hong does=20 not challenge the trial court=3Ds finding=20 of fact that Athe=20 testimony of John R. Madsen was reliable, credible and worthy of=20 belief.@

In=20 response, Howe and IAE contend that Madsen=3Ds expert=20 testimony and his reports admitted into evidence during the trial = are=20 sufficient evidence to support the damages award, and = Madsen=3Ds analysis=20 of IAE and his conclusions were based on reliable methods, = complete=20 information, and credible evidence.

A.     =20 Standard of Review and Applicable Law =

A trial=20 court=3Ds findings=20 are reviewed for legal and factual sufficiency of the evidence = under the=20 same standards as are applied in reviewing evidence supporting a=20 jury=3Ds=20 answer.  Catalina v. Blasdel, 881 S.W.2d 295, 297 = (Tex.=20 1994).  When reviewing the legal sufficiency of the evidence, = we=20 review the evidence in the light most favorable to the challenged = finding=20 and indulge very reasonable inference that would support it.  = See=20 City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. = 2005).  We=20 credit favorable evidence if a reasonable fact finder could, and = disregard=20 contrary evidence unless a reasonable fact finder could not.  = Id. at 827.  The evidence is legally sufficient if it = would=20 enable a reasonable and fair-minded person to reach the verdict = under=20 review.  Id.  There is Ano=20 evidence@ = or=20 legally insufficient evidence when (a) there is a complete absence = of=20 evidence of a vital fact; (b) the court is barred by rules of law = or=20 evidence from giving weight to the only evidence offered to prove = a vital=20 fact; (c) the evidence offered to prove a vital fact is no more = than a=20 mere scintilla; or (d) the evidence conclusively establishes the = opposite=20 of the vital fact.  See id. at 810; Merrell Dow = Pharms.,=20 Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

When a=20 challenge to an expert=3Ds=20 reliability requires the court to evaluate the underlying = methodology,=20 technique, or foundational data the expert used, an objection must = be=20 timely made so that the trial court has the opportunity to conduct = this=20 analysis.  See Coastal Transp. Co. v. Crown Cent. = Petroleum=20 Corp., 136 S.W.3d 227, 233 (Tex. 2004).  However, when = the=20 challenge is that the expert testimony is speculative or = conclusory on its=20 face, then a party may challenge the legal sufficiency of the = evidence=20 even in the absence of any objection to its admissibility.=20  Id.  Thus, because Hong did not object to the=20 reliability of Madsen=3Ds=20 testimony in the trial court, our review of the evidence is = limited to the=20 face of the record.  See Volkswagen of Am., Inc. v. = Ramirez,=20 159 S.W.3d 897, 911 (Tex. 2004); Coastal Transp. Co., 136 = S.W.3d at=20 233.

The Texas=20 Supreme Court has held that conclusory or speculative opinion = testimony is=20 Aincompetent=20 evidence@ = and=20 cannot support a judgment.  Coastal Transp. Co., 136 = S.W.3d at=20 232.  To avoid being considered conclusory and speculative, = the=20 opinion must have a reasoned basis that the expert is qualified to = state,=20 based on knowledge, skill, experience, training, or = education. =20 Burrow v. Arce, 997 S.W.2d 229, 236 (Tex. 1999).  An = expert=20 opinion is conclusory when it offers an opinion with no factual=20 substantiation.  Sparks v. Booth, 232 S.W.3d 853, 863 = (Tex.=20 App.CDallas=20 2007, no pet.); United Servs. Auto. Ass=3Dn v.=20 Croft, 175=20 S.W.3d 457, 463 (Tex. App.CDallas=20 2005, no pet.).  The expert must explain how he reached his=20 conclusion.  Sparks, 232 S.W.3d at 863; Croft, = 175=20 S.W.3d at 464. 

As we=20 explain in detail, we conclude that Madsen=3Ds opinion=20 testimony was conclusory because his opinions were not supported = by the=20 evidence.

B.     =20 The Evidence Does No Support the Damages Award

As noted=20 above, at the November 29 hearing, Madsen set forth two damage=20 calculations.  The first was the total damages amount of=20 $18,329,921.00, and the second was for diverted accounts = receivable of=20 $14,799,299.00, which was included in the total.  However, = Madsen=20 provided no basis for the remaining $3,530,622.00 in = damages.  And,=20 although Madsen testified that he conducted an extensive review of = many=20 documents in reaching his conclusions, no exhibits were introduced = during=20 his testimony to support the damages calculations he = reached.  For=20 example, Madsen did not identify any specific contract that was = wrongfully=20 diverted from IAE, he provided no evidence that any specific = receivables=20 of IAE were diverted, and he failed to provide any evidence that = any money=20 was received and deposited by Chinatech.

Howe and=20 IAE respond that Madsen=3Ds=20 testimony is supported by his original and supplemental expert = reports,=20 which were admitted without objection during the trial as=20 Plaintiffs=3D = Exhibits=20 51 and 52, respectively.[7] =20 However, the figures contained in these reports do not correspond = to=20 Madsen=3Ds=20 testimony, and the documents or data Madsen relies upon cannot be=20 ascertained with reasonable certainty from the reports.

To=20 illustrate, in Madsen=3Ds=20 supplemental expert report, Exhibit 52, he states the=20 following:

With regard to = Chinatech, for=20 which all requested information has not been provided, we have = noted the=20 following:

$           = ;       =20 The=20 $880,647 of funds has been inappropriately diverted as described = in item=20 #1 above.

$           = ;       =20 Receivables of = $4,125,000 are=20 due to Chinatech (see Enclosure 2, attachment 3 and Enclosure=20 9).

$           = ;       =20 Amounts=20 known to have been received and deposited by Chinatech total = $3,612,500=20 (see Enclosure 2, attachment 3 and Enclosure 9).

$           = ;       =20 Amounts=20 earned from the drilling rigs agreements with = CNPC/PDVSA/GWDC/Petrolog=20 total $9,711,774 (see Enclosure 2, page 6 and Enclosure = 9).

To=20 summarize Chinatech, there are known funds that belong to IAE, = Inc.=20 totaling $18,329,921 in possession by Chinatech.  It is = likely that=20 the amount would be greater if the defendants provided the = accounting=20 records of Chinatech.  However, the defendants have not = provided=20 complete and comprehensive accounting records despite a court = order to do=20 so.  If complete accounting records were provided it could be = determined if Chinatech is in possession of IAE, Inc. funds in = excess of=20 the $18,329,921.

The=20 supporting information Madsen references in parentheses either = fails to=20 sufficiently identify the origin of the data used in = Madsen=3Ds=20 calculations or fails to explain the facts Madsen relied upon in = reaching=20 his conclusions.  For example, to support the first bullet = point,=20 Madsen refers to Aitem #1=20 above.@ =20 This item lists five transfers of money to Chinatech out of either = IAE or=20 IAE Supply, Inc. on specific dates in 2002 and 2004.  = However, no=20 supporting documentation for these transfers is identified or = provided.[8] =20 Similarly, for the remaining bullet points, Madsen references = AEnclosure=20 2, Attachment #3,@ = AEnclosure=20 2, page 6,@and=20 AEnclosure=20 9.@ =20 Enclosure 2, Attachment #3, found in Madsen=3Ds original=20 expert report, purports to list receivables for four contracts = based on=20 Acontract=20 values and IAE commission agreements@ = and=20 receipts for three contracts Abelieved=20 to have been received according to comments from customer = representatives=20 and letter dated February 23, 2005.@[9]  The=20 significance of the reference to page 6 of Enclosure 2 is unclear, = although it appears to describe a dispute between the parties = concerning=20 the value of the referenced contract and the amount of commission=20 due.  Enclosure 9 simply refers back to the information or = data=20 Afrom=20 Enclosure 2, Attachment #3,@ = and=20 additionally lists AIAE books=20 and records,@ = and the=20 disputed contract information as sources.  These sources = provide only=20 cursory information or data concerning the basis for the amounts=20 identified and none of the amounts correspond to the figures = Madsen=20 testified to at the hearing.

Howe and=20 IAE also point to Enclosure 10 of Madsen=3Ds=20 supplemental report as an itemized list of damages.  However, = Enclosure 10 purports to calculate damages based on values = assigned to=20 Ajoint=20 assets,@ = including=20 accounts, condominiums, and vehicles unrelated to the issue on=20 appeal.  The list of assets does include Chinatech and = assigns a=20 value of $18,329,921 for this asset.  However, this value = merely=20 corresponds to the total damages Madsen calculated in his report; = it does=20 nothing to shed light on the data or other information Madsen = relied upon=20 in reaching the conclusions to which he testified to at the = hearing. =20 Thus, Madsen=3Ds reports=20 provide no evidence to support his conclusions. 

Howe and=20 IAE also identify forty-four of their other exhibits admitted into = evidence and, in a conclusory manner, assert that these exhibits = support=20 Madsen=3Ds damage=20 calculations.  However, Madsen does not refer to them in his=20 testimony, so the record does not reflect whether he reviewed or = relied on=20 any of these documents, or, if he did rely on them, how they = related to=20 his calculations.  At most, Madsen testified that he spent a = lot of=20 time reviewing a lot of documents.  Therefore, it would be=20 speculative to conclude that his review included these exhibits or = that=20 these exhibits in fact supported his calculations.

Next, Howe=20 and IAE assert that A[i]t was=20 apparent that Mr. Madsen was certain about the $18,329,921 due = from=20 Chinatech, but [he] speculated that the amounts could exceed $33=20 million.@ =20 Therefore, according to Howe and IAE, the trial court Aobviously=20 based its judgment on the amount certain@ = and so=20 its judgment must be affirmed.  However, without = documentation to=20 support it, Madsen=3Ds=20 subjective certainty is not a legally sufficient foundation for = his=20 conclusions.  See Havner, 953 S.W.2d at 712 = (AWhen the=20 expert >br[ings]=20 to court little more than his credentials and a subjective=20 opinion,=3D = this is=20 not evidence that would support a judgment.@) (quoting=20 Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir. = 1987)).=20

Therefore,=20 because Madsen=3Ds=20 testimony concerning damages relating to Chinatech did not explain = how he=20 reached his conclusions, is inconsistent with the calculations and = conclusions presented in his expert reports, and lacks factual=20 substantiation in the record, we hold that this evidence is = legally=20 insufficient to support the award of $9,186,835.50 in the trial=20 court=3Ds=20 judgment.  See Coastal Transp. Co., 136 S.W.3d = at=20 232B33=20 (holding that expert=3Ds=20 testimony concerning conscious indifference prong of gross = negligence=20 claim was too conclusory to defeat a motion for directed verdict); = James L. Gang & Assocs., Inc. v. Abbott Labs., Inc., = 198 S.W.3d=20 434, 439 (Tex. App.CDallas=20 2006, no pet.) (holding expert=3Ds=20 affidavit testimony was conclusory when expert provided no facts = or=20 figures to support approximation of expenses, attached exhibit = contained=20 no fact or figures related to purchase order at issue, and figures = did not=20 match damage estimates for alleged breach of purchase order as = testified=20 to by expert); Lefton v. Griffith, 136 S.W.3d 271, = 276B77 (Tex.=20 App.CSan=20 Antonio 2004, no pet.) (holding that plaintiff=3Ds=20 testimony describing alleged losses from sale of her inventory and = home=20 was conclusory when it failed to provide a factual basis to = support her=20 conclusions and so was legally insufficient to support damages = award).=20

Having=20 concluded that Madsen=3Ds=20 conclusions are not supported by legally sufficient evidence, we = look to=20 the rest of the record to determine whether other evidence = supports the=20 damages awarded in the judgment.  It does not.

At trial,=20 Howe testified that Hong was a signatory on Chinatech=3Ds bank=20 account and that she told him that there was over $5 million = dollars in=20 the account in May of 2003.  Howe also testified that he = believed=20 Hong had diverted much more than $18 million to Chinatech.  = Although=20 this testimony may be relevant to Howe and IAE=3Ds claims,=20 it does not provide any factual support for the amount of damages = awarded,=20 which was far in excess of $5 million.

We hold=20 that, based on the record before us, the evidence is legally = insufficient=20 to support the $9,186,835.50 in damages awarded to appellees, and = we=20 therefore sustain appellants=3D = first=20 issue.  Because the parties=3D = Rule 11=20 agreement contemplated that any damages relating to Chinatech = would be=20 determined by the trial court, and appellants have requested that = the case=20 be reversed and remanded for a new trial on these damages, we = agree that=20 reversal and remand, rather than reversal and rendition, is = appropriate in=20 this case.

II.      =20 Conflict Between the Rule 11 Agreement and the=20 Judgment

In their=20 second issue, appellants contend that, in its judgment, the trial = court=20 Arewrote@ = portions=20 of the Rule 11 agreement.  They complain that certain = provisions of=20 the judgment conflict with the parties=3D = agreement=20 or were not contemplated in it.  Although Howe and IAE = dispute this=20 claim generally, they do concede that, with regard to the issue of = taxes,=20 the trial court=3Ds intent=20 is not reflected in the judgment, and have asked that this Court = reform=20 the judgment accordingly.  However, because we are reversing = and=20 remanding for a new trial as discussed above, we conclude that the = better=20 solution is for the trial court to correct any error in the = judgment at=20 the time of a new trial.

We=20 therefore sustain appellants=3D = second=20 issue.

Conclusion

Accordingly,=20 we reverse and remand for further proceedings consistent with this = opinion.

 

 

/s/     =20 Wanda McKee Fowler

Justice

 

 

Judgment=20 rendered and Memorandum Opinion filed March 11, 2008.

Panel=20 consists of Justices Fowler, Seymore, and Guzman.


[1]  According to Hong, ten percent of = IAE=20 Nigeria was given to her brother, Kevin.

[2]  Chinatech was set = up so that=20 Hong=3Ds mother and uncle = were named=20 Chinatech=3Ds directors, and = neither Hong=20 nor Howe owned any shares in the company.  The company was = created to=20 proved an offshore bank account to shelter income from the foreign = projects from being taxed in the United States, and Howe knew that = IAE=20 money was deposited in Chinatech=3Ds bank = account. =20 However, Howe testified that Hong was the sole signatory on=20 Chinatech=3Ds bank account, and = that in=20 2003, she told him there was over $5 million in = Chinatech=3Ds account. =

[3]  Attached to the motion was = correspondence=20 from Chinatech and its representatives, indicating that Chinatech = refused=20 to provide the records to Hong because she was neither a = shareholder nor=20 director of the company and was not otherwise entitled to demand=20 them.

[4]  Although Hong = apparently=20 requested that another lawyer represent her, and this lawyer was = also=20 present at the hearing, he had not yet agreed to represent = Hong. =20

[5]  The trial court then asked Bo = Hong if he=20 had any questions of the witness.  Bo Hong, who had already = been=20 called to testify by Howe=3Ds counsel at the hearing and did so = without=20 representation, stated that he did not have any=20 questions.

[6]  The trial court=3Ds original judgment awarded punitive = damages of $1=20 million against Hong in addition to actual damages of=20 $18,351,796.00.  However, the amended judgment included a = separate=20 award of $21,875.00 as damages arising from Hong=3Ds actions at the Sugar Land residence = and=20 exemplary damages of two times that amount, or=20 $43,750.00.

[7]  Appellants take the position that = the trial=20 court should not have considered these exhibits, which were = admitted=20 during the trial but not at the November 29 hearing.  = However, they=20 cite no authority to support this position, and we are aware of=20 none.  Further, it is evident that the trial judge, who = presided over=20 both the trial and the hearing, considered all the evidence before = it, as=20 stated in the following unchallenged fact finding:  = AThe Court finds that upon = consideration of the=20 testimony and exhibits admitted during the trial and in the = hearing on=20 November 29, 2005, the Court should order Maggie Feng Hong to = pay to=20 David Howe and IAE, Inc. Damages in the sum of Nine Million One = Hundred=20 Eighty Six Thousand Eight Hundred Thirty Five and 50/100 = ($9,186,835.50)=20 (emphasis added).

[8]  We note that Enclosure 9 of = Exhibit 52 also=20 lists these transfers, and identifies the source of the data = merely as=20 AIAE books and records.@

[9]  Concerning the letter, Madsen = states in a=20 footnote that Hong Aacknowledges only a portion of Shell = East and=20 Shell West funds have been deposited.@  Madsen further states = AHowever, plaintiff believe (sic) that = the clients=20 have paid these amounts.  Where have the funds gone?  = Plaintiff=20 believes this is an obvious attempt by the defendant to = misappropriate=20 funds.@  These comments concerning the=20 plaintiff=3Ds Abelief@ does not constitute the type of = objective facts=20 or data required to support an expert=3Ds damages calculation.  See = A.B.F. Freight=20 Sys., Inc., v. Austrian Imp. Serv., Inc., 798 S.W.2d 606, 615 = (Tex.=20 App.CDallas 1990, writ denied) (AThere can be no recovery for damages = which are=20 speculative or conjectural.  The damages must be = ascertainable in=20 some manner other than by mere speculation or conjecture, and by = reference=20 to some fairly definite standard, established experience, or = direct=20 inference from known facts.@).=20

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