Hien Nguyen v. Lisa Le, Seiu Le and Nancy Tran

Opinion issued June 16, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00492-CV
———————————
HIEN NGUYEN, Appellant
V.
LISA LE, SEIU LE, AND NANCY TRAN, Appellees

On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Case No. 78763-CV

CONCURRING OPINION

Conflicting jury answers can sneak past not only the jurors, but also the judge

and lawyers. So if you notice a conflict, speak up before the jurors go home.

Speaking up in a new trial motion is too late in Texas. But such a motion is timely

in the Fifth Circuit. Should our rules be amended to take the Fifth Circuit view?
I.

The jury answered the two liability questions as follows:

1. Did Plaintiff and any of the following Defendants enter into an
oral contract for the sale and purchase of one-half ownership
interest in the vessel LUCKY NIKKI?
Answer “Yes” or “No”
(a) [Seiu] Le
ANSWER: Yes
(b) Nancy Tran
ANSWER: No
(c) Lisa Le
ANSWER: No
If you answered “Yes” to Question No. 1 as to any Defendant, then
answer the following question. Otherwise, do not answer the following
question.
****
2. Did any of the following Defendants breach the oral contract
with Plaintiff for the sale and purchase of one-half ownership
interest in the vessel LUCKY NIKKI and/or fail to comply with
any of the material obligations under the oral contract?
Answer “Yes” or “No”
(a) [Seiu] Le
ANSWER: Yes
(b) Nancy Tran
ANSWER: Yes
(c) Lisa Le
ANSWER: Yes
Thus, two defendants broke promises that they never made.
2
Let us assume for purposes of this discussion that the two No answers conflict

with the two Yes answers. Now ask yourself when somebody needed to speak up

about it. In an ideal world, counsel will spot the conflict before the jurors have left

the building. But history teaches that conflicts often have a way of going unnoticed

until the jurors are gone, or that counsel may see the conflict at first and mistakenly

view it as non-fatal or as reconcilable by harmonization, only to think better of the

matter after a few days of research.

May the litigant who first sees a conflict after the jury goes home preserve the

point in a new trial motion? In the Fifth Circuit, the answer is Yes: “[E]ven if an

irreconcilable conflict is not recognized by court or counsel until after the jury has

been discharged, the district court ‘has no authority to enter judgment based upon

those answers,’ and a new trial must be held.” Team Contractors, L.L.C. v. Waypoint

NOLA, L.L.C., 976 F.3d 509, 514 (5th Cir. 2020) (quoting Brunner v. Maritime

Overseas Corp., 779 F.2d 296, 297–98 (5th Cir. 1986)).

That has been the answer in the Fifth Circuit for decades. See, e.g., Mercer v.

Long Mfg. N.C., Inc., 671 F.2d 946, 947 (5th Cir. 1982) (“Mercer urges that the

failure of a party to move for a limited resubmission to the jury in such a case of

inconsistency results in a waiver of that party’s subsequent right to complain of the

inconsistent special verdicts. Neither F.R.Civ.P. 49(a) nor the law of this Circuit has

established any such rule of waiver.”).

3
Raising the point with jurors in the box would be “the better practice.” Holt

Oil & Gas Corp. v. Harvey, 801 F.2d 773, 781 n.9 (5th Cir. 1986). But better does

not mean compulsory: “[E]xtolling the virtue of a procedure is not equivalent to

mandating that it be followed with the dire consequence of waiver for failure to adopt

the practice. We know of no case in this Circuit holding that inconsistencies in

special verdicts pursuant to F.R.Civ.P. 49(a) are waived if not raised prior to release

of the jury.” Mercer, 671 F.2d at 947–48.

II.

The Fifth Circuit view has virtues that can be discussed, but let me start by

acknowledging that Texas has plainly gone the other way. Under cases that trace

back to a three-justice plurality opinion in USAA Texas Lloyds Co. v. Menchaca, 545

S.W.3d 479 (Tex. 2018), a complaint about conflicting findings is forfeited if not

urged with the jury in the box. See In re Rudolph Auto., LLC, 674 S.W.3d 289, 303

(Tex. 2023) (orig. proceeding); Los Compadres Pescadores, L.L.C. v. Valdez, 622

S.W.3d 771, 787 (Tex. 2021). Post-Menchaca decisions leave no room for

uncertainty about the law. That said, there are reasons to ask whether the issue

deserves a second look.

First, the right to jury trial is at stake. “The legal error resulting from the entry

of a judgment based on inconsistent special interrogatories is one which undermines

the validity and integrity of the judgment and may, in fact, run afoul of the Seventh

4
Amendment by allowing the District Court to usurp the jury’s function.” Mercer,

671 F.2d at 948 n.1; see also Ladnier v. Murray, 769 F.2d 195, 198 n.3 (4th Cir.

1985) (agreeing with Mercer and stating that “the legal error resulting from entry of

a judgment based on inconsistent special interrogatories may be an error of

constitutional magnitude, infringing the seventh amendment right to jury trial”).

“The constitutional right of a trial by jury is not to be evaded in whole or given

an attenuated strength through the device of giving actual effect to a verdict whose

important terms are mutually destructive.” Radford v. Auto. Underwriters of Am.,

299 S.W. 852, 853 (Tex. Comm’n App. 1927); see also Moore v. Moore, 67 Tex.

293, 296, 3 S.W. 284, 285 (1887) (“It is the right of the parties to have the jury pass

upon all the facts controverted by the pleadings; and when they have omitted to do

this, however clear and undisputed the evidence upon the issues not found, the court

cannot render judgment without usurping in part the function of the jury, and thereby

infringing a right guarant[e]ed by the constitution and laws.”).

Second, basing a judgment on a verdict with a fatal conflict is to build a house

on a bad foundation—i.e., unwise but also difficult. If a verdict contains a fatal

conflict1 and the jury is no more, the judge faces the quandary of picking a winner.

The judge wants to decide in a principled way, but what principle controls?

1
The supreme court laid down the test for a fatal conflict in Howard v. Howard, 102
S.W.2d 473, 475 (Tex. Civ. App.—Austin 1937, writ ref’d), and has stood by it
since then. See Arvizu v. Est. of Puckett, 364 S.W.3d 273, 276 (Tex. 2012) (per
5
Suppose one finding says that the defendant’s light was red, while another

finding says that the defendant’s light was green. Now what? Perhaps we could

treat the conflicting answers as matter and anti-matter, annihilating each other with

a bang, leaving a universe where the jury never existed. But that would be quite an

innovation, well beyond the familiar apparatus of letting a judge fill in interstitial

gaps for omitted elements of partially submitted theories. See TEX. R. CIV. P. 279.

To spare trial judges from these difficulties, an amendment to Rule of Civil

Procedure 324 to allow preservation in such a motion might be worth considering.

III.

None of this is to resurrect the idea of fundamental error. That doctrine has

blessedly withered since the 1941 rules of civil procedure arrived. But making

preservation compulsory does not tell us when it must occur to be timely. The pre-

Menchaca cases in this area suffered from fuzziness, partly because of trends in

preservation law after World War II and partly because of changes in Rule 324. My

reading leads me to doubt the Menchaca three-justice plurality view about prior law

and to sympathize with Chief Justice Hecht’s concurrence and part III of Justice

Green’s dissent (joined by the Chief Justice and Justices Guzman and Brown). As

curiam); Del Bosque v. Heitmann Bering-Cortes Co., 474 S.W.2d 450, 452 (Tex.
1971); Bay Petroleum Corp. v. Crumpler, 372 S.W.2d 318, 320 (Tex. 1963); Little
Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 206, 222 S.W.2d 985, 991 (1949);
Pearson v. Doherty, 143 Tex. 64, 70, 183 S.W.2d 453, 456 (1944).
6
Chief Justice Hecht noted, sometimes both sides deny a conflict, yet a court later

disagrees. See 545 S.W.3d at 522. But parsing the law prior to Menchaca no longer

offers much benefit.

So rather than exhume the debate about the law before 2018, I will add only

a note about pre-Menchaca jurisprudence.2 The question now concerns the future.

2
Part III.D of the Menchaca plurality opinion seeks to distinguish Union Mutual Life
Insurance Co. v. Meyer, 502 S.W.2d 676 (Tex. 1973), where the supreme court
ordered a new trial in light of conflicting jury answers after the complaining party—
the plaintiff—raised the conflict in a motion for new trial. The plurality questions
whether preservation was at issue in Meyer: “Neither our opinion nor the court of
appeals’ opinion in Meyer ever mentioned or addressed whether any party objected
to the conflicting answers or whether they should have. As best we can tell, the
plaintiff in Meyer never complained that the defendant did not preserve the error,
and the Court simply never addressed that issue.” USAA Tex. Lloyds Co. v.
Menchaca, 545 S.W.3d 479, 515 (Tex. 2018) (plurality op.). This view appears
difficult to sustain.
First, the Meyer defendant’s motion for rehearing squarely asserted that the plaintiff
(who raised the matter in a motion for new trial) had not asked for the jurors to be
sent back. Second, why would the plaintiff complain about the defendant preserving
any error? The defendant liked the trial court’s judgment and perceived no error at
all. The party who disliked the judgment—and asserted error—was the plaintiff,
who told the Dallas Court of Civil Appeals that the trial court erred when it denied
the plaintiff’s motion for new trial. The transcript and the briefing in Meyer are
publicly available. Those documents show a fight about preservation. First, both
sides moved for judgment, with each side thinking that the trial court might have
been able to reconcile the findings and render a judgment. The trial court ruled for
the defendant. Second, as the aggrieved party, the plaintiff asserted the conflict by
moving for a new trial. In support, the plaintiff asserted error in the court’s failure
to recognize the conflict: “The Court erred in entering judgment on the jury’s verdict
herein because the answer given by the jury in response to Special Issue No. 1 is in
conflict with each of the answers given by the jury in response to Special Issues
Nos. 3 and 4.” (Tr. at 127.) The court overruled the motion. Third, on appeal, the
plaintiff asserted in the briefing that denial of the new trial motion was error
“because the jury’s answers to Special Issues 1 and 2 were in irreconcilable conflict
with their answers to Special Issues 3 and 4 and thereby destroyed the verdict[.]”
7
In that regard, the twin concerns mentioned earlier—i.e., the right to jury trial and

the empirical lesson that conflicts can long go unnoticed or at least unappreciated as

fatal—cause me to see wisdom in the Fifth Circuit position. Amending Rule 324

accordingly could be worth studying.

David Gunn
Justice

Panel consists of Chief Justice Adams and Justices Gunn and Johnson.

Justice Gunn, concurring.

(Br. of Appellant at 3.) The defendant fought back in its brief, claiming a
preservation problem, namely that the plaintiff went beyond the new trial motion by
smuggling in a reference to Special Issue 2, which had not been addressed in the
motion. The Dallas court reached the merits and rephrased the complaint as whether
the conflict precluded a judgment: “The controlling question presented in
appellant’s sole point of error is whether or not the answers of the jury to the special
issues are in such irreconcilable conflict that the judgment entered on the verdict
must be reversed for a new trial.” Meyer v. Union Mut. Life Ins. Co., 483 S.W.2d 7,
8 (Tex. Civ. App.—Dallas 1972). The supreme court affirmed. 502 S.W.2d 676.
Meyer fits with the Fifth Circuit approach, where a new trial motion preserves the
point.
8

Opinion issued June 16, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00492-CV
———————————
HIEN NGUYEN, Appellant
V.
LISA LE, SEIU LE, AND NANCY TRAN, Appellees

On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Case No. 78763-CV

MEMORANDUM OPINION

This case involves a contract to buy part of a shrimping boat called the Lucky

Nikki. Plaintiff Hien Nguyen said that he made a deal to buy a half interest in the

boat. Nguyen never spoke to the owner Lisa Le, but he spoke to her father, Seiu Le.

Lisa’s father denied agreeing to sell anything. Instead, he characterized their deal
not as an agreement for sale of goods, but rather as a standard split of profits from

shrimping trips, whereby the profits get divided between the owner and the crew.

Making things murkier, any deal between Nguyen and Lisa’s father was

purely oral. Their conversation apparently occurred in Vietnamese at the Le home.

Nguyen, although born in Vietnam, is Cambodian and went to school in Cambodia,

so he speaks Vietnamese but does not read or write it. He added: “We absolutely

never use any English in our dealings.”

The jurors must have found Nguyen’s version of events persuasive, because

they went his way on all three questions, answering roughly as follows:

1. Nguyen entered into an oral contract with (a) Lisa’s father, but not with
(b) Lisa’s mother or (c) Lisa.
2. The oral contract was breached by (a) Lisa’s father, (b) Lisa’s mother,
and (c) Lisa.
3. The breach of the oral contract caused $151,595 in damages.

The court set aside the verdict and rendered a take-nothing judgment.

On appeal, Nguyen presents two issues: (1) whether the trial court erred in

granting JNOV on his contract claim; and (2) whether the trial court erred in

directing a verdict on his fraud claim. We conclude that the evidence supports the

finding that Nguyen made an oral agreement, but it does not support any of the

damages required by Question 3 or fraud. We affirm.

2
Background

The preceding discussion sums up the basic factual dispute about the oral deal

to buy a half interest in Lisa Le’s boat, so this narrative can begin with the lawsuit.

In his pleadings, Nguyen alleged two pertinent causes of action:

(1) breach of an oral contract for the sale of goods, and
(2) fraud in promising to form a partnership with him.

His pleadings contained more claims, but none of those made it to trial.

For the breach of contract claim, Nguyen alleged that he and the three

defendants “entered into a contract whereby Defendants would sell Plaintiff half of

the Lucky Nikki and split evenly the profits made from shrimping on the Lucky

Nikki in exchange for Plaintiff paying Defendants $100,000.” For fraud, he alleged

that the defendants “falsely represented to Plaintiff that they would form a

partnership and evenly share the profits from shrimping with the Lucky Nikki.”

With allegations of an oral agreement to sell goods valued at more than $500, one

might expect the defendants’ answer to mention the statute of frauds, and in fact it

does. But the statute does not seem to have resurfaced ever again.

At trial, the two sides laid out their competing versions of the facts during voir

dire and opening statements. During plaintiff’s opening, counsel indicated that the

evidence would show an agreement about a partnership and ownership of 50% of

the shrimping vessel:

3
This is a story of what [the] Le family did. Dad made a deal.
Mom executed the deal. All in the name of the daughter [Lisa Le]. Mr.
Le, sitting over there, invited a fellow shrimping ship owner who is in
the business, owns other ships, Mr. Nguyen, to his home. And evidence
will show that they talked about partnership and they agreed, reached
an agreement on the partnership. They agreed that, one, the shrimping
boat, the value is $200,000. And if Mr. Nguyen pays half of that,
hundred thousand dollars, then he will get 50 percent ownership of the
shrimping boat. The name of the shrimping boat is called LUCKY
NIKKI.

Defense counsel’s opening statement offered a different version of what the

evidence would show:

The basis of his claims is that there was some sort of agreement between
him and somebody, somebody to buy half of Lisa’s boat. Now there is
no evidence, and you’ll hear testimony that it actually never happened.
The Plaintiff has never actually spoken a word to Lisa, the owner of the
boat. They have never met. They have never spoken. So there was no
agreement between them. Okay?

During the trial, Nguyen agreed that he never spoke to the boat’s actual owner, Lisa

Le, but he stated that he did speak to her father, Seiu Le. This exchange during

Nguyen’s testimony gives a sense of the story:

Q. You never spoke to the owner, did you, sir?
A. No. I didn’t know who she was, the owner. He only—Mr. Seiu
Le only pointed at the LUCKY NIKKI and he claimed that that
was his boat. I didn’t know who was the owner.

By the end of the testimony, both sides had agreed that Nguyen never had any

conversations with Lisa.

4
When the parties closed, the court directed a verdict against the fraud claim,

but it let the contract claim go to the jury. The three questions in the charge ask

about contract formation, breach, and damages. Unfortunately, the first two answers

conflict inasmuch as they find Lisa and her mother to have breached a contract that

they never made. Start with the formation question:

QUESTION NO. 1:
Did Plaintiff and any of the following Defendants enter into an
oral contract for the sale and purchase of one-half ownership interest in
the vessel LUCKY NIKKI?
Answer “Yes” or “No”
(a) [Seiu] Le
ANSWER: Yes
(b) Nancy Tran
ANSWER: No
(c) Lisa Le
ANSWER: No

With the benefit of hindsight, it might have been preferable to condition the breach

question so as to have the jury answer only as to any defendant who it found to have

entered into an oral contract. That way, there would be no need to consider a breach

inquiry as to Nancy Tran or Lisa Le. But the jury found as follows:

QUESTION NO. 2:
Did any of the following Defendants breach the oral contract
with Plaintiff for the sale and purchase of one-half ownership interest
in the vessel LUCKY NIKKI and/or fail to comply with any of the
material obligations under the oral contract?
5
Answer “Yes” or “No”
(a) [Seiu] Le
ANSWER: Yes
(b) Nancy Tran
ANSWER: Yes
(c) Lisa Le
ANSWER: Yes

Hence, the jury went on to answer Question 3, which asked about ensuing damages.

As we will discuss in more detail later, the jury found damages of $151,595.

Neither side asked the court to send the jurors back in light of the tension

between the No answers and the Yes answers. Instead, after the jury had gone home,

the defendants moved for JNOV based on insufficiency of the evidence. The court

granted the JNOV motion and signed a take-nothing judgment.

This appeal followed.

Analysis

The two sides agree that the standard of review for legal sufficiency points

comes from City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). We therefore

need not rehash the rules laid out there. Where the two sides part company is over

how those rules apply to this factual record.

6
I. Breach of Oral Contract Claim

The tension between the answers to Questions 1 and 2 gives us some pause.

It is difficult to see how Lisa and her mother could have broken a promise that they

never made. Were it necessary to address that issue, we would need to grapple with

the consequences of the fact that nobody asked the court to send the jurors back to

resolve the conflict.

But the liability aspects of the verdict come to nothing if the damage finding

lacks support in the evidence. The instructions to Question 3 provide for the

following measure of damages:

In determining the amount of damages, if any, to be awarded for
the breach of the oral contract, you may consider the following
elements of damages, if any, and none other:
(1) The difference, if any, in the value of the oral contract as
it was performed and the value it would have had if it had
performed as promised.
(2) Reasonable and necessary expenses incurred in attempting
to mitigate the damages caused by the breach.

This two-pronged measure of damages does not track the measure in the UCC for a

buyer’s remedies in a case involving the sale of goods. See TEX. BUS. & COM. CODE

§§ 2.712, 2.713.

But the time to complain about any deviation was at the charge conference,

and the parties seem contented to live with the measure found in the charge, so a

sufficiency analysis on appeal must live with it as well. Guided by this non-UCC

7
measure, the jury was then asked to quantify the damages. Here is the language from

Question 3:

QUESTION NO. 3:
What sum of money, if any, if paid now in cash, would fairly and
reasonably compensate the Plaintiff for damages, if any, that were
proximately caused by the breach of the oral contract?
Do not add any amount for interest on damages, if any.
Answer in dollars and cents for damages, if any:
ANSWER: $151,595.00

Nothing in the record establishes any damages in keeping with the two-

pronged measure found in the jury charge. The first prong deals with “value of the

oral contract” as agreed and as performed, but no evidence casts any light on the

value of the contract. Literally nobody mentioned the “value of the oral contract,”

whether as agreed or as performed. A few mentions were made about the value of

the shrimp boat, but the jury charge did not ask about that.

This fact pattern resembles the one in Bankcard Processing International,

L.L.C. v. United Business Services, L.P., No. 01-10-01079-CV, 2012 WL 3776024

(Tex. App.—Houston [1st Dist.] Aug. 30, 2012, pet. denied) (mem. op.). There the

damage question submitted a measure built on the “value” of a business: “‘Benefit

of the bargain’ means the difference, if any, between the value of [plaintiff’s]

business after the individuals or entities committed the wrongful acts against

8
[plaintiff], and the value of [plaintiff’s] business if the individuals or entities had not

committed such wrongful acts[.]” Id. at *3.

The plaintiff in Bankcard had evidence of damages, but not the kind of

damages required by the jury charge:

Q. Now, with all these numbers you have been talking about you
came [up] with between 2.6 and $3.2 million in damages, right?
A. For the future profit component, yes.
Q. And you came up with that by valuing a hypothetical joint
venture, right?
A. Yes.
Q. Okay. You did not value and didn’t try to value the Plaintiff in
this case, UBS Limited Partnership, did you?
A. I was not asked to do that.
Q. You weren’t asked to and you didn’t?
A. That is correct.

Id. at *4. We concluded that the “testimony does not support any amount of damages

as measured by the instructions submitted to the jury, which is the standard we use

to evaluate the sufficiency of the evidence.” Id. at *5. “No evidence supports the

damages awarded in this case as measured against the jury instruction.” Id. at *6.

Here the charge used a value measure, so there needed to be proof of value as

called for by the instructions. None exists. The jury’s finding of damages therefore

cannot stand. Id.; see also Kiewit Tex. Mining Co. v. Inglish, 865 S.W.2d 240, 245

9
(Tex. App.—Waco 1993, writ denied) (“The face value of a contract is ordinarily

different than the value of its expected performance[.]”).

The second damage prong in the jury charge deals with expenses incurred in

trying to mitigate the breach, but no evidence casts any light on that, either. The

record contains literally nothing to establish damage under either prong. For these

reasons, the trial court ruled correctly in granting a JNOV on the contract claim.

We overrule Nguyen’s first issue.

II. Fraud Claim

We turn to the fraud claim. Nguyen alleged: “Defendants falsely represented

to Plaintiff that they would form a partnership and evenly share the profits from

shrimping with the Lucky Nikki.” “Defendants had no intention of entering into a

partnership with Plaintiff and knew as much when they made the aforementioned

representation to Plaintiff.”

A common-law fraud claim requires “a material misrepresentation, which was

false, and which was either known to be false when made or was asserted without

knowledge of its truth, which was intended to be acted upon, which was relied upon,

and which caused injury.” Formosa Plastics Corp. USA v. Presidio Eng’rs &

Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998) (quoting Sears, Roebuck & Co. v.

Meadows, 877 S.W.2d 281, 282 (Tex. 1994) (per curiam)). Fraudulent inducement

is a distinct category of common-law fraud that shares the same elements but

10
involves a promise of future performance made with no intention of performing at

the time it was made. Id. at 48.

Thus, the cause of action requires evidence of a material misrepresentation,

made with knowledge of its falsity (or without knowledge of its truth), and made

with intent that the misrepresentation be acted on. “Such a claim requires, among

other things, proof that the defendant knew the representation was false when made

and intended to induce the plaintiff’s detrimental reliance on it.” Roxo Energy Co.,

LLC v. Baxsto, LLC, 713 S.W.3d 404, 412 (Tex. 2025) (per curiam).

As the winner of the verdict, Nguyen has a right to his version of the facts

about the misrepresentation. He agreed that Lisa’s father was the only defendant

who arguably made any representation to him, so the directed verdict was plainly

proper as to fraud liability on the part of Lisa and her mother. Nguyen testified in

these terms about the talk with Lisa’s father:

Q. Okay. And during these three meetings were you able to come to
an agreement with Mr. Seiu Le?
A. Well, yes. That Mr. Seiu Le agreed to have a relationship with
me, a partnership with me.
Q. Okay. Could you describe the terms of the partnership agreement
that you’ve entered with Mr. Seiu Le?
A. The partnership that is, you know, the value of the boat. It was
200,000.

Later on in his direct testimony, Nguyen added to his account with the following:

11
A. . . . You know, one person told me that it’s a partnership and one
person just, you know, she and her daughter just took all the
money.
Q. When you say one person told you it was partnership, being Seiu
Le. Is that right?
A. Yes.

Having reviewed all the evidence, we cannot find probative evidence that would

foreclose the granting of a directed verdict. Nothing in the record shows a material

misrepresentation, made with the requisite knowledge of falsity and intent to induce

reliance. Accordingly, the directed verdict “on this tenuous and vague theory of

liability was proper.” Id.

We overrule Nguyen’s second issue.

Conclusion

We affirm the trial court’s judgment.

David Gunn
Justice

Panel consists of Chief Justice Adams and Justices Gunn and Johnson.

Justice Gunn, concurring.

12