Far East Bank v. Dang ( 1999 )

Present: All the Justices
FAR EAST BANK/VIEN DONG
NGAN HANG, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 981335 April 16, 1999
VINH Q. DANG, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
In this appeal, Far East Bank and its purported
shareholders seek to recover a portion of a fund deposited
with the general receiver of the circuit court. The
dispositive issue we consider is whether the appellants have
established that they are shareholders of the Bank, which was
allegedly expropriated by the government of Vietnam.
The procedural history of this case is complex and
involves many facts which are not pertinent to our resolution
of this appeal. We will discuss only those facts which are
essential to the precise issues presented here.
Vinh Q. Dang and Dien Van Phan, shareholders in Donai
Construction and Industrial Company, t/a Docico Corporation
(DOCICO), filed an amended bill of complaint requesting that
the circuit court determine their interests in a fund in the
sum of $1,002,892.03 held by the Crestar Financial
Corporation. The circuit court entered an order of
publication to provide notice to all persons who may have
interests in the fund. Appellants, Far East Bank and its
alleged shareholders, Hong Thi Nguyen, Vuong Trieu Ly, Tuyen
Thi Vuong, Minh K. Nguyen, Toan Cao Phan, and Nguyen Khac
Quyen, filed a notice of claim asserting that Far East Bank
had made a loan to DOCICO in the amount of $1,301,707, and
that these purported shareholders were entitled to repayment
of the loan from the funds held by Crestar Financial
Corporation on behalf of DOCICO.
The appellees, who are creditors or shareholders of
DOCICO, filed pleadings and asserted various interests in the
fund. * The chancellor ordered that Crestar Financial
Corporation deposit the fund with the court's general
receiver, and the chancellor referred the matter to a
commissioner in chancery who heard the following evidence.
In 1973, DOCICO, which was organized in Saigon, Vietnam,
executed a construction contract with the United States Agency
for International Development. Pursuant to the terms of that
contract, DOCICO performed highway construction work in
Vietnam. In 1975, the Agency for International Development
suspended work on DOCICO's construction project because of
*
The appellees are: Vinh Q. Dang, Dien Van Phan, Nguyen
Ngoc Dung, Nguyen Ngoc Lan, The Estate of Nguyen Van Chung, Ha
Van Sanh, Nguyen Dang But, Ha Ngoc Long, Ha Ngoc Min, Chuong
Quoc Lai, The Estate of Man Lai, Nguyen Van The, Tran Van
Cuong, Lai Nam Huong, The Estate of Phu Than Vo, Thai Bin
Huynh, Thomas R. Averna, Construction and Industrial
Development Corporation, Ltd., My Nguyen, and Julien
Graystone.
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events occurring in the Vietnam War. At the time of the
suspension of work, the Agency for International Development
owed DOCICO money for work performed. DOCICO, in turn, owed
money to its subcontractors.
In 1980, DOCICO's shareholders voted to pursue a claim on
behalf of DOCICO against the United States government for
payment for work performed. In 1987, appellant, Nguyen Khac
Quyen, who is also a shareholder of DOCICO, filed an
application for a license with the United States Treasury
Department, Office of Foreign Assets Control, and sought
permission to recover on behalf of DOCICO the sums that the
United States owed DOCICO. Quyen stated under oath that he
had personal knowledge of all facts contained in the
application and that no one other than those persons
identified in the application had any interest in the fund
that DOCICO sought to recover from the United States. Quyen
specifically did not identify any claim on behalf of Far East
Bank, a corporation of which he claimed to have been an
officer and director since the early 1970s. Additionally,
Quyen did not list Far East Bank on the application even
though he testified later that he personally approved the loan
that Far East Bank purportedly made to DOCICO.
Quyen testified that when he was president or chairman of
Far East Bank in 1974, representatives of DOCICO requested a
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loan so that it could perform the construction contract with
the Agency for International Development. Far East Bank
approved the loan, and the Bank executed promissory notes with
DOCICO. Quyen believed that the original promissory notes are
in Saigon in the possession of Far East Bank, which he assumed
had been "nationalized or . . . expropriated . . . by the
government of Vietnam."
Quyen also testified that he was president or chairman of
Far East Bank and that he owned about 30% of the stock in that
Bank. He was not asked, and he did not testify, about any
other information relevant to the Bank's issuance of stock.
Ha Van Sanh, a shareholder in DOCICO, testified that he
met with Quyen on behalf of DOCICO in 1974 and requested a
loan. Sanh stated that he, along with other DOCICO
shareholders, paid the loan, or a portion of it, in return for
permission from the government of Vietnam to leave that
country. In 1992, the United States government settled
DOCICO's claim by paying the sum of $1,002,892.03 in an
account with the Crestar Financial Corporation in Virginia.
At the conclusion of a two-day hearing, the commissioner
ruled, among other things, that the purported shareholders of
Far East Bank failed to present any evidence that they "ever
held any stock ownership in Far East Bank which was located in
Saigon, Vietnam." The chancellor overruled the purported
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shareholders' objections to the commissioner's report and,
subsequently, the chancellor entered a decree which determined
the litigants' interests in the fund.
On appeal, Far East Bank and its purported shareholders
argue, among other things, that the chancellor erred by
approving the commissioner's report because they claim that
they established that they are shareholders in Vietnamese Far
East Bank. Responding, the DOCICO shareholders and creditors
assert that Far East Bank's purported shareholders failed to
establish that they own any interests in that Bank.
We will apply our well-established standard of review in
resolving this appeal. A decree which approves the
commissioner's report will be affirmed unless plainly wrong or
without evidence to support it. Chesapeake Builders, Inc. v.
Lee, 254 Va. 294, 299, 492 S.E.2d 141, 144 (1997); Firebaugh
v. Hanback, 247 Va. 519, 525, 443 S.E.2d 134, 137 (1994); Hill
v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97 (1984).
Even though the report of a commissioner in chancery does not
carry the weight of a jury verdict, Code § 8.01-610, the
report should be sustained by the chancellor if the
commissioner's findings are supported by the evidence. This
rule applies with particular force to factual findings in the
report which are based upon evidence heard by the
commissioner, but does not apply to pure conclusions of law
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contained in the report. Chesapeake Builders, Inc., 254 Va.
at 299, 492 S.E.2d at 144; Morris v. United Virginia Bank, 237
Va. 331, 337-38, 377 S.E.2d 611, 614 (1989); Hill, 227 Va. at
576-77, 318 S.E.2d at 296-97.
Applying these principles, we hold that the record
supports the chancellor's decree sustaining the commissioner's
ruling that the purported shareholders failed to prove that
they owned any stock interest in Far East Bank located in
Saigon, Vietnam. The record is simply devoid of any evidence
that Vuong Ly, Hong Nguyen, Tuyen Vuong, Minh Nguyen, or Toan
Phan owned any stock in the Bank. No witness testified that
these claimants were shareholders of the Vietnamese bank.
It is true that Quyen testified that he owned 30% of the
stock of Far East Bank in Vietnam in 1974. However, the
commissioner, who saw, heard, and evaluated Quyen's testimony,
apparently did not believe him. And, the commissioner was not
required to accept Quyen's testimony because Quyen's testimony
about material factual issues was contradicted by other
witnesses and a sworn statement that he had signed. See
Zirkle v. Commonwealth, 189 Va. 862, 870, 55 S.E.2d 24, 29
(1949); Limbaugh v. Commonwealth, 149 Va. 383, 398, 140 S.E.
133, 137 (1927). Thus, we cannot conclude, based upon the
record before us, that the commissioner erred by rejecting
Quyen's testimony.
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We also observe that appellant Minh Nguyen testified that
a bank located in California is also known as the Far East
Bank. Nguyen stated that this particular bank is "recognized
by the government in California and is now a corporation or a
company of the California State." Nguyen testified that he
owned 283 shares in a bank, but the commissioner, who observed
Nguyen and heard his testimony, found that Nguyen did not own
stock in the Vietnamese Far East Bank, but that he owned stock
in the California bank.
The undisputed evidence of record reveals that the
purported shareholders planned to convene a meeting and decide
what to do with any proceeds they may have acquired as a
result of this litigation. Quyen testified that he did not
even know whether the appellant Far East Bank "still exists."
Even though Far East Bank is a party in this appeal, the
record is devoid of any evidence that either the Bank's board
of directors or its officers authorized anyone to assert a
claim in this proceeding. See Code §§ 13.1-673, -693, and -
694. Thus, the chancellor did not err in rejecting the Bank's
claim.
In view of our disposition of this appeal, we need not
consider the litigants' remaining arguments. Accordingly, we
will affirm the chancellor's decree, and we will remand this
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proceeding so that the chancellor may supervise the
distribution of the fund held by the general receiver.
Affirmed and remanded.
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