DocketNumber： 14-16-00962-CV
Filed Date： 5/14/2018
Status： Precedential
Modified Date： 5/21/2018
ACCEPTED 14-16-00962-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 5/14/2018 1:36 PM CHRISTOPHER PRINE CLERK FILED IN 14th COURT OF APPEALS C HAD F LORES HOUSTON, DIRECT (713)TEXAS 951-6268 BOARD CERTIFIED ♦ CIVIL APPELLATE LAW cflores@beckredden.com 5/14/2018 1:36:59 PM TEXAS BOARD OF LEGAL SPECIALIZATION CHRISTOPHER A. PRINE May 14, 2018 Clerk Re: No. 14-16-00962-CV; Jang Won Cho v. Kun Sik Kim, et al.; In the Fourteenth Court of Appeals of Texas at Houston Christopher A. Prine, Clerk Fourteenth Court of Appeals 301 Fannin Street Houston, TX 77002 Dear Mr. Prine: Please distribute this letter to Justices Boyce, Donovan, and Wise. It addresses two issues regarding the Court’s consideration of this appeal. First, the Court should be advised of the sad news that, after this appeal was fully briefed and argued, Appellee Mr. Kun Sik Kim died. Texas Rule of Appellate Procedure 7.1 provides that, in this situation, the Court should proceed to decide the case “as if all parties were alive”: (1) Civil Cases. If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive. The appellate court's judgment will have the same force and effect as if rendered when all parties were living. The decedent party's name may be used on all papers. Tex. R. App. P. 7.1(a)(1). Mootness is not an issue because of the property rights being adjudicated, and since Mr. Kim’s legal successor is represented by counsel for the Appellees, Mr. Kristopher Ahn, any transitional matters in need of attention can be addressed by both sides in the trial court after the appeal’s conclusion. Mr. Christopher A. Prine, Clerk Page 2 Second, the Court should reject the “standing” argument Mr. Cho’s letter brief presents at great length. In this respect, Appellees maintain their position about standing versus capacity—that Mr. Cho’s argument concerns “capacity” and not “standing” because of authorities such as Vertical North America, Inc. v. Vopak Terminal Deer Park, Inc., No. 14-15-01088-CV,2017 WL 4197027
(Tex. App.— Houston [14th Dist.] Sept. 21, 2017, no pet. h.) (mem. op.), and Pledger v. Schoellkopf,762 S.W.2d 145
(Tex. 1988). See Br. of Appellees at 43 (“the kind of capacity problem Mr. Cho suggests . . . would have to have been pressed in a verified denial, which it was not”). In addition to that ground for decision, there is a simpler way to deal with this argument. Mr. Cho’s letter correctly concedes the rule that standing exists if a plaintiff is “personally aggrieved” because a “wrongdoer violates a duty . . . owing directly by him to the [plaintiff] stockholder.” Appellant’s March 16, 2018 Letter at 4. That is this case. Because Mr. Cho’s primary wrongdoing breached fiduciary duties that he owed the Plaintiffs directly—not just by virtue of corporate structure—the invoked “standing” limitation does not apply. See Br. of Appellees at 43 (“Mr. Cho’s wrongdoing injured the Plaintiffs directly.” (citing Saden v. Smith,415 S.W.3d 450
, 463 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (“A shareholder may nevertheless recover damages ‘for wrongs done to him individually’ when he pleads and proves that the defendant has violated a duty that he owed the shareholder, which arises from contract or otherwise.”))). By rejecting the tardy “standing” argument on this groun, the Court can avoid an unnecessary foray into the standing-versus-capacity debate. Sincerely, Chad Flores Mr. Christopher A. Prine, Clerk Page 3 Certificate of Service I hereby certify that on May 14, 2018, a true and correct copy of the above and foregoing letter was forwarded to all counsel of record, by the Electronic Filing Service Provider as follows: Alfred R. Valdez James C. Marrow State Bar No. 20426200 State Bar No. 24013103 arbudvaldez@gmail.com jmarrow@hoganfirm.com The Law Office of Alfred R. Valdez Richard P. Hogan, Jr. 7520 Hillcroft Street State Bar No. 09802010 Houston, TX 77081 rhogan@hoganfirm.com Jennifer Bruch Hogan Andrew H. Whang State Bar No. 03239100 andrewwhang02@yahoo.com jhogan@hoganfirm.com Andrew Whang & Associates, LLC Hogan & Hogan 9999 Bellaire Blvd., Suite 360 711 Louisiana, Suite 500 Houston, TX 77036 Houston, TX 77002 Chad Flores