The opinion
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