Professional Documents
Culture Documents
______________
_________________________________________________
In The
SUPREME COURT OF THE UNITED STATES
v.
___________________________________________________________
i
QUESTIONS PRESENTED
JURISDICTION ....................................................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ...................................... 2
corporation............................................................ .30
VII. The COAs opinion contains six other errors or
irregularities which further contribute to the
appearance and reality that there was a complete lack
of neutrality in the adjudicative proceedings below.32
CONCLUSION ......................................................... 35
TABLE OF AUTHORITIES
FEDERAL CASES
Malley v. Briggs,
vi
STATE CASES
Ayers v. Canales,
790 S.W.2d 554
(Tex. 1990) ............................................................ 33
Blackthorne v. Bellush,
61 S.W.3d 439
(Tex.App.-San Antonio 2001) ............................... 29
In re Mark A. Jacobs,
300 S.W.3d 35,
(Tex.App.-Houston [14 Dist.] 2009) ..................... 30
Lunsford v. Morris,
746 S.W.2d 471 (Tex.1988) .................................. 29
MacDonald v. Follett,
180 S.W.2d 334 (Tex. 1944) ................................. 28
Metzger v. Sebek,
892 S.W.2d 20
(Tex. App. - Houston [1st Dist.] 1994) ............. 16, 18
Pledger v. Schoellkopf,
762 S.W.2d 145 (Tex. 1988) ................................. 23
Ritchie v. Rupe,
443 S.W.3d 856 (Tex. 2014) ................................. 23
Walker v. Anderson,
232 S.W.3d 899 (Tex.App.-Dallas 2007) .......... 31, 32
CONSTITUTIONAL PROVISIONS
FEDERAL STATUTES
STATE STATUTES
ix
JURISDICTION
2. 28 U.S.C. 1257(a):
3. 28 U.S.C. 2101(c):
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See A-31.
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8
6 This case has been set for trial on the following four
dates: April 30, 2012, October 22, 2012, March 18, 2013, and
March 17, 2014. [CR 356, 519, 527, 883] On the first day of
Chans fourth trial setting and after over four years of
litigation, Judge Evans, sua sponte, canceled trial in
favor of providing Sharpe an opportunity to file (i) a
fourth motion for summary judgment on Chans breach of
fiduciary duty and conspiracy claims, and (ii) a fourth
motion to disqualify Amin as Chans trial counsel. A-26;
A-27. At this same time, Judge Evans then also provided
the Changs an opportunity to file their very first motion
for summary judgment. Id.
16
motions. [CR 1619, 1622] [2SUPP-CR 389] On
August 12, 2014, the court finalized the summary
judgments through a direct severance order. [CR
1699] On September 8, 2014 Chan appealed. [CR
1702]
CONCLUSION
Respectfully submitted,
COA #: 02-14-00286-CV
TC#: 48-243228-10
DATE: 1/8/2016
v.
A-1
FRANCIS WING-SING CHAN
Appellant
v.
----------
From The 48th District Court of Tarrant County Trial
Court No. 048-243228-10
----------
MEMORANDUM OPINION13
I. INTRODUCTION
II. BACKGROUND
A-3
that Sharpe had refused to represent Chan.16 Chan,
however, claims that Sharpe agreed to represent him
at no charge.17
17 Chan points out that his ex-wife was not there during the
entire meeting and that she has been under the care of a board
certified psychiatrist for many years.
A-5
breach of fiduciary duty.21 The elements of a claim for
breach of fiduciary duty are (1) a fiduciary
relationship existed between the plaintiff and the
defendant, (2) the defendant breached its fiduciary
duty, and (3) the breach resulted in injury to the
plaintiff or benefit to the defendant. Heritage Gulf
Props., Ltd. v. Sandalwood Apartments, Inc., 416
S.W.3d 642, 650 (Tex. App.Houston [14th Dist.]
2013, no pet.). Sharpe and his law offices challenged
the third element on no-evidence groundsthat Chan
suffered no injury and that Sharpe and the law offices
received no benefit because of any alleged breach of
fiduciary duty by Sharpe and his law offices.22
A-7
Regarding a benefit to Sharpe and his law
offices, Chan argues that Sharpe benefitted from this
conduct because he gained association with a more
prominent, for-profit corporate client and its
controlling officers. There is no evidence of any such
benefit. Chans own summary-judgment evidence
indicates that Sharpe had an ongoing friendship with
the Changs because he had been a patron of their
restaurant for years. Consistent with that
relationship, the evidence is undisputed that neither
the Changs nor WFFI ever paid Sharpe for any legal
services rendered. The same can be said for Sharpes
purported agreement to represent Chan at no
charge. The trial court did not err by granting
Sharpe and his law offices summary judgment on
Chans claim for breach of fiduciary duty. We overrule
Chans issue II-B.
B. Civil Conspiracy
A-8
court properly granted summary judgment thereon.
See Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 438
(Tex. 1997). We overrule Chans issue II-C.
A-9
response but supports his argument with no analysis
or citation to any authority. Therefore, this argument
is waived as inadequately briefed. See Tex. R. App. P.
38.1(i); Fredonia State Bank v. Gen. Am. Life Ins. Co.,
881 S.W.2d 279, 284 (Tex. 1994).
A-10
controverted. In the context of rule of civil procedure
166a(c), could have been readily controverted means
the testimony at issue is of a nature that can be
effectively controverted by opposing evidence. Fort
Worth Star-Telegram v. Street, 61 S.W.3d 704, 710
(Tex. App.Fort Worth 2001, pet. denied). The trial
court did not abuse its discretion by denying Chans
objection on this ground because the testimony
contained in both affidavits is readily controvertible.23
Finally, Chan argues that the trial court erred in
finding that the WFFI admissions relied upon by
[him] do not constitute admissions of fact because
they [allegedly] are conclusions, opinion, or
statements of subjective intent.12 The trial court did
not abuse its discretion because it reasonably could
have concluded that it was improper to impute the
admissions of one party (a defaulting corporate
defendant) upon another (nondefaulting individual
defendants). See H.E. Butt Grocery Co. v. Sheppard,
137 S.W.2d 823, 824 (Tex. Civ. App.Austin 1940,
writ refd) (The general characteristics of a
corporation as a distinct entity separate and apart
from its stockholders, regardless of how and by whom
its stock is held, are well settled and uniformly
recognized.). We overrule Chans issue II-E.
23 For example, Karen testified that she was the individual who
repeatedly requested Chan to return to the restaurant after he
left on his own volition and he repeatedly refused to return.
A-11
In issue II-A, Chan argues that the trial court
erred by granting summary judgment in favor of
Sharpe and his law offices on any unpleaded claims
or defenses because [Chan] objected to the trying of
the same through summary judgment. The trial
court did not grant summary judgment on any
unpleaded claims or defenses. Chan alleged claims for
breach of fiduciary duty and civil conspiracy, Sharpe
and the law offices moved for summary judgment on
12At some point, one of the three trial courts that handled this
case granted a motion that Chan filed after WFFI had defaulted
to deem certain allegations against WFFI true.
those claims, and the trial court properly granted
summary judgment on those claims. We overrule
Chans issue II-A.
E. Requested Relief
A-12
F. Limitations
A-15
38.1(i); Fredonia State Bank, 881 S.W.2d at 284. We
overrule Chans issue IX-B.
E. Requested Relief
A-17
to the law offices bank statements. None of the
information that Chan sought has any relevance to
the grounds upon which the trial court properly
granted summary judgment in favor of Appellees. In
other words, even if the trial court had abused its
discretion by denying the motions and granting the
protective order, the errors were harmless. See Tex.
R. App. P. 44.1(a). We overrule Chans issues III, VI,
VII, VIII, XII, and XIII.
A-19
In issue XIV, Chan argues that the trial court
erred by severing his claims against WFFI from the
remainder of the suit. By severing Chans claims
against WFFI, the trial courts otherwise
interlocutory orders granting summary judgment in
favor of Appellees became final and, therefore,
appealable. This procedure is frequently utilized by
trial courts to manage dockets in multi-party
litigation. The trial court did not abuse its discretion
by severing Chans claims against WFFI, and we
overrule his issue XIV.
IX. DISQUALIFICATION
A-21
had personally authored. Sharpe argued that by doing
so, Amin had injected himself as a material witness in
the case. See Tex. Disciplinary Rules Profl Conduct
R. 3.08(a), reprinted in Tex. Govt Code Ann., tit. 2,
subtit. G, app. A (West 2013) (Tex. State Bar R. art.
X, 9). However, Sharpe and his law offices expressly
predicated the motion to disqualify Amin on the
occurrence of a jury trial.16 But a jury trial never
occurred, and in light of our decision to affirm the trial
courts judgment in its entirety, this cause will not be
remanded to the trial court for further proceedings.
Therefore, if the trial court erred by granting the
motion to disqualify Amin, any error was harmless.
See Tex. R. App. P. 44.1(a). We overrule Chans issue
I.
X. CONCLUSION
A-23
COURT OF APPEALS
SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00286-CV
v.
Per Curiam
JUDGMENT
A-24
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
v.
A-25
IT IS, THEREFORE, ORDERED that Plaintiffs
claims against Defendant Wan Fu Foods, Inc. are
severed from this cause and shall appear on the
docket of this court as Cause Number 48-273672-14,
styled Francis Wing-Sing Chan v. Wan Fu Foods, Inc.
IT IS FURTHER ORDERED that the clerk of this
Court shall make a new file for the severed suit,
including the following court papers from this suit:
A-26
(7) Defendants Joint Motion to Sever (June 26,
2014);
v.
A-28
ORDER RE: DEFENDANTS J. SHELBY
SHARPE AND THE LAW.OFFICES OF J.
SHELBY SIIARPE'S FOURTH MOTION TO
DISQUALIFY PLAINTIFFS COUNSEL
A-29
COURT OF APPEALS
SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00286-CV
v.
ORDER ------------
PER CURIAM
EN BANC
A-30
COURT OF APPEALS
SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00286-CV
v.
ORDER ------------
A-31
BUSINESS AND COMMERCE CODE
TITLE 3. INSOLVENCY, FRAUDULENT
TRANSFERS, AND FRAUD
CHAPTER 24. UNIFORM FRAUDULENT
TRANSFER ACT
A-32
(B) a corporation 20 percent or more of whose
outstanding voting securities are directly or indirectly
owned, controlled, or held with power to vote, by the
debtor or a person who directly or indirectly owns,
controls, or holds, with power to vote, 20 percent or
more of the outstanding voting securities of the
debtor, other than a person who holds the securities:
A-33
(C) an interest in property held in tenancy by the
entireties to the extent it is not subject to process by
a creditor holding a claim against only one tenant,
under the law of another jurisdiction.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 562 (H.B. 2428), Sec.
1, eff. September 1, 2015.
A-37
(e) Debts under this section do not include an
obligation to the extent it is secured by a valid lien
on property of the debtor not included as an asset.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 9 (S.B. 847), Sec. 11,
eff. September 1, 2013.
A-39
(2) without receiving a reasonably equivalent
value in exchange for the transfer or
obligation, and the debtor:
A-40
(5) the transfer was of substantially all the debtor's
assets;
A-41
(a) A transfer made or obligation incurred by a
debtor is fraudulent as to a creditor whose claim arose
before the transfer was made or the obligation was
incurred if the debtor made the transfer or incurred
the obligation without receiving a reasonably
equivalent value in exchange for the transfer or
obligation and the debtor was insolvent at that time
or the debtor became insolvent as a result of the
transfer or obligation.
A-43
(A) if oral, when it becomes effective
between the parties; or
A-44
(A) an injunction against further disposition
by the debtor or a transferee, or both, of the
asset transferred or of other property;
A-46
rights of a voiding creditor under this
chapter; and (E) preservation of the asset.
A-47
(2) enforcement of a security interest in
compliance with Chapter 9 of this code.
A-48
(1) under Section 24.005(a)(1) of this code,
within four years after the transfer was
made or the obligation was incurred or, if
later, within one year after the transfer or
obligation was or could reasonably have
been discovered by the claimant;
A-49
(c) If a creditor entitled to bring an action under
this chapter is under a legal disability when a time
period prescribed by this section starts, the time of
the disability is not included in the period. A
disability that arises after the period starts does not
suspend the running of the period. A creditor may not
tack one legal disability to another to extend the
period. For the purposes of this subsection, a creditor
is under a legal disability if the creditor is:
A-50
Sec. 24.012. UNIFORMITY OF APPLICATION AND
CONSTRUCTION.
A-51
Texas Statutes Business Organizations Code
Title 2. Corporations Chapter 21. For-Profit
Corporations
A-52
(3) any obligation of the corporation on the basis of
the failure of the corporation to observe any corporate
formality, including the failure to:
(A) comply with this code or the certificate of
formation or bylaws of the corporation;
or
A-53
liability imposed for that obligation under common
law or otherwise.
v.
A-55
PETITION FOR REVIEW27
******
IDENTITY OF PARTIES & COUNSEL
Plaintiff,
Appellant,
Petitioner: Mr. Francis W. S. Chan
Represented by:
Mayur Amin
TX Bar No. 00790227
The Amin Law Firm
2131 N. Collins- Suite 433-610
Arlington, Texas 76011
Ph. 817-253-6711
Fax 1-888-580-6175
Email: amin@theaminlawfirm.com
Trial and Appellate Counsel
Defendants,
Appellees,
Respondents: Mr. James Shelby Sharpe &
The Law Office of J. Shelby
Sharpe, A Professional
Corporation
27Only selected portions of the petition for review that was filed
with the Supreme Court of Texas are included here as per
Supreme Court Rule 14.1(g)(i)
A-56
Represented by:
John W. Proctor
TX Bar No. 16347300
Brown Dean Wiseman Proctor Hart & Howell
306 W. 7th Street, Suite 200
Fort Worth, Texas 76102
Ph. 817-332-1391
Fax 817-870-2427
Email: jproctor@browndean.com
Trial and Appellate Counsel
Defendants,
Appellees,
Respondents: Mr. Henry Chang &
Mrs. Karen Chang
Represented by:
A-57
******
ISSUES PRESENTED
******
******
A-60
The Supreme Court of Texas
AUSTIN
CLERK'S OFFICE
No. 011916AA
A-61