On July 19, 2010 a
Motion,Ex Parte
was filed
involving a dispute between
Chong Sook Na,
Coco C-Store, Inc,
Kscj Investments, Inc.,
Na, Ki Pong,
and
Ahn, Young Ho,
Hans S. Yoo, P.C.,
Sung, In Suk,
United Central Bank,
Yoo, Dong Sik,
Yoo, Hans S.,
for COMMERCIAL DISPUTE
in the District Court of Dallas County.
Preview
|
Filed
12 March 27 P7:06
Gary Fitzsimmons
District Clerk
Dallas District
CAUSE NO. DC-10-08730
KI PONG NA ET AL. 8 IN THE DISTRICT COURT
Plaintiffs, §
Vv. § 192%” JUDICIAL DISTRICT
§
UNITED CENTRAL BANK ET AL. §
Defendants. § DALLAS COUNTY, TEXAS
JIMMY AN’S_ MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT
Defendant Jimmy An asks the court to grant a partial summary judgment against
Plaintiffs on all of Plaintiffs causes of action.
A Introduction
1 Plaintiffs are Ki Pong Na (hereinafter referred to as “NA”), Chong Sook Na (hereinafter
referred to as “CHONG”), Coco C-Store, Inc. (hereinafter referred to as “COCO”), and KSCJ
Investment, Inc. (hereinafter referred to as “KSCJ”). Defendant is Jimmy An (hereinafter referred
to as “AN”) wrongfully named as Young Ho Ahn in Plaintiffs last live pleadings.
2 Plaintiffs sued Defendants Breach of Fiduciary Duty, Fraud, Negligent
Misrepresentation, Negligence, Breach of Contract and Conspiracy. Plaintiffs sued AN for Fraud,
Negligent Misrepresentation, Negligence, Breach of Contract and Conspiracy in regards to unpaid
taxes on Super Buy Lo.
3 AN filed an answer which included a general denial and affirmative defenses including
that of failure of consideration and Statute of Limitations.
4. Discovery in this suit is governed by a Level 3 discovery control plan. The
discovery period for this case will end on the earlier date of either thirty days before the first trial
setting of this cause or November 3, 2010 which is nine months after the due date of the first
request for written discovery. However, adequate time for discovery for purposes of this motion
have elapsed as, both Plaintiff and Defendant have obtained responses to requests for written
discovery.
B. Facts
5 AN moves for no-evidence summary judgment based on Plaintiffs lack of
evidence to support their causes of action for Fraud, Negligent Misrepresentation, Negligence,
Breach of Contract and Conspiracy regarding unpaid taxes on Super Buy Lo and the sale of Super
Buy Lo to Plaintiffs from Defendant In Suk Sung.
6 There is no evidence that AN made any misrepresentation or concealed facts from any
Plaintiffs, and no evidence that any Plaintiffs relied on any representation or failure to disclose
any facts by AN. There is no evidence that AN made any representations or omitted to make any
representations negligently or otherwise to any Plaintiffs. There is no evidence that AN owed any
duty to of care to any Plaintiffs and no evidence of any breach of any such duties by AN. There is
no evidence that AN entered into any agreements with any Plaintiffs, no evidence of any
consideration being given or received by AN with any Plaintiffs, and no evidence of any breach of
any agreement with any Plaintiffs.
7
There is also no evidence that any act or omission of AN caused any damages to
Plaintiffs. There is no evidence of any meeting of the minds between AN and any of the
Defendants and no evidence that AN knowingly acted together with any of the Defendants for the
accomplishment of any common, unlawful objective.
Cc Argument & Authoritie:
8 A court may grant a no-evidence motion for summary judgment if the movant can
show that adequate time for discovery has passed and the nonmovants have no evidence to support
one or more essential elements of Plaintiffs claims. Tex. R. Civ. P. 166a(i).
9. Adequate time for discovery has passed. Plaintiffs and Defendants have obtained
responses to requests for written discovery; this cause of action was filed in 2010 and multiple
continuances have been obtained and discovery extension given in this case.
10. Plaintiffs’ cause of action for fraud: requires proof of the following elements: (1)
Defendant made a representation to Plaintiff; (2) the representation was material; (3) the
representation was false; (4) Defendant knew the representation was false; (5) the representation
was made with the intent that Plaintiffs act upon it; (6) Plaintiffs relied on the representation; and
the representation caused Plaintiffs injury.
11. Plaintiffs have no evidence to show that AN made any representations to any Plaintiffs
regarding any unpaid taxes or investigation of unpaid taxes onany business; no evidence that that
AN knew of any representations made regarding any unpaid taxes or investigation regarding any
unpaid taxes or the falsity of such representations; no evidence that Plaintiffs relied on any
representation made by AN in regards to the transaction made the basis of this lawsuit; and no
evidence that it suffered any damages as a result of any representation made by AN.
12. Plaintiffs’ cause of action for fraud by nondisclosure requires proof of the following
elements: (1) Defendant failed to disclose to Plaintiff certain facts; (2) the Defendant had a duty to
disclose the facts to Plaintiff; (3) the facts were material; (4) Defendant knew that Plaintiffs were
ignorant of the facts and did not have equal opportunity to discover the facts; (5) the Defendant
was deliberately silent when it had a duty to speak; (6) by the nondisclosure, Defendant intended
induce Plaintiffs to take some action; (7) Plaintiffs relied on the nondisclosure; (8) and Plaintiffs
suffered injury as a result.
13. Plaintiffs have no evidence to show that AN had a duty to disclose any facts regarding
Super Buy Lo to Plaintiffs; no evidence that Defendant knew that Plaintiffs were ignorant of any
unpaid taxes or investigation regarding any unpaid taxes on Super Buy Lo and that Plaintiffs did
not have equal opportunity to discover the facts; hat AN deliberately remained silent when AN had.
a duty to speak; and no evidence no evidence and no evidence that it suffered any injury as a result
of AN’s alleged actions
14. Plaintiffs’ cause of action for negligent misrepresentation requires proof of the following
elements: (1) Defendant made a representation to Plaintiffs in the course of Defendant’s business
r in a transaction in which the Defendant had an interest; (2) Defendant provided false
information for the guidance of others; (3) Defendant did not exercise reasonable care in providing
the information; (4) Plaintiffs justifiably relied on the representation; and (5) Plaintiffs suffered
injury as a result of the negligent misrepresentation.
15. Plaintiffs have no evidence to show that AN made any representation to Plaintiffs
regarding Super Buy Lo; no evidence that any such representation was made by AN to Plaintiffs in
the course of Defendant’s business or in a transaction in which AN had an interest; no evidence
that Defendant provided false information for the guidance of others; no evidence that Defendant
justifiably relied on any representation by AN; and no evidence no evidence and no evidence that it
suffered any injury as a result of AN’s alleged actions.
16. Plaintiffs’ cause of action for negligence requires proof of the following elements: (1)
Defendant owed a legal duty to Plaintiffs; (2) Defendant breached that duty; and (3) Defendant’s
breach proximately caused Plaintiffs injury.
17. Plaintiffs have no evidence to show that AN owed any duty to Plaintiffs regarding Super
Buy Lo; no evidence that An breached any such duties to Plaintiffs; and no evidence no evidence
and no evidence that it suffered any injury proximately caused by AN’s breach.
18. Plaintiffs cause of action for breach of contract requires proof of the following elements:
(1) the existence of a valid contract; (2) that the plaintiff performed or tendered performance; (3)
that the defendant breached the contract; and (4) that the plaintiff was damaged as a result of the
breach. See Hussong v. Schwan’s Sales Enters, 896 S.W.2d 320, 326 (Tex. App——Houston 1* Dist.
1995, no writ).
19. Plaintiffs have no evidence to show that a valid contract existed between Plaintiffs and
AN in regards to Super Buy Lo or in regards to the payment of any unpaid taxes of Super Buy Lo.
There is no evidence that AN entered into any agreement in regards to or in exchange for any
consideration concerning any unpaid taxes or the transaction involving Super Buy Lo. Plaintiffs
have no evidence that Plaintiffs performed any consideration; and no evidence that AN breached
any such contract.
20. In order to prove civil conspiracy, plaintiffs are required to prove the following elements:
(1) the defendant was a member of a combination of two or more persons; (2) the object of the
combination was to accomplish an unlawful purpose or a lawful purpose by unlawful means; (3)
the members had a meeting of the minds; (4) one of the members committed an unlawful act to
further the object or course of action; and (5) plaintiff suffered injury as a proximate result of the
wrongful act.
21. Plaintiffs have no evidence to show that AN and any of the Defendants had a meeting of
the minds regarding Super Buy Lo or the unpaid taxes on Super Buy Lo; no evidence that AN and
any of the Defendants were in combination whose object was to accomplish an unlawful purpose
or lawful purpose by an unlawful means; no evidence that either Adams or BOA committed an
unlawful act to further the object of their combination; and no evidence that it suffered any injury
as a result proximate result of any wrongful act.
D. Praye
22. For these reasons, AN asks the court to grant this motion and sign an order for
Final Summary Judgment on all of Plaintiffs’ cause of action against Defendant Jimmy An.
Respectfully Submitted,
eu fiyul £7
SBN: 24033489
Law Office of Nathan Yi
3010 LBJ Freeway, Suite 1237
Dallas, TX 75234
Tel: 972-888-6070
Fax: 972-888-6071
Attorney for Jimmy An
CERTIFICATE OF SERVICE
I certify that a copy of the forgoing was served on all parties or counsel-of-record in
accordance with the Texas Rules of Civil Procedure on March 28,2012.
Eun-Hyuk Yi
CAUSE NO. DC-10-08730
KI PONG NA ET AL. § IN THE DISTRICT COURT
Plaintiffs, §
Vv. § 192%? JUDICIAL DISTRICT
§
UNITED CENTRAL BANK ET AL
Defendants. § DALLAS COUNTY, TEXAS
FIAT SETTING HEARING
The above and foregoing Defendant’s No-Evidence Motion for Summary
Judgment having been presented and duly considered, the Court is of the opinion that a
hearing on same is necessary.
IT IS THEREFORE ORDERED that said Motion is set for hearing on
on , 2012 at am/pm, in the 192™ District Court of Dallas
County, Texas.
SIGNED on » 2012.
JUDGE PRESIDING
Defendant Jimmy An’s Motion for
No-Evidence Summary Judgment Page 7 of8
CAUSE NO. DC-10-08730
KI PONG NA ET AL. § IN THE DISTRICT COURT
Plaintiffs, §
Vv § 1928? JUDICIAL DISTRICT
UNITED CENTRAL BANK ET AL. §
Defendants. § DALLAS COUNTY, TEXAS
ORDER
After considering Defendant Jimmy An’s No-Evidence Motion for Summary
Judgment, the response, and the arguments of counsel, the court grants the no-evidence
motion for summary judgment.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendant
Jimmy An’s No-Evidence Motion for Summary Judgment is hereby granted and Plaintiffs
are to take nothing by way of their claims against Defendant Jimmay An. All other relief
sought by way of this action that is not specifically provided by this judgment is hereby
denied.
SIGNED on
PRESIDING JUDGE
Defendant Jimmy An’s Motion for
No-Evidence Summary Judgment Page 8 of8
Preview
| Filed 12 March 27 P7:06 Gary Fitzsimmons District Clerk Dallas District CAUSE NO. DC-10-08730 KI PONG NA ET AL. 8 IN THE DISTRICT COURT Plaintiffs, § Vv. § 192%” JUDICIAL DISTRICT § UNITED CENTRAL BANK ET AL. § Defendants. § DALLAS COUNTY, TEXAS JIMMY AN’S_ MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT Defendant Jimmy An asks the court to grant a partial summary judgment against Plaintiffs on all of Plaintiffs causes of action. A Introduction 1 Plaintiffs are Ki Pong Na (hereinafter referred to as “NA”), Chong Sook Na (hereinafter referred to as “CHONG”), Coco C-Store, Inc. (hereinafter referred to as “COCO”), and KSCJ Investment, Inc. (hereinafter referred to as “KSCJ”). Defendant is Jimmy An (hereinafter referred to as “AN”) wrongfully named as Young Ho Ahn in Plaintiffs last live pleadings. 2 Plaintiffs sued Defendants Breach of Fiduciary Duty, Fraud, Negligent Misrepresentation, Negligence, Breach of Contract and Conspiracy. Plaintiffs sued AN for Fraud, Negligent Misrepresentation, Negligence, Breach of Contract and Conspiracy in regards to unpaid taxes on Super Buy Lo. 3 AN filed an answer which included a general denial and affirmative defenses including that of failure of consideration and Statute of Limitations. 4. Discovery in this suit is governed by a Level 3 discovery control plan. The discovery period for this case will end on the earlier date of either thirty days before the first trial setting of this cause or November 3, 2010 which is nine months after the due date of the first request for written discovery. However, adequate time for discovery for purposes of this motion have elapsed as, both Plaintiff and Defendant have obtained responses to requests for written discovery. B. Facts 5 AN moves for no-evidence summary judgment based on Plaintiffs lack of evidence to support their causes of action for Fraud, Negligent Misrepresentation, Negligence, Breach of Contract and Conspiracy regarding unpaid taxes on Super Buy Lo and the sale of Super Buy Lo to Plaintiffs from Defendant In Suk Sung. 6 There is no evidence that AN made any misrepresentation or concealed facts from any Plaintiffs, and no evidence that any Plaintiffs relied on any representation or failure to disclose any facts by AN. There is no evidence that AN made any representations or omitted to make any representations negligently or otherwise to any Plaintiffs. There is no evidence that AN owed any duty to of care to any Plaintiffs and no evidence of any breach of any such duties by AN. There is no evidence that AN entered into any agreements with any Plaintiffs, no evidence of any consideration being given or received by AN with any Plaintiffs, and no evidence of any breach of any agreement with any Plaintiffs. 7 There is also no evidence that any act or omission of AN caused any damages to Plaintiffs. There is no evidence of any meeting of the minds between AN and any of the Defendants and no evidence that AN knowingly acted together with any of the Defendants for the accomplishment of any common, unlawful objective. Cc Argument & Authoritie: 8 A court may grant a no-evidence motion for summary judgment if the movant can show that adequate time for discovery has passed and the nonmovants have no evidence to support one or more essential elements of Plaintiffs claims. Tex. R. Civ. P. 166a(i). 9. Adequate time for discovery has passed. Plaintiffs and Defendants have obtained responses to requests for written discovery; this cause of action was filed in 2010 and multiple continuances have been obtained and discovery extension given in this case. 10. Plaintiffs’ cause of action for fraud: requires proof of the following elements: (1) Defendant made a representation to Plaintiff; (2) the representation was material; (3) the representation was false; (4) Defendant knew the representation was false; (5) the representation was made with the intent that Plaintiffs act upon it; (6) Plaintiffs relied on the representation; and the representation caused Plaintiffs injury. 11. Plaintiffs have no evidence to show that AN made any representations to any Plaintiffs regarding any unpaid taxes or investigation of unpaid taxes onany business; no evidence that that AN knew of any representations made regarding any unpaid taxes or investigation regarding any unpaid taxes or the falsity of such representations; no evidence that Plaintiffs relied on any representation made by AN in regards to the transaction made the basis of this lawsuit; and no evidence that it suffered any damages as a result of any representation made by AN. 12. Plaintiffs’ cause of action for fraud by nondisclosure requires proof of the following elements: (1) Defendant failed to disclose to Plaintiff certain facts; (2) the Defendant had a duty to disclose the facts to Plaintiff; (3) the facts were material; (4) Defendant knew that Plaintiffs were ignorant of the facts and did not have equal opportunity to discover the facts; (5) the Defendant was deliberately silent when it had a duty to speak; (6) by the nondisclosure, Defendant intended induce Plaintiffs to take some action; (7) Plaintiffs relied on the nondisclosure; (8) and Plaintiffs suffered injury as a result. 13. Plaintiffs have no evidence to show that AN had a duty to disclose any facts regarding Super Buy Lo to Plaintiffs; no evidence that Defendant knew that Plaintiffs were ignorant of any unpaid taxes or investigation regarding any unpaid taxes on Super Buy Lo and that Plaintiffs did not have equal opportunity to discover the facts; hat AN deliberately remained silent when AN had. a duty to speak; and no evidence no evidence and no evidence that it suffered any injury as a result of AN’s alleged actions 14. Plaintiffs’ cause of action for negligent misrepresentation requires proof of the following elements: (1) Defendant made a representation to Plaintiffs in the course of Defendant’s business r in a transaction in which the Defendant had an interest; (2) Defendant provided false information for the guidance of others; (3) Defendant did not exercise reasonable care in providing the information; (4) Plaintiffs justifiably relied on the representation; and (5) Plaintiffs suffered injury as a result of the negligent misrepresentation. 15. Plaintiffs have no evidence to show that AN made any representation to Plaintiffs regarding Super Buy Lo; no evidence that any such representation was made by AN to Plaintiffs in the course of Defendant’s business or in a transaction in which AN had an interest; no evidence that Defendant provided false information for the guidance of others; no evidence that Defendant justifiably relied on any representation by AN; and no evidence no evidence and no evidence that it suffered any injury as a result of AN’s alleged actions. 16. Plaintiffs’ cause of action for negligence requires proof of the following elements: (1) Defendant owed a legal duty to Plaintiffs; (2) Defendant breached that duty; and (3) Defendant’s breach proximately caused Plaintiffs injury. 17. Plaintiffs have no evidence to show that AN owed any duty to Plaintiffs regarding Super Buy Lo; no evidence that An breached any such duties to Plaintiffs; and no evidence no evidence and no evidence that it suffered any injury proximately caused by AN’s breach. 18. Plaintiffs cause of action for breach of contract requires proof of the following elements: (1) the existence of a valid contract; (2) that the plaintiff performed or tendered performance; (3) that the defendant breached the contract; and (4) that the plaintiff was damaged as a result of the breach. See Hussong v. Schwan’s Sales Enters, 896 S.W.2d 320, 326 (Tex. App——Houston 1* Dist. 1995, no writ). 19. Plaintiffs have no evidence to show that a valid contract existed between Plaintiffs and AN in regards to Super Buy Lo or in regards to the payment of any unpaid taxes of Super Buy Lo. There is no evidence that AN entered into any agreement in regards to or in exchange for any consideration concerning any unpaid taxes or the transaction involving Super Buy Lo. Plaintiffs have no evidence that Plaintiffs performed any consideration; and no evidence that AN breached any such contract. 20. In order to prove civil conspiracy, plaintiffs are required to prove the following elements: (1) the defendant was a member of a combination of two or more persons; (2) the object of the combination was to accomplish an unlawful purpose or a lawful purpose by unlawful means; (3) the members had a meeting of the minds; (4) one of the members committed an unlawful act to further the object or course of action; and (5) plaintiff suffered injury as a proximate result of the wrongful act. 21. Plaintiffs have no evidence to show that AN and any of the Defendants had a meeting of the minds regarding Super Buy Lo or the unpaid taxes on Super Buy Lo; no evidence that AN and any of the Defendants were in combination whose object was to accomplish an unlawful purpose or lawful purpose by an unlawful means; no evidence that either Adams or BOA committed an unlawful act to further the object of their combination; and no evidence that it suffered any injury as a result proximate result of any wrongful act. D. Praye 22. For these reasons, AN asks the court to grant this motion and sign an order for Final Summary Judgment on all of Plaintiffs’ cause of action against Defendant Jimmy An. Respectfully Submitted, eu fiyul £7 SBN: 24033489 Law Office of Nathan Yi 3010 LBJ Freeway, Suite 1237 Dallas, TX 75234 Tel: 972-888-6070 Fax: 972-888-6071 Attorney for Jimmy An CERTIFICATE OF SERVICE I certify that a copy of the forgoing was served on all parties or counsel-of-record in accordance with the Texas Rules of Civil Procedure on March 28,2012. Eun-Hyuk Yi CAUSE NO. DC-10-08730 KI PONG NA ET AL. § IN THE DISTRICT COURT Plaintiffs, § Vv. § 192%? JUDICIAL DISTRICT § UNITED CENTRAL BANK ET AL Defendants. § DALLAS COUNTY, TEXAS FIAT SETTING HEARING The above and foregoing Defendant’s No-Evidence Motion for Summary Judgment having been presented and duly considered, the Court is of the opinion that a hearing on same is necessary. IT IS THEREFORE ORDERED that said Motion is set for hearing on on , 2012 at am/pm, in the 192™ District Court of Dallas County, Texas. SIGNED on » 2012. JUDGE PRESIDING Defendant Jimmy An’s Motion for No-Evidence Summary Judgment Page 7 of8 CAUSE NO. DC-10-08730 KI PONG NA ET AL. § IN THE DISTRICT COURT Plaintiffs, § Vv § 1928? JUDICIAL DISTRICT UNITED CENTRAL BANK ET AL. § Defendants. § DALLAS COUNTY, TEXAS ORDER After considering Defendant Jimmy An’s No-Evidence Motion for Summary Judgment, the response, and the arguments of counsel, the court grants the no-evidence motion for summary judgment. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendant Jimmy An’s No-Evidence Motion for Summary Judgment is hereby granted and Plaintiffs are to take nothing by way of their claims against Defendant Jimmay An. All other relief sought by way of this action that is not specifically provided by this judgment is hereby denied. SIGNED on PRESIDING JUDGE Defendant Jimmy An’s Motion for No-Evidence Summary Judgment Page 8 of8