Onyung v. Onyung
| Decision Date | 06 June 2013 |
| Docket Number | NO. 01-10-00519-CV,01-10-00519-CV |
| Parties | OKON EYO ONYUNG, M.D., THE LAW OFFICES OF YUEN & ASSOCIATES, P.C., THE LAW OFFICES OF YUEN & ASSOCIATES, PLLC, AND XENOS YUEN, Appellants v. COMFORT NKASI ONYUNG, CHRISTINE ENEBONG ONYUNG, NNAEMEKA ODUNZE, INDIVIDUALLY AND AS TRUSTEE OF THE ONYUNG LIVING TRUST, ODUNZE & LAZ, L.L.P., AND VICTOR IHEZUKWU, Appellees |
| Court | Texas Court of Appeals |
OKON EYO ONYUNG, M.D., THE LAW OFFICES OF YUEN & ASSOCIATES, P.C.,
THE LAW OFFICES OF YUEN & ASSOCIATES, PLLC, AND XENOS YUEN, Appellants
v.
COMFORT NKASI ONYUNG, CHRISTINE ENEBONG ONYUNG,
NNAEMEKA ODUNZE, INDIVIDUALLY AND AS TRUSTEE OF THE
ONYUNG LIVING TRUST, ODUNZE & LAZ, L.L.P., AND VICTOR IHEZUKWU, Appellees
NO. 01-10-00519-CV
Court of Appeals For The First District of Texas
Opinion issued June 6, 2013
Page 2
Appellants Okon Eyong Onyung, M.D., The Law Offices of Yuen & Associates, P.C., The Law Offices of Yuen & Associates, PLLC, and Xenos Yuen appeal from a final judgment entered on two cases that were consolidated for a trial by jury. In one of the cases, Dr. Onyung sued appellees Comfort Nkasi Onyung (Dr. Onyung's wife, hereinafter referenced as Mrs. Onyung), Christine Enebong Onyung (the Onyungs' adult daughter), Nnaemeka Odunze (individually and as trustee of the Onyung Living Trust), Odunze & Laz, and Victor Ihezukwu, alleging various causes of action arising out of conveyances of real property. The trial court entered a take-nothing judgment on Dr. Onyung's claims. In the other case, Mrs. Onyung sued attorney Xenos Yuen and two law firms, The Law Offices of Yuen & Associates, P.C. and The Law Offices of Yuen & Associates, PLLC (the "Yuen law firms"), alleging various causes of action arising from their legal representation of her and Dr. Onyung. The trial court entered a money judgment against Yuen and the Yuen law firms on Mrs. Onyung's claims.
We affirm in part and reverse and remand in part.
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Dr. and Mrs. Onyung, both Nigerian citizens, were married in 1981 and had three children together. Dr. Onyung is a medical doctor who has participated in several businesses in Nigeria including practicing medicine, hospital administration, travel, shrimp trolling, and oil shipping. Mrs. Onyung assumed various roles in Dr. Onyung's businesses during their marriage. The couple had a house in Sugar Land titled in both of their names that their family used during school breaks. In 2000, the Onyungs purchased as investments four undeveloped lots in a subdivision called Bridlewood Estates in Fort Bend County. The Bridlewood lots were also titled in both of their names.
Dr. and Mrs. Onyung wanted to obtain residency in the United States for themselves and their children by taking advantage of the "EB-5" immigration visa program. According to testimony elicited at trial, a foreigner could obtain a permanent residency "green card" by investing $500,000 in a business creating at least ten jobs in a rural area. Mrs. Onyung was referred to Xenos Yuen, a Texas attorney specializing in immigration services, and in January 2001 she met with him in Texas to discuss the possibility of hiring him. She told Yuen that she and her family wanted to move to the United States in the next few years and that they wanted to establish a real estate business to facilitate that move. Although Dr. and Mrs. Onyung returned to Nigeria before they could both meet personally with
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Yuen, they agreed together to hire him as their lawyer. Dr. Onyung, while in Nigeria, wrote a letter to Yuen to confirm their interest in hiring him. The letter stated, "My wife, Mrs. Onyung today informed me that she spoke to you about the above subject [of obtaining permanent residency for the Onyung family]. I am writing to confirm that we would like your law firm to handle our United States residency application. . . . We would therefore be grateful if your law firm could assist us in setting up this real-estate company and helping us in the United States Permanent Residency application process."
When Yuen had a client who was interested in the EB-5 program, his practice was to put the interested client in contact with the president of a real estate firm called CMC Development, Inc. Two days after Dr. Onyung wrote to Yuen, the president of CMC Development sent a letter addressed to Dr. Onyung, but not Mrs. Onyung, thanking him for "expressing your interest to join our EB5 (investment immigration) program." The letter outlined the requirements of the EB-5 program and proposed a limited partnership whereby Dr. Onyung, having a 99% interest in the limited partnership, would invest $500,000 as a limited partner, and CMC Development, having a 1% interest in the limited partnership, would act as the general partner to conduct the business. The letter contained a signature line with the preprinted names of both Dr. and Mrs. Onyung, where they could indicate their acceptance of the proposal. Both Dr. and Mrs. Onyung signed the letter.
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Around the time that CMC Development sent its letter to Dr. Onyung, Yuen prepared and faxed two documents which were each titled "Attorney Consultation and Fee Contract." One reflected that the purpose of the representation was to "apply US PERMANENT STATUS FOR Dr. Onyung, and his immediate family by investment immigration visa (EB5) category." The other reflected that the purpose of the representation was to "draft, review all contracts, trust and escrow agreement, business plan, formation of limited partnership and article of limited partnership, to review and file lien and security documents provided by the CMC Development as collateral to secure the funds invested as related to the investment immigration (EB5) application." The documents reflect that a $2,500 retainer was required for the immigration matter and a $5,000 retainer was required for the investment matter. The documents recited that the "undersigned, hereinafter referred to as 'Client'" and Yuen's law firm, Yuen & Associates, PLLC, had agreed to the terms of the document. At the end of each document was a signature block designated for "Attorney," "Client: O.E. Onyung," and "Client: Nksai Onyung." Dr. and Mrs. Onyung signed the documents on the lines designated for their respective names and faxed them back to Yuen, who then signed his name on the lines designated for "Attorney." Dr. Onyung subsequently authorized a wire transfer of $7,500 from the couple's joint account to Yuen's law firm.
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At trial, Mrs. Onyung testified as to her understanding that the documents were a contract between her, her husband, and Yuen's law office, and that Yuen would perform the immigration work for her, Dr. Onyung, and their children. Mrs. Onyung further testified that she believed that Yuen was her attorney. Yuen, however, testified that before they signed the documents, he told Dr. and Mrs. Onyung that he had only one client, Dr. Onyung. According to Yuen, he put Mrs. Onyung's name on the documents only because Dr. Onyung insisted so strenuously. When asked whether Mrs. Onyung was ever his client, he replied, "I don't know how to answer that question," but he maintained that he never provided legal services to her. He described the case as a "once in a lifetime situation."
Sometime after the "Attorney Consultation and Fee Contract" documents were signed, Dr. and Mrs. Onyung decided to form a company called Onyung Development, Ltd. to act as their investment vehicle relating to the EB-5 process. Dr. Onyung believed that there might be a conflict of interest in using CMC Development as the general partner of the prospective limited partnership because CMC Development was already engaged in obtaining immigrant visas for other people. Yuen proposed that another entity, CMC Builders Ltd., substitute as the general partner. Yuen's wife was then an officer of CMC Builders, but this fact was never disclosed to Mrs. Onyung.
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In June 2001, Dr. and Mrs. Onyung went to Yuen's office to review a "Rider Agreement of Articles of Limited Partnership [of] ONYUNG DEVELOPMENT LTD." The rider agreement was made between Dr. and Mrs. Onyung as limited partners of Onyung Development, Ltd. and CMC Builders as general partner, and it provided that Dr. and Mrs. Onyung owned 99% of the limited partnership while CMC Builders owned the remaining 1%. The limited partners agreed to place an "initial capital contribution" of $500,000 in an escrow account with their trustee, "Mr. Xenos Yuen." They also agreed to instruct Yuen to make the funds available to CMC Builders once it pledged adequate security in the form of real estate. CMC Builders agreed to produce a business plan that met the requirements of the EB-5 visa program. At such time as Dr. Onyung, Mrs. Onyung, and their family obtained permanent immigration status, Dr. and Mrs. Onyung would have had the right to demand that CMC Builders purchase their holdings, assets, and balance of the escrow account for $500,000. Mrs. Onyung understood that this agreement meant that the investment money would be returned to her and her husband after she and her family obtained permanent residency in the United States, and that they could foreclose on CMC Builders's pledged collateral if the repayment was not received. An officer of CMC Builders and Dr. and Mrs. Onyung signed the agreement above their preprinted names.
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Dr. Onyung and Yuen, but not Mrs. Onyung, signed a separate "Declaration of Trust and Escrow Account" that was dated the same day that the limited partnership agreement was signed. The document reflects that Dr. Onyung as trustor had transferred $500,000 to "The Law...
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