Vuong v. Luk
| Decision Date | 17 January 2013 |
| Docket Number | NO. 01-11-00178-CV,01-11-00178-CV |
| Parties | DAVID VUONG AND TOMMY T. NGUYEN, Appellants v. TAIWAI LUK, Appellee |
| Court | Texas Court of Appeals |
The trial court found appellant Tommy Nguyen liable for violating the Deceptive Trade Practices Act ("DTPA") in the course of selling a restaurant to appellee Taiwai Luk. The trial court further found appellant David Vuong, who drafted the bill of sale for Nguyen and Luk, liable for legal malpractice. The trialcourt entered judgment against Nguyen and Vuong, jointly and severally, for $62,6000, representing the amount Luk invested in the restaurant. The trial court further ordered Nguyen to pay $125,200 in treble damages for a knowing violation of the DTPA and $25,000 for Luk's legal fees relating to that claim. Both Nguyen and Vuong appeal.
In his sole issue, Nguyen challenges the sufficiency of the evidence to support the trial court's judgment. Specifically, he argues that Luk's incompetence led to his business failure, that he did not breach his contractual obligations, that Luk failed to establish his damages, and that the trial court erred in admitting "expert testimony from unqualified witnesses."
Vuong argues, in three issues, that: (1) the judgment against him is impermissible because it would award Luk a "double recovery"; (2) his actions were not the proximate cause of Luk's damages; and (3) the evidence is legally insufficient to support the trial court's findings of legal malpractice.
We affirm.
On December 11, 2007, Gary Rosenbaum leased a restaurant space at 2118 Clinton Drive to Nguyen for the purpose of operating a Wild Wild Wings restaurant. The lease term was one year beginning on March 1, 2008. Specifically, the lease provided that Nguyen, as lessee, "shall use the leasedpremises for the purpose of operating a restaurant, titled 'Wild Wild Wings' and allied businesses connected therewith." Paragraph VI of the lease stated: "Lessee further covenants that he/she will not assign this lease or his/her rights under said lease, nor sublet the whole or any part of said premises . . . without the consent of the Lessor in writing and such consent shall not unreasonably be withheld."
In January 2008, Nguyen met Luk. Luk was interested in purchasing a restaurant and Nguyen showed him two restaurant locations, including the Wild Wild Wings restaurant, which was not yet open because Nguyen was remodeling. Luk decided to purchase the Wild Wild Wings restaurant from Nguyen.
The bill of sale did not define the term "Closing Date," but it provided that "Buyer begins to move in as of February 2, 2008." The bill of sale also included an "as is" provision which stated:
WITH THE EXCEPTION OF THE WARRANTIES OF TITLE, INCLUDING THE WARRANTY THAT NO LIENS EXIST ON THE TRANSFERRED PROPERTIES EXCEPT AS RECITED, SELLER HAS MADE NO AFFIRMATION OF FACT OR PROMISE RELATING TO THE TRANSFERRED PROPERTIES THAT HAS BECOME ANY BASIS OF THIS BARGAIN, AND FURTHER, SELLER HAS MADE NO AFFIRMATION OF FACT OR PROMISE RELATING TO THE TRANSFERRED PROPERTIES THAT WOULD CONFORM TO ANY SUCH AFFIRMATION OR PROMISE. SELLER DISCLAIMS ANY WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE WHATEVER WITH RESPECT TO THE TRANSFERRED PROPERTIES. THE TRANSFERRED PROPERTIES ARE SOLD ON AN "AS IS" BASIS.
Finally, the bill of sale contained the following representation, among others:
Luk paid Nguyen $60,000 in the form of a cashier's check. At Nguyen's direction, the cashier's check was made payable to Tra My Pham, an associate of Nguyen. Luk also paid Vuong $300 for his work in drafting the bill of sale.
Nguyen then helped Luk make sauces for one month, filed the proper paperwork with Harris County to withdraw himself as the owner of the restaurant as listed on an assumed name certificate, and gave Luk the recipes for the restaurant as agreed in the bill of sale. Luk also purchased a refrigerator and two stoves for use in the restaurant.
On February 25, 2008, Luk opened the restaurant. In late March, Nguyen and Luk met with Rosenbaum to discuss assigning the lease to Luk. Nguyen told Rosenbaum that Luk was his father and asked permission to "slide" the lease over to Luk while Nguyen was in Vietnam. Rosenbaum repeatedly refused this request. Rosenbaum later accepted payment of rent for the month of April 2008 from Luk, believing that Luk was paying on behalf of Nguyen because Nguyen had often paid in cash or had others pay for him.
On April 4, 2008, Luk informed Rosenbaum that he would no longer operate the restaurant, returned the keys to the leased space to Rosenbaum, and left the restaurant. This was the first time Rosenbaum was informed that Luk had been operating the restaurant and not Nguyen. Rosenbaum called Nguyen, who reopened the restaurant the next day and continued to operate the restaurant through the original lease term.
Luk filed suit against Nguyen and Vuong. He later amended his petition to include Tra My Pham and Chick & Wings, Inc., a company that Nguyen at somepoint claimed to represent in the transaction to sell the Wild Wild Wings restaurant. Pham and Chick & Wings, Inc. failed to appear, and the trial court entered default judgments against each of them in the amount of $61,100, which included the cost of purchasing the restaurant, April 2008 rent, and the amount Luk paid to David Vuong for preparing the bill of sale. These judgments were severed from the suit against Nguyen and Vuong and became final.
Luk claimed that Nguyen had breached a contract with Luk by not properly training him and by not providing the correct recipes. He also claimed that Nguyen had made fraudulent misrepresentations; that he had made negligent misrepresentations concerning the ability to assign the lease when he stated that Rosenbaum would allow the assignment and would give Luk a lease for five years at $800 per month; and that Vuong and Nguyen had conspired to commit fraud against him. He also asserted the Vuong had committed legal malpractice.
At the bench trial, Nguyen testified that Rosenbaum had given him "a note saying that he—whoever want[s] to come in—as long as me or Mr. Luk who paid the lease—who paid the rent for the space, it should be okay." Nguyen testified that he gave this note to his attorney, but the attorney did not know what Nguyen was referring to. The note was never produced at trial. Nguyen again stated that both he and Luk went to Rosenbaum and that Rosenbaum's only concern was thathe receive the rental payments. Nguyen agreed that he introduced Luk as his father when they met with Rosenbaum.
Regarding his ownership interest in the Wild Wild Wings restaurant, Nguyen originally testified that he was not an owner, that he just worked there doing construction, and that Tra My Pham was the owner. He testified that he was listed as an owner on the assumed name filing with Harris County because he was the one who spoke English, so he signed the form. On cross-examination, Nguyen testified that he was the legal owner of the restaurant, but he did not personally put any money into the business.
Regarding the deal with Luk, Nguyen testified that he understood that Luk was paying $60,000 for everything in the restaurant, including the assignment of the lease. He testified that he and Luk signed a purchase agreement on the morning of February 2, 2008 that he had drafted himself, but Luk did not want to pay the $60,000 until they had an attorney draw up the papers.1 He testified that after Luk gave him the cashier's check made payable to Tra My Pham, Nguyen completed his obligation to train Luk and then did not visit the restaurant again.
Luk testified that Nguyen represented himself as the owner of Wild Wild Wings. Luk stated that he asked Nguyen to see the lease, but Nguyen never provided it, and Luk did not know that he needed the landlord's written permission before he opened the restaurant. Luk also testified that Nguyen assured him that Rosenbaum would allow Luk to operate the restaurant under Nguyen's lease for three months and would then give Luk a new lease for five years at the rate of $800 per month.
Luk testified that he went to Vuong's office because he wanted a lawyer to witness and memorialize the agreement between Nguyen and himself in order to show that he had purchased the restaurant. Vuong testified, however, that he acted as a scrivener in memorializing the transaction between Luk and Nguyen and that he did not give either of them legal advice. He also testified that h...
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