                                                                                 ACCEPTED
                                                                             05-14-01312-CV
                                                                   FIFTH COURT OF APPEALS
                                                                             DALLAS, TEXAS
                                                                           6/5/2018 10:20 PM
                                                                                  LISA MATZ
                                                                                      CLERK

                       CASE NO. 05-14-01312-CV

                                                             FILED IN
                                                      5th COURT OF APPEALS
                  IN THE FIFTH DISTRICT COURT             DALLAS, TEXAS
                  OF APPEALS AT DALLAS, TEXAS         6/5/2018 10:20:44 PM
                                                            LISA MATZ
                                                              Clerk

                            CHAN IL PAK,
                        Appellant/Cross-Appellee.

                                   v.

                       AD VILLARAI, LLC,
              THE ASHLEY NICOLE WILLIAMS TRUST,
                     Appellees/Cross-Appellants,

                VILLAS ON RAIFORD, LLC, AND
    VILLAS ON RAIFORD CARROLLTON SENIOR HOUSING, LLC,
                          Appelles.



             On Appeal from the 101st Judicial District Court,
                         Dallas County, Texas,
Honorable Judge Marty Lowy and Honorable Judge Staci Williams presiding,
                     Trial Cause No. DC-13-06030


              APPELLANT’S MOTION FOR REHEARING
                 IDENTITY OF PARTIES AND COUNSEL


Appellant/Cross-Appellee/Defendant:
Chan Il Pak


Appellees/Cross-Appellants/Plaintiffs:
AD Villarai, LLC
The Ashley Nicole Williams Trust


Appellees/Plaintiffs:
Villas on Raiford, LLC
Villas on Raiford Carrollton Senior Housing, LLC

Appellate Counsel for Cross-Appellants/Appellees/Plaintiffs:
William F. LePage, Esq.
Stutzman, Bromberg, Esserman & Plifka, P.C.
2323 Bryan Street, Suite 2200
Dallas, Texas 75201




                                         1
                                          TABLE OF CONTENTS

Identity of Parties and Counsel ...............................................................................1

Table of Contents ....................................................................................................2

Index of Authorities ................................................................................................4

    A. Applicable Contract Law …………………………………………………..7

    B. Finding of Facts and Conclusions of Law………………………………..10

    C. Written Consent……………………………………………………….…...12

    D. Requirements of the Villas-Manger Company Agreement……………….13

    E. Section 5.11 of the Villas-Manager Company Agreement………………14

    F. Last Sentence of Section 5.11…………………………………………….19

    G. BOC 101.359……………………………………………………………...20

    H. Written Consent and BOC 101.359 do not substitute for the requirements of

         Villas-Manger Company Agreement…………………………………..…22

    I. Appellees could have called a meeting…………………………………..24

    J. If the Written Consent is not valid then Chan Pak cannot removed from

         Villas-CSH………………………………………………………………...24

    K. Villas-CSH damages should be vacated………………………………..…25

    L. No threat of public harm………………………………………………….26

Prayer ................................................................................................................... 28

Signature Block .................................................................................................... 28



                                                             2
Certificate of Service ............................................................................................ 29

Certificate of Compliance with Rule 9.4 ............................................................... 29




                                                          3
                        INDEX OF AUTHORITIES


Texas Supreme Court
American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154 (Tex. 2003)……….9

BMC Software Belguim, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002)….......11

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)……………………..10

Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936 (Tex. 1984)………………………7

SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840 (Tex. 2005)……………………. 8

Tawes v. Barnes, 340 S.W.3d 419 (Tex. 2011)……………………………………8

Texas Appeals Court
Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24 (Tex. App.—Amarillo 2000,

no pet.)…………………………………………………………………………...…9

Dedier v. Grossman, 454 S.W.2d 231 (Tex. App.—Dallas 1970, writ ref’d

n.r.e.)………………………………………………………………………………..9

Esty v. Beal Bank S.S.B., 298 S.W.3d 280 (Tex. App.—Dallas 2009, no pet.)…7

First Trust Corp. TTE FBO v. Edwards, 172 S.W.3d 230 (Tex. App.—Dallas

2005, pet. denied)………………………………………………………………….8

Holliday v. Weaver, 410 S.W.3d 439 (Tex. App.—Dallas 2013, pet. filed)……10

In re Moers, 104 S.W.3d 609 (Tex. App.—Houston [1st Dist.] 2003, no pet.)….11



                                      4
LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632 (Tex. App.—Dallas 2012, no

pet.)……………………………………………………………………………..9, 10

Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400 (Tex. App.—

Amarillo 2003, pet. denied)……………………………………………………….10

Nexstar Broadcasting v. Fidelity Comm., 376 S.W.3d 377 (Tex. App.—Dallas

2012, no pet.)…………………………………………………………………….…7

Nicol v. Gonzales, 127 S.W.3d 390 (Tex. App.—Dallas 2004, no pet.)…………8

Pulley v. Milberger, 198 S.W.3d 418 (Tex. App.—Dallas 2006, pet. denied)…10

Templeton v. Dreiss, 961 S.W.2d 645 (Tex. App.—San Antonio 1998, pet.

denied)…………………………………………………………………………….11

Texas Statutes
   TEX. BUS. ORGS. CODE § 101.359 ..................................................... 6, 12, 20-23




                                                5
      This Panel’s opinion expands the power of Texas Business Organization

Code Section 101.359 (“BOC 101.359”) to actions that are improperly done. The

Trial Court and this Court allowed Appellees to enforce the contract against Chan

Pak without following the Villas on Raiford (“Villas-Manager”) Company

Agreement. Appellees executed a Written Consent of Majority of Members and

Managers Excluding the Interest held by Chan Pak (“Written Consent”) to remove

Chan Pak as a co-manager, member, and officer of Villas-Manager on September

22, 2013. The Written Consent did not follow the language in the Villas-Manager

Company Agreement. If the BOC 101.359 is found to not apply to the facts of

DC-13-06030 or if the Written Consent is invalid from not following the Villas-

Manager Company Agreement, the Trial Court’s Modified Final Judgment and/or

this Court’s Judgment should be overruled regarding Chan Pak status as a co-

manager of Villas-Manager, member of Villas-Manager, and damages awarded to

Villas Carrollton Senior Housing, LLC (“Villas-CSH”). This Court found that

Chan Pak was removed from Villas-CSH because Chan Pak could not block his

member removal from Villas-CSH because the Written Consent removed him as a

member and a co-manager of Villas-Manager.1 If Written Consent is not effective,

Chan Pak remains a member and co-manager of Villas-Manager. If the Written

Consent is not effective, Chan Pak member interest removal from Villas-CSH

1
      Memorandum Opinion on Remand (No. 05-14-01312-CV), Page 18



                                        6
failed because Appellees did not get Chan Pak’s approval as a member and/or as a

co-manager in Villas-Manager. Further, if Chan Pak was a member of Villas-

CSH, Villas-CSH could not sue Chan Pak without Chan Pak’s member approval.

If Chan Pak is found to be a member of Villas-CSH, the damages awarded to

Villas-CSH from Chan Pak should be vacated.

    A. Applicable Contract Law

       The Trial Court and this Court enforced the Villas-Manager and Villas-CSH

Company Agreement against Chan Pak. In order to do so, Appellees must have

properly followed the Company Agreement and the requirements needed to be

fulfilled.

       Where a contract is unambiguous, the language of the contract alone

expresses the parties’ intent, and it must be enforced as written. 2 Likewise, one

party’s unilateral misinterpretation of the contract does not render it ambiguous,3

nor does a lack of clarity or even in-artful drafting does not necessarily make an

agreement ambiguous.4 Indeed, in the absence of an allegation of ambiguity as to

contract language, the instrument alone will be deemed to express the intent of the



2
       Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex. 1984).
3
       Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 300 (Tex. App.—Dallas 2009, no pet.).
4
        Nexstar Broadcasting v. Fidelity Comm., 376 S.W.3d 377, 382 (Tex. App.—Dallas 2012,
no pet.).



                                               7
parties.5 Appellees never made an argument about ambiguous language in the

contract.   Any review of the company agreement should be interpreted with the

plain meaning of the words or the defined meanings of the words in the company

agreements. This Court must interpret the Company Agreement as written,

bargained-for, and agreed upon by the members of Villas-CSH and Villas-

Manager.

       The primary concern of a court interpreting a contract is to ascertain and to

give effect to the intentions of the parties as expressed in the contract. 6 What the

parties objectively expressed in the contract instrument governs the meaning of the

contract, not subsequently claimed or unexpressed opinions about what was

intended.7 The intent of a contract is not changed merely because the

circumstances do not precisely match the scenarios anticipated by the contract. 8

       Furthermore, this Court enforces a contract—like the two Company

Agreements—as the parties have made it, without regard to whether they

5
       Nicol v. Gonzales, 127 S.W.3d 390, 394 (Tex. App.—Dallas 2004, no pet.).
6
      Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011); First Trust Corp. TTE FBO v.
Edwards, 172 S.W.3d 230, 233-34 (Tex.App.—Dallas 2005, pet. denied).
7
        Nicol v. Gonzales, 127 S.W.3d 390, 394 (Tex. App.—Dallas 2004, no pet.). Although
there is no evidence in the Record that, prior to executing the two Company Agreements, there
was any intent to exclude a member’s vote for company actions expelling said member under
Section 8.6(e), any such evidence would be barred by the existence of the merger clauses
contained in Section 10.10 of each Company Agreement, respectively.
8
       SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005).



                                               8
contracted wisely or foolishly and without regard to whether, in the light of

subsequent events, a hardship was effected. 9 This result follows the rationale that

contracting parties are considered masters of their own choices. 10 The parties are

entitled to select the terms and provisions to include in their contract before

executing it and, in so choosing, each is entitled to rely on the words selected to

demarcate each party’s respective obligations and rights. 11 The parties strike the

deal they choose to strike, thus voluntarily binding themselves in their chosen

manner.12          Accordingly, the parties are bound by the terms of the Company

Agreements as written.13

         Finally, the Courts will not rewrite the parties’ contracts or add to the

language under the guise of “interpretation.” 14 The Courts will not rewrite the

Company Agreements to insert provisions that the parties could have included, nor

imply any restraints for which the parties did not bargain, nor imply any terms

merely to make the Company Agreements “fair,” “wise,” or “just” or imply

9
         Dedier v. Grossman, 454 S.W.2d 231, 235 (Tex. App.—Dallas 1970, writ ref’d n.r.e.).
10
         Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex. App.—Amarillo 2000, no
pet.).
11
         See id.
12
         See id.
13
         See id.
14
      American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 162 (Tex. 2003); LG Ins.
Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, 638 (Tex. App.—Dallas 2012, no pet.).



                                               9
restraints for which the parties did not bargain. 15 For a court to change the parties’

contract merely because it does not like the contract, or because one party

subsequently finds it distasteful, undermines the sanctity afforded a contract and

the expectations of the persons who created and relied on it. 16

     B. Finding of Facts and Conclusions of Laws

       Finding of facts after a non-jury trial have the same force and effect as jury

findings.17 This Court reviews the Trial Court’s FOF using the same standard of

review it applies to the review of jury findings. 18 When an appellant attacks the

legal sufficiency of an adverse finding on an issue for which it did not have the

burden of proof, the appellant must demonstrate there is no evidence to support the

adverse finding. 19 A legal sufficiency review of a no-evidence point must credit

favorable evidence if a reasonable fact-finder could and disregard contrary

evidence unless a reasonable fact-finder could not.20 This Court will only sustain a

15
        LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, 638 (Tex. App.—Dallas 2012, no
pet.) (holding that the trial court’s jury instruction that the remaining partners were required to
act fairly and reasonably toward an involuntarily terminated partner “inserted an implied
covenant into the contract”).
16
       Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 407 (Tex. App.—
Amarillo 2003, pet. denied).
17
       Holliday v. Weaver, 410 S.W.3d 439, 442 (Tex. App.—Dallas 2013, pet. filed).
18
       Id.
19
       Pulley v. Milberger, 198 S.W.3d 418, 426 (Tex. App.—Dallas 2006, pet. denied).
20
       City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).


                                                10
no-evidence point when: (1) the Record discloses a complete absence of evidence

of a vital fact; (2) the Court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact; (3) the evidence offered to

prove a vital fact is no more than a mere scintilla; or, (4) the evidence establishes

conclusively the opposite of the vital fact. 21

       The trial court's conclusions of law are reviewed de novo. 22 We

independently evaluate a trial court's conclusions to determine their correctness,

and we will uphold conclusions on appeal if the judgment can be sustained on any

legal theory supported by the evidence. 23 The appellant may not challenge a trial

court's conclusions of law for factual insufficiency; however, the reviewing court

may review the trial court's legal conclusions drawn from the facts to determine

their correctness.24

       The Finding of Facts and Conclusions of Law (“FOF”) in the Original

Lawsuit (DC-13-06030) found that the Written Consent was valid.25 The Written

Consent had the effect of an unanimous opinion by Section 5.11 of the Villas-

21
       Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003) (per curiam).
22
       BMC Softward Belguim, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
23
       In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
24
       Templeton v. Dreiss, 961 S.W.2d 645, 656 n.8 (Tex. App.—San Antonio 1998, pet.
denied).
25
       Finding of Facts and Conclusions of Law (DC-13-06030), Conclusions of Law 10, Page
9.



                                             11
Manager Company Agreement and BOC 101.359(2)(A). 26 The Trial Court did not

want to remove Chan Pak under 8.6(e) of the Villas-CSH Company Agreement if

the Company Agreement was not followed.27                 Not following the terms of the

Company Agreement was grounds for the Trial Court to not enforce the removal of

Chan Pak from Villas-CSH. The Motion for Rehearing will highlight the facts that

prove the Written Consent did not follow the Company Agreement and should not

have been enforced by the Trial Court of this Court.

     C. Written Consent

       The Written Consent was executed to remove Chan Pak as a co-manager,

member, and officer of Villas-Manager.28 The Written Consent covered three

different subject matters. The removal of Chan Pak as a co-manager is under

Section 3.5 of the Villas-Manager Company Agreement.29 The removal of Chan

Pak as a member is under Section 8.6(e) of the Villas-Manager Company




26
       Id.
27
       Id., Finding of Fact 64, Page 7 and Id,. Conclusions of Law 12, page 9 (Trial Court
refused to remove Chan Pak because Appellants did not take the apporiate actions under the
terms of the company agreement).
28
       Plaintiffs’ Exhibit 40. Pages 1-3
29
       Plaintiffs’ Exhibit 2, Page 9



                                              12
Agreement.30 The removal of Chan Pak as an officer is under Section 3.16(d)(i) of

the Villas-Manager Company Agreement.31

       Appellees executed the Written Consent Villas-Manager without a notice of

meeting, without a meeting, and without a vote. Chan Pak did not consent as a

member or a co-manager for any of the matters in the Written Consent for Villas-

Manager. There is no argument that Hugh Harrison was eligible to vote on all

three removals. Hugh Harrison never provided his signature (written consent) for

the Written Consent.32 After the Written Consent was executed, Appellees

provided notice to Chan Pak and Hugh Harrison.

     D. Requirements of Villas-Manager Company Agreement

       This Motion for Rehearing will only focus on the removal of Chan Pak as a

co-manager and member of Villas-CSH for the Written Consent. Removal of

Chan Pak as a co-manager under section 3.5 of the Villas-Manager Company

Agreement would require a meeting and a vote of the Majority of the Members.33

Removal of Chan Pak as a member under Section 8.6(e) would require the




30
       Id., Page 26
31
       Id., Page 13
32
       Plaintiffs’ Exhibit 40, Page 4 (Hugh Harrison signature line is blank, no other exhibit
providing his signature for the Written Consent)
33
       Plaintiffs’ Exhibit #2, Page 9.



                                                13
Managers to agree to expel the member and the Majority of the remaining

Members to vote to expel such a Member.34

       The Second Amendment for the Villas-Manager Company Agreement

changed the requirement of majority of managers. Any act under the Company

Agreement requiring a vote Majority of the Managers shall be amended to require

the unanimous consent of the Managers. 35 Section 8.6(e) clearly states Managers

must elect to remove a member for violating the contract. 36 Second Amendment

makes it clear that action must have the unanimous consent of the Managers.

       Meetings would be required for the removals of Chan Pak as a co-manager

or member of Villas-Manager. Section 3.5 and 8.6(e) of the Villas-Manager

Company Agreement requires the members to make a vote on each matter. 37 A

meeting would need to take place in order to get the votes of the members.           If a

meeting needs to take place, then Section 5.4 of the Villas-CSH Company

Agreement requires a notice of meeting. 38 The votes required by Section 3.5 and

8.6(e) of the Villas-Manager agreement would then be regulated by Sections 5.5


34
       Id., Page 26.
35
      Plaintiffs’ Exhibit #7, Section B (2) of the Second Amendment to the Company
Agreement of Villas on Raiford, LLC, page 1.
36
       Plaintiff’s Exhibit #2, Page 26
37
       Id., Pages 9, 26.
38
       Id., Page17.



                                            14
(Quorum) and Section 5.8 (Conduct of Meetings). 39 Appellees did not provide

Chan Pak or Hugh Harrison a notice of meeting, meeting, or a vote.                 Appellees

claimed to use Section 5.11 of the Villas-Manager Company Agreement to avoid

the requirements in the Company Agreement.

      There is no section in the Villas-Manager Company Agreement that

excludes Chan Pak as a co-manager from voting on the removal of Chan Pak as a

member (8.6(e) does mention that the remaining members vote but does not

mention any exclusion of a manager or co-manager vote). There is no section in

the Villas-Manager Company Agreement that excludes Chan Pak as a member of

Villas-Manger from voting on the removal of Chan Pak as a co-manager to Villas-

Manager. Written Consent states it excludes the Interest of Chan Pak. 40 There is

nothing stated in the Written Consent that shows the justification for excluding the

Interest of Chan Pak. In addition, Interest is defined in the Villas-Manager

Company Agreement meaning “the percentage of ownership interest of a Member

of Company at any particular time, as indicated on Schedule 1 attached hereto.” 41

Chan Pak’s Interest in Villas-Manager and his position as a co-manager are two

separate things. Following the terms of the Villas-Manager Company Agreement,


39
      Id. Page 17.
40
      Plaintiffs’ Exhibit 40, title of the document states that Chan Pak Interest is excluded.
41
      Plaintiffs’ Exhibit 2, Section 1.1(q) page 3



                                               15
Chan Pak is an eligible member to vote on the removal of Chan Pak as a co-

manager and Chan Pak is eligible as a co-manager to vote on the removal of Chan

Pak as a member in Villas-Manager.

      E. Section 5.11 of the Villas-Manager Company Agreement

      If Section 5.11 of the Villas-Manager Company Agreement is followed

correctly, actions can take place without a meeting, notice of meeting and a vote.

The Trial Court and this Court agreed that the Written Consent was effective. The

Written Consent should fail because it did not follow the requirements of Villas-

Manager Company agreement (notice of meeting, meeting, and vote) and also

failed to follow Section 5.11 that would negate the requirements.

      Any action “may be taken without a meeting, without prior notice, and

without a vote if a written consent or consents in writing, setting forth the action so

taken, shall be signed by the Members entitled to vote with respect to the action

that is the subject matter of the Consent, and such consent shall have the same

force and effect as a unanimous vote of the Members.” 42 Therefore, to remove the

requirements of meeting, notice of meeting, and a vote, an action without meeting

needs to be signed by “the Members entitled to vote” on that subject matter. To

further prove this point, the Company Agreement says that a consent signed by the



42
      Plaintiffs’ Exhibit #2, page 18



                                          16
Members entitled to vote will be treated as a “unanimous vote”.43 Only a written

consent that is like a “unanimous vote” would be allowed to negate the

requirements of a notice of meeting, meeting, and a vote. Appellees did not have

a written consent that was a unanimous vote and it did not even have a majority

vote if Chan Pak membership in Villas-Manager is included.

       An action without meeting to remove Chan Pak as a co-manager would

require the signatures of Chan Pak, Hugh Harrison, Jang Wook Lee, and Hyo Nam

Han (as each of these members would be entitled to vote on Section 3.5). An

action without meeting to remove Chan Pak as a member of Villas-Manager would

require the approval of the unanimous approval of the Managers and the signatures

of every member entitled to vote.         The members entitled to vote for Chan Pak

removal as a member of Villas-Manager under Section 8.6(e) would be Jang Wook

Lee, Hyo Nam Han, and Hugh Harrison.

       Even if Chan Pak co-manager interest and membership to be withheld from

the requirement, the Written Consent would fail to negate the requirements of

notice of meeting, meeting, and a vote because it did not provide Hugh Harrison’s

signature/written consent.44 Every eligible member signature was not in the

Written Consent. Therefore, the requirements of notice of meeting, meeting, and
43
       Id.
44
       Plaintiff’s Exhibit 40, page 4 (blank signature line for Hugh Harrison and no other exhibit
provided Hugh Harrison written consent for the Written Consent)



                                                17
voting were still in effect. Appellees never provided a notice of meeting a

meeting, or any votes (there would need to be 2 separate votes) on the removal of

Chan Pak as a co-manager or member of Villas-Manager to Chan Pak or Hugh

Harrison. Chan Pak was denied his chance to voice his concerns at a meeting and

to vote at a meeting.

      There should have been at least one notice of meeting (all three votes could

have been held at the same meeting), at least one meeting, and three separate votes

(separate vote to remove Chan Pak as a co-manager, member, and officer).

Appellees instead provided zero notice of meetings, zero meetings and zero votes.

An action without meeting following Section 5.11 does not remove the need of

Chan Pak’s approval/consent as a Manager to remove himself as a member.         An

action without meeting following section 5.11 does not remove the need for Chan

Pak to vote as a member to remove Chan Pak as a co-manager.       The Written

Consent fails to remove the requirements for notice of meeting, meeting, and a

vote because the Written Consent does not have the required signatures for the

removal of Chan Pak as a co-manager of Villas-Manager or a member of Villas-

Manager.    Without following the terms and requirements of the Villas-Manager

Agreement, Appellees should not be allowed to disregard the Villas-Manager

Company Agreement requirements and the Written Consent should fail for not




                                         18
getting every eligible member signature regarding removal of Chan Pak as a co-

manager and as a member of Villas-Manager.

      F. Last sentence of Section 5.11

      The last sentence of Section 5.11 of the Villas-Manager Company

Agreement states, “Prompt notice of the taking of any action by Members without

a meeting by less than unanimous consent shall be given to those Members who do

not consent in writing to the action.” 45     This Court stated the last sentence meant

there could be actions without a meeting that are not unanimous (majority action

without a meeting).46 Following general principles of contract law, the language of

the contract must be followed to enforce the contract. The first sentence of Section

5.11 Villas-Manager Company Agreement discusses a written consent that requires

every eligible person to consent to it to negate the requirements of meeting, notice

of meeting and vote.47     The last sentence of Section 5.11 states that an action

without meeting does not have to be unanimous but it only discusses an action by

Section 5.11 regarding notice.48        Even though there is conflict, the language is

clear in the section before the last sentence of Section 5.11. In order to bypass the


45
      Plaintiffs’ Exhibit #2, page 18
46
      Memorandum Opinion on Remand, Pages 8-10
47
      Plaintiffs’ Exhibit #2, page 18
48
      Id.



                                              19
requirements of notice of meeting, meeting, and a vote, every eligible member

must sign the written consent.49

      There is nothing in Section 5.11 that says a majority action without a

meeting negates the requirements of a notice of meeting, meeting, and a vote.

Section 5.11 only states prompt notice needs to be sent of any action by less than

unanimous written consent. The clear and plain language of what is required to

negate the requirements of Villas-Manager Company Agreement cannot be ignored

because Section 5.11 states the “prompt notice of any action by Members without

a meeting by less than unanimous written shall be given to those Members who do

not consent in writing to the action.” 50 Also the last sentence of Section 5.11 states

that the notice is sent to members who do not consent in writing to the action.

Notice is not being sent to members who are not aware but to members who do not

consent in writing to the action that took place without a meeting.

      G. BOC 101.359

      The first sentence of BOC 101.359 states, “Members or managers of a

limited liability company may take action at a meeting of the member or manager

or without a meeting in any manner permitted by this Title, or the governing




49
      Id.
50
      Plaintiff’s Exhibit 2, Page 18



                                          20
document of the company.” 51 Appellees use BOC 101.359 according the

governing document of the Villas-Manager.              Appellees attempted to remove Chan

Pak as a co-manager under Section 3.5 of the Villas-Manager Company

Agreement. Appellants attempted to remove Chan Pak as a member of Villas-

Manager under Section 8.6(e) of the Company Agreement. Appellees wanted to

enact Section 3.5 and Section 8.6(e) of the Company Agreement without the

meeting, notice of meeting, and vote requirements. Appellees attempted to use

Section 5.11 of the Villas-Manager Company Agreement to avoid the meeting,

notice of meeting, and vote requirement.

       Appellees failed to follow Section 5.11 which made the Written Consent in

violation of the Villas-Manager Company Agreement.                 Appellees did not have a

meeting, notice of meeting or a vote as required by the Villas-Manager Company

Agreement concerning the removal of Chan Pak as a member or co-manager of

Villas-Manager. Appellees argued the Written Consent negated the requirements.

The only way to negate those requirements was to get every member entitled to

vote to have a written consent/signature in the Written Consent. 52 Chan Pak and

Hugh Harrison signatures are not in the Written Consent. There is no justification

51
       Tex. Bus. Orgs. Code Ann. § 101.359
52
        Plaintiff’s Exhibit #2, Section 5.11 page 18 (Section 5.11 states an action without
meeting “shall be signed every Member entitled to vote with respect to the action that is the
subject matter of the consent.”



                                                21
in the Written Consent that explains the omissions of the signatures. BOC

101.359 only provides member consents, it does not state it provide manager or co-

manager consent. Removal of Chan Pak as a member of Villas-Manager would

require the Managers to agree. Appellees cannot use 101.359 to replace the

consent of a co-manager.53 BOC 101.359 should be used to consent to actions that

were properly done and valid. Instead Appellees want to use BOC 101.359 to fill

in the requirements Appellees failed to have at the time of the Written Consent.

          H. Written Consent and BOC 101.359 do not replace requirements

          Trial Court found Written Consent valid for the removal of Chan Pak as a

co-manager and member of Villas-Manager.54 This Court overruled the Trial

Cout and found that the December 31, 2013 Event of Purchase for Chan Pak’s

Membership Interest was valid.55 Trial Court and this Court relied on the Written

Consent being valid and BOC 101.359 providing the consents for the Written

Consents. The Written Consent and BOC 101.359 cannot replace the

requirements needed to have an effective action without meeting and Event of

Purchase.


53
        Tex. Bus. Orgs. Code Ann. § 101.359(a)(2) only provides member consents if member
did not object to the action. It does not state it provides Manager or Co-manager consent.
54
          Finding of Facts and Conclusions of Law (DC-13-06030), Conclusions of Law No. 10,
Page 9.
55
          Memorandum Opinion on Remand (05-14-01312-CV), Page 18.



                                               22
      Section 5.11 only addresses member’s consent and does not discuss co-

manager approval at all. Section 5.11 cannot be used to provide Chan Pak’s co-

manager approval. Chan Pak and Hugh Harrison in essence received a notice of a

majority action without a meeting that did not meet the requirements to avoid

holding a meeting, a notice of meeting, and a vote. In addition, it did not have the

requirements to even consent on the removal on Chan Pak as a member on Section

8.6(e) since the Managers needed to agree on it first. 56   Even though it was

labeled majority of members and managers it did not have a majority of members

(quorum) if Chan Pak membership interest is included. It had a majority of

member for Chan Pak removal as a member, but it still did not have his co-

manager consent or approval. It did not have a majority of members for Chan

Pak’s removal as a co-manager in Villas-Manager.

      No member of a LLC should have to write a written objection to an action

that was not properly done.       If this was true, anytime someone did an improper

action, the other party would consent to it if the other party did not provide a

written objection in time after notification. One party should not be allowed to

enforce the contract on another party without following the contract. The action

has to be proper and valid for BOC 101.359 to apply or it would leave room for

BOC 101.359 to be abused.

56
      Plaintiffs’ Exhibit #2, Page 26.



                                            23
       I. Appellees could have a called a meeting and followed the Company

          Agreement.

       Section 5.3 of the Villas-Manager Company Agreement allows the

Managers or holders of not less than twenty percent of all Membership Interest to

call Special Meetings (Hyo Nam Han and Jang Wook Lee could have asked for a

special meeting together).57 Appellees then would have needed to provide a notice

of the meetings to the members. And then at the meeting, Appellees would need

to take a vote for each removal (co-manager, member, and officer).   Appellees

wanted to forego the requirements of notice of meeting, meeting, and vote. The

only way to do that under Section 5.11 of the Villas-Manager Company Agreement

would be to get the written consent of every person eligible to vote. Appellees

failed to do that.   Appellees use of 5.11 prevented Chan Pak and Hugh Harrison

from raising objections at the meeting or casting their votes.

       J. If the Written Consent is not valid then Chan Pak removal from

          Villas-CSH is not valid

       For Chan Pak to be removed from Villas-CSH, it would require the

unanimous vote from all the other members.58 Villas-CSH Section 8.6(e) is

different from Villas-Manager 8.6(e). Section 8.6(e) of the Villas-Manager

57
       Plaintiff Exhibit #2, Page 16
58
       Plaintiff’s Exhibit #8, Section 8.6(e), Pages 28-29.



                                                24
Company Agreement required the Managers’ approval and the majority vote of the

remaining members.59 Section 8.6(e) of the Villas-CSH Company Agreement

required the Managers approval and the “remaining Members unanimously vote to

expel such Member.”60 If the Written Consent involving Chan Pak membership

interest is not valid, Chan Pak could block his removal membership removal in

Villas-CSH with the membership vote in Villas-Manager or his co-manager vote in

Villas-Manager. The attempt to remove Chan Pak as a member of Villas-CSH

came before any injunction was placed by the Trial Court. If the Written Consent

was not valid, Chan Pak could also block Section 8.6(e) removal of Chan Pak

membership interest in Villas-CSH as a co-manager.61

      K. Villas-CSH damages should be vacated

      If Chan Pak is found to be a member of Villas-CSH, then the damages

awarded to Villas-CSH from Chan Pak should be vacated. The permanent

injunction from the Modified Final Judgment prevented Chan Pak from being

involved with the management of Villas-CSH and the leasing and management of

Villas on Raiford Apartment complex. 62 The Permanent Injunction did not


59
      Plaintiffs’ Exhibit #2, Page 26
60
      Plaintiffs’ Exhibit #8, Pages 28-29
61
      Id. Removal of a member requires the approval of the Managers.
62
      Modified Final Judgment , Including Permanent Injunction (DC-13-06030), Page 3



                                            25
prevent Chan Pak from using his member right on activities outside the operation

of the apartment. There is no mention of member rights being restrained by the

permanent injunction. Filing a lawsuit would fall under Section 3.1(b) of the

Villas-CSH Company Agreement.63 Any decision by Villas-CSH under Section

3.1(b) required the Unanimous vote of the co-manager64 and the Super Majority of

the Members. 65 If Chan Pak is found to be a member of Villas-CSH, Appellees did

not have the proper authorization to file a lawsuit against Chan Pak. As discussed

earlier in the contract law, the contract should be interpreted as it was written.

There is no section in the Villas-CSH Company Agreement that precludes Chan

Pak’s approval as a member on a lawsuit against Chan Pak from Villas-CSH. The

Super Majority of the members could not agree without Chan Pak’s membership

interest. The timing was not right for Villas-CSH claims because Chan Pak’s

membership interest was still in discussion. A determination about Chan Pak’s

membership interest should have been made before the Villas-CSH claims against

Chan Pak were added to the Original Lawsuit.

       L. No public harm (Public Interest)

63
       Plaintiff’s Exhibit 8, page 7-9, specifically 3.1(b)(viii) enter into any transaction that
would result, individually or in the aggregate, in the expenditure and/or incurrence of debt by
Company in an amount exceeding $5,000.
64
      Plaintiffs’ Exhibit #7, Section B (2) of the Second Amendment to the Company
Agreement of Villas on Raiford, LLC, page 1.
65
       Plaintiff’s Exhibit 8, Section 3.1(b) pages 7-8, Appellant Amended Brief, Page 23



                                                 26
      Even though Chan Pak is stating Chan Pak should still be a co-manager and

member of Villas-Manager and a member of Villas-CSH, it will not provide any

harm to the Villas on Raiford Apartment complex. The injunction from the

Modified Final Judgment will still be in place and the injunction prevents Chan

Pak from being involved in the management of Villas-Manager. The injunction

also restricts him from contacting the management company in charge of the Villas

on Raiford apartment complex, participating in leasing any units in the Villas on

Raiford apartment complex, and attempting to sell the any real property or assets

owned by Villas-CSH.66 Chan Pak does not have any influence on how the Villas

on Raiford apartment complex is being managed or leased. The injunction states

nothing about the member rights of Chan Pak in Villas-Manager or Villas-CSH.

Chan Pak is only claiming to be able to make member votes in Villas-Manager and

Villas-CSH that do not involve the leasing of the apartment complex. The

company agreements provide further protection because the company agreements

require member and co-manager agreement for any major action. There is no

public danger in having Chan Pak be a co-manager, member of Villas-Manager,

and a member of Villas-CSH with the injunction in place and the requirements of

the company agreements.



66
      Modified Final Judgment, Including Permanent Injunction (DC-13-06030), Page 3



                                           27
                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant/Cross-Appellee

Chan Pak respectfully requests this Honorable Court grant the petition for

rehearing, vacate its opinion, withdraw its judgment and issue a revised opinion

and judgment holding that September 22, 2013 Written Consent was not valid,

Chan Pak remains a co-manager and member of Villas-Manager, Chan Pak retains

his membership interest in Villas-CSH, damages awarded to Villas-CSH against

Chan Pak are vacated.

                              Respectfully submitted,


                              By:    /s/ Chan I. Pak
                                     Chan I. Pak
                                     Appellant/Cross-Appellee

                                     2313 Incline Dr
                                     Carrollton, TX 75006
                                     Tel. (469) 767-4907
                                     E-mail cip11111@gmail.com

                                     Pro Se Litigant




                                       28
                         CERTIFICATE OF SERVICE

      This shall certify that a true and correct copy of the foregoing document has
been served electronically through the State’s electronic manager to William F.
Lepage at lepage@sbep-law.com on this 5th day of June, 2018.


                                      _/s/ Chan I. Pak________
                                      Chan I. Pak

                                      Appellant/Cross-Appellee
                                      Pro Se Litigant




                     CERTIFICATE OF COMPLIANCE

      In compliance with Texas Rules of Appellate Procedure 9.4(i)(2), this brief
contains 4,293 words as counted by Microsoft Word word count utility, excluding
the portions of the brief exempted by Rule 9.4(i)(1).

                                       /s/ Chan I. Pak         _______
                                      Chan I. Pak




                                        29
