Curocom Energy LLC and Curo Holdings Co. Ltd v. Wong Soon Eem and Jason Kim

• Court: Court of Appeals of Texas
• Decided: August 4, 2016
• Docket: 01-14-00816-CV
• Status: Published

Opinion

Opinion issued August 4, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00816-CV ——————————— CUROCOM ENERGY LLC AND CURO HOLDINGS CO. LTD., Appellants V. WONG SOON EEM AND JASON KIM, Appellees

On Appeal from the 165th District Court Harris County, Texas Trial Court Case No. 2009-06630

MEMORANDUM OPINION

This appeal arises out of a dispute between two Korean conglomerates over

the sale of a working interest in the Caliente Field, part of the Eagle Ford Shale. The

field is located in Karnes County, Texas. In its first oil and gas investment, Woolim

Construction Company, a Korean firm, formed Woolim Energy Holdings LLC, a United States corporation, to purchase the working interest in mid-2006. Woolim

decided to sell its interest a few months later.

Woolim identified another Korean firm, Curocom Energy LLC, as a potential

buyer. It transferred its interest in the Caliente Field to Curocom effective July 2007.

After the sale, Curocom learned that Woolim had not disclosed data that it had

received from one of its analysts before the sale closed. That data indicated that its

Caliente Field interest was worth less than half the amount suggested by other

reserve reports that Woolim had provided to Curocom during their negotiations.

Curocom and its related entities sued Woolim and Woolim’s related corporate

entities, Woolim’s oil and gas consultants, and several Woolim individual

employees involved in the transaction, including Woong Soom Eem, the managing

director of Woolim Energy Holdings and Woolim Resource Development, and Jason

Kim, who managed the Houston office of Woolim Resource Development.

Curocom tried its claims for statutory fraud, common-law fraud, conspiracy

to commit fraud, and breach of contract to a jury. The jury found several Woolim

entities liable and Eem and Kim individually liable. Woolim moved for judgment

notwithstanding the verdict, which the trial court granted as to Eem and Kim. The

trial court otherwise rendered judgment on the verdict.

2 On appeal, Curocom contends that the trial court erred in granting the motion

for JNOV as to Eem and Kim because (1) the trial court relied on a ground not raised

in the motion; (2) Eem and Kim are liable in their individual capacities in addition

to their corporate capacities; and (3) legally sufficient evidence supports findings of

personal liability as to Eem and Kim. We hold that the trial court properly granted

judgment notwithstanding the verdict as to Kim in his individual capacity, but we

reverse the judgment as to Eem.

BACKGROUND

Because this appeal is limited to the individual judgments in favor of Eem and

Kim, we focus on the facts relevant to those rulings. When the underlying events

occurred, Eem lived in Korea and performed most of his job functions there. Eem

worked for Woolim Construction Company and served as its managing director of

some Woolim’s subsidiaries involved in this transaction, including Woolim

Resources Development, Ltd. and Woolim Energy Holdings, as well as a Los-

Angeles based subsidiary. He occasionally traveled to the United States to meet

with Woolim’s employees in California and Texas. Eem held a master’s degree in

Economics, but had no experience in the oil and gas industry when Woolim

undertook the Caliente Field investment.

Kim received his bachelor’s degree in economics in 2006 and began working

for Woolim Construction in Los Angeles shortly thereafter. Like Eem, Kim had no

3 background in oil and gas. Kim relocated from California to Houston so that

Woolim would have a presence in its office near its anticipated investment.

Woolim acquires the Caliente Field Interest

Woolim became interested in the possibility of investing in United States’ oil

and gas properties and put Eem in charge of looking for an opportunity. Lacking

knowledge and experience in oil and gas, Eem met with Park Hee-Won Park,

president of Korea Energy Investment, LLC, a prominent petroleum engineering

company in Korea. Woolim retained Park as a technical consultant. Woolim also

engaged John Myung, a Korean petroleum engineer who had spent most of his career

in the United States and resided in Houston, as a consultant. Myung identified oil

and gas investment opportunities for his clients. He also provided engineering

consulting services to help investors in the oil and gas business optimize their

production.

Myung met with Dan Hughes, an owner of working interests in the Caliente

Field, and identified these interests as a potential for an investment to Park. Park

then contacted Woolim and arranged a meeting with Myung about the opportunity.

At the meeting, which was attended by Woolim’s Chairman, Young-sub Shim, and

several other executives, Myung presented information about the Caliente Field

interest that Hughes was offering for sale.

4 The presentation piqued Woolim’s interest. Chairman Shim, Myung, and

other Woolim employees traveled to Texas to meet with Hughes. Hughes provided

Myung with a reserve report prepared by Albrecht and Associates “to assist

prospective purchasers in their evaluations” of the offered properties. Myung

forwarded the Albrecht report to Woolim.

Dan Hughes also reported to Myung that petroleum engineer Oladipo Aluko

was familiar with the Caliente Field because he had provided technical consulting

services in connection with the field in the past. Park and Myung emailed Aluko

regarding the prospective deal between Woolim and Hughes, but they did not obtain

any documentation from Aluko before Woolim made its investment.

After reviewing the materials that Hughes had provided, Myung concluded

that the interest had reserves that offset existing production and, based on the data

presented in the Albrecht report, recommended that Woolim acquire it. Meanwhile,

in Korea, Park provided the Albrecht report to the Korea Institute of Geosciences

(KIGAM) to use in preparing its own reserve report, a prerequisite of obtaining the

loan that would in part fund Woolim’s investment.

Before proceeding with the transaction, Woolim retained the Korean

accounting firm of Samil PriceWaterhouse Coopers to perform an audit based on

information that Park had provided to KIGAM. KIGAM also obtained production

history information from the Texas Railroad Commission.

5 Woolim relied on Myung’s technical advice in negotiating a purchase price.

In July 2006, Woolim bought the Caliente Field interest from Hughes for $23

million. The deal included an agreement to retain Hughes to rework some of the

wells.

Woolim sells the Caliente Field interest to Curocom

Several months into the rework project, Myung learned from Park that

Woolim was not pleased with the Caliente Field’s production. Woolim decided to

divest itself of the Caliente Field investment and use the money to pursue real estate

development and oilfield exploration in Kazakhstan. Woolim began to search for a

potential buyer, and it tasked Park with preparing a report reflecting the rework’s

effectiveness.

Park then learned from Hughes that Aluko had prepared a well testing report

for the Caliente Field. At Park’s request, Myung met with Aluko in February 2007.

Myung asked Aluko to prepare a report showing reserve and economic analysis after

the rework so that Park could evaluate it. When Aluko estimated that his fee for the

report would be approximately $6,000 to $8,000, however, Myung and Park knew

that Woolim would not agree to the expense. Instead they asked Aluko to provide

just the production and reserve numbers so that Park could prepare an analysis from

them.

6 In June 2007, Aluko provided Myung and Park with 12 pages of data,

consisting of charts entitled “Reserves and Economics” as of July 1, 2007. Aluko

did not charge Woolim for the data because Hughes had paid him to collect it in

connection with preparation of Hughes’s income tax returns. Unlike the Albrecht

report, the Aluko data is not analyzed or signed by the preparer.

Park received the collection of data from Aluko and forwarded the document

as an email attachment to Eem, noting: “This is the result on Caliente producing

wells analysis by Dr. Dipo. Please take as reference.” Eem, in turn, forwarded the

document to Kim and two other employees in Woolim’s offices in Korea, noting:

“Confidential. Please use for reference only.”

Meanwhile, Eem, who had attended college with Curocom’s CEO, told

Curocom about the Caliente Field investment. He directed him to Park for technical

information about the Caliente Field. After Curocom contacted Park, Eem told Kim

that Curocom was interested in buying the interest. The parties arranged a June 2007

meeting in Houston for a sales presentation.

Park was in charge of the presentation. The night before the meeting, he sent

an email to Kim with a Powerpoint presentation attached. He asked Kim to make

copies and bind all but one of them for the meeting. Other than performing this

administrative task, Kim did not prepare anything for the meeting or present

anything at it.

7 Eem invited Myung to the meeting for the technical discussion because he and

Park had the most technical information about the Caliente Field. Myung attended

the meeting, but did not make any formal presentation. Park’s presentation included

the Albrecht report, but he did not present the Aluko data received two days before

the meeting. Park did not transmit or mention this data to Curocom; neither did

anyone else.

The Aluko data challenged the proved developed reserves identified in the

Albrecht report. Curocom eventually paid $30 million for the project, but

Curocom’s expert opined that, based on the Aluko data, the Caliente Field interest

had a substantially lower fair market value, of approximately $9.5 million.

Eem negotiated the sale price with Curocom. On July 14, Eem sent

Curocom’s CEO an email, attaching a link to what he described as “comparative

analysis material.” The material related to a transaction with Tristone Capital in the

Barnett Shale, which Eem explained, was about twice as large as the Caliente Field

interest and had greater exploration and development risks. Eem stated, “[b]ased on

the above, our company’s Caliente is worth (price) at least 40 million dollars. Please

consider the fact that according to the Al[brecht] data, our company’s project was

proposed at 43 million dollars.” Eem did not mention the Aluko data that Park had

forwarded to him three days earlier.

8 The sale closed at a price of $30 million without disclosure of the Aluko data.

In December 2007, Myung recommended that Curocom’s auditor hire Aluko to

prepare a reserve report for the company. Curocom learned for the first time that the

earlier Aluko data showed that the Caliente Field interest had no proved undeveloped

reserves to offset existing production. Curocom’s representative in Texas consulted

Myung; Curocom then discovered that Myung had received data from Aluko before

the July 2007 sale.

The disparities between the amounts of undeveloped reserves reported by

Albrecht and those identified in the Aluko data, and the failure to disclose the Aluko

data to Curocom, led to this lawsuit. The jury found Woolim Energy, Woolim

Resources, and Korea Energy Investment liable for fraud and breach of contract.

With respect to Eem, the jury found that he was liable for statutory fraud and

common-law fraud under both misrepresentation and nondisclosure theories. With

respect to Kim, the jury found liability for statutory fraud only. The jury awarded

$20.3 million in actual damages in connection with both liability theories, and it

assessed proportionate liability among the defendants that it found liable. The jury

also found certain of the defendants liable for exemplary damages, including Eem.

It assessed $1 million in punitive damages against him.

9 The trial court granted judgment notwithstanding the verdict as to Eem and

Kim “[i]n light of the holding in Cox v. State,” 448 S.W.3d 497 (Tex. App.—

Amarillo 2014, pet. denied). It denied the remaining defendants’ motions to set aside

the verdict. In its final judgment, the trial court awarded actual damages against the

remaining defendants of $20.3 million, punitive damages against the defendants who

were found to be liable, attorney’s fees, and interest.

Initially, both parties appealed the trial court’s judgment. After its trial

counsel withdrew, however, the Woolim defendants did not engage new counsel and

did not file briefs in our court. We have dismissed their appeals for want of

prosecution. Curocom appeals the trial court’s decision to grant judgment in favor

of Eem and Kim.

DISCUSSION

I. Standard of Review

A trial court may grant a motion for judgment notwithstanding the verdict if

a directed verdict would have been proper, and it may disregard any jury finding on

a question that is immaterial or has no support in the evidence on issues necessary

to impose liability. TEX. R. CIV. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.

2003); Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994); Pills

& Collard L.L.P v. Schechter, 369 S.W.3d 301, 320 (Tex. App.—Houston [1st Dist.]

2011, no pet.). In reviewing a trial court’s judgment notwithstanding the verdict, we

10 determine whether any evidence supports the jury’s finding, viewed in the light most

favorable to the verdict. Tiller, 121 S.W.3d at 713; see also B & W Supply, Inc. v.

Beckman, 305 S.W.3d 10, 15 (Tex. App.—Houston [1st Dist.] 2009, pet. denied);

see also City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit

favorable evidence if reasonable jurors could and disregard contrary evidence unless

reasonable jurors could not. City of Keller, 168 S.W.3d at 822.

No evidence exists when there is (a) a complete absence of evidence of a vital

fact; (b) the court is barred by rules of law or of evidence from giving weight to the

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

fact is no more than a mere scintilla; (d) the evidence establishes conclusively the

opposite of the vital fact. Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d

338, 347 (Tex. 2015) (citing City of Keller, 168 S.W.3d at 810).

II. Propriety of the JNOV as to Eem and Kim

On appeal, Curocom challenges the trial court’s ruling on procedural and

substantive grounds. Procedurally, it contends that the trial court improperly relied

on a ground not raised in the motion for judgment notwithstanding the verdict to rule

in favor of Eem and Kim. Substantively, it contends that the trial court erred in

determining that no evidence exists to support a finding of individual liability as to

Eem and Kim.

11 A. The trial court relied on grounds expressly raised in the motion.

Curocom contends that the Woolim defendants did not cite Cox v. State in

their written motion for JNOV, and the trial court thus erred in relying on that case

in its order granting relief. On the contrary, paragraph 29, page 11 of the Woolim

defendants’ written motion for JNOV expressly cites Cox to support its contention

that “[a] false promise by Woolim Resources alone cannot be treated as a false

promise made by any other Defendant especially in light of no alter ego pleading,

jury issue, or jury finding.” We therefore reject this challenge as unfounded in the

record.

Curocom further contends that the trial court erred in ostensibly relying on

Cox’s “hold[ing] that a corporate officer’s acts as the ‘guiding spirit’ behind

corporate violations of the Deceptive Trade Practices Act fail to create personal

liability for an officer.” This contention is unavailing for two reasons. First, the

Woolim defendants’ motion for JNOV and the trial court’s order demonstrate that

the trial court did not rely on the federal “guiding spirit” doctrine for determining

whether Eem and Kim could be held liable for Woolim’s conduct. Second, the Cox

court did not make a determination about whether the guiding spirit doctrine was

useful in determining corporate versus individual liability; it only observed that the

DTPA did not include the doctrine, and it deferred to the legislature the decision

whether to adopt it as a basis for individual liability under the DTPA. See 446

12 S.W.3d at 503. Cox’s holding relates to whether Cox, a certified public accountant

who was the president, chief executive officer, chairman of the board, and majority

holder of Tax Masters, Inc. could incur individual liability without either a showing

that he personally engaged in conduct violative of the DTPA or an evidentiary basis

for piercing the corporate veil. See id. at 503–04. It was upon that proposition that

the trial court relied.

B. The trial court properly held that no evidence supports personal liability as to Kim, but some evidence supports the finding against Eem.

A corporate officer who knowingly participates in tortious or fraudulent acts

may be held individually liable to third persons even though he performed the act as

an agent of the corporation. Nwokedi v. Unltd. Restoration, 428 SW 3d 191, 201

(Tex. App.—Houston [1st Dist.] 2013, pet. denied). We therefore focus our legal-

sufficiency review on whether there is evidence that either Kim or Eem personally

engaged in the fraud that supports the jury’s findings against the Woolim entities

and other individuals.

1. Kim

Curocom claims that legally sufficient evidence supports the verdict against

Kim personally based on his failure to disclose the Aluko data to Curocom.

Curocom’s statutory fraud claim provides the basis for the jury’s sole affirmative

finding that Kim committed fraud. Under the Texas Business and Commerce Code,

13 to establish a cause of action for statutory fraud in a real estate transaction, a plaintiff

must show: (1) a false representation of a past or existing material fact, (2) made to

a person for the purpose of inducing that person to enter into a contract, and (3) relied

on by that person in entering into that contract. TEX. BUS. & COM. CODE ANN.

§ 27.01(a) (West 2012).

The instruction supporting the statutory fraud question informed the jury:

Fraud occurs when— a. there is a false representation of a past or existing material fact, b. the false representation is made for the purpose of inducing that person to enter into a contract, and c. the false representation is relied on by that person in entering into that contract. or a. a party makes a false promise to do an act, b. the promise is material, c. the promise is made with the intention of not fulfilling it, d. the promise is made to a person for the purpose of inducing that person to enter into a contract, and e. that person relies on the promise in entering into that contract. This instruction does not support a finding under the nondisclosure theory that

Curocom urges here.1 The charge gave the jury a fraud by nondisclosure instruction

1 Curocom cites Keathley v. Baker, an opinion from the Tyler Court of Appeals, for the proposition that statutory fraud includes Curocom’s nondisclosure theory. See No. 12-11-00151-CV, 2013 WL 1342524, at *7 (Tex. App.—Tyler Apr. 3, 2013, no pet.). That case involved claims for both statutory and common-law fraud. The Tyler court discussed fraud by nondisclosure after reciting the elements of a statutory fraud claim, but it did not suggest that fraud by nondisclosure was part of statutory fraud, and its citation to the common-law fraud discussion in Lesikar v. Rappeport, 33 S.W.3d 282 (Tex. App.—Texarkana, pet. denied), shows that its 14 in the common-law fraud question, but the jury did not find that Kim committed

common-law fraud. Curocom does not advance any other argument for reversing

the jnov as to Kim personally on the statutory fraud finding.

Because the sole finding against Kim does not support personal liability, the

conspiracy finding cannot support it either. See Tilton v. Marshal, 925 S.W.2d 672,

681 (Tex. 1996) (“[A] defendant’s liability for conspiracy depends on participation

in some underlying tort for which the plaintiff seeks to hold at least one of the named

defendants liable.”) Accordingly, we hold that the trial did not err in granting the

motion for jnov and entering a take-nothing judgment on Curocom’s claims against

Kim.

2. Eem

The jury found Eem liable for both common-law fraud and statutory fraud.

We first consider whether legally sufficient evidence exists that Eem made a

misrepresentation, which would support the jury’s findings against him for both

common-law fraud and statutory fraud. The jury charge contains the following

instruction:

discussion of fraud by nondisclosure was grounded in the common law, not statute. See 2013 WL 1342524, at *7 (citing Lesikar, 33 S.W.3d at 299). 15 [F]raud occurs when— a. a party makes a material misrepresentation, b. the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion, c. the misrepresentation is made with the intention that it should be acted on by the other party, and d. the other party relies on the misrepresentation and thereby suffers injury. “Misrepresentation” means: a. A false statement of fact; b. A promise of future performance made with an intent, at the time the promise was made, not to perform as promised; c. A statement of opinion based on a false statement of fact; d. A statement of opinion that the maker knows to be false; or e. An expression of opinion that is false, made by one claiming or implying to have special knowledge of the subject matter of the opinion.

“Special knowledge” means: Knowledge or information superior to that possessed by the other party and to which the other party did not have equal access. Fraud also occurs when a defendant has a duty to disclose and— a. A defendant failed to disclose a material fact within its or his knowledge, and b. knew Curocom . . . was ignorant of the fact and did not have equal opportunity to discover the truth, and c. by failing to disclose the fact, intended to induce Curocom . . . to enter into the agreement, and d. Curocom . . . entered into the agreement as a result of acting without knowledge of the undisclosed fact.

16 In addition, if any defendant voluntarily disclosed information he had a duty to disclose the whole truth; if he made a representation he had a duty to disclose new information if he became aware that the new information made the earlier representation misleading or untrue; and he had a duty to correct a false impression conveyed by a partial disclosure. A misrepresentation or omission is “material” if it would be likely to affect the conduct of a reasonable person with reference to the transaction in question.

Curocom relies on Eem’s email statement to Curocom that the Caliente Field

interest’s market value was comparable to other transactions and worth $40 million

as a false representation of a material fact. “Whether a statement is an actionable

statement of ‘fact’ or merely one of ‘opinion’ often depends on the circumstances in

which a statement is made.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of

Am., 341 S.W.3d 323, 338 (Tex. 2011) (quoting Transport. Ins. Co. v. Faircloth,

898 S.W.2d 898 S.W.2d 269, 276 (Tex. 1995)). Courts consider circumstances like

the statement’s specificity, the speaker’s knowledge, the comparative levels of the

speaker’s and hearer’s knowledge, and whether the statement relates to the present

or future. Faircloth, 898 S.W.2d at 276. “In cases like these, ‘[t]he decisive test . . .

is whether the seller asserts a fact of which the buyer is ignorant or merely states an

opinion or judgment on a matter of which the seller has no special knowledge and

on which the buyer may be expected also to have an opinion and to exercise his

judgment.’” Steptoe v. True, 38 S.W.3d 213, 218 (Tex. App.—Houston [14th Dist.]

17 2001, no pet.) (emphasis in original) (quoting Autohaus, Inc. v. Aguilar, 794 S.W.2d

459, 463 (Tex. App.—Dallas 1990), writ denied, 800 S.W.2d 853 (Tex.1991) (per

curiam)).

Eem’s email characterized the Tristone Capital transaction as comparable to

the proposed Caliente Field sale, but it pointed to various differences between the

two areas, including risk factors. Eem concluded that, “Based on [a recent Tristone

Capital trade, linked in the email], our company’s Caliente is worth (price) at least

40 million dollars. Please consider the fact that according to the Albr[echt] data, our

company’s project was proposed at 43 million dollars.”

The circumstances show that Eem’s valuation is an opinion based on a

comparable sale. Curocom’s CEO could make an independent assessment of the

proposed comparable sale based on the primary source documents that Eem linked

in the email. We hold that Curocom has not demonstrated that the trial court erred

in considering this statement to be nonactionable opinion.

Curocom further claims that Eem personally misrepresented the Caliente

Field interest’s value because he omitted the Aluko data in the email with his value

estimate, and had received the data three days before he sent the email. The Aluko

data, however, did not contain an estimated value for the Caliente Field interest or

an analysis for determining that value. At trial, the uncontroverted evidence was

that Eem lacked the expertise to analyze the data; for that, he relied on Park and

18 Myung. No evidence shows that Park or Myung had provided Eem with a valuation

analysis of the Aluko data. Curocom presented an expert witness to testify to the

Caliente Field interest’s value pursuant to the Aluko data, but no evidence

demonstrates that this valuation was available to Eem at the time he sent the email.

As a result, the record does not support the statutory fraud and common-law fraud

finding against Eem based on a misrepresentation-of-value theory.

But the data nevertheless was material to determining a purchase price for the

interest and Eem failed to disclose it. In contending that Eem committed fraud by

nondisclosure, Curocom points to Eem’s silence during Park’s presentation to

Curocom in Houston as a second opportunity to disclose the Aluko data. It notes

that Eem received an email from Park with the Aluko data two days earlier. Eem

forwarded the email to Kim and employees in Korea as “Confidential, please use for

reference only.” Thus, Eem acted on the email from Park but did not ask Park to

provide the data to Curocom. When Curocom’s chief executive officer later

confronted Eem with the data, Eem denied that he knew about it. Eem also later

wrote an email indicating that he would rely on his ignorance of geologic matters as

a defense to failing to disclose the data. Eem was undisputedly charged with making

decisions regarding the Curocom transaction and overseeing Park’s work. It was to

Eem that Park provided the data when Park received it from an outside source.

19 Eem’s decision to restrict disclosure of the email containing the reserve data,

confidentially forward it to his colleagues at Woolim, attend the meeting in which

Park presented reserve reports to Curocom but not the Aluko data that Park had

provided to Eem, his after-the-fact effort to either conceal that he had knowledge of

the data or claim ignorance of its import, and his position as the chief negotiator of

the purchase price and managing director of the subsidiary charged with making the

deal, taken together, support a reasonable inference that Eem personally participated

in the decision with Park to withhold the Aluko data from Curocom, with the intent

to induce Curocom into the sale. Further, the Woolim defendants during the trial

admitted that Woolim’s agreement with Curocom required disclosure of this data.

Thus, some evidence supports each of the elements of common-law fraud upon

which the jury was instructed and for which it imposed liability on Eem.

Eem has not filed a responsive brief to controvert the evidence and arguments

submitted by Curocom on appeal in support of the jury’s verdict, nor has he

otherwise participated in this appeal. Thus, Curocom’s arguments about the state of

the evidence and its legal effect are uncontroverted. See TEX. R. APP. P. 38.1(g).

Because a reasonable jury could infer that Eem personally and knowingly

participated in a decision to withhold the material Aluko data with the intent to

induce Curocom into purchasing Woolim’s interest in the Caliente Field at an

inflated price, and knew that he had a duty to disclose such data as evidenced in the

20 parties’ agreements, we hold that the trial court erred in granting judgment

notwithstanding the verdict as to Eem on Curocom’s claim against him for common-

law fraud.

CONCLUSION

We hold that the trial court did not err in granting the motion for judgment

notwithstanding the verdict as to Kim’s personal liability, but we reverse and

reinstate the jury’s verdict with respect to Eem’s personal liability. We therefore

affirm in part, reverse in part, and remand the case to the trial court for entry of a

judgment consistent with this opinion.

Jane Bland Justice

Panel consists of Justices Bland, Brown, and Lloyd.