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FAR EAST BANK, et al. v. DANG, et al. (59846)



DANG, et al.

April 16, 1999
Record No. 981335





Donald M. Haddock, Judge
Present: All the Justices

In this appeal, Far East Bank and its purported
shareholders seek to recover a portion of a fund deposited with
the general receiver of the circuit court. The dispositive issue
we consider is whether the appellants have established that they
are shareholders of the Bank, which was allegedly expropriated by
the government of Vietnam.

The procedural history of this case is complex
and involves many facts which are not pertinent to our resolution
of this appeal. We will discuss only those facts which are
essential to the precise issues presented here.

Vinh Q. Dang and Dien Van Phan, shareholders in
Donai Construction and Industrial Company, t/a Docico Corporation
(DOCICO), filed an amended bill of complaint requesting that the
circuit court determine their interests in a fund in the sum of
$1,002,892.03 held by the Crestar Financial Corporation. The
circuit court entered an order of publication to provide notice
to all persons who may have interests in the fund. Appellants,
Far East Bank and its alleged shareholders, Hong Thi Nguyen,
Vuong Trieu Ly, Tuyen Thi Vuong, Minh K. Nguyen, Toan Cao Phan,
and Nguyen Khac Quyen, filed a notice of claim asserting that Far
East Bank had made a loan to DOCICO in the amount of $1,301,707,
and that these purported shareholders were entitled to repayment
of the loan from the funds held by Crestar Financial Corporation
on behalf of DOCICO.

The appellees, who are creditors or
shareholders of DOCICO, filed pleadings and asserted various
interests in the fund.
[1] The chancellor ordered that Crestar
Financial Corporation deposit the fund with the court’s general
receiver, and the chancellor referred the matter to a
commissioner in chancery who heard the following evidence.

In 1973, DOCICO, which was organized in Saigon,
Vietnam, executed a construction contract with the United States
Agency for International Development. Pursuant to the terms of
that contract, DOCICO performed highway construction work in
Vietnam. In 1975, the Agency for International Development
suspended work on DOCICO’s construction project because of events
occurring in the Vietnam War. At the time of the suspension of
work, the Agency for International Development owed DOCICO money
for work performed. DOCICO, in turn, owed money to its

In 1980, DOCICO’s shareholders voted to pursue
a claim on behalf of DOCICO against the United States government
for payment for work performed. In 1987, appellant, Nguyen Khac
Quyen, who is also a shareholder of DOCICO, filed an application
for a license with the United States Treasury Department, Office
of Foreign Assets Control, and sought permission to recover on
behalf of DOCICO the sums that the United States owed DOCICO.
Quyen stated under oath that he had personal knowledge of all
facts contained in the application and that no one other than
those persons identified in the application had any interest in
the fund that DOCICO sought to recover from the United States.
Quyen specifically did not identify any claim on behalf of Far
East Bank, a corporation of which he claimed to have been an
officer and director since the early 1970s. Additionally, Quyen
did not list Far East Bank on the application even though he
testified later that he personally approved the loan that Far
East Bank purportedly made to DOCICO.

Quyen testified that when he was president or
chairman of Far East Bank in 1974, representatives of DOCICO
requested a loan so that it could perform the construction
contract with the Agency for International Development. Far East
Bank approved the loan, and the Bank executed promissory notes
with DOCICO. Quyen believed that the original promissory notes
are in Saigon in the possession of Far East Bank, which he
assumed had been "nationalized or . . .
expropriated . . . by the government of Vietnam."

Quyen also testified that he was president or
chairman of Far East Bank and that he owned about 30% of the
stock in that Bank. He was not asked, and he did not testify,
about any other information relevant to the Bank’s issuance of

Ha Van Sanh, a shareholder in DOCICO, testified
that he met with Quyen on behalf of DOCICO in 1974 and requested
a loan. Sanh stated that he, along with other DOCICO
shareholders, paid the loan, or a portion of it, in return for
permission from the government of Vietnam to leave that country.
In 1992, the United States government settled DOCICO’s claim by
paying the sum of $1,002,892.03 in an account with the Crestar
Financial Corporation in Virginia.

At the conclusion of a two-day hearing, the
commissioner ruled, among other things, that the purported
shareholders of Far East Bank failed to present any evidence that
they "ever held any stock ownership in Far East Bank which
was located in Saigon, Vietnam." The chancellor overruled
the purported shareholders’ objections to the commissioner’s
report and, subsequently, the chancellor entered a decree which
determined the litigants’ interests in the fund.

On appeal, Far East Bank and its purported
shareholders argue, among other things, that the chancellor erred
by approving the commissioner’s report because they claim that
they established that they are shareholders in Vietnamese Far
East Bank. Responding, the DOCICO shareholders and creditors
assert that Far East Bank’s purported shareholders failed to
establish that they own any interests in that Bank.

We will apply our well-established standard of
review in resolving this appeal. A decree which approves the
commissioner’s report will be affirmed unless plainly wrong or
without evidence to support it. Chesapeake Builders, Inc.
v. Lee, 254 Va. 294, 299, 492 S.E.2d 141, 144 (1997); Firebaugh
v. Hanback, 247 Va. 519, 525, 443 S.E.2d 134, 137 (1994); Hill
v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97
(1984). Even though the report of a commissioner in chancery does
not carry the weight of a jury verdict, Code Sect. 8.01-610,
the report should be sustained by the chancellor if the
commissioner’s findings are supported by the evidence. This rule
applies with particular force to factual findings in the report
which are based upon evidence heard by the commissioner, but does
not apply to pure conclusions of law contained in the report. Chesapeake
Builders, Inc.
, 254 Va. at 299, 492 S.E.2d at 144; Morris
v. United Virginia Bank, 237 Va. 331, 337-38, 377 S.E.2d
611, 614 (1989); Hill, 227 Va. at 576-77, 318 S.E.2d at

Applying these principles, we hold that the
record supports the chancellor’s decree sustaining the
commissioner’s ruling that the purported shareholders failed to
prove that they owned any stock interest in Far East Bank located
in Saigon, Vietnam. The record is simply devoid of any evidence
that Vuong Ly, Hong Nguyen, Tuyen Vuong, Minh Nguyen, or Toan
Phan owned any stock in the Bank. No witness testified that these
claimants were shareholders of the Vietnamese bank.

It is true that Quyen testified that he owned
30% of the stock of Far East Bank in Vietnam in 1974. However,
the commissioner, who saw, heard, and evaluated Quyen’s
testimony, apparently did not believe him. And, the commissioner
was not required to accept Quyen’s testimony because Quyen’s
testimony about material factual issues was contradicted by other
witnesses and a sworn statement that he had signed. See Zirkle
v. Commonwealth, 189 Va. 862, 870, 55 S.E.2d 24, 29
(1949); Limbaugh v. Commonwealth, 149 Va. 383, 398,
140 S.E. 133, 137 (1927). Thus, we cannot conclude, based upon
the record before us, that the commissioner erred by rejecting
Quyen’s testimony.

We also observe that appellant Minh Nguyen
testified that a bank located in California is also known as the
Far East Bank. Nguyen stated that this particular bank is
"recognized by the government in California and is now a
corporation or a company of the California State." Nguyen
testified that he owned 283 shares in a bank, but the
commissioner, who observed Nguyen and heard his testimony, found
that Nguyen did not own stock in the Vietnamese Far East Bank,
but that he owned stock in the California bank.

The undisputed evidence of record reveals that
the purported shareholders planned to convene a meeting and
decide what to do with any proceeds they may have acquired as a
result of this litigation. Quyen testified that he did not even
know whether the appellant Far East Bank "still
exists." Even though Far East Bank is a party in this
appeal, the record is devoid of any evidence that either the
Bank’s board of directors or its officers authorized anyone to
assert a claim in this proceeding. See Code
Sects. 13.1-673, -693, and -694. Thus, the chancellor did
not err in rejecting the Bank’s claim.

In view of our disposition of this appeal, we
need not consider the litigants’ remaining arguments.
Accordingly, we will affirm the chancellor’s decree, and we will
remand this proceeding so that the chancellor may supervise the
distribution of the fund held by the general receiver.

Affirmed and remanded.



[1] The appellees are: Vinh Q. Dang, Dien
Van Phan, Nguyen Ngoc Dung, Nguyen Ngoc Lan, The Estate of Nguyen
Van Chung, Ha Van Sanh, Nguyen Dang But, Ha Ngoc Long, Ha Ngoc
Min, Chuong Quoc Lai, The Estate of Man Lai, Nguyen Van The, Tran
Van Cuong, Lai Nam Huong, The Estate of Phu Than Vo, Thai Bin
Huynh, Thomas R. Averna, Construction and Industrial Development
Corporation, Ltd., My Nguyen, and Julien Graystone.