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IN THE
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS AT DALLAS
NO. 05-11-01507-CV
JOSEPH FABIANI,
Appellant
v.
ADOLPH R. HERRERA, JR.,
Appellee
On Appeal from the 298th Judicial District Court of Dallas County, Texas
Trial Court Cause No. DC-10-06883
BRIEF OF APPELLANT IN SUPPORT OF APPEAL
January 18, 2012
Ellen Cook Sacco
Tex. State Bar No. 24029491
Donald M. Kaiser, Jr.
Tex. State Bar No. 24025466
Hulse + Stucki, PLLC
2912 W. Story Road
Irving, TX 75038
214-441-3000
214-441-3001 fax
Oral Argument Requested
5th Court of Appeals
FILED: 01/18/2012
14:00
Lisa Matz, Clerk

IN THE
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS AT DALLAS
NO. 05-11-01507-CV
JOSEPH FABIANI,
Appellant
v.
ADOLPH R. HERRERA, JR.,
Appellee
On Appeal from the 298th Judicial District Court of Dallas County, Texas
Trial Court Cause No. DC-10-06883
BRIEF OF APPELLANT IN SUPPORT OF APPEAL
January 18, 2012
Ellen Cook Sacco
Tex. State Bar No. 24029491
Donald M. Kaiser, Jr.
Tex. State Bar No. 24025466
Hulse + Stucki, PLLC
2912 W. Story Road
Irving, TX 75038
214-441-3000
214-441-3001 fax
Oral Argument Requested

APPELLANT:
JOSEPH FABIANI
APPELLEE:
IDENTITY OF PARTIES AND COUNSEL
APPELLANT'S ATTORNEYS:
Ellen Cook Sacco
Donald M. Kaiser, Jr.
Hulse + Stucki, PLLC
2912 W. Story Road
Irving, TX 75038
214-441-3000
214-441-3001 fax
ESacco@AttorneysF orBusiness.com
DKaiser@AttorneysF orBusiness.com
ADOLPH R. HERRERA, JR.
APPELLEE'S ATTORNEYS:
Ryan C. Gentry
Novak & Stauch, LLP
4144 N. Central Expressway, Suite 300
Dallas, TX 75204
214-823-2006
214-823-2007 fax
rgentry@ns-law .net
APPELLANT'S BRIEF
2

TABLE OF CONTENTS
IDENTITY OF THE PARTIES AND COUNSEL ....................................... 2
TABLE OF CONTENTS ................................................................. 3-4
INDEX OF AUTHORITIES .............................................................. 5-7
STATEMENT OF THE CASE .......................................................... 7-8
ISSUES PRESENTED ..................................................................... 8-9
STATEMENT OF FACTS .............................................................. 9-12
STANDARD OF REVIEW ............................................................... 12
SUMMARY OF ARGUMENT ....................................................... 12-13
ARGUMENT ........................................................................... 14-34
ISSUE ONE
Whether the trial court erred in granting summary judgment against Appellant for
fraud ....................................................................................... 14-20
ISSUE TWO
Whether the trial court erred in granting summary judgment against Appellant for
under an alter ego theory ............................................................... 20-22
ISSUE THREE
Whether the trial court erred in granting summary judgment against Appellant for
fraudulent transfer under the UFTA .................................................. 22-27
APPELLANT'S BRIEF 3

ISSUE FOUR
Whether the damages awarded for fraudulent transfer are erroneous under the
UFTA and result in an improper double recovery for Appellee .................. 27-29
ISSUE FIVE
Whether the trial court erred when it awarded $61,848.47 in trial attorney's fees
and $25,000.00 and $15,000.00 in appellate attorney's fees under the Uniform
Fraudulent Transfer Act ............................................................... 29-33
ISSUE SIX
Whether prejudgment interest was calculated using an incorrect rate of
prejudgment and postjudgment interest. ............................................ .33-34
CONCLUSION AND PRAYER ...................................................... 34-35
CERTIFICATE OF SERVICE ............................................................ .3 7
APPENDIX TABLE OF CONTENTS .................................................. .38
TAB 1 JUDGMENT DATED AUGUST 5, 2011
APPELLANT'S BRIEF
4

INDEX OF AUTHORITIES
CASES
Black v. Victoria Lloyds Ins. Co., ............................................ .... 14, 15, 16
797 S.W.2d 20 (Tex. 1990).
Burns v. Thomas, ........................................................................... 12
786 S.W.2d 266 (Tex. 1990).
Castleberry v. Branscum, .................................................................. 21
721 S.W.2d 270 (Tex. 1986).
City of Houston v. Clear Creek Basin Authority, .................................. 15, 24
589 S.W.2d 671 (Tex. 1979).
Cox v. Southern Garrett, L.L.C., .......................................................... 21
245 S.WJd 574 (Tex. App.-Houston 2007, no pet.)
Dillard Dept. Stores, Inc. v. Gonzales, .................................................. .31
72 S.W.3d 398 (Tex. App.-El Paso 2002, pet. denied).
Farr v. Sun World Sav. Ass'n, ............................................................. 21
810 S.W.2d 294 (Tex. App.--El Paso 1991, no writ).
Gallagher v. Bintli.fj', .......................................... .............................. 21
740 S.W.2d 118 (Tex. App.--Austin 1987, writ denied).
General Motors Corp. v. Bloyed, ..................................................... 30, 32
916 S.W.2d 949 (Tex. 1996).
In Re FirstMerit Bank, ..................................................................... 18
52 S.W.3d 749 (Tex. 2001).
Insurance Co. ofN Am. v. Morris, ................................................... .... 17
981 S.W.2d 667 (Tex. 1998).
Jacobs v. Satterwhite, ...................................................................... 14
65 S.WJd 653 (Tex. 2001).
Limestone Prods. Distrib., Inc. v. McNamara, Inc., .................................... 20
71 S.WJd 308 (Tex. 2002).
APPELLANT'S BRIEF 5

Lucas v. Texas Indus., Inc., ................................................................ 21
696 S.W.2d 372 (Tex. 1984).
MD. Anderson Hosp. & Tumor Ins. v. Willrich, ....................................... 24
28 S.W.3d 22 (Tex. 2000).
Mid-Century Ins. Co. v. Ademaj, ......................................................... 12
243 S.W.3d 618 (Tex. 2007).
Morgan v. Anthony, ........................................................................ 15
27 S.W.3d 928 (Tex. 2000).
Nixon v. Mr. Property Mgmt. Co., ........................................................ 12
690 S.W.2d 546
Ortega-Carter v. American International Adjustment Co., ....................... 12, 15
834 S. W.2d 439 (Tex. App.-Dallas 1992, writ denied).
Phillips v. United Heritage Corp., ........................................................ 21
319 S.W.3d 156, 158 (Tex. App.--Waco 2010, no pet.);
Pleasant Hills Children's Home v. Nida, ............................................... .31
596 S.W.2d 947 (Tex. App.-Fort Worth 1980, no writ)
Provident Life & Ace. Ins. Co. v. Knott, ................................................. 20
128 S.W.3d 211 (Tex. 2003).
Siegler v. Williams, ......................................................................... 31
658 S.W.2d 236 (Tex. App.-Houston 1983, no writ).
Specialty Retailers, Inc. v. Fuqua, ........................................................ 22
29 S.W.3d 140 (Tex. App.-Houston 2000, pet. denied).
Tony Gullo Motors I, L.P. v. Chapa, .................................................... .33
212 S.W.299 (Tex. 2006).
Travelers lndem. Co. v. Mayfield, ....................................................... .31
923 S.W.2d 590 (Tex. 1996).
Wilson v. Davis, 305 S.W.3d 57 .......................................................... 21
(Tex. App.-Houston 2009, no pet.);
APPELLANT'S BRIEF 6

T.R.C.P. 166a(c)
Tex. Bus. Orgs. Code§ 21.223(a)(2)
STATUTES AND RULES
Tex. Bus. & Comm. Code § 24.008, § 24.009
Texas Finance Code§ 304.002, § 304.003(c)(l), § 304.102
Nature of the Case:
STATEMENT OF THE CASE
This case arises from a $100,000.00 loan from Appellee to Invictus Partners, LLC
("lnvictus") that resulted in a Judgment of $600,794.33 for Appellee and against
Appellant for fraud and violations of the Uniform Fraudulent Transfer Act
("UFTA"). CR 192-193.
Course of Proceedings:
Appellee filed a Motion for Partial Summary Judgment. CR 15.
Trial Court:
95th Judicial District Court of Dallas County, Texas, Hon. Emily Tobolowsky
presiding
APPELLANT'S BRIEF
7

Disposition:
The trial court granted Appellee's Motion for Partial Summary Judgment. The
Judgment found for Appellee and against Appellant on the basis of fraud and
violations of the Uniform Fraudulent Transfer Act codified at Tex. Bus. & Comm.
Code§ 24.005. CR 192-193.
Statement Regarding Oral Argument
Appellant requests oral argument. While the standard of review for an appeal
from a summary judgment order is not a difficult burden, undersigned counsel
believes that oral argument could aid the Court in its review of this case.
ISSUE ONE
ISSUES PRESENTED
Whether the trial court erred in granting summary judgment against Appellant for
fraud.
ISSUE TWO
Whether the trial court erred in granting summary judgment against Appellant for
under an alter ego theory.
ISSUE THREE
Whether the trial court erred in granting summary judgment against Appellant for
fraudulent transfer under the UFTA.
APPELLANT'S BRIEF
8

ISSUE FOUR
Whether the damages awarded for fraudulent transfer are erroneous under the
UFTA and result in an improper double recovery for Appellee.
ISSUE FIVE
Whether the trial court erred when it awarded $61,848.47 in trial attorney's fees
and $25,000.00 and $15,000.00 in appellate attorney's fees under the Uniform
Fraudulent Transfer Act.
ISSUE SIX
Whether interest was calculated using an incorrect interest rate.
STATEMENT OF FACTS
Appellant Fabiani, Albert Guardado ("Guardado"), Karen Herrera
(Appellee's daughter), Kendrick Toussaint, and Tiffany Vanek worked for
Invictus. CR. 183-184. Karen Herrera's father, the Appellee, invested
$100,000.00 in Invictus in the form of a loan. The money loaned from Appellee to
Invictus was used to pay salaries and fund the start-up of Solace Supplier
Screening, LLC, which included payments to employees Karen Herrera, Kendrick
Toussaint, and Tiffany Vanek. CR. 185.
On July 1, 2009, Appellee and Invictus entered into the Bridge Note (the
"Note"). CR 33-36. The Note was for $100,000.00, accrued 12% interest per
annum, and was due on June 30, 2010. CR. 33-36. The Note, Section 1,
references a Bridge Loan "Agreement;" however, this document does not exist.
CR. 33.
APPELLANT'S BRIEF 9

The Note was not personally guaranteed by Appellant or anyone else. CR
33-36. The Note was secured by 215,000 shares of GRED stock controlled by
Kendrick Toussaint and two partnership units of Compliance Depot, Inc. owned
by Invictus. CR. 34. The Appellee made no efforts to perfect a security interest
on any collateral referenced in the Note (either the stock owned by Kendrick
Toussaint and or the Compliance Depot units).
Appellant did not make any representations to Appellee before the Note
was executed and funded. The Appellee did not present any summary judgment
proof regarding any fraudulent or false representations that Appellant supposedly
made to Appellee. CR. 70.
In or about September 2009, after the proceeds from the Bridge Note were
exhausted, Kendrick Toussaint, Karen Herrera, and another Invictus former
employee named Cassie Struck began competing directly with Invictus/Solace
Supplier Screening, LLC. CR 183-185. These individuals formed a separate
competing company called Assurance Screening, LLC. CR. 183-185. Karen
Herrera and Toussaint began soliciting clients, investors, and contacts of Solace
Supplier Screening, LLC under the name of their new company. CR. 183-184.
Around the same time, Karen Herrera and the Appellee began demanding
payment of the Note in full (prior to its maturity date of June 30, 20 10). On
October 29, 2009, Appellee sent a demand letter via its attorney to Appellant. CR.
46. The letter incorrectly stated that Appellant had personally guaranteed the
Note. CR. 41. The letter also wrongly stated that Appellant and/or Invictus was
APPELLANT'S BRIEF 10

somehow in violation of the Note by failing to produce written consents from
Compliance Depot's Board of Managers. CR. 41. The obligation to produce
consents was never part of the Note or any agreement. CR. 33-36. Further,
Appellee wrongly attempted to accelerate the payments on the Note and demand
payment in full on November 12, 2009. CR. 46.
Interestingly, in the demand letters, Appellee never accused Toussaint of
being in violation of the Note, although Toussaint had agreed to pledge 215,000
shares of stock owned in a separate company by Toussaint as security for the
Note. CR. 41 and CR. 46.
With Karen Herrera and Kendrick Toussaint working together to form a
competing company, Appellant and Solace Supplier Screening, LLC were left
with little prospect of success and suffered several failed investments and business
ventures. CR. 183-185.
Appellee sued Invictus and Appellant in June 2010. CR. 228. Invictus
filed a third-party petition against Kendrick Toussaint. CR. 229.
Invictus sold a total of seven Compliance Depot units for $50,000.00 per
unit or a total of$350,000.00. CR. 184. The units were sold on July 2, 2009. CR.
184.
On August 5, 20 11, the Court granted Plaintiff's Motion for Partial
Summary Judgment for $600,794.33. CR. 192-193. The Court found
$175,000.00 in damages based on Appellant's alleged "actual fraud and fraudulent
APPELLANT'S BRIEF 11

transfer."). CR. 192. The Judgment also awarded exemplary damages against
Appellant on the "actual fraud" claim and attorney's fees. CR. 192.
STANDARD OF REVIEW
A traditional motion for summary judgment is reviewed on appeal de novo.
Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007).
A party moving for summary judgment has the burden of establishing that
no genuine issue of material fact exists and that it is entitled to judgment as a
matter of law. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990); Nixon v. Mr.
Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether
disputed material fact issues preclude summary judgment, evidence favorable to
the non-movant is taken as true, every reasonable inference from the evidence is
indulged in favor of the non-movant, and any doubt is resolved in its favor. Nixon,
690 S.W.2d at 548-49.
When the party with the burden of proof seeks summary judgment, that
party must conclusively prove its entitlement to prevail on each element of its
cause of action as a matter of law. Ortega-Carter v. American International
Adjustment Co., 834 S.W.2d 439, 441 (Tex. App.-Dallas 1992, writ denied).
SUMMARY OF THE ARGUMENT
The Judgment is erroneous, because it awards actual and exemplary
damages for fraud, although fraud was not pled as a basis of recovery in
Appellee's Motion for Summary Judgment.
APPELLANT'S BRIEF
12

If the Judgment is somehow interpreted to include a finding against
Appellant for the company debts of Invictus on an alter ego theory, that finding
would be erroneous and immaterial, as pleading and proof of an actual fraud is a
prerequisite to an alter ego finding. The Judgment also made no findings against
the Invictus corporate entity. Therefore, without an underlying cause of action
creating corporate liability, evidence of an abuse of the corporate form is
immaterial.
The Judgment is also erroneous, because the Appellee failed to prove the
required elements under the Uniform Fraudulent Transfer Act, including proof of
an actual intent to hinder, delay, or defraud a creditor. At a minimum, Appellee's
summary judgment evidence created a fact issue.
Appellee has no evidence of the $175,000.00 in "actual damages" awarded
in the Judgment for the alleged fraudulent transfer. Appellee's maximum damages
claim at all times was, at most, for the amount of the Note ($100,000.00) plus 12%
interest. Appellee's alleged damages for fraudulent transfer are statutorily limited
to the amount necessary to satisfy the creditor's claim or $112,000.00.
The Judgment contains an incorrect interest rate of 12%, when 5% is the
correct rate under the is the Texas Finance Code.
Finally, Appellee failed to present evidence of a lodestar analysis of
attorney's fees claimed, failed to segregate attorney's fees, and presented zero
evidence of anticipated appellate attorney's fees. Therefore, the attorney's fees
award was improper.
APPELLANT'S BRIEF 13

ISSUE ONE
ARGUMENT
Whether the trial court erred in granting summary judgment against
Appellant for fraud.
Summary of the Argument
Appellee failed to plead fraud as a theory of recovery in his Motion for
Partial Summary Judgment, set forth the elements of fraud, or prove the elements
of fraud. Appellee did not plead or prove fraud by Appellant as a theory of
recovery within his Motion for Partial Summary Judgment. CR. 15-28. However,
the August 5, 2011 Judgment erroneously contains a finding of actual fraud and
awards $175,000.00 in "actual damages" to Appellee and against Appellant and
Invictus, jointly and severally, and exemplary damages of $350,000.00 against
Appellant for "actual fraud." CR. 192-193.
The Judgment also erroneously finds that Appellant acted with "false
pretenses, false representations, and actual fraud, other than a statement respecting
the debtor's or an insider's financial condition (Plaintiff's claims of actual fraud
and fraudulent transfer)," despite no proof in the record. CR. 192.
Law
The Texas Supreme Court has long held that a summary judgment movant
may absolutely not be granted judgment as a matter of law on a cause of action not
addressed in a summary judgment proceeding. Jacobs v. Satterwhite, 65 S.WJd
653, 655 (Tex. 2001) citing Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27
APPELLANT'S BRIEF 14

(Tex. 1990) (" ... the motion must identify or address the cause of action or
defense and its elements ... "). A movant must establish his entitlement to a
summary judgment on the issues expressly presented to the trial court by
conclusively establishing all essential elements of his cause of action or defense as
a matter of law. 1 In order to conclusively establish the requisite essential element
or elements, the motion must identify or address the cause of action or defense and
its elements. Black at 27. The burden of proof for a summary judgment movant is
to show that there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. 2 Even if the non-movant does not file a
response, the movant still carries the burden of proof.
When the party with the burden of proof seeks summary judgment, that
party must conclusively prove its entitlement to prevail on each element of its
cause of action as a matter of law. Ortega-Carter v. American International
Adjustment Co., 834 S.W.2d 439, 441 (Tex. App.-Dallas 1992, writ denied). The
evidence is reviewed in the light most favorable to the non-movant and the
appellate court must disregard all contrary evidence and inferences. See Morgan
v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000).
1 See, for e.g., City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671,
678 (Tex. 1979).
2 T.R.C.P. 166a(c)
APPELLANT'S BRIEF
15

Argument
Appellee's Motion for Partial Summary Judgment did not request relief based on
fraud, so the Judgment erroneously awarded actual and exemplary damages for
fraud.
Appellee's Motion for Partial Summary Judgment does not plead fraud as a
theory of recovery or identify the elements of fraud whatsoever. CR. 15-28. The
cause of action must be identified in the Motion for Summary Judgment or a
Judgment cannot be awarded as a matter of law. Black at 27. Because the Motion
does not request fraud damages, the Judgment cannot award damages for fraud or
fraud through false pretenses/false representations.
Plaintiffs Third Amended Petition filed on June 17, 2011 alleged various
causes of action against Appellant, including common law fraud, fraud in the
inducement, fraud by non-disclosure, negligent misrepresentation, conversion,
money had and received, fraudulent transfer, constructive trust, alter ego, and
injunctive relief. CR. 5-14.
That same day, June 17, 2011, Plaintiff filed a Motion for Partial Summary
Judgment. CR. 15-28. The Motion requested a judgment against Fabiani based
upon two theories of recovery only: fraudulent transfer and alter ego. CR. 23-25.
The Motion also requested a judgment against Invictus based upon one theory of
recovery only: breach of contract. CR. 22.
The Judgment does not address any claim of breach of contract or award
any damages for breach of contract. CR. 192-193. The Judgment also does not
APPELLANT'S BRIEF
16

address the claim of alter ego. Cr. 192-193. The resulting Judgment wrongly
awarded actual and exemplary damages allegedly based on a fraud cause of action
that was not proved or even pled in the Motion for Partial Summary Judgment.
Therefore, the Judgment's award of $175,000.00 in actual damages for
fraud against Appellant is erroneous, because fraud was not properly pled as a
basis for relief in Appellee's Partial Motion for Summary Judgment. Likewise,
the Judgment's award of $350,000.00 in exemplary damages for the claim of
"actual fraud" against Appellant is likewise erroneous, because fraud was not pled
as a basis for relief in Appellee's Motion.
Appellee did not present proof of the essential elements of fraud in his partial
Summary Judgment Motion, so the Judgment erroneously awarded damages for
fraud.
Appellee also failed to set forth the elements of fraud or present proof on
each required element. Fraud requires proof that: ( 1) Defendant made a
representation to the Plaintiff; (2) The representation was material; (3) The
representation was false; ( 4) Defendant knew the representation was false at that
time it was made or made the representation recklessly without knowledge of its
truth; ( 5) Defendant intended that Plaintiff act on the representation; ( 6) Plaintiff
relied on the representation; and (7) The representation caused the Plaintiff injury.
Insurance Co. ofN Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998).
Appellee completely failed to address or prove the following elements of
fraud in his Motion for Partial Summary Judgment:
APPELLANT'S BRIEF
17

• No evidence of any representation made by Appellant to Appellee;
• No evidence that any alleged representation made by Appellant was
material, false, or that Appellant knew the representation was false at
the time it was made; 3
• No evidence that Appellant intended that Appellee act on any such
alleged representation; and
• No proof that Appellee relied upon any representation, causing injury.
In fact, the Appellee's Affidavit states only that he made a demand upon
Appellant for payment of the Note. CR 70. Appellee's Affidavit is completely
devoid of any mention of a false statement made by Fabiani or any representations
from Fabiani whatsoever. CR. 70. A review of Appellee's Affidavit and the
summary judgment evidence reveal a complete lack of any assertion by Appellee
that he relied on anything that was represented to him by Appellant. CR. 70.
There is not any mention of any statement made by Appellant to Appellee
whatsoever. CR. 70.
Nowhere in Appellee's Motion is there any evidence that the Note itself
was somehow obtained through fraud, fraudulent inducement, false pretenses, or
false representations. Appellee has just inserted this language into the Judgment
with no back-up evidence or proof of the same.
3 To prove fraud, a plaintiff must prove that the defendant made a false material
representation to the plaintiff, when the defendant knew the representation was
false at the time it was made or made the representation recklessly, reliance by the
plaintiff, and injury. In Re FirstMerit Bank, 52 S.W.3d 749, 758 (Tex. 2001).
APPELLANT'S BRIEF 18

'io
i,
Appellee did not prove the elements of fraud or even attempt to present
proof of fraud in his Motion for Partial Summary Judgment. Therefore, the
Judgment's award of actual damages and exemplary damages based upon fraud is
erroneous.
The Judgment awards $350,000.00 in exemplary damages against
Appellant for "actual fraud." The Judgment does not award any exemplary
damages based upon Appellee's statutory claim of fraudulent transfer under the
Uniform Fraudulent Transfer Act. As shown hereinabove, the $350,000.00
punitive damages award is without any basis, because fraud was not pled as a
theory of recovery in the Motion for Partial Summary Judgment and the elements
of common-law fraud or "actual fraud" were not even addressed or set forth in the
Motion. Texas law is very clear that a plaintiff cannot be granted judgment as a
matter of law on a cause of action not addressed in a summary judgment
proceeding. Therefore, the award of $350,000.00 in exemplary damages for
"actual fraud" is baseless and erroneous.
Appellant presented summary judgment proof sufficient to create a fact issue
regarding fraud.
Appellant timely filed a response to Appellee's Motion for Summary
Judgment and filed supporting affidavits. CR. 233.
Appellant's response and accompanying affidavit was sufficient to prevent
summary judgment. CR. 183-186. Assuming all of Appellant's proof is true and
making every reasonable inference in favor of the non-movant, the Judgment for
APPELLANT'S BRIEF 19

fraud was erroneous. Limestone Prods. Distrib., Inc. v. McNamara, Inc., 71
S.W.3d 308, 311 (Tex. 2002); Provident Life & Ace. Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003).
ISSUE TWO
Whether the trial court erred in granting summary judgment against
Appellant for under an alter ego theory.
Summary of the Argument
Appellee failed to prove the required elements of an alter ego claim.
However, even if the Judgment is somehow interpreted to include a finding
against Appellant for the debts of Invictus on an alter ego theory, that finding
would be erroneous and immaterial, as the Judgment did not award Appellee any
damages for the debts of Invictus. The Judgment does not address any claim of
breach of contract or award any damages for breach of contract against any party.
Law
In order to pierce the corporate veil on an alter ego theory, a plaintiff must
prove that the defendant: 1) caused the corporation to be used for the purpose of
perpetrating an actual fraud; and 2) an actual fraud was perpetrated on the plaintiff
primarily for the defendant's direct personal benefit. Tex. Bus. Orgs. Code §
21.223(b ). This proposition generally is referred to as piercing the corporate veil.
See Castleberry v. Branscum, 721 S.W.2d 270, 278 (Tex. 1986), superseded in
part by Tex. Bus. Orgs. Code § 21.223(a)(2) (previously codified at Tex. Bus.
Corp. Act art. 2.21, § A). A contract claimant must prove actual fraud to utilize
APPELLANT'S BRIEF 20

the alter ego doctrine. Lucas v. Texas Indus., Inc., 696 S.W.2d 372, 376 (Tex.
1984).
An attempt to pierce the corporate veil is not, of itself, a substantive cause
of action. Instead, it is a means of imposing liability in connection with an
underlying cause of action such as a tort or breach of contract. Phillips v. United
Heritage Corp., 319 S.W.3d 156, 158 (Tex. App.--Waco 2010, no pet.); Wilson v.
Davis, 305 S.WJd 57, 68 (Tex. App.-Houston 2009, no pet.); Gallagher v.
Bintliff, 740 S.W.2d 118, 119 (Tex. App.-Austin 1987, writ denied); Farr v. Sun
World Sav. Ass'n, 810 S.W.2d 294, 297 (Tex. App.--El Paso 1991, no writ); see
Cox v. Southern Garrett, L.L.C., 245 S.W.3d 574, 582 (Tex. App.-Houston 2007,
no pet.)(without underlying cause of action creating corporate liability, evidence
of abuse of corporate form is immaterial).
Argument
Because Appellee failed to pled or prove an actual fraud, Appellee cannot prevail
under the alter ego doctrine.
To pierce the corporate veil, Appellee must necessarily prove an actual
fraud. Tex. Bus. Orgs. Code § 21.223(b ). As shown hereinabove, Appellee failed
to plead or prove an actual fraud. The Appellee's Summary Judgment Motion
only contained a conclusory statement that there was actual fraud and Appellant
should be personally liable. The Motion and the evidence attached thereto do not
prove the required elements of actual fraud under a traditional summary judgment
motion standard. Therefore, the finding against Appellant under an alter ego
APPELLANT'S BRIEF 21

i I,
theory of liability for actual fraud is erroneous. The Judgment does not award
Appellee any damages under a breach of contract theory, so Appellee cannot
prevail on an alter ego claim.
There was no finding against Invictus for a breach of contract claim, so
there is no debt of Invictus that Appellant would be liable for under an alter ego
theory. Without an underlying cause of action creating corporate liability,
evidence of an abuse of the corporate fonn is immaterial. See Specialty Retailers,
Inc. v. Fuqua, 29 S.W.3d 140, 147 (Tex. App.-Houston 2000, pet. denied).
The Judgment does not even address Appellee's claim of breach of contract
against Invictus. CR. 92-193. The Judgment also does not address the claim of
alter ego against Fabiani for the debts of Invictus. CR. 192-193. Therefore, the
Judgment cannot find Appellant personally liable for any award of damages
premised on the debts of lnvictus.
ISSUE THREE
Whether the trial court erred in granting summary judgment against
Appellant for fraudulent transfer under the UFT A.
Summary of Argument
Fraudulent transfer under the UFTA requires proof of different elements
than common law fraud, and Appellee failed to prove the required elements under
the UFTA against Appellant, including proving an actual intent to hinder, delay, or
defraud a creditor. Furthermore, Appellee's summary judgment evidence created
a fact issue.
APPELLANT'S BRIEF
22

In Appellee's Motion for Summary Judgment, Appellee seems to confuse
the elements of common-law fraud and fraud in the inducement with a statutory
claim for alleged violations of the Uniform Fraudulent Transfer Act codified at
Tex. Bus. & Comm. Code § 24.005.
To prove a violation ofthe UFTA, a plaintiff must prove certain actions and
certain intent of the defendant:
"A transfer made or obligation incurred by a debtor is fraudulent as to a
creditor, whether the creditor's claim arose before or within a
reasonable time after the transfer was made or the obligation was
incurred, if the debtor made the transfer or incurred the obligation:
(1) with actual intent to hinder, delay, or defraud any creditor of the
debtor; or
(2) without receiving a reasonably equivalent value in exchange for the
transfer or obligation, and the debtor: A) was engaged or was about to
engage in a business or a transaction for which the remaining assets of
the debtor were unreasonably small in relation to the business or
transaction; or (B) intended to incur, or believed or reasonably should
have believed that the debtor would incur, debts beyond the debtor's
ability to pay as they became due. " 4
Appellee filed a traditional summary judgment motion, so the burden is on
Appellee to prove all elements of his causes of action. The burden is clearly on
the summary judgment movant to show: ( 1) there is no genuine issue of material
fact; and (2) the movant is entitled to judgment as a matter of law. T.R.C.P.
166a( c). Even if the non-movant does not file a response and the motion for
summary judgment is uncontroverted, the movant still carries the burden of proof.
4 See Tex. Bus. & Comm. Code§ 24.005, Transfers Fraudulent as to Present and
Future Creditors
APPELLANT'S BRIEF 23

,.
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
When the movant fails to meet its burden of proof to conclusively establish it is
entitled to judgment as a matter of law, the burden does not shift to the non­
movant. MD. Anderson Hosp. & Tumor Ins. v. Willrich, 28 S.W.3d 22, 23 (Tex.
2000).
Argument
Appellee failed to present evidence of Appellant's actual intent, and therefore,
failed to prove a violation of the UFTA. At a minimum, the Appellant's summary
judgment proof created a fact issue regarding intent.
Appellee failed to present evidence of Appellant's actual intent, required
under the UFTA. Further, Appellant filed an Affidavit contained in his Response
to the Motion for Summary Judgment, which further controverts the inadequate
evidence put forth by Appellee. CR. 183-186.
In determining intent under the UFT A, the Court may consider several
factors. 5 Furthermore, the factors related to intent weigh in favor of Appellant.
Appellant's summary judgment proof included Appellant's Affidavit and the
Affidavit of Kelly H. Zinser, Appellant's bankruptcy counsel. The following
statements contained in the Appellant's summary judgment proof establish that
there was no intent to defraud Appellee when Invictus sold the Compliance Depot
Units back to Compliance Depot at same price that they were purchased.
5 Tex. Bus. & Comm. Code § 24.008.
APPELLANT'S BRIEF
24

'I,
Appellant presented controverting summary judgment proof on each of the factors
under Tex. Bus. & Comm. Code § 24.008:
(1) the transfer or obligation was to an insider;
(Compliance Depot is not an insider of Invictus and there is no allegation
or proof that it is.)
(2) the debtor retained possession or control of the property transferred
(lnvictus did not retain possession or control of the Compliance Depot Units./
(3) the transfer or obligation was concealed;
(The sale of the Compliance Dq;ot Units was not concealed and the units
were always available for sale.)
(4) before the transfer was made or obligation was incurred, the debtor had
been sued or threatened with suit;
(Appellee had threatened suit based on a nonexistent "Agreement" and
manufactured breach three months after the Note was executed and
eight months before its maturity date at the same time that Appellee's
daughter, Karen Herrera, and other former employees were forming a
competzng . company. )8
(5) the transfer was of substantially all the debtor's assets;
(lnvictus has been in business since 2007 and continues to pursue other
assets and receivables, including the Spartan Equity receivable, referenced
in the Note./
( 6) the debtor absconded;
(lnvictus did not abscond. In fact, many times Invictus attempted to settle
with Appellee and pay the Note. Furthermore, Appellant's Chapter 13 Plan
confirmed on May 23, 2011 proposes to pay 100% of allowed claims to
d
. ) 10
ere ztors . .
(7) the debtor removed or concealed assets;
(lnvictus has not concealed assets. The sale of the Compliance Depot Units
ll
was not conceale d .).
6 CR. 184-185
7 See CR. 44.
8 CR 183-185.
9 See CR. 184-185.
10 See CR. 184 and CR. 164-165.
APPELLANT'S BRIEF
25

(8) the value of the consideration received by the debtor was reasonably
equivalent to the value of the asset transferred or the amount of the obligation;
(It is uncontested that the Compliance Depot Units were sold for
$50,000.00 per unit, the same as the original purchase price./ 2
(9) the debtor was insolvent or became insolvent shortly after the transfer
(Invictus had many pre-existing debts prior to the Note and was admittedly
struggling, in part due to the sabotage by Karen Herrera and others).
(1 0) the transfer occurred shortly before or shortly after a substantial debt
was incurred;
(The sale of the Compliance Depot Units occurred July 2, 2010. There was
no substantial debt incurred shortly before or after the sale. The Note was
entered into in July of 2009. Invictus had pre-existing debts and
obligations incurred prior to the Note/ 3
(11) the debtor transferred the essential assets of the business to a lienor
(This situation does not apply).
Appellee failed to present evidence of intent under the UFT A factors
sufficient to meet a traditional summary judgment motion burden of proof or even
address these factors. Further, the Affidavit of Appellant and the Affidavit of
Kelly H. Zinser address the factors and create a fact issue. Appellee was not
entitled to judgment as a matter of law, and Appellee failed to prove intent as
required under the UFT A.
Appellee also failed to present evidence that Invictus did not receive reasonable
value for the alleged fraudulent transfers.
11 CR. 44
12 SeeCR.184-185.
13 See CR. 184.
APPELLANT'S BRIEF 26

lo
In Appellee's Motion for Partial Summary Judgment, Appellee makes a
bare assertion that " ... Invictus did not receive any value for the transfers to
Fabiani and Guardado." CR. 23. However, there is no evidence cited for this
proposition. CR. 23-24.
On the other hand, Appellant presented proof that Invictus did receive value
for the transfers. Appellant Fabiani's Affidavit in his Response to the Motion for
Summary Judgment states that Invictus was paying back other outstanding loans
with the funds from the sale ofthe Compliance Depot units. CR. 184-185.
Appellee failed to present proof of the required elements under the UFTA.
ISSUE FOUR
Whether the damages awarded for fraudulent transfer are erroneous under
the UFT A and result in an improper double recovery for Appellee.
Summary of Argument
Even if Appellee had pled and proved fraudulent transfer, the $175,000.00
damages awarded are improper under the UFTA and result in a double recovery
for Appellee.
Law
The UFT A provides specific statutory remedies for creditors. The UFT A §
24.008 specifies that: "(a) In an action for relief against a transfer or obligation
under this chapter, a creditor, subject to the limitations in Section 24.009 of this
code, may obtain: (1) avoidance of the transfer or obligation to the extent
necessary to satisfy the creditor's claim; (emphasis added).
APPELLANT'S BRIEF
27

A creditor may also recover a money judgment for the value of the asset
transferred or in amount necessary to satisfy the creditor's claim, whichever is
less:
§ 24.009. Defenses, Liability, and Protection of Transferee
(b) Except as otherwise provided in this section, to the extent a
transfer is voidable in an action by a creditor under Section
24.008(a)(l) of this code, the creditor may recover judgment for
the value of the asset transferred, as adjusted under Subsection (c)
of this section, or the amount necessary to satisfY the creditor's
claim, whichever is less. (emphasis added)
Therefore, a creditor, if he has proved the elements of fraudulent transfer,
may recover the only the amount necessary to satisfy the creditor's underlying
claim.
Argument
In the case at bar, it is uncontested that the total amount of Appellee's
underlying claim against Invictus is $100,000.00 (original amount of the Note)
plus 12% interest per annum. CR. 33-36.
Therefore, Appellee has no evidence of the $175,000.00 in "actual
damages" awarded in the Judgment. Appellee's maximum claim at all times was,
at most, for the amount of the Note plus 12% interest. CR. 33-36. Within his own
evidence, Appellee admits that the amount due and owing under the Note was
$112,000.00 and that this was the amount of his demand from lnvictus. CR. 70.
The Judgment erroneously awarded $175,000.00 in "actual damages" with
no basis whatsoever. Appellee did not have actual damages of $175,000.00.
Appellee's damages are statutorily limited under Tex. Bus. & Comm. Code §
APPELLANT'S BRIEF
28

llo
1,-j
24.009 to the amount necessary to satisfy the creditor's claim or $112,000.00.
Appellee's own pleadings admit that the amount due and owing under the Note
was $112,000.00. CR. 70. Even with additional interest at 12%, the amount under
the Note could not be anywhere close to $175,000.00.
There is some indication that the "actual damages" award may have
included Appellee's claim for the later incurred attorney's fees (total amount
alleged for attorney's fees is $61,848.47). However, the Judgment also separately
awarded $61,848.47 in attorney's fees under Tex. Bus. & Comm. Code § 24.013.
Therefore, the Judgment award of $175,000.00 in "actual damages" is in direct
contravention to the UFT A and results in a windfall to Appellee, as he has
recovered twice for his alleged attorney's fees, once for "actual damages" under
the UFTA and again under the attorney's fees provision in the UFTA.
ISSUE FIVE
Whether the trial court erred when it awarded $61,848.47 in trial attorney's
fees and $25,000.00 and $15,000.00 in appellate attorney's fees under the
Uniform Fraudulent Transfer Act.
Summary of the Argument
The Judgment awards $61,848.47 in attorney's fees, pursuant to the Tex.
Bus. & Comm. Code § 24.013. CR. 193. The Judgment also awards contingent
attorney's fees of $25,000.00 in the case of an unsuccessful appeal to the Court of
Appeals and $15,000.00 in the case of an unsuccessful appeal to the Texas
Supreme Court. CR. 193.
APPELLANT'S BRIEF
29

As shown herein, the UFTA claim award was improper. In the alternative,
if the Court finds that the UFTA claim award was proper, then the attorney's fees
awarded was erroneous.
Appellee failed to present evidence of a lodestar analysis, failed to
segregate attorney's fees, and presented zero evidence of anticipated appellate
attorney's fees.
Law
To support a claim for attorney's fees, a party must prove that the fees were
necessary and incurred. To do this, the party must necessarily prove the base
amount requested is reasonable ("lodestar" analysis). This is accomplished by
providing evidence of the hours worked, the charges per hour, descriptions of the
work performed, a statement that the work was necessary to the prosecution of the
case, and a statement that the fees were reasonable. General Motors Corp. v.
Bloyed, 916 S.W.2d 949, 960 (Tex. 1996). The lodestar method calculates
attorney's fees by multiplying the number of hours expended on an appropriate
hourly rate determined by a variety of factors, such as the benefits obtained for the
plaintiff, complexity of the issues involved, expertise of the attorney, the
attorney's inability to accept other legal work, and the hourly rate customarily
charged in the region for similar legal work. Dillard Dept. Stores, Inc. v.
Gonzales, 72 S.W.3d 398, 412 (Tex. App.-El Paso 2002, pet. denied).
A party also must segregate attorneis fees. When a party is entitled to
attorney's fees on one cause of action but not the other, the party claiming fees
APPELLANT'S BRIEF 30

must segregate the recoverable fees from the nonrecoverable fees. Travelers
Indem. Co. v. Mayfield, 923 S. W.2d 590, 594 (Tex. 1996).
In order to recover appellate attorney's fees, a party must prove the
anticipated fees are reasonable. Siegler v. Williams, 658 S.W.2d 236, 241 (Tex.
App.-Houston 1983, no writ). There must be evidence of the reasonableness of
fees for appellate work to support an award of appellate attorney's fees. Pleasant
Hills Children's Home v. Nida, 596 S.W.2d 947, 953 (Tex. App.-Fort Worth
1980, no writ) (Attorney testified about the time it would take to appeal case to
Court of Appeals and Texas Supreme Court and what a reasonable fee would be
for the work).
Argument
Appellee does not provide any lodestar analysis for the attorney's fees requested
and awarded.
The only evidence of the claimed $61,848.47 in trial court attorney's fees is
a one paragraph affidavit filed by attorney Ryan C. Gentry of Nowak & Stauch,
LLP. CR. 78-79. The Gentry Affidavit does not contain any statement about the
number of hours worked, the amount of the hourly rates charged, the description
of the work performed, or state that the work performed was necessary. CR. 78-
79.
There are no billing records, representation agreements, invoices, fee
statements, or similar documents included in the summary judgment record.
APPELLANT'S BRIEF 31

The Gentry Affidavit does not contain any lodestar analysis whatsoever.
CR. 78-79. The Affidavit is completely devoid of any testimony about the total
number of hours worked, who performed the work, the expertise of the attorney(s)
who performed the work, the amount of the hourly rates charged, descriptions of
the work performed, or a statement that the work performed was necessary. The
Gentry Affidavit also contains no testimony about the complexity of the issues
involved or the attorney's inability to accept other legal work due to this case. The
only fact in the Gentry Affidavit is the bare-bones assertion that the fees are
" ... related to research, pleadings, and appearances in this matter." CR. 78-79.
On its face, the Affidavit is factually and legally insufficient to support an
award of attorney's fees. General Motors Corp. v. Bloyed, 916 S.W.2d 949, 960
(Tex. 1996).
Appellee failed to segregate attorney's fees among parties or claims.
The Gentry Affidavit also failed to segregate attorney's fees or make any
statement that various claims were intertwined so that they need not be segregated.
CR. 78-79. Appellant alleged numerous causes of action against multiple
defendants (some of which allow a recovery of attorney's fees and some of which
do not): breach of contract, fraud, fraud in the inducement, fraud by non­
disclosure, negligent misrepresentation, conversion, money had and received,
fraudulent transfer, constructive trust, request for a temporary injunction, request
for a permanent injunction, and alter ego.
APPELLANT'S BRIEF 32

Appellee is required to segregate fees. When a party is entitled to
attorney's fees on one cause of action but not the other, the party claiming fees
must segregate the recoverable fees from the nonrecoverable fees. Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). Appellee's failure to
segregate fees precludes amongst causes of action and parties precludes an award
of attorney's fees.
There is no evidence of anticipated appellate attorney's fees.
Appellee presented absolutely no evidence related to appellate attorney's
fees. The Gentry Affidavit does not even mention appellate attorney's fees, and
fails to meet the most basic and fundamental requirement that a party present
proof that the amount of fees requested is reasonable. CR. 78-79.
Therefore, the award of $25,000.00 in attorney's fees in the case of an
appeal to the Court of Appeals and $15,000.00 award of attorney's fees in the case
of an appeal to the Texas Supreme Court is not supported by any evidence. As
there is no evidence in the record to support an award of contingent attorney's fees
on appeal, no such damages can be awarded in the Judgment.
ISSUE SIX
Whether interest was calculated using an incorrect interest rate.
Appellee calculates prejudgment interest using 12%, and the Judgment
awards postjudgment interest at a rate of 12%. CR. 193. The rate for prejudgment
interest is the same as for postjudgment interest. Tex. Fin. Code § 304.102. The
Finance Code controls the postjudgment interest rate. Tex. Fin. Code § 304.002
APPELLANT'S BRIEF 33

I'
applies to judgments on a contract (the rate specified in the contract with a
maximum rate of 18% per year).
Texas Finance Code§ 304.003(c)(l) applies in cases where§ 304.002 does
not apply (i.e. cases other than contract cases). The Judgment in this case awards
no damages for breach of contract against any party. Therefore, Texas Finance
Code § 304.003(c)(l) (for non-contract cases) controls the postjudgment interest
rate in this case, which is the prime rate as published on the date of computation.
On August 5, 2011, the date of Judgment, the prime rate was 5%. 14
Therefore, any award of interest at all should be calculated at 5% and not 12%.
Appellee apparently uses 12% on the basis that the Note between lnvictus
and Appellee calls for interest at 12% per annum. However, as is clear from the
face of the Judgment, the Judgment does not award any damages for breach of any
contract or breach of the Note. Therefore, basing a prejudgment or postjudgment
interest award on the Note's 12% interest calculation is erroneous.
The Judgment interest rate should be 5%, pursuant to Texas Finance Code
§ 304.003( c)( 1 ).
CONCLUSION AND PRAYER
In conclusion, the Judgment is erroneous, because it awards damages for
fraud, when fraud was not pled or proven in Appellee's Motion for Summary
Judgment. Appellee also failed to prove an alter ego claim, because Appellee did
14 See http://www.occc.state.tx.us/pages/int rates/lndex.html, Office of the
Consumer Credit Commissioner Judgment Interest Rate publication and Texas
Credit Letter
APPELLANT'S BRIEF 34

not prove actual fraud and there were no findings of any underlying corporate
liability. Appellee also failed to prove the required elements of fraudulent
transfer. The attorney's fees award was improper, because Appellee failed to
present evidence of a lodestar analysis of attorney's fees claimed, failed to
segregate attorney's fees, and presented zero evidence of anticipated appellate
attorney's fees. Finally, Judgment used the incorrect interest rate under the Texas
Finance Code and also awarded more damages than allowable under the Uniform
Fraudulent Transfer Act.
WHEREFORE, PREMISES CONSIDERED, Appellant requests that this
appeal be set for oral argument and that, upon hearing such argument, Appellant's
point of error be sustained, and for such and further relief to which Appellant may
be entitled.
APPELLANT'S BRIEF
35

II
/,>
CERTIFICATE OF SERVICE
This certifies that a true and correct copy of Appellant's Brief has been
served via certified mail, return receipt requested and via email upon the following
counsel of record for Appellee, Adolph Herrera, Jr., this 18th day of January, 2012,
in accordance with the Texas Rules of Appellate Procedure as follows:
Mr. Ryan C. Gentry
Novak & Stauch, LLP
4144 N. Central Expressway, Suite 300
Dallas, TX 75204
rgentry@ns-law .net
APPELLANT'S BRIEF
37

,/I
TAB 1
APPELLANT'S BRIEF
APPENDIX TABLE OF CONTENTS
Judgment dated August 5, 2011
38

·•

.
I·
ADOLPH R. HERRERA, JR.,
Plaintiff
v.
No. DC-10-06883
INVICTUS PARTNERS, LLC, JOSEPH A. §
FABIANI, and ALBERT GUARDADO, §
v.
Defendants §
KENDRICK B. TOUSSAINT,
Third-Party Defendant
§
§
§
§
§
§
§
§
§
§
JUDGMENT
IN THE DISTRICT COURT OF
DALLAS COUNTY TEXAS
298 1 H JUDICIAL DISTRICT
On July 29, 20 II, the Court considered Plaintiffs Motion for Summary Judgment in the
above-styled case. The Plaintiff appeared through his attorney, Nowak & Stauch, LLP, Defendant
Invictus Partners, LLC did not appear, Defendant Joseph A. Fabiani appeared via telephone, pro se,
and the Court detennined that it has jurisdiction over the parties hereto and the subject matter
herein. The Court having received evidence that the automatic stay that issued pursuant to Joseph
A. Fabiani's bankruptcy has been lifted as to these proceedings and having detennined that the
granting and entry of this judgment does not violate that automatic stay, is of the opinion that the
Plaintiff's Motion should be GRANTED. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Adolph R. Herrera, Jr.
shall recover from lnvictus Partners, LLC and Joseph A. Fabiani, jointly and severally, the sum
of$175,000 in actual damages on his claim that Joseph A. Fabiani caused lnvictus Partners, LLC
to transfer to money and/or property to Joseph A. Fabiani and Alberto Guardado through false
pretenses, false representations, and actual fraud, other than a statement respecting the debtor's
or an insider's financial condition (Plaintiffs claims of actual fraud and fraudulent transfer).
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that that Adolph R. Herrera,
PAGF;l
192

Jr. recover from Defendants Joseph A Fabiani and Invictus Partners, LLC, jointly and sever&lly,
attorneys' fees in the amount of $61,848.47 pursuant to TEX. Bus. & COM. CODE § 24.013.
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that that Plaintiff Adolph R.
Herrera, Jr. recover from Defendant Joseph A. Fabiani exemplary damages in the amount of
$350,000 on Plaintiffs claim of actual fraud.
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that that Plaintiff Adolph R.
Herrera, Jr. recover from Defendant Joseph A. Fabiani, and from Defendant lnvictus Partners, LLC,
jointly and severally, pre-judgment interest in the total sum of $13,945.86.
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that that Plaintiff Adolph R.
Herrera, Jr. recover from Joseph A. Fabiani and lnvictus Partners, LLC, jointly and severally, post-
judgment interest on the total sum awarded herein ($600, 794.33) at the rate of twelve percent ( 12%)
per annum, compounded annually, from the date this Judgment is signed until it is paid in full.
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Adolph Herrera shall be
entilied to recover from lnvictus Partners, LLC and Joseph A. Fabiani, jointly and severally, an
additional $25.000 in reasonable and necessary attorneys' fees in the event this Judgment is
unsuccessfully challenged with a Motion to Modify Judgment, a Motion for New Trial, or is
unsuccessfully appealed by any Defendant to the Court of Appeals, plus an additional $15,000 in
the event any Defendant files an unsuccessful appeal to the Texas Supreme Court.
All relief requested by Plaintiff against Defendant lnvictus Partners, LLC or against
Defendant Joseph A. Fabiani that is not granted herein is DENIED WITHOUT PREJUDICE.
/
Signed on this the !J day of August, 2011.
FI. .... AL JUI>G!\HXJ' PAG[ 2
193