,_ v - Fifth Court of Appeals

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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
Page 1 and 2: - .. .,_ I Ill • IN THE COURT OF
Page 3 and 4: APPELLANT: JOSEPH FABIANI APPELLEE:
Page 5 and 6: ISSUE FOUR Whether the damages awar
Page 7 and 8: Lucas v. Texas Indus., Inc., ......
Page 9: Disposition: The trial court grante
Page 13 and 14: transfer."). CR. 192. The Judgment
Page 15 and 16: ISSUE ONE ARGUMENT Whether the tria
Page 17 and 18: Argument Appellee's Motion for Part
Page 19 and 20: • No evidence of any representati
Page 21 and 22: fraud was erroneous. Limestone Prod
Page 23 and 24: i I, theory of liability for actual
Page 25 and 26: ,. City of Houston v. Clear Creek B
Page 27 and 28: (8) the value of the consideration
Page 29 and 30: A creditor may also recover a money
Page 31 and 32: As shown herein, the UFTA claim awa
Page 33 and 34: The Gentry Affidavit does not conta
Page 35 and 36: I' applies to judgments on a contra
Page 38 and 39: II /,> CERTIFICATE OF SERVICE This
Page 40 and 41: ·•
Page 42: Jr. recover from Defendants Joseph

,_ v - Fifth Court of Appeals

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