,_ v - Fifth Court of Appeals
,_ v - Fifth Court of Appeals ,_ v - Fifth Court of Appeals
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
- 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 and 10: Disposition: The trial court grante
- Page 11: The Note was not personally guarant
- 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
somehow in violation <strong>of</strong> the Note by failing to produce written consents from<br />
Compliance Depot's Board <strong>of</strong> Managers. CR. 41. The obligation to produce<br />
consents was never part <strong>of</strong> the Note or any agreement. CR. 33-36. Further,<br />
Appellee wrongly attempted to accelerate the payments on the Note and demand<br />
payment in full on November 12, 2009. CR. 46.<br />
Interestingly, in the demand letters, Appellee never accused Toussaint <strong>of</strong><br />
being in violation <strong>of</strong> the Note, although Toussaint had agreed to pledge 215,000<br />
shares <strong>of</strong> stock owned in a separate company by Toussaint as security for the<br />
Note. CR. 41 and CR. 46.<br />
With Karen Herrera and Kendrick Toussaint working together to form a<br />
competing company, Appellant and Solace Supplier Screening, LLC were left<br />
with little prospect <strong>of</strong> success and suffered several failed investments and business<br />
ventures. CR. 183-185.<br />
Appellee sued Invictus and Appellant in June 2010. CR. 228. Invictus<br />
filed a third-party petition against Kendrick Toussaint. CR. 229.<br />
Invictus sold a total <strong>of</strong> seven Compliance Depot units for $50,000.00 per<br />
unit or a total <strong>of</strong>$350,000.00. CR. 184. The units were sold on July 2, 2009. CR.<br />
184.<br />
On August 5, 20 11, the <strong>Court</strong> granted Plaintiff's Motion for Partial<br />
Summary Judgment for $600,794.33. CR. 192-193. The <strong>Court</strong> found<br />
$175,000.00 in damages based on Appellant's alleged "actual fraud and fraudulent<br />
APPELLANT'S BRIEF 11
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