,_ v - Fifth Court of Appeals

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