,_ v - Fifth Court of Appeals

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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
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 and 12: The Note was not personally guarant
Page 13: transfer."). CR. 192. The Judgment
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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