,_ v - Fifth Court of Appeals

More documents

Recommendations

Info

(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
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 and 14: transfer."). CR. 192. The Judgment
Page 15: ISSUE ONE ARGUMENT Whether the tria
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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?