,_ v - Fifth Court of Appeals
,_ v - Fifth Court of Appeals ,_ v - Fifth Court of Appeals
address the claim of alter ego. Cr. 192-193. The resulting Judgment wrongly awarded actual and exemplary damages allegedly based on a fraud cause of action that was not proved or even pled in the Motion for Partial Summary Judgment. Therefore, the Judgment's award of $175,000.00 in actual damages for fraud against Appellant is erroneous, because fraud was not properly pled as a basis for relief in Appellee's Partial Motion for Summary Judgment. Likewise, the Judgment's award of $350,000.00 in exemplary damages for the claim of "actual fraud" against Appellant is likewise erroneous, because fraud was not pled as a basis for relief in Appellee's Motion. Appellee did not present proof of the essential elements of fraud in his partial Summary Judgment Motion, so the Judgment erroneously awarded damages for fraud. Appellee also failed to set forth the elements of fraud or present proof on each required element. Fraud requires proof that: ( 1) Defendant made a representation to the Plaintiff; (2) The representation was material; (3) The representation was false; ( 4) Defendant knew the representation was false at that time it was made or made the representation recklessly without knowledge of its truth; ( 5) Defendant intended that Plaintiff act on the representation; ( 6) Plaintiff relied on the representation; and (7) The representation caused the Plaintiff injury. Insurance Co. ofN Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998). Appellee completely failed to address or prove the following elements of fraud in his Motion for Partial Summary Judgment: APPELLANT'S BRIEF 17
• No evidence of any representation made by Appellant to Appellee; • No evidence that any alleged representation made by Appellant was material, false, or that Appellant knew the representation was false at the time it was made; 3 • No evidence that Appellant intended that Appellee act on any such alleged representation; and • No proof that Appellee relied upon any representation, causing injury. In fact, the Appellee's Affidavit states only that he made a demand upon Appellant for payment of the Note. CR 70. Appellee's Affidavit is completely devoid of any mention of a false statement made by Fabiani or any representations from Fabiani whatsoever. CR. 70. A review of Appellee's Affidavit and the summary judgment evidence reveal a complete lack of any assertion by Appellee that he relied on anything that was represented to him by Appellant. CR. 70. There is not any mention of any statement made by Appellant to Appellee whatsoever. CR. 70. Nowhere in Appellee's Motion is there any evidence that the Note itself was somehow obtained through fraud, fraudulent inducement, false pretenses, or false representations. Appellee has just inserted this language into the Judgment with no back-up evidence or proof of the same. 3 To prove fraud, a plaintiff must prove that the defendant made a false material representation to the plaintiff, when the defendant knew the representation was false at the time it was made or made the representation recklessly, reliance by the plaintiff, and injury. In Re FirstMerit Bank, 52 S.W.3d 749, 758 (Tex. 2001). APPELLANT'S BRIEF 18
- 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 and 16: ISSUE ONE ARGUMENT Whether the tria
- Page 17: Argument Appellee's Motion for Part
- 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
• No evidence <strong>of</strong> any representation made by Appellant to Appellee;<br />
• No evidence that any alleged representation made by Appellant was<br />
material, false, or that Appellant knew the representation was false at<br />
the time it was made; 3<br />
• No evidence that Appellant intended that Appellee act on any such<br />
alleged representation; and<br />
• No pro<strong>of</strong> that Appellee relied upon any representation, causing injury.<br />
In fact, the Appellee's Affidavit states only that he made a demand upon<br />
Appellant for payment <strong>of</strong> the Note. CR 70. Appellee's Affidavit is completely<br />
devoid <strong>of</strong> any mention <strong>of</strong> a false statement made by Fabiani or any representations<br />
from Fabiani whatsoever. CR. 70. A review <strong>of</strong> Appellee's Affidavit and the<br />
summary judgment evidence reveal a complete lack <strong>of</strong> any assertion by Appellee<br />
that he relied on anything that was represented to him by Appellant. CR. 70.<br />
There is not any mention <strong>of</strong> any statement made by Appellant to Appellee<br />
whatsoever. CR. 70.<br />
Nowhere in Appellee's Motion is there any evidence that the Note itself<br />
was somehow obtained through fraud, fraudulent inducement, false pretenses, or<br />
false representations. Appellee has just inserted this language into the Judgment<br />
with no back-up evidence or pro<strong>of</strong> <strong>of</strong> the same.<br />
3 To prove fraud, a plaintiff must prove that the defendant made a false material<br />
representation to the plaintiff, when the defendant knew the representation was<br />
false at the time it was made or made the representation recklessly, reliance by the<br />
plaintiff, and injury. In Re FirstMerit Bank, 52 S.W.3d 749, 758 (Tex. 2001).<br />
APPELLANT'S BRIEF 18
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