,_ v - Fifth Court of Appeals

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Appellee did not prove the elements of fraud or even attempt to present
proof of fraud in his Motion for Partial Summary Judgment. Therefore, the
Judgment's award of actual damages and exemplary damages based upon fraud is
erroneous.
The Judgment awards $350,000.00 in exemplary damages against
Appellant for "actual fraud." The Judgment does not award any exemplary
damages based upon Appellee's statutory claim of fraudulent transfer under the
Uniform Fraudulent Transfer Act. As shown hereinabove, the $350,000.00
punitive damages award is without any basis, because fraud was not pled as a
theory of recovery in the Motion for Partial Summary Judgment and the elements
of common-law fraud or "actual fraud" were not even addressed or set forth in the
Motion. Texas law is very clear that a plaintiff cannot be granted judgment as a
matter of law on a cause of action not addressed in a summary judgment
proceeding. Therefore, the award of $350,000.00 in exemplary damages for
"actual fraud" is baseless and erroneous.
Appellant presented summary judgment proof sufficient to create a fact issue
regarding fraud.
Appellant timely filed a response to Appellee's Motion for Summary
Judgment and filed supporting affidavits. CR. 233.
Appellant's response and accompanying affidavit was sufficient to prevent
summary judgment. CR. 183-186. Assuming all of Appellant's proof is true and
making every reasonable inference in favor of the non-movant, the Judgment for
APPELLANT'S BRIEF 19