,_ v - Fifth Court of Appeals

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'io i, 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
fraud was erroneous. Limestone Prods. Distrib., Inc. v. McNamara, Inc., 71 S.W.3d 308, 311 (Tex. 2002); Provident Life & Ace. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). ISSUE TWO Whether the trial court erred in granting summary judgment against Appellant for under an alter ego theory. Summary of the Argument Appellee failed to prove the required elements of an alter ego claim. However, even if the Judgment is somehow interpreted to include a finding against Appellant for the debts of Invictus on an alter ego theory, that finding would be erroneous and immaterial, as the Judgment did not award Appellee any damages for the debts of Invictus. The Judgment does not address any claim of breach of contract or award any damages for breach of contract against any party. Law In order to pierce the corporate veil on an alter ego theory, a plaintiff must prove that the defendant: 1) caused the corporation to be used for the purpose of perpetrating an actual fraud; and 2) an actual fraud was perpetrated on the plaintiff primarily for the defendant's direct personal benefit. Tex. Bus. Orgs. Code § 21.223(b ). This proposition generally is referred to as piercing the corporate veil. See Castleberry v. Branscum, 721 S.W.2d 270, 278 (Tex. 1986), superseded in part by Tex. Bus. Orgs. Code § 21.223(a)(2) (previously codified at Tex. Bus. Corp. Act art. 2.21, § A). A contract claimant must prove actual fraud to utilize APPELLANT'S BRIEF 20
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 and 18: Argument Appellee's Motion for Part
Page 19: • No evidence of any representati
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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