,_ v - Fifth Court of Appeals

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the alter ego doctrine. Lucas v. Texas Indus., Inc., 696 S.W.2d 372, 376 (Tex. 1984). An attempt to pierce the corporate veil is not, of itself, a substantive cause of action. Instead, it is a means of imposing liability in connection with an underlying cause of action such as a tort or breach of contract. Phillips v. United Heritage Corp., 319 S.W.3d 156, 158 (Tex. App.--Waco 2010, no pet.); Wilson v. Davis, 305 S.WJd 57, 68 (Tex. App.-Houston 2009, no pet.); Gallagher v. Bintliff, 740 S.W.2d 118, 119 (Tex. App.-Austin 1987, writ denied); Farr v. Sun World Sav. Ass'n, 810 S.W.2d 294, 297 (Tex. App.--El Paso 1991, no writ); see Cox v. Southern Garrett, L.L.C., 245 S.W.3d 574, 582 (Tex. App.-Houston 2007, no pet.)(without underlying cause of action creating corporate liability, evidence of abuse of corporate form is immaterial). Argument Because Appellee failed to pled or prove an actual fraud, Appellee cannot prevail under the alter ego doctrine. To pierce the corporate veil, Appellee must necessarily prove an actual fraud. Tex. Bus. Orgs. Code § 21.223(b ). As shown hereinabove, Appellee failed to plead or prove an actual fraud. The Appellee's Summary Judgment Motion only contained a conclusory statement that there was actual fraud and Appellant should be personally liable. The Motion and the evidence attached thereto do not prove the required elements of actual fraud under a traditional summary judgment motion standard. Therefore, the finding against Appellant under an alter ego APPELLANT'S BRIEF 21
i I, theory of liability for actual fraud is erroneous. The Judgment does not award Appellee any damages under a breach of contract theory, so Appellee cannot prevail on an alter ego claim. There was no finding against Invictus for a breach of contract claim, so there is no debt of Invictus that Appellant would be liable for under an alter ego theory. Without an underlying cause of action creating corporate liability, evidence of an abuse of the corporate fonn is immaterial. See Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 147 (Tex. App.-Houston 2000, pet. denied). The Judgment does not even address Appellee's claim of breach of contract against Invictus. CR. 92-193. The Judgment also does not address the claim of alter ego against Fabiani for the debts of Invictus. CR. 192-193. Therefore, the Judgment cannot find Appellant personally liable for any award of damages premised on the debts of lnvictus. ISSUE THREE Whether the trial court erred in granting summary judgment against Appellant for fraudulent transfer under the UFT A. Summary of Argument Fraudulent transfer under the UFTA requires proof of different elements than common law fraud, and Appellee failed to prove the required elements under the UFTA against Appellant, including proving an actual intent to hinder, delay, or defraud a creditor. Furthermore, Appellee's summary judgment evidence created a fact issue. APPELLANT'S BRIEF 22
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 and 20: • No evidence of any representati
Page 21: fraud was erroneous. Limestone Prod
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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