,_ v - Fifth Court of Appeals

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Appellee is required to segregate fees. When a party is entitled to attorney's fees on one cause of action but not the other, the party claiming fees must segregate the recoverable fees from the nonrecoverable fees. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). Appellee's failure to segregate fees precludes amongst causes of action and parties precludes an award of attorney's fees. There is no evidence of anticipated appellate attorney's fees. Appellee presented absolutely no evidence related to appellate attorney's fees. The Gentry Affidavit does not even mention appellate attorney's fees, and fails to meet the most basic and fundamental requirement that a party present proof that the amount of fees requested is reasonable. CR. 78-79. Therefore, the award of $25,000.00 in attorney's fees in the case of an appeal to the Court of Appeals and $15,000.00 award of attorney's fees in the case of an appeal to the Texas Supreme Court is not supported by any evidence. As there is no evidence in the record to support an award of contingent attorney's fees on appeal, no such damages can be awarded in the Judgment. ISSUE SIX Whether interest was calculated using an incorrect interest rate. Appellee calculates prejudgment interest using 12%, and the Judgment awards postjudgment interest at a rate of 12%. CR. 193. The rate for prejudgment interest is the same as for postjudgment interest. Tex. Fin. Code § 304.102. The Finance Code controls the postjudgment interest rate. Tex. Fin. Code § 304.002 APPELLANT'S BRIEF 33
I' applies to judgments on a contract (the rate specified in the contract with a maximum rate of 18% per year). Texas Finance Code§ 304.003(c)(l) applies in cases where§ 304.002 does not apply (i.e. cases other than contract cases). The Judgment in this case awards no damages for breach of contract against any party. Therefore, Texas Finance Code § 304.003(c)(l) (for non-contract cases) controls the postjudgment interest rate in this case, which is the prime rate as published on the date of computation. On August 5, 2011, the date of Judgment, the prime rate was 5%. 14 Therefore, any award of interest at all should be calculated at 5% and not 12%. Appellee apparently uses 12% on the basis that the Note between lnvictus and Appellee calls for interest at 12% per annum. However, as is clear from the face of the Judgment, the Judgment does not award any damages for breach of any contract or breach of the Note. Therefore, basing a prejudgment or postjudgment interest award on the Note's 12% interest calculation is erroneous. The Judgment interest rate should be 5%, pursuant to Texas Finance Code § 304.003( c)( 1 ). CONCLUSION AND PRAYER In conclusion, the Judgment is erroneous, because it awards damages for fraud, when fraud was not pled or proven in Appellee's Motion for Summary Judgment. Appellee also failed to prove an alter ego claim, because Appellee did 14 See http://www.occc.state.tx.us/pages/int rates/lndex.html, Office of the Consumer Credit Commissioner Judgment Interest Rate publication and Texas Credit Letter APPELLANT'S BRIEF 34
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 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: The Gentry Affidavit does not conta
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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