No CV IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT DALLAS TEXAS

Transcription

1 No CV IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT DALLAS TEXAS 4810 BELT LINE LTD., K&R 4180, INC., LINEWOOD K WALES, ROBERT SIMON AND DUKE S BEVERAGE CORPORATION v. LONE STAR VALET PARKING SERVICES, INC. Appellant s Appellee s RESPONSE BRIEF OF LONE STAR VALET PARKING SERVICES, INC. Lloyd E. Ward, Esq. Lloyd ward P.C. Attorneys as Law N. Central Expressway, Ste Dallas, Texas Attorneys For Appellee REQUEST FOR ORAL ARGUMENT Appellant would request that this Honorable Court allow oral argument of the facts and issues herein. Appellant makes this, his request for oral argument, as allowed under Texas Rules of Appellate Procedure, Rule 39.1.

2 TABLE OF CONTENTS I. STATEMENT OF NATURE OF CASE II. ISSUES PRESENTED NO ISSUES PROPERLY PRESENTED Appellant has presented no issues as required under T.R.A.P., Rule 38.1(f), and has submitted only Arguments and Authorities, in addition thereto, as Appellant has failed to present separate issues on the Partial Summary Judgment granted and the Judgment entered at Trial. ISSUE NUMBER ONE designation A, as being an issue presented, the Trial Court correctly called this action to trial, granted Judgment on the merit based upon the evidence presented. ISSUE NUMBER TWO designation B, as being an issue presented, the Trial Court correctly granted summary judgment, as Defendants failed to file any affidavits or other evidence in response to Plaintiff s Motion for Summary Judgment, and therefore Plaintiff presented undisputed facts as to liability of Appellants for breach of contract. ISSUE NUMBER THREE designation C, as being an issue presented, the Trial Court correctly granted summary judgment, as Defendants failed to file any affidavits or other evidence in response to Plaintiff s Motion for Summary Judgment, and therefore Plaintiff presented undisputed facts as to liability of Appellants for breach of contract. ISSUE NUMBER FOUR designation D, as being an issue presented, the Trial Court correctly granted judgment on Claims of Fraudulent Transfer, as Defendants failed any affirmative defenses, or denials as required under TRCP, Rules 93 and 94; objected to discovery on the issue, and failed to comply with Trial Courts discovery order to turn over such information. Page

3 ISSUE NUMBER FIVE designation E, as being an issue presented, the Trial Court correctly denied the objections of summary judgment, and the summary judgment was appropriate. ISSUE NUMBER SIX designation F, as being an issue presented, the Trial Court correctly allowed the attorney s fees allowed to Appellee. III. STATEMENT OF FACT IV. SUMMARY OF ARGUMENT V. ARGUMENT AND AUTHORITIES NO ISSUES PROPERLY PRESENTED ISSUE NUMBER ONE ISSUE NUMBER TWO ISSUE NUMBER THREE ISSUE NUMBER FOUR ISSUE NUMBER FIVE ISSUE NUMBER SIX VIII. PRAYER

4 INDEX OF AUTHORITIES Citation Page 377 Realty Partners, L.P. v. Taffarello, 561 F.Supp.2d 659 (E.D. Tex. 2007) Bankhead v. Maddox, 135 S.W.3d 162, 163 (Tex. App.-Tyler 2004, no pet.) Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980) Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002) Christian v. First Nat'l Bank of Weatherford, 531 S.W.2d 832, 836 (Tex. Civ. App. 1976, writ ref'd n.r.e.) Centeq Realty, Inc., v. Siegler,899 S.W.2d 195, 197 (Tex. 1995) City of Deer Park v. State, ex rel. Shell Oil Co., 154 Tex. 174, 275 S.W.2d 77 (Tex.Sup.1954) Clark v. Dedina, 658 S.W.2d 293, 296 (Tex. App.-Houston [1st Dist.] 1983, writ dism'd) Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978) DeBoard v. Muller, 446 S.W.2d 299, 301 (Tex. 1969) Dolgencorp of Texas Inc., v Lerma, 288 S.W.3d 922 (Tex. 2009) ,14 Elmer v. Santa Fe Props., Inc., No CV, 2006 Tex. App. LEXIS 10593, 2006 WL ,(Tex. App.--San Antonio Dec. 13, 2006, no pet.) Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41, 32 Tex. Sup. Ct. J. 497 (Tex. 1989) Flores v. Robinson Roofing & Constr. Co., 2005 Tex. App. LEXIS 279 (Tex. App. Fort Worth Jan ), opinion withdrawn by, substituted opinion at 161 S.W.3d 750, 2005 Tex. App. LEXIS 2240 (Tex. App. Fort Worth 2005) Gaynier v. Johnson, 673 S.W.2d 899 (Tex.App.-5th Dist 1984) Goodyear Tire and Rubber Co. v. Jefferson Construction Co., 565 S.W.2d 916 (Tex. 1978) Guar. Bank v. Thompson, 632 S.W.2d 338, 339 (Tex. 2006) Iglesia Hispana Nueva Vida Houston, Inc. v. Rosin, 2007 Tex. App. LEXIS 4306 (Tex. App. Houston 1st Dist. June )

5 Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) ,14 Jacobs v. Satterwhite, 65 S.W.3d 653, (Tex. 2001) Krumb v. Porter, 152 S.W.2d 495, 496 (Tex. Civ. App.-San Antonio 1941, writ ref'd) Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 (Tex. App.-Dallas 2007, pet. denied) Lassiter v. Bliss, 559 S.W.2d 353 (Tex. 1978) Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970) Republic Ins. Co. v. Davis, 836 S.W.2d 158 (Tex. 1993) San Jacinto River Auth. v. Duke, 783 S.W.2d 209, (Tex. 1990) Scott v. McIlhany, 798 S.W.2d 556, 558 (Tex. 1990) Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) Thomann v. Lakes Reg'l MHMR Ctr., 162 S.W.3d 788 (Tex. App. Dallas 2005) Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 436 (Tex. App.-El Paso 2005, no pet.) Voice of the Cornerstone Church Corp. v. Pizza Prop. Partners, 160 S.W.3d 657, (3rd Dist. [Austin] 2005) Westheimer v. Tennant, 831 S.W.2d 880 (Tex.App.-14th Dist Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.-Houston [1st Dist.] 2002, no pet.)

6 No CV IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT DALLAS TEXAS 4810 BELT LINE LTD., K&R 4180, INC., LINEWOOD K WALES, ROBERT SIMON AND DUKE S BEVERAGE CORPORATION v. LONE STAR VALET PARKING SERVICES, INC. Appellant s Appellee s RESPONSE BRIEF OF LONE STAR VALET PARKING SERVICES, INC. To the Honorable Court of Appeals: Comes Now, Lone Star Valet Parking Services Inc., hereinafter referred to as Appellee, and pursuant to Texas Rule of Appellate Procedure, Rule 38.2, files this its Appellee s Response Brief, and in support thereof would respectfully show unto the Court as follows: STATEMENT OF NATURE OF THE CASE A. This appeal is from an partial summary judgment entered for Appellee Lone Star Valet Parking Services Inc., on December 9, 2009, and a final judgment entered after a non-jury trial on April 20, The Trial Court was adjudicated by the Honorable Judge Mark Greenberg, County Court at law No. 5, Dallas County Texas. This action is based upon Appellants breach of contract, and fraudulent conveyance of assets. B. Appellant filed its Motion for New Trial on May 20, 2010, which was denied by the Trial Court on July 3, Appellants filed thier Notice of Appeal in this action on July 19, Page-1

7 ISSUES PRESENTED NO ISSUES PROPERLY PRESENTED Appellant has presented no issues as required under T.R.A.P., Rule 38.1(f), and has submitted only Arguments and Authorities, in addition thereto, as Appellant has failed to present separate issues on the Partial Summary Judgment granted and the Judgment entered at Trial. ISSUE NUMBER ONE designation A, as being an issue presented, the Trial Court correctly called this action to trial, granted Judgment on the merit based upon the evidence presented. ISSUE NUMBER TWO designation B, as being an issue presented, the Trial Court correctly granted summary judgment, as Defendants failed to file any affidavits or other evidence in response to Plaintiff s Motion for Summary Judgment, and therefore Plaintiff presented undisputed facts as to liability of Appellants for breach of contract. ISSUE NUMBER THREE designation C, as being an issue presented, the Trial Court correctly granted summary judgment, as Defendants failed to file any affidavits or other evidence in response to Plaintiff s Motion for Summary Judgment, and therefore Plaintiff presented undisputed facts as to liability of Appellants for breach of contract. ISSUE NUMBER FOUR designation D, as being an issue presented, the Trial Court correctly granted judgment on Claims of Fraudulent Transfer, as Defendants failed any affirmative defenses, or denials as required under TRCP, Rules 93 and 94; objected to discovery on the issue, and failed to comply with Trial Courts discovery order to turn over such information. ISSUE NUMBER FIVE designation E, as being an issue presented, the Trial Court correctly denied the objections of summary judgment, and the summary judgment was appropriate. ISSUE NUMBER SIX designation F, as being an issue presented, the Trial Court correctly allowed the attorney s fees allowed to Appellee. Page-2

8 STATEMENT OF FACT Factual Background On or about December 19, 2008, Appellee brought this action against Defendants 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales and Robert Simon, jointly and severally. See Clerks Record ( CR ) at Volume 1, page 8. Appellee provides valet parking services to commercial enterprises and private individuals on a contract basis. Appellant 4180 Belt Line Ltd., K&R 4180 Inc., and their corporate officers, Appellant s Linewood K. Wales and Robert Simon, contracted with Appellee to provide valet parking services on or about the months of May of 2008 through August CR Volume 1, page 51. Appellants 4810 Belt Line Ltd., K&R 4180 Inc., Linewood K. Wales and Robert Simon have failed and refused to make payment pursuant to the terms of the contract entered into between Appellee and Appellants 4810 Belt Line Ltd., K&R 4180 Inc., Linewood K. Wales and Robert Simon. After all offsets and credits, Appellants 4810 Belt Line Ltd., K&R 4180 Inc., Linewood K. Wales and Robert Simon were indebted to Appellee in the total sum of Thirteen Thousand One Hundred Sixty Three Dollars and 64/100 ($13,163.64), under the terms of the Contract. CR Volume 1, page 51 All prior checks to Appellee from Appellants were drawn on, and signed by, 4180 Belt Line Ltd. ( 4180 Ltd. ). The original general partner for Appellant 4180 Ltd., was 4180 Belt Line GP, LLC, who was replaced as the general partner in February of 2006, with Appellant K&R 4180, Inc. In May of 2007, Appellant 4180 Ltd., filed a Assumed Name Certificate for Dukes Road House, which is the name of the establishment for which services were provided. The only two shareholders, officers or directors of Appellant K&R 4180 Inc., ( K&R ) are Defendants Linwood K. Wales and Robert Simon according to all papers filed with the Secretary of the State of Texas. CR Volume 1, page On August 25, 2008, after the notice of demand by Appellee, Appellant Linwood K. Page-3

9 Wales and Robert Simon, created Appellant Duke s Beverage Corporation Inc., which operates the same business as Appellant 4180 Ltd., in the same location, under the same trade name, with the same officers and directors and the same furniture, fixtures, equipment and personnel. CR Volume 1, page 57, and 58; Reporter Record ( RR ) at Exhibit C. Appellee Linewood K Wales and Robert Simon, created Appellee Duke s Beverage Corporation Inc., for the sole purpose of fraudulently transferring assets to evade and defraud creditors such as Appellant. It became apparent to Appellee that such name change was to avoid creditors, as Appellee had filed suit, and as Appellant 4180 Ltd., had entered into an agreed judgment on October 3, 2008, in the sum of $103,929.03, in the action styled Simon Kugelstadat, et al, v Belt Line Operating Ltd., d/b/a Dukes Original Roadhouse, in the US District Court for the Northern District of Texas, Dallas Division, Cause No. 3:07-cv-1204-M. Procedural Background This action was instituted on December 19, 2008, Appellee brought this action against Appellants 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales and Robert Simon, jointly and severally, for causes of action under Breach of Contract, Fraud, Suit of Sworn Account, Quantum Meruit, Individual Liability for Appellant Linewood Wales and Robert Simon for tort, and attorney s fees. CR Volume 1, page 8. On August 5, 2009, Appellants 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales and Robert Simon, filed an unsworn, general denial. No affirmative defenses alleging lack of capacity, defect in the parties, lack of incorporation was alleged or sworn to as required under Rule 93, or other affirmative defense as required under Rule 94. CR Volume 1, page 20. On September 3, 2009, upon discovering that Dukes Roadhouse, was no longer owned or operated by Appellee 4180 Ltd., but was now owned and operated by Appellee Dukes Beverage Corporation Inc., Appellant filed a Supplemental Petition. In the supplemental petition, Appellee clarified that Appellants 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales and Robert Simon had jointly and severally contracted with Appellee under Breach of Page-4

10 Contract, and added a Fraudulent Transfer count against Appellee Dukes Beverage Corporation Inc. CR Volume 1, page 24 On October 6, 2009, Appellee filed a traditional and no-evidence motion for partial summary judgment against Appellants 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales and Robert Simon. The traditional summary judgment, supported by the affidavit of an officer of Appellee, sought judgment for Breach of Contract, Sworn Account, Quantum Meruit against Appellee s 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales and Robert Simon; Liability against Appellee K&R 4180 Inc., as general partner for the actions of Appellee 4180 Belt Line Ltd., for all actions, and Appellee s Linewood Wales and Robert Simon as officers and directors of Appellee 4180 Belt Line Ltd. CR Volume 1, page 36 That summary judgment sought judgment under the no-evidence summary judgment rule for breach of contract and quantum meruit against Appellants Appellee 4180 Belt Line Ltd. CR Volume 1, page On November 3, 2009, Appellee s 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales and Robert Simon filed thier Response and Objection and Special Exceptions.. to Appellee s Motion for Partial Summary Judgment. That response did not contain any affidavit, and was an unsworn to response. Appellee s 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales and Robert Simon submitted no summary judgment evidence in thier responsive pleading, and instead objected to the affidavit of Appellee, and objected to the no evidence portion of the motion for summary judgment (please note that there was still no affirmative or verified defenses set forth by Appellee s). CR Volume 1, page 75. On December 9, 2009, the Trial Court granted summary judgment against Appellee s 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales and Robert Simon for breach of contract and quantum meruit in the sum of Thirteen Thousand One Hundred Sixty Three Dollars and 64/100 ($13,163.64). That granting of summary judgment did not specify as to whether such granting was under the traditional or no evidence portion of the summary judgment. CR Volume Page-5

11 1, page 79. On January 8, 2010, Appellee s 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales and Robert Simon filed a motion in limine, for rehearing of and to set aside partial summary judgment. However, such motion was not verified nor sworn to by and of Appellee s and still contained no evidence in the form of affidavits or discovery (and in fact the only evidence it contained was the affidavit submitted by Appellee in support of this motion for partial summary judgment). In addition, such pleading ignored the no-evidence portion of the summary judgment (as does Appellants brief in this action). CR Volume 1, page 81. On January 11, 2010, over thirty days after the granting of the summary judgment, Appellant s 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales, Robert Simon, and Dukes Beverage Corporation Inc. filed a supplemental answer. Such answer is unsworn to (as required under Rule 93), and sets for the defenses of Judicial Estoppel, Denial of Capacity, denial of Sworn Account, Partnership, Contract and Execution. This supplemental answer was filed AFTER the granting of the motion for partial summary judgment by more than thirty days and was unsworn to. CR Volume 1, page 112. On December 7, 2009, Appellee propounded request for production of documents upon Appellant Dukes Beverage Corp., Inc., seeking information regarding the transfer of assets from Appellant 4180 Belt Line Ltd., to Dukes Beverage Corp., Inc. Appellant Dukes Beverage Corp., Inc., filed an objection to all documents requested, and refused to provide any documents. Therefore, on February 10, 2010, Appellee filed a Motion to Compel response to production of documents, seek specifically documents relating to the transfer of the assets from Appellant 4180 Belt Line Ltd., to Dukes Beverage Corp., Inc. CR Volume 1, page 118. On March 3, 2010, the Trial Court overruled the objections, and ordered the documents produced no later than March 31, Such documents were never produced by the Appellants in this action. See CR Volume 1, at page 7, Courts Notations for March 3, CR Volume 1, page 140, and courts docket at CR Volume 1, page 7. Page-6

12 On April 8, 2010, Counsel for Appellants filed a motion to withdraw based upon failure to pay attorney s fees. CR Volume 1, page 151. On April 19, 2010, this action was called to Trial. Counsel for Appellant had not obtain any order to withdraw, and in fact the motion to withdraw was filed less than thirty days prior to trial. No one appeared on behalf of Appellants at trial personally or through counsel, however, Counsel Thomas Barron was present at Trial but refused to make an appearance or participate or request a continuance of the Trial. See Court Reporters Record ( RR ) at page 2. On May 20, 2010, Appellee s filed a motion for new trial based upon the same arguments set forth in thier Appellants Brief. THAT MOTION FOR NEW TRIAL BEGINNING AT PAGE 3 (CR VOLUME 1, PAGE 161) IS IDENTICAL TO THE ARGUMENT AND AUTHORITIES, MADE IN APPELLANTS BRIEF BEGINNING AT PAGE 7. SUCH ARGUMENT AND AUTHORITIES, IN THE MOTION FOR NEW TRIAL ARE APPROPRIATE, BUT IN AN APPELLATE BRIEF FAIL TO COMPLY WITH TEXAS RULES OF APPELLATE PROCEDURE, RULE 38.1(F), STATE CONCISELY ALL ISSUES OR POINTS PRESENTED. That motion for new trial, identical the Appellate Brief, was denied by the Trial Court. CR Volume 1, page 161. Finally, Appellants requested no findings of fact nor conclusions of law in this action. Trial on Merits At the trial on the Merits, Appellants elected to accept the prior partial summary judgment on the contract claim, and release the quantum meruit claim, based upon an election of remedies. See RR at Page 5. At the trial, Appellants then called Lloyd Ward, counsel for Appellants who testified regarding attorney s fees incurred strictly regarding the breach of contract claims, in the sum of Eleven Thousand Two Hundred Dollars ($11,200.00), as fair and reasonable attorney s fees. See RR at Page 5 and 6. At the Trial, Appellant then called Michael Tatum, an officer of Appellant, who testified Page-7

13 that Defendant Belt Line Ltd. (While the question actually stated Belt Line Operating Ltd., such company was not a party and such question was merely a misstatement as to a parties name), who testified that he had determined that Defendant Belt Line had transferred all of its assets to Defendant Dukes Beverage Co., Inc., and that in fact such transfer had occurred without consideration. See RR at Page Based upon such testimony, the Court found that a fraudulent transfer had occurred, and awarded Appellant three times its actual damages against Defendant Dukes Beverage Corporation Inc., in the sum of Thirty Nine Thousand Four Hundred Ninety Dollars and 92/100 ($39,490.92). See RR at Page SUMMARY OF ARGUMENT In the action at bar, there is no error by the Trial Court as (1) Appellants motion for partial summary judgment was both a traditional and no-evidence summary judgment, Appellant s 4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales, and Robert Simon failed to file a response to such motion (filing only objections to the motion and evidence), failed to file any affidavits or other evidence in opposition to the motion, and such motion was granted without specifying the evidence or no-evidence granting thereof, and such issue has not been raised or brief by Appellant, (2) the Trial on the Merits, Appellants failed to appear, though properly noticed, were represented by Counsel, who also failed to appear, and evidence was elicited through testimony which provided sufficient basis for rendition of a judgment, (3) Appellant fails to cite this Court to any authority on most of the issues presented (to the extent this Court finds they are issues), and (3) Appellant s brief fails to satisfy the requirements of T.R.A.P., Rule 38.1, to allow for review, reversal or remand. Accordingly the judgment of the Trial Court should be affirmed. Page-8

14 ARGUMENT AND AUTHORITIES NO ISSUES PROPERLY PRESENTED Appellant has presented no issues as required under T.R.A.P., Rule 38.1(f), and has submitted only Arguments and Authorities, in addition thereto, as Appellant has failed to present separate issues on the Partial Summary Judgment granted and the Judgment entered at Trial Appellant s brief contains one Issues Presented, at page iv of Appellants Brief, setting forth the issue as Whether appellants are entitled to a new trial based upon thier attorneys failure to appear at trail and whether the record supports summary judgment in favor of appellees. However, at page 7, there is no Issues Presented, only Argument and Authorities, with the following arguments: A. This is a default judgment and defendants satisfy the Craddock Test for a New Trial. B. K and R, Inc., is merely the General Partner of 4810 Belt Line, Ltd. - It is not a contracting party C. There is no evidence to Support Judgment against Wales and Simon Individually D. There is no - or legally insufficient - evidence to support the fraudulent transfer claim E. The Trial Court erred in overruling Appellants Objections to the Summary Judgment Evidence F. The attorney s fees is not supported by Proper Demand Such pleading fails to comply with T.R.A.P., Rule 38.1(f) and (I). The appellant's brief must state concisely all issues or points presented for review. TEX. R. APP. P. 38.1(f); Bankhead v. Maddox, 135 S.W.3d 162, 163 (Tex. App.-Tyler 2004, no pet.). Moreover, in support of an issue, the appellant's brief must contain a clear and concise argument and appropriate citations to authority and to the record. See TEX. R. APP. P. 38.1(I). In its review of a civil matter, an appellate court has no discretion to fabricate an issue not raised in the appellant's brief, even though the court may perceive that the ends of justice require such a course. See Bankhead, 135 S.W.3d at ; Krumb v. Porter, 152 S.W.2d 495, 496 (Tex. Civ. App.-San Antonio 1941, writ ref'd). Page-9

15 Failure properly plead a point of error is a waiver of that point of error, see Jacobs v. Satterwhite, 65 S.W.3d 653, (Tex. 2001) (failure to raise issue on appeal waives error); Tex. R. App. P. 38.1(f), (I) (requiring the appellant's brief to concisely state all issues presented for review and to provide citations to authorities and to the record with respect to the issues the brief seeks to raise), See San Jacinto River Auth. v. Duke, 783 S.W.2d 209, (Tex. 1990) (stating that it is a "well-established rule that grounds of error not asserted by points of error or argument in the court of appeals are waived"), and a court of appeals may not reverse a trial court's judgment in the absence of properly assigned error; rather, grounds of error not asserted by point of error or argument in the court of appeals are waived. See, e.g., San Jacinto River Auth. v. Duke, 783 S.W.2d 209, (Tex. 1990). In the case at bar, Appellant has failed to properly plead his points of error, and in fact as set forth below, has combined points of error (the judgment granted under the summary judgment is set forth in the same point of error as the judgment on the merits on the date of trial), and fails to properly comply with the Texas Rules of Appellate Procedure, rules relating to briefing requirements, therefore, waiving such points of error. Appellants brief should be denied in whole for failure to comply with briefing requirements, as such points of error, to the extent they exist, have been waived. ISSUE NUMBER ONE designation A, as being an issue presented, the Trial Court correctly called this action to trial, granted Judgment on the merit based upon the evidence presented. It must be delineated that this issue, attempts to combine to different events, and apply the same standard to them. The first event is the granting of the partial summary judgment (granting the breach of contract and quantum meruit), and the second is the calling to trial on the remaining causes of action (allowing for attorney s fees and fraudulent transfer). Appellant then attempts to use the Craddock standard to both events. Summary Judgment Page-10

16 Appellee has found no cases which discuss, or apply, the Craddock review regarding a 1 motion for summary judgment, especially on responded to. When reviewing the summary judgment, Appellants actually fined a Response and Objection and Special Exceptions to Plaintiff s Motion for Summary Judgment... CR. Volume 1, page Appellants failed to file any controverting affidavits, or any other evidence. In addition thereto, as shown at CR Volume 1, page 36, Appellants motion was a No Evidence and Traditional Motion for Partial Summary Judgment. The Traditional portion of the motion, CR Volume 1, pages 38 through 48, sets for the specific details for the basis of the motion for the causes of action of Breach of Contract, Quantum Meruit, Sworn Account, Joint Liability of General Partner, Individual Liability, and is supported by the affidavit of Mike Tatum, CR Volume 1, Page 51. The No evidence summary judgment portion of the motion for Breach of Contract and Quantum Meruit is set forth at CR Volume 1, page 47 and 48, regarding causes of action for Breach of Contract and Quantum Meruit. The Order granting the Motion for Partial Summary Judgment only granted judgment as to the Breach of Contract and Quantum Meruit against Appellants 4180 Belt Line Road Ltd., K&R 4180 Inc., Robert Simon and Linewood Wales. The judgment does not specify as to whether such judgment was granted based upon either the Traditional or No Evidence Summary Judgment. CR Volume 1, page 79 and 80. In Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970), the Supreme Court, speaking through Justice McGee, stated "The judgment must stand, since it may have been based on a ground not specifically challenged by the plaintiff and since there was no general assignment that the trial court erred in granting summary judgment." In that case the Supreme Court observed that the trial court's summary judgment could have been based either upon the 1 See, Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002), finding that Craddock does not apply to a motion for new trial filed after summary judgment is granted when the nonmovant failed to respond after having notice and an opportunity to obtain leave to file a late response. Id. at 686. Page-11

17 affirmative defense of release or limitation, or both. By making a challenge against only one of these defenses by assignments of error the Supreme Court held that the remaining point was waived and the summary judgment was allowed to stand. See also City of Deer Park v. State, ex rel. Shell Oil Co., 154 Tex. 174, 275 S.W.2d 77 (Tex.Sup.1954) and LeJeune v. Gulf States Utilities Co., 410 S.W.2d 44 (Tex.Civ.App., Beaumont 1966, writ ref'd n.r.e.). Since a new church did not adequately brief the issue of collateral estoppel on appeal, as required by Tex. R. App. P. 38.1(h), an appellate court did not reverse a decision to grant summary judgment since all possible grounds for granting such were not negated. Iglesia Hispana Nueva Vida Houston, Inc. v. Rosin, 2007 Tex. App. LEXIS 4306 (Tex. App. Houston 1st Dist. June ), also Voice of the Cornerstone Church Corp. v. Pizza Prop. Partners, 160 S.W.3d 657,(3rd Dist. [Austin] 2005), found that Although the church argued the merits of its counterclaim and some of its affirmative defenses, it did not challenge the ground that its claims and defenses were procedurally barred by the first summary judgment. Under Tex. R. App. P. 38.1(e), (g), (h), when an appellant from a summary judgment does not successfully attack every possible ground upon which the district court could have based its summary judgment, the summary judgment must be affirmed. Voice of the Cornerstone Church Corp. v. Pizza Prop. Partners, 160 S.W.3d 657, 2005 Tex. App. LEXIS 1804 (Tex. App. Austin 2005). As Appellant failed to address all grounds upon which the summary judgment could have been based, such grounds are waived, and the Trial Courts judgment must stand as a matter of law. Trial on the Merits Contrary to the position of Appellants, in this action, there is no proof regarding failure to appear in not intentional or due to conscious indifference... Appellants individually were notified of the Trial Date, CR Volume 1, Page 152, and had knowledge of thier attorney s intention to withdraw on April 6, 2010, two weeks prior to trial, and in fact had their current attorney appear at the Trial, RR, at page 2, who refused to appear, defend, or move for a Page-12

18 continuance. In addition, thier attorney of record was aware of the trial date and in fact informed the Trial Court that he was replaced, by the current attorney of record, and stated the Mr. Barron would be present in the Courtroom (he was, see above), and so apparently lacked authority to appear on behalf of the Appellants. This is but one instance of the Appellants attempt to no comply with the Courts existing orders and rules of civil and evidentiary procedure, and then claim such failure as a shield. While counsel attempts to rely upon Dolgencorp of Texas Inc., v Lerma, 288 S.W.3d 922 (Tex. 2009), and it progeny, for the proposition that failure to appear by counsel not evidence of intentional or due to conscious indifference, such reliance is misplaced. In Dolgencorp, the counsel for Appellant was in trial in another court and had so notified the defaulting court of this conflict. We stressed that Craddock did not apply because the defaulting party realized its mistake before judgment was entered and at a point in time when the rules of procedure provided other remedies. Id. at 685. But in this case, Dollar General was not actually aware that trial would begin on February 26. At the hearing on the motion for new trial, Harrison testified: "I reasonably believe[d] based on everything I knew that I was not to be called to trial [in Cameron County] while I was in trial in Harris County, that the court would work with the schedule." See Dolgencorp, at 927. In the action at bar, Appellants were aware that Trial was scheduled and would begin, and in fact, had thier Current Counsel present (who refused to appear, participate, or request a continuance). Further, prior counsel stated he would not appear, but instead that Appellants would be represented by thier current counsel (who did appear). The second prong of the Craddock test requires Appellant to "set up" a meritorious defense in its motion for new trial. 133 S.W.2d at 126. Setting up a meritorious defense does not require proof "in the accepted sense." Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). Rather, the motion sets up a meritorious defense if it alleges facts which in law would constitute a defense to the plaintiff's cause of action and is supported by affidavits or other evidence providing prima facie proof that the defendant has such a defense. Id. (testimony given at the motion for new trial hearing used to determine whether defendant provided prima facie evidence Page-13

19 of a meritorious defense); see Guar. Bank v. Thompson, 632 S.W.2d 338, 339 (Tex. 2006). Once such requirements are met, controverting evidence offered by the nonmovant should not be considered. See Dolgencorp, at 927, citing Ivy, 407 S.W.2d at 214. In the action at bar, Appellants presented no evidence (not in responding to summary judgment, not at trial, not attached to thier motion for new trial, or at any time), to the Trial Court, or to this Court which would substantiate its alleged defenses, other than nine lines of conclusory statements in its motion for new trial and its brief filed herein. In the action at bar, there are no affidavits or other evidence providing prima facie proof that defendants have such a defense... Dolgencorp, at 927. Appellant cannot provide evidence of lack of intentional or due to conscious indifference, nor provide any evidence of affirmative defenses, and therefore, have failed the Dolgencorp test. The judgment should be affirmed on all counts. ISSUE NUMBER TWO designation B, as being an issue presented, the Trial Court correctly granted summary judgment, as Defendants failed to file any affidavits or other evidence in response to Plaintiff s Motion for Summary Judgment, and therefore Plaintiff presented undisputed facts as to liability of Appellants for breach of contract. Appellants do not cite this Court to a single case to support its proposition that K&R Inc., as the general partner of a limited partnership has no liability for the partnerships, which is contrary to both requirements for appellate briefing and to law. Here, Appellant provided no record references nor any citation to authorities where required. See Tex. R. App. P As Appellants provided no citation to any authorities, thus failing to present any discussion or argument or explanation of how such cases supported their specific contentions. Therefore Appellant's complaints are inadequately briefed. See Tex. R. App. P. 38.1; Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 (Tex. App.-Dallas 2007, pet. denied) (issue inadequately briefed when party gave general cite to one case stating elements of cause of Page-14

20 action); Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (issue inadequately briefed when party failed to make proper citations to authority or the record and in failing to make a cogent argument); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (issue inadequately briefed when party did little more than summarily state his point of error, without citations to legal authority or substantive analysis); Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 436 (Tex. App.-El Paso 2005, no pet.) (issue inadequately briefed when argument did not contain any references to relevant cases or legal principles). Texas law, with certain exceptions not applicable here, provides that "an association of two or more persons to carry on a business for profit as owners creates a partnership, whether the persons intend to create a partnership and whether the association is called a 'partnership,' 'joint venture,' or other name." TEX. REV. CIV. STAT. ANN. art. 6132b-2.02(a) (Vernon Supp. 2008). 2 A "person" includes, among others, a corporation and a partnership. Id. art. 6132b-1.01(14) (Vernon Supp. 2008). A partnership is an entity distinct from its partners. Id. art. 6132b-2.01 (Vernon Supp. 2008). Generally, "all partners are liable jointly and severally for all debts and obligations of the partnership unless otherwise agreed by the claimant or provided by law." Id. art. 6132b-3.04 (Vernon Supp. 2008). There is a Parallel provisions to article 6132b of the Texas Revised Partnership Act are found in Chapter 152 of the Business Organizations Code. See generally TEX. BUS. ORGS. CODE ANN (Vernon Supp. 2008). Under Texas law, a third party may sue a partner in the same suit as the partnership. Article 6132b-3.05(b) states, "An action may be brought against a partnership and any or all of the partners in the same action or in separate actions." TEX. REV. CIV. STAT. ANN. art. 6132b- 3.05(b) (Vernon Supp. 2008); see Elmer v. Santa Fe Props., Inc., No CV, 2006 Tex. App. LEXIS 10593, 2006 WL , at footnote 3 (Tex. App.--San Antonio Dec. 13, 2006, no pet.) (mem. op.) (Commenting on article 6132b-3.05(b), the court stated that "a partnership Page-15

21 creditor should not be precluded from commencing a subsequent suit against a partner merely because the partner was not part of the original suit or judgment."). In this action, Plaintiff has sued the partnership and the General Partners, Defendant s 4180 Ltd., and K&R, who are jointly and severally liable for the company debts. The Trial Courts judgment must be affirmed. ISSUE NUMBER THREE designation C, as being an issue presented, the Trial Court correctly granted summary judgment, as Defendants failed to file any affidavits or other evidence in response to Plaintiff s Motion for Summary Judgment, and therefore Plaintiff presented undisputed facts as to liability of Appellants for breach of contract. Appellants do not cite this Court to a single case to support its proposition that under the allegations of breach of contract, specifically alleged in the Supplemental Petition against Appellants Wales and Simon, that there is no liability. The breach of contract and quantum meruit were specifically alleged in the supplemental petition, and part of both the traditional and no evidence summary judgment. Here, Appellant provided no record references nor any citation to authorities where required. See Tex. R. App. P Appellee would refer this Honorable Court to Issue No. 2, above for a specific and detailed outline of the cases and applicable statutes on this point, and restate and reiterate the argument therein under. Appellants further, make broad general allegations regarding the personal liability, but fail entirely to address the issue of the Traditional and No Evidence summary judgment, and Appellants failure to provide either any evidence in response to such to motion for summary judgment. The basis of the granting of the summary judgment may have been the traditional, or the no-evidence portion, neither of which are even addressed in this brief. For purposes of cases and applicable statute addressing failure to brief and the summary judgment itself, Appellee would refer this Court to Issue No. 1, under the subtitle, Summary Page-16

22 Judgment, and restate and reiterate the argument therein under. ISSUE NUMBER FOUR designation D, as being an issue presented, the Trial Court correctly granted judgment on Claims of Fraudulent Transfer, as Defendants failed any affirmative defenses, or denials as required under TRCP, Rules 93 and 94; objected to discovery on the issue, and failed to comply with Trial Courts discovery order to turn over such information. Again, Appellants fail to cite this Court to a single case in support of its proposition regarding fraudulent transfer. Appellants further fail to address the issue that (1) the information was requested and ordered produced by the Court in regard to the transfer of assets, and Appellants wholly failed to comply with that Court Order or produce any documents ordered by the Trial Court, (2) that Appellants failed to file any affirmative defenses regarding the fraudulent transfer, either verified or un-verified, and (3) that Appellee presented evidence, unobjected to, on this issue at trial. It was proven and undisputed that the Appellants 4180 Beltline Ltd., transferred its assets to Dukes Beverage Corporation Inc., that such transfer was after one judgment had been taken, and this action filed; that such transfer was undisclosed and transferred all of the assets from one company to another including the liquor license and lease, that the trade name was transferred, and that the officers and directors were the same in each company. Here, Appellant provided no record references nor any citation to authorities where required. See Tex. R. App. P Appellee would refer this Honorable Court to Issue No. 2, above for a specific and detailed outline of the cases and applicable statutes on this point, and restate and reiterate the argument therein under. In an action such as this where there is a transfer from one entity to another, with the same owners, with pending actions and/or judgments, such transfer is covert, and there is a transfer of all of the assets, the Court may find upon such evidence that a fraudulent transfer has occurred. See 377 Realty Partners, L.P. v. Taffarello, 561 F.Supp.2d 659 (E.D. Tex. 2007); see also Flores v. Robinson Roofing & Constr. Co., 2005 Tex. App. LEXIS 279 (Tex. App. Fort Page-17

23 Worth Jan ), opinion withdrawn by, substituted opinion at 161 S.W.3d 750, 2005 Tex. App. LEXIS 2240 (Tex. App. Fort Worth 2005), where the court found sufficient evidence as the general contractor and the successor had almost identical names and addresses, and the successor had the same phone number, used the same advertising logo and graphics, and represented continuous family operation for more than 37 years. As set forth herein, Appellant specifically requested the information relating to the terms and conditions of the sale of assets, Appellee s objected and refused to produce such information, the Trial Court ordered such information be provided without objection, Appellee s then refused to comply with the Trial Courts order, and now attempt to use such actions as a shield to claim a lack of proof. The Texas Supreme Court has been very clear in its decisions that one may not use such a actions as both a "sword and a shield". "[A action is] a shield to prevent a litigant from taking undue advantage of his adversaries industry and effort, not a sword to be used to thwart justice or to defeat the salutary objectives of discovery." Scott v. McIlhany, 798 S.W.2d 556, 558 (Tex. 1990), and quoted in Republic Ins. Co. v. Davis, 836 S.W.2d 158 (Tex. 1993), see also Westheimer v. Tennant, 831 S.W.2d 880 (Tex.App.-14th Dist. 1992), and Gaynier v. Johnson, 673 S.W.2d 899 (Tex.App.-5th Dist 1984). In the action at bar, Appellant specifically requested that information upon which Appellee s now rely in thier claim of lack of evidence, even though such evidence was ordered produced by the Trial Court, and Appellants failed to produce such evidence. The claim of lack of capacity, avoidance or other affirmative defense must be pled or it is waived, in this action, there is no affirmative claim of avoidance, capacity or other defense to the transfer of the assets. As there was no affirmative defenses pled by Appellants in this action, and no verified defenses, Affirmative defenses must be pleaded and proved or they are waived, and where a defendant's answer is a general denial, all affirmative defenses are waived. Christian v. First Nat'l Bank of Weatherford, 531 S.W.2d 832, 836 (Tex. Civ. App. 1976, writ ref'd n.r.e.). As Appellants s have failed to set forth the affirmative defenses, they are precluded from reliance Page-18

24 upon such defenses, or presentation of any evidence thereon, see DeBoard v. Muller, 446 S.W.2d 299, 301 (Tex. 1969, Clark v. Dedina, 658 S.W.2d 293, 296 (Tex. App.-Houston [1st Dist.] 1983, writ dism'd), Centeq Realty, Inc., v. Siegler,899 S.W.2d 195, 197 (Tex. 1995). Finally, Appellants made no request for findings of fact or conclusions of law. In a nonjury trial, where no findings of fact or conclusions of law are filed or requested, it will be implied that the trial court made all the necessary findings to support its judgment. Goodyear Tire and Rubber Co. v. Jefferson Construction Co., 565 S.W.2d 916 (Tex. 1978); Lassiter v. Bliss, 559 S.W.2d 353 (Tex. 1978), Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980). Such implied findings, however, may be attacked by evidentiary points of error, just as with jury findings and findings entered by a trial court. Id. In applying this standard, we must also be mindful of the rule that in a nonjury trial, where no findings of fact or conclusions of law are filed or requested, the trial court's judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). The Trial Courts Judgment, must be sustained as a matter of law. ISSUE NUMBER FIVE designation E, as being an issue presented, the Trial Court correctly denied the objections of summary judgment, and the summary judgment was appropriate. Again, Appellants fail to cite this Court to a single case in support of its proposition regarding the Courts determination of the striking of evidence at the motion for summary judgment hearing. As Appellant provided no record references nor any citation to authorities where required. See Tex. R. App. P Appellee would refer this Honorable Court to Issue No. 2, above for a specific and detailed outline of the cases and applicable statutes on this point, and restate and reiterate the argument therein under. Where an Appellant has argued that the trial court erred in overruling its objections to summary judgment evidence, a general directive to review affidavits for hearsay and Page-19

25 impermissible conclusions was not sufficient to direct the court's attention to the error about which appellant complained. Thomann v. Lakes Reg'l MHMR Ctr., 162 S.W.3d 788 (Tex. App. Dallas 2005). Because the scope of discovery and the admissibility of evidence is principally within the discretion of the trial judge, absent a clear abuse of discretion the trial court's ruling should not be disturbed. Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41, 32 Tex. Sup. Ct. J. 497 (Tex. 1989). Appellant has failed to provide specifically the evidence which was objected to, and allowed by the Trial Court, and therefore, has waived such objection, further, as such evidence is within the Trial Courts discretion as a general rule, without knowing precisely which objection is referred to, Appellant cannot adequately respond (there were over fourteen objections made), to the objection. The Trial Courts verdict must be sustained as a matter of law. ISSUE NUMBER SIX designation F, as being an issue presented, the Trial Court correctly allowed the attorney s fees allowed to Appellee. Again Appellants fail to cite this Court to a single case in support of its proposition regarding the Courts determination of reasonable attorney s fees. As Appellant provided no record references nor any citation to authorities where required. See Tex. R. App. P Appellee would refer this Honorable Court to Issue No. 2, above for a specific and detailed outline of the cases and applicable statutes on this point, and restate and reiterate the argument therein under. Appellee alleged in its petition that proper demand had been made on Appellee (the last paragraph of Background of Facts, CR Volume 1, pages 9 and 25), and there was no affirmative pleading that the condition precedent had not been complied with (Rule 54). For the argument regarding affirmative defenses, Appellee would refer this Honorable Court to Issue No. 4, above for a specific and detailed outline of the cases and applicable statutes on this point, and restate Page-20

26 and reiterate the argument therein under. PRAYER In the action at bar, Appellant prays that this Court confirm the Judgment entered by the Trial Court below, both as to the Summary Judgment, and Final Judgment Respectfully Submitted Lloyd E. Ward Bar No Lloyd Ward P.C North Central Expressway, Ste Dallas, Texas Telephone (972) Facsimile (972) Attorney for Appellant Certificate of Service This is to certify that a true and correct copy of the foregoing pleading was sent via st certified mail, return receipt requested to the below signed counsel, on this 1 day of April, Lloyd Ward Thomas C. Barron Law Office of Thomas C Barron 2001 Bryan St., Suite Dallas TX Telephone (214) Facsimile (214) Page-21