Opinion

Austin Capital Collision, LLC// Barbara Pampalone v. Barbara Pampalone// Cross-Appellee, Austin Capital Collision, LLC and Eric Hinojosa

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Dec 18, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

“[C]ontracts that have been partly performed, but do not meet the requirements of the statute of frauds, may be enforced in equity if denial of enforcement would result in a virtual fraud.”

How later courts described this case

“[C]ontracts that have been partly performed, but do not meet the requirements of the statute of frauds, may be enforced in equity if denial of enforcement would result in a virtual fraud.”
performance must be not measured by profits that reliance led him to expect, such as could have been done with no other design than to but limited to amount necessary to compensate party for fulfill particular agreement sought to be enforced
holding statute of frauds did not bar enforcement of oral loan agreement despite debtor’s bald claim that money advanced pursuant to oral loan agreement was instead a gift

Written by the judges who cited it.

The opinion

ACCEPTED

03-15-00447-CV

8312763

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/18/2015 5:34:50 PM

JEFFREY D. KYLE

CLERK

NO. 03-15-00447-CV

In the Court of Appeals FILED IN

3rd COURT OF APPEALS

For the Third Judicial District of Texas AUSTIN, TEXAS

at Austin 12/18/2015 5:34:50 PM

JEFFREY D. KYLE

Clerk

AUSTIN CAPITAL COLLISION, LLC,

Appellant

BARBARA PAMPALONE,

Appellee and Cross-Appellant

On Appeal from the 419th Judicial District Court, Travis County, Texas

Trial Court Cause No. D-1-GN-14-003207

PAMPALONE’S BRIEF OF APPELLEE

ORAL ARGUMENT REQUESTED

MCGINNIS, LOCHRIDGE & KILGORE, L.L.P.

Nelia J. Robbi, State Bar No. 24052296

Joe Lea, State Bar No. 24013257

April E. Lucas, State Bar No. 24046323

Stephanie N. Duff-O’Bryan, State Bar No. 24087448

600 Congress Avenue, Suite 2100

Austin, Texas 78701

(512) 495-6000

(512) 495-6093 FAX

nrobbi@mcginnislaw.com

ATTORNEYS FOR BARBARA PAMPALONE

IDENTITY OF PARTIES AND COUNSEL

Plaintiff/Appellee/Cross-Appellant: Barbara Pampalone

Defendant/Appellant: Austin Capital Collision, LLC

Defendant/Cross-Appellee Eric Hinojosa

Names and Addresses of Trial and Appellate Counsel

Trial and Appellate Counsel for Nelia J. Robbi

Plaintiff: nrobbi@mcginnislaw.com

Joe Lea

jlea@mcginnislaw.com

April E. Lucas

alucas@mcginnislaw.com

Stephanie N. Duff-O’Bryan

sduffobryan@mcginnislaw.com

600 Congress Avenue, Suite 2100

Austin, Texas 78701

(512) 495-6000

(512) 495-6093 FAX

Appellate Counsel for Defendants: Michael Truesdale

mike@truesdalelaw.com

801 West Avenue, Suite 201

Austin, Texas 78701

(512) 482-8671

(866)-847-8719 FAX

Trial Counsel for Defendants: Adam Pugh

apugh@slaterpugh.com

8400 N. Mopac Expressway, Suite 100

Austin, Texas 78759

(512) 472-2431

(512) 472-0432 FAX

iii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iv

INDEX OF AUTHORITIES.................................................................................... vi

STATEMENT OF THE CASE ................................................................................ vi

STATEMENT REGARDING ORAL ARGUMENT ........................................... viii

ISSUE PRESENTED ............................................................................................... ix

CITATION KEY...................................................................................................... ix

STATEMENT OF FACTS ........................................................................................1

A. The loan to Capital Collision. .......................................................................2

B. Dr. Pampalone’s complete performance. ......................................................2

C. Appellant’s Partial Performance: 94 monthly payments over 8 years. ........3

D. The litigation. ................................................................................................7

SUMMARY OF THE ARGUMENT ........................................................................8

ARGUMENT .............................................................................................................9

A. Standard of Review: Legal Sufficiency ........................................................9

B. The trial court did not err in enforcing the loan agreement pursuant to the

partial performance exception to the statute of frauds. ........................................12

1. The parties’ stipulation and the trial court’s finding established payments

constituting partial performance. ......................................................................12

2. Oral agreements are enforceable where partial performance is

unequivocally referable to the agreement. ........................................................13

3. The partial performance exception applies equally to Appellant Austin

Capital Collision, LLC and to Capital Collision GP. .......................................17

4. The evidence shows that the partial performance was unequivocally

referable to the loan from Dr. Pampalone. ........................................................19

5. There is no other credible reason for the payments. ................................22

6. Breezevale does not save Appellant Austin Capital Collision’s argument.

CONCLUSION ........................................................................................................27

PRAYER ..................................................................................................................27

CERTIFICATE OF SERVICE ................................................................................29

CERTIFICATE OF COMPLIANCE .......................................................................30

APPENDIX ..............................................................................................................31

INDEX OF AUTHORITIES

Cases

626 Joint Venture v. Spinks, 873 S.W.2d 73 (Tex.App.—Austin 1993, no writ)

........................................................................................................................... 18, 19

ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426 (Tex. 1997) .........................11

Adams v. H & H Meat Products, Inc., 41 S.W.3d 762 (Tex. App.—Corpus

Christi 2001, no pet.) ..................................................................................... 10, 11

Chevalier v. Lane’s, Inc., 213 S.W.2d 530 (1948)) ................................................16

Estate of Kaiser v. Gifford, 692 S.W.2d 525 (Tex. App.—Houston [1st

Dist.] 1985 writ ref'd n.r.e.) ................................................................. 9, 14, 15, 23

National Property Holdings, LP v. Westergren, 453 S.W.3d 419 (Tex. 2015)

........................................................................................................... 16, 17, 25, 26

Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1998) .........................................11

Rodriguez v. Klein, 960 S.W.2d 179 (Tex. App.—Corpus Christi 1997,

no pet.)........................................................................................................... 25, 26

Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790 (Tex. App.—

Dallas 2013, no pet.) ......................................................................... 10, 14, 16, 21

Vehle v. Brenner, 590 S.W.2d 147 (Tex. App.—San Antonio 1979, no writ) .....12

Waggoner v. Morrow, 932 S.W.2d 627 (Tex.App.—Houston [14th Dist.]

1996, no writ) ................................................................................................ 11, 12

Weirich v. Weirich, 833 S.W.2d 942 (Tex. 1992) ...........................................11

Rules

TEX. R. APP. P. 38.1 ................................................................................................. ix

TEX. R. APP. P. 39.1.................................................................................................. ix

TEX. R. APP. P. 39.2 ................................................................................................. ix

STATEMENT OF THE CASE

Nature of the Case: Appellee and Cross-Appellant, Barbara Pampalone

(“Dr. Pampalone”), sued Appellant, Austin Capital

Collision, LLC (“Appellant”), and Cross-Appellee,

Eric Hinojosa (“Hinojosa”) (collectively,

“Defendants”), for breach of contract.

Parties: Austin Capital Collision, LLC is Appellant/Defendant

Dr. Barbara Pampalone is Cross-Appellant/Appellee/

Plaintiff

Eric Hinojosa is Cross-Appellee/Defendant

Trial Court: The Honorable Todd Wong, 419th Judicial District

Court, Travis County, Texas.

Trial Court’s Disposition: After a bench trial on June 8, 2015, the trial court

granted judgment in favor of Dr. Barbara Pampalone

and against Appellant Austin Capital Collision, LLC,

awarding her the amount the parties stipulated as due

and owing on the loan as of the date of trial,

$56,758.68, plus her reasonable and necessary

attorneys’ fees. Appellant Austin Capital Collision,

LLC and Cross-Appellant Barbara Pampalone filed

timely notices of appeal on July 29, 2015, and on July

7, 2015, the trial court issued its findings of fact and

conclusions of law.

vii

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Texas Rules of Appellate Procedure 38.1, 39.1and 39.2, Dr.

Pampalone requests oral argument before this Court of Appeals. Dr. Pampalone

believes oral argument will assist the Court in determining whether the trial court

erred by recognizing the applicable exception to the statute of frauds for partial

performance in this matter.

viii

ISSUE PRESENTED

Whether, despite there being an acknowledged loan agreement, full

performance by Dr. Pampalone, and more than 94 monthly payments made in

accordance with the terms of the loan agreement over a period of eight years, the

trial court erred in entering judgment in favor of Dr. Pampalone for the stipulated

amount due pursuant to the partial performance exception to the statute of frauds.

CITATION KEY

CR = Clerk’s Record, Volume 1 of 1

2RR = Reporter’s Record, Volume 2 of 3

Appx = Appendix attached hereto

Appx:2 = Findings of Fact and Conclusions of Law (attached hereto as

second document in the Appendix, and also located at pp. 53-63 of the

Clerk’s Record)

PX = Plaintiff’s Exhibit

TO THE HONORABLE THIRD COURT OF APPEALS:

Appellant Austin Capital Collision, LLC premises its entire appeal on one

argument: that the years of payments it made to Dr. Pampalone pursuant to the

loan agreement at issue in this appeal do not satisfy the partial-performance

exception to the statute of frauds because they are not “solely referable” to the loan

agreement. This argument is baseless because the payments are unequivocally

referable to the loan agreement, as the trial court found, and is supported by ample

evidence, including the fact that Appellant identified the payments as “Barbara

Pampalone Bill Payment.” Additionally, the primary case upon which Appellant

relies is distinguishable from the instant facts and does not support its argument.

Accordingly, this Court should affirm the judgment below, awarding Dr.

Pampalone $56,758.68 in damages and $43,241.00 in reasonable and necessary

attorneys’ fees. See CR 49-50.

STATEMENT OF FACTS

Appellant’s statement of facts is inadequate and misleading. Among other

reasons, Appellant disregards or contradicts the facts found by the trial court,

although Appellant has not challenged those fact findings on appeal. Dr.

Pampalone incorporates by reference the statement of facts set forth in her Cross-

Appellant’s Brief and adds the following.

A. The loan to Capital Collision.

In 2005, Dr. Pampalone, a widow and semi-retired dentist, mortgaged her

home in order to loan the sum of $80,000 to the auto body repair business being

operated by her son, Erik Pampalone, and his childhood friend, Eric Hinojosa.

2RR:52-53; Appx:2, ¶¶6, 7, 9. That business was known as and did business as

Capital Collision. Appx:2, ¶7. At the time of the loan, Capital Collision was an

assumed name being used by Capital Collision, GP, a general partnership

comprised of two corporate partners; Hinojosa was the president and a 50%

shareholder of both corporate partners, and Erik Pampalone was the vice-president

and other 50% shareholder. 2RR:97-102, 171-72.

Pursuant to the terms of the agreement, Dr. Pampalone was to advance the

sum of $80,000 to Capital Collision, and Capital Collision was to repay the loan

over 20 years at 7% interest. Appx:2, ¶9; 2RR:59, 60, 106-07; Appx:2, ¶11.

B. Dr. Pampalone’s complete performance.

Dr. Pampalone fully performed under the terms of the agreement by paying

the funds to Capital Collision in two installments: $50,000 on or about March 24,

2005, and the remaining $30,000 on or about April 13, 2005. 2RR:58-9, 107-10,

158-59; PX-1; PX-2; PX-3A; Appx:2, ¶14. The loaned funds were deposited into a

Bank of America Account held in the names of “Capital Collision” and “Eric

Hinojosa.” 2RR:107-10; PX-1; PX-2; PX-3A; Appx:2, ¶15. Although there was

no signed promissory note for the loan, the terms of the loan were evidenced in

yearly amortization schedules generated by Erik Pampalone on Dr. Pampalone’s

behalf and sent to Hinojosa and the business. 2RR:59-60, 62; Appx:2, ¶16.

C. Appellant’s Partial Performance: 94 monthly payments over 8

years.

In accordance with the terms of the agreement between Dr. Pampalone and

Capital Collision, the company immediately began repaying the loan. Appx:2,

¶18. Beginning in May 2005, Capital Collision began performing under the

agreement by making monthly payments to Dr. Pampalone in accordance with the

agreed-upon terms. 2RR:64-65, 112; Appx:2, ¶18. Erik Pampalone in his capacity

as vice-president set up the loan payments and testified that the intent of the

payments was to perform under the loan agreement. 2RR:112-13.

Two years later, in 2007, Erik Pampalone exited Capital Collision

completely, and the company, now run exclusively by Eric Hinojosa, continued to

repay the loan as agreed for another 6 years. 2RR:113; Appx:2, ¶¶22, 23, 27, 31.

Dr. Pampalone had no reason to ever suspect anything was amiss until, in April

2013, the monthly payments ceased. Appx:2, ¶¶30, 37; Appx:8.

The parties stipulated that between May 2005 and April 2013, Dr.

Pampalone received 94 monthly payments from two different Bank of America

accounts as summarized in Plaintiff’s Exhibit 3. CR:41-47; Appx:2, ¶19; Appx:8;

PX-3, PX-3A. From May 2005 through approximately March 2010, these

payments were made from the Bank of America Account held in the names of

“Eric Hinojosa” and “Capital Collision” (hereinafter, the “Capital Collision

Account”). PX-3; PX-3A; Appx:2, ¶32; Appx:8. Thereafter—and without missing

a payment during the transition—payments were made from a Bank of America

account held in the names of “Eric Hinojosa” and “Capital Collision GP”

(hereinafter, the “Capital Collision GP Account”). PX-3; PX-3A; Appx:2, ¶32.

However, because the payments were being electronically deposited into Dr.

Pampalone’s account, she never noticed any change in the bank account making

the payments to her. 2RR:66, 79; Appx:2, ¶32.

Unbeknownst to Dr. Pampalone, one of the Capital Collision entities,

Capital Collision, GP, was terminated by Eric Hinojosa in 2010 in an effort to

“close old debt.” PX-20; PX-24; Appx:2, ¶¶30, 24, 26, 29; 2RR:175-76. Despite

this, Eric Hinojosa kept the old company’s bank accounts open to continue to

repay the loan to Dr. Pampalone until the statutory wind up period expired.

2RR:194-203, 248-49, 17; Appx:2, ¶¶29, 31, 33.

In June 2009, one year before termination Capital Collision, GP, Hinojosa

formed a new company, one of the named defendants in the trial court: Appellant

Austin Capital Collision, LLC. 2RR:173-74; PX-20; Appx:2, ¶24. The new

company, like the old company, was also “basically just [Eric Hinojosa].”

2RR:174; Appx:2, ¶27. Appellant Austin Capital Collision, LLC, became the

owner of the Capital Collision business and, like the first business had done, filed

an assumed name certificate for “Capital Collision.” Appx:2, ¶24, PX-21, PX-22.

The trial court found that “[f]ollowing its formation, Defendant Austin Capital

Collision, LLC, assumed the loan to Plaintiff,” and Appellant Austin Capital

Collision has not appealed the finding. Appx:2, ¶25.

There was no asset purchase agreement between Hinojosa’s old company

and his new company. 2RR:176. But his new company engaged in the same

business as his old company and continued to use the same exact assumed name

(2RR:174-75; PX-14), business email address (cptlcollision@aol.com) (2RR:217-

18, 222-23; PX-5; PX-14), and email signature block (with the same name and

physical address) (2RR:224; PX-14) as the old business. Appx:2, ¶29.

Additionally, Appellant Austin Capital Collision, LLC, retained some of the same

employees (2RR:219, 124-25, 223-24; Appx:2, ¶29), and took control of both the

Capital Collision Account and the Capital Collision GP Account (Appx:2, ¶29).

After Appellant Austin Capital Collision, LLC, was formed, the old company was

left with nothing. 2RR:176:7-13. Thereafter, in July 2010, Hinojosa terminated

the old company. 2RR:173; Appx:2, ¶26; PX-24.

Hinojosa did not tell Dr. Pampalone any of this, nor provide her with any

notice that “Capital Collision” was now being operated as a brand new entity.

2RR:79, 127, 247. Instead, Hinojosa simply continued to do business and repay

Dr. Pampalone as Capital Collision, the only name by which Dr. Pampalone ever

knew the business. 2RR:55; Appx:2,¶31.

Hinojosa, in his capacity as the managing member of Appellant Austin

Capital Collision, LLC, continued to direct that payments be made to Dr.

Pampalone on the loan. 2RR:240-41; Appx:2, ¶31. Employees and

representatives of Appellant Austin Capital Collision, LLC, communicated with

Dr. Pampalone and Erik Pampalone on Appellant Austin Capital Collision, LLC’s

behalf, acknowledging the existence of the loan and Appellant Austin Capital

Collision, LLC’s indebtedness thereunder. Appx:2, ¶¶34-36. Erik Pampalone,

acting on his mother’s behalf, sent correspondence concerning the loan to the

cptlcollision@aol.com email address and, in response, Appellant Austin Capital

Collision, LLC continued to make payments on the loan. 2RR:127; Appx:2, ¶34;

PX-12a, PX-13, PX-14. Indeed, in September 2012 (years after the old company

had been terminated), when Mr. Pampalone sent an email to the

cptlcollision@aol.com address requesting that Hinojosa change where he was

sending the monthly loan payments, Mirium Matta—Hinojosa’s sister-in-law and

an employee of Appellant Austin Capital Collision, LLC—responded from the

cptlcollision@aol.com email address with “received and updated.” 2RR:123-24;

PX-14; Appx:2, ¶35. Thereafter, three additional years of regular monthly

payments in accordance with the loan agreement occurred. PX-3; PX-3A.

In March 2010, just a few months before terminating Capital Collision, GP,

Hinojosa switched the monthly payments on the loan from the Capital Collision

account to the Capital Collision GP Account. 2RR:196-98; PX-3; PX-3A; Appx:9.

Around this same time, he began transferring funds from the Capital Collision

Account (of the new entity, Appellant) into the Capital Collision GP Account (the

account of the old entity) to cover the payments coming out of that account.

2RR:193-98; PX-3A; Appx:2, ¶32; Appx:9. Of significant note, the monthly

payments made from both accounts were almost exclusively described on the

company's own bank statements as “Barbara Pampalone Bill Payment.” PX-3A;

Appx:8.

D. The litigation.

When the payments ceased, Dr. Pampalone made demand for payment, but

Hinojosa failed and refused to cure the default. Appx:2, ¶39. The lawsuit in the

trial court ensued in which Dr. Pampalone sued both Appellant Austin Capital

Collision, LLC, and Hinojosa for breach of contract. CR:28-40. The case was

tried to the bench on June 8, 2015. The parties stipulated at the trial that the

amount due and owing on the loan as of the date of trial was $56,758.68. CR:41-

47; 2RR: 128-29; Appx:2, ¶41.

The trial court found in favor of Dr. Pampalone, rendered judgment against

Appellant Austin Capital Collision, LLC, for breach of the loan agreement, and

awarded Dr. Pampalone her attorneys’ fees. 2RR:252-53; Appx:1.

SUMMARY OF THE ARGUMENT

Appellant’s only argument raised and briefed on appeal is that the 94

monthly payments made did not constitute partial performance because they were

not “solely referable” to the loan, and that therefore the judgment and attorneys’

fees should be reversed. Defendant relies on one case, Exxon Corp. v. Breezevale

Ltd., 82 S.W.3d 429, 439 (Tex. App.—Dallas 2002, pet. denied), to support this

argument. Breezevale, however, does not stand for the propositions Appellant

advances and is distinguishable from the instant case.

Dr. Pampalone is entitled to be repaid on the loan. The oral agreement is

enforceable despite the statute of frauds. Dr. Pampalone fully performed by

funding the loan; Capital Collision GP, d/b/a Capital Collision, and later Austin

Capital Collision, LLC, d/b/a Capital Collision, accepted and used her money and

partially performed by making eight years of monthly payments that were

unequivocally referable to the loan, as shown by ample evidence below, including

notations on the payments themselves explicitly reading, “Barbara Pampalone Bill

Payment.” PX-3A. Such full performance by the lender removes the oral

agreement from the statute of frauds. See, e.g., Estate of Kaiser v. Gifford, 692

S.W.2d 525, 525-26 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.)

(holding that oral agreement “was not barred by the Statute of Frauds, because the

deceased lender had made full performance under the agreement, thereby taking

the oral agreement out of the prohibition of the statute,” and “where one party fully

performs a contract, the Statute of Frauds is unavailable to the other who

knowingly accepts benefits and partly performs”). Thus, the trial court did not err

in awarding the stipulated amount of damages to Dr. Pampalone, plus her

reasonable and necessary attorneys’ fees.

ARGUMENT

A. Standard of Review: Legal Sufficiency

Appellant Austin Capital Collision’s assertion that de novo review is

appropriate is mistaken.

The one point Appellant Austin Capital Collision, LLC raised on appeal is

whether the partial performance exception to the statute of frauds applies. Whether

the circumstances of a particular case fall within an exception to the statute of

frauds is generally a question of fact, not a legal issue that would be reviewed de

novo. See, e.g., Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 798

(Tex. App.—Dallas 2013, no pet.); Adams v. H & H Meat Products, Inc., 41

S.W.3d 762, 775 (Tex. App.—Corpus Christi 2001, no pet.).1

As Appellant Austin Capital Collision acknowledges on page 13 of its brief

discussing the standard of review, it is challenging the legal sufficiency of the

court’s factual finding that the partial performance exception applies.

Where, as here, a party claims an exception to the statute of frauds exists,

she must secure findings to that effect; Dr. Pampalone did so. Adams, 41 S.W.3d

at 775; see Appx:2, ¶¶17-20, 25, 31-32, 34-36. In response to Appellant Austin

Capital Collision’s challenge to those findings, the court will “review the court’s

findings of fact by the same standards used to review the sufficiency of the

evidence to support a jury’s findings.” Adams, 41 S.W.3d at 769. “The judgment

of the trial court will not be set aside if there is any evidence of a probative nature

to support it, and this Court may not substitute its findings of fact for those of the

trial court if there is any evidence in the record to sustain the trial court’s findings.

Id. at 769.

When courts “review a ‘no evidence’ or legal sufficiency of the evidence

issue, [they] must consider all of the record evidence in the light most favorable to

BACM 2001-San Felipe Road ltd. Partnership v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137,

143-45 (Tex. App.—Houston [14th Dist.] 2007, pet. denied), is inapposite, because it concerns

whether the statute of frauds applies at all—which is concededly a legal issue—not whether the

circumstances of this case fall within an exception to the statute of frauds, which is generally a

fact issue. See, e.g., Adams, 41 S.W.3d at 775.

the party in whose favor the verdict has been rendered, and indulge in that party’s

favor every reasonable inference deducible from the evidence.” Adams, 41 S.W.3d

at 769. They “consider only the evidence and inferences tending to support the

jury’s finding, disregarding all evidence to the contrary.” Breezevale Ltd., 82

S.W.3d at 439 (citing Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992)).

“The findings of fact must be upheld if there is more than a scintilla of

evidence in support thereof.” Adams, 41 S.W.3d at 770. “There is more than a

scintilla when the evidence creates more than a mere surmise or suspicion of its

existence.” Id. That is, “[i]f the record contains any evidence of probative force to

support the jury’s finding, the finding will be upheld.” Breezevale, 82 S.W.3d at

438 (citing ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997)).

Moreover, Appellant Austin Capital Collision, LLC’s discussion of the de

novo standard of review, even if it were applicable, is incomplete. When

performing a de novo review, the Court exercises its own judgment and

redetermines the legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.

1998). The Court will uphold conclusions of law on appeal if the judgment can be

sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932

S.W.2d 627, 631 (Tex. App.—Houston [14th Dist.] 1996, no writ). Even incorrect

conclusions of law do not require reversal where, as here, the controlling findings

of fact support the judgment under a correct legal theory. 2 Id.

Finally, in the unlikely event that Capital Collision should convince the

court that Dr. Pampalone failed to carry her burden to prove the applicability of the

exception, because there is ample evidence to raise a fact issue in her favor, the

appropriate remedy would be to reverse and remand, not, as Capital Collision

requests, to reverse and render judgment. See Vehle v. Brenner, 590 S.W.2d 147,

152 (Tex. App.—San Antonio 1979, no writ).

B. The trial court did not err in enforcing the loan agreement

pursuant to the partial performance exception to the statute of

frauds.

1. The parties’ stipulation and the trial court’s finding

established payments constituting partial performance.

As discussed above, the parties stipulated that 94 monthly payments were

received on the loan. Appx:2, ¶19. The trial court therefore held that the statute of

frauds does not bar Dr. Pampalone’s recovery, because Dr. Pampalone fully

performed under the agreement, and Appellant Austin Capital Collision, LLC,

d/b/a Capital Collision partially performed. It held: “Capital Collision performed

on the agreement prior to the termination of the HAPB Entities by making monthly

Appellant Austin Capital Collision, LLC also cites Troxel v. Bishop, 201 S.W.3d 290, 300

(Tex. App.—Dallas 2006, no pet.) for the unremarkable proposition that if the statute of frauds

applies, and no exception is available, then the loan is unenforceable. The language in question

is inapposite and arguably dicta.

payments on the loan as agreed. . . . Austin Capital Collision, LLC, d/b/a Capital

Collision assumed the loan from the HABP Entities through its conduct and course

of performance, including by continuing to make payments on the loan in

accordance with the terms of the agreement.3 . . . Austin Capital Collision, LLC,

d/b/a Capital Collision partially performed on the agreement by continuing to make

payments on the loan to Plaintiff in accordance with the terms of the agreement.”

Appx:2, ¶ 53-55.

Appellant’s only argument on appeal is that the 94 monthly payments by

Capital Collision GP, d/b/a Capital Collision and later by Appellant Austin Capital

Collision, LLC d/b/a Capital Collision were not “solely referable” to the loan and

thus did not qualify as partial performance that would permit Dr. Pampalone to

obtain repayment despite the statute of frauds.

2. Oral agreements are enforceable where partial performance

is unequivocally referable to the agreement.

It is well established that an oral agreement is enforceable despite the statute

of frauds if the agreement has been fully or partially performed, because in such a

Although Appellant Austin Capital Collision implies in its brief that Dr. Pampalone must make

a separate and distinct showing of partial performance of Appellant Capital Collision, LLC, d/b/a

Capital Collision, apparently on the theory that Appellant Austin Capital Collision, LLC, d/b/a

Capital Collision did not assume the loan, it does not raise an appellate point nor provide briefing

attacking the trial court’s finding that it did indeed assume the loan. Accordingly, that factual

finding is not challenged.. Moreover, there is ample evidence to support the finding, and in any

event the second entity, Appellant Capital Collision LLC d/b/a/ Capital Collision did indeed

partially perform the agreement, by continuing to make years worth of payments unequivocally

referable to the loan in question.

case, “denying enforcement would itself amount to a fraud.” See, e.g., Stovall &

Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 800 (Tex. App.—Dallas 2013, no

pet.); Breezevale, 82 S.W.3d at 439 (“[C]ontracts that have been partly performed,

but do not meet the requirements of the statute of frauds, may be enforced in equity

if denial of enforcement would result in a virtual fraud.”); Estate of Kaiser v.

Gifford, 692 S.W.2d 525, 525 (Tex.App.—Houston [1st Dist.] 1985, writ ref’d

n.r.e.).

For example, in a loan context, the statute of frauds does not prevent

enforcement of an oral loan agreement where the party loaning the money makes

full performance under the agreement. Estate of Kaiser v. Gifford, 692 S.W.2d

525, 525 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). In Kaiser, as

here, there was an oral agreement creating a loan, with no executed written

agreement providing for repayment. Id. at 526. After the death of the lender, the

borrower quit making monthly payments, claiming that the money advance was a

gift, not a loan; he defended against the ensuing lawsuit by arguing the statute of

frauds. Id. The court held “that the oral installment agreement, although payable

in 300 monthly installments, was not barred by the Statute of Frauds, because the

deceased lender had made full performance under the agreement, thereby taking

the oral agreement out of the prohibition of the statute.” Id. at 525. Kaiser

followed other authorities holding that “where one party fully performs a contract,

the Statute of Frauds is unavailable to the other who knowingly accepts benefits

and partly performs” and “where one party to an oral contract has, in reliance

thereon, so far performed his part of the agreement that it would be permitting a

fraud on him to allow the other party to repudiate the contract and set up the statute

of frauds in justification thereof, equity will regard the case as being removed from

the operation of the statute, and will enforce the contract.” Id. at 526 (internal

quotation omitted). It noted that “a great majority of jurisdictions agree with the

rule that full performance by one party to an oral contract removes the contract

from the prohibitions of the Statute.”4 Id. at 527.

As in this case, where the creditor has provided full performance in funding

a loan in reliance on an oral agreement, with monthly payments of fixed amounts

as partial performance by the debtor, “allowing [the debtor] to invoke the Statute,

under these facts, would tend more to encourage fraud rather than discourage it as

is contemplated by the Statute.” Id. at 527. This is even more a concern in this

case, in which the debtor and its principal engaged in actual fraud to attempt to

escape its obligations. See Brief of Cross-Appellant Barbara Pampalone.

The language of Kaiser strongly suggests that in the context of a loan, Dr. Pampalone’s full

performance, alone, is enough to exempt her from the statute of frauds. However, in Kaiser, as

here, there was also partial performance by the debtor in the form of monthly payments in

accordance with the oral agreement. Kaiser, 692 S.W.2d at 527. Because this case involves

ample partial performance by Appellant Austin Capital Collision, LLP, with clear notations as

well as other acts directly referencing the loan by Dr. Barbara Pampalone, this Court need not

decide whether Dr. Pampalone’s performance, alone, would have been sufficient to allow

performance despite the statute of frauds.

Partial performance sufficient to remove a contract from the statute of frauds

bar must be “unequivocally referable” to the oral agreement and corroborate the

existence of that agreement. Stovall, 409 S.W.3d. at 800 (citing Breezevale, 82

S.W.3d at 439). “In other words, the purpose of the alleged acts of performance

must be to fulfill a specific agreement.” National Property Holdings, LP v.

Westergren, 453 S.W.3d 419, 426 (Tex. 2015). They must be acts that could have

been done with no other design than to fulfill the particular agreement sought to be

enforced; otherwise, they do not tend to prove the existence of the parol agreement

relied upon by the plaintiff. Breezevale, 82 S.W.3d at 439-40.

“The kind of performance that justifies the exception to the statute of frauds

is ‘performance which alone and without the aid of words of promise is

unintelligible or at least extraordinary unless as an incident of ownership, assured,

if not existing.’” Westergren, 453 S.W.3d at 427 (citing Chevalier v. Lane’s, Inc.,

213 S.W.2d 530, 533 (1948)) (emphasis added). Westergren concerned the sale of

real estate, not a loan; however, its explanation of the rule is instructive here,

where monthly payments made over years beginning immediately after the loan

funded to the person who made the loan would, in the absence of a loan agreement,

be unintelligible, or at least extraordinary. Westergren also instructs that, “[i]f the

evidence establishes that the party who performed the act that is alleged to be

partial performance could have done so for some reason other than to fulfill

obligations under the oral contract, the exception is unavailable.” Id. at 426-27. It

gives an enlightening example of evidence establishing that the party performing

the act alleged to be partial performance did so for some other reason: a

contradictory written contract for which the alleged partial performance was

consideration. Id. at 427. In Westergren, the alleged partial performance was

payment of $500,000; however, the payment accompanied a written document,

signed by the recipient, that stated that the $500,000 was in consideration for the

full and final release of the very claim based on an oral agreement being asserted

despite the statute of frauds. Id. Accordingly, the payment was not partial

performance and was not unequivocally referable to the oral agreement, because it

was made to fulfill obligations under a different agreement. There is no such other

agreement obligating Capital Collision to make payments of $657.09 to Dr.

Barbara Pampalone here. The payments made were unequivocally referable to the

$80,000 loan.

3. The partial performance exception applies equally to

Appellant Austin Capital Collision, LLC and to Capital

Collision GP.

Appellant Austin Capital Collision, LLC’s hair-splitting about the identity or

name of the business or the contacts Dr. Pampalone had with one agent as opposed

to another are irrelevant to the application of the doctrine of partial performance.

Regardless of the name under which they operated or the date of their inception,

both Capital Collision GP and Appellant Austin Capital Collision, LLC accepted

benefits by using the account into which Dr. Pampalone’s money was deposited,

and both partially performed by making payments unequivocally referable to the

loan. See 626 Joint Venture v. Spinks, 873 S.W.2d 73, 76 (Tex.App.—Austin

1993, no writ) (“Where one party to a contract has fully performed his obligations

under it, the statute of frauds is unavailable to the other who knowingly accepts

benefits and partly performs.”). In Spinks, an owner transferred real property to a

person in his name as trustee, though there was no written indication for whom he

was acting. Id. at 76. He partially paid and executed a note and deed of trust. Id.

at 74. After the transaction, a new entity, which did not exist at the time of closing,

was formed, creating the “626 Joint Venture.” Id. at 75. Because the joint venture

actively managed the property, made improvements, and made payments, it

accepted the benefits and partially performed under the agreements, even though it

didn’t even exist at the time of closing. Nor did the fact that the negotiations and

agreement occurred through an agent excuse the principal from liability under the

statute of frauds. Instead, this Court affirmed a judgment based on a jury finding

that the joint venture was liable notwithstanding the statute of frauds, holding: “In

the present case, the Spinkses [the Plaintiffs] fully performed their part of the

transaction by deeding the land to Bizzell as trustee [the Defendants’ agent].

Bizzell paid the Spinkses $300,000 cash, and signed a note for $445,000. Over the

next three years, the joint venture managed the property, made improvements to

the property, and made payments to the Spinkses. Therefore, the defense of the

statute of frauds is unavailable to defendants.” Id. at 76.

4. The evidence shows that the partial performance was

unequivocally referable to the loan from Dr. Pampalone.

The evidence, moreover, overwhelmingly establishes that the payments were

indeed unequivocally referable to the loan Dr. Pampalone generously made and

which Appellant seeks to cheat her out of. Each of the following facts shows that

the performance was unequivocally referable to the loan from Dr. Pampalone:

The loaned funds were deposited into Capital Collision’s bank account, a

Bank of America Account held in the names of “Capital Collision” and “Eric

Hinojosa.” 2RR:107-10; PX-1; PX-2; PX-3A; Appx:2, ¶15. Erik Pampalone, the

person who began the payments on the company’s behalf, testified that their

purpose was to perform under the agreement. 2RR:113-14. The terms of the loan

were evidenced in yearly amortization schedules generated by Erik Pampalone on

Dr. Pampalone’s behalf and sent to Hinojosa and the business, and the payments

reflected those amortization schedules. 2RR:59-60, 62; Appx:2, ¶16; 2RR:65

(payments made in amount of $657.09); PX-5, PX-7, PX-9, PX-12, PX-12A, PX-

13, PX-15, PX-16, and PX-17 (amortization schedules reflecting payments owed in

the amount of $657.09). The payments began immediately in May 2005. 2RR:64-

65, 112; Appx:2, ¶18. From May 2005 through approximately March 2010, these

payments were made from the Bank of America Account held in the names of

“Eric Hinojosa” and “Capital Collision” into which the funds had been deposited.

PX-3; PX-3A; Appx:2, ¶32; Appx:8. The payments were made in accordance with

telephone and electronic communications referencing the obligation, both with

Hinojosa, and other Capital Collision employees, concerning the loan. 2RR:115;

PX-3; PX-3A; PX-5; PX-6; PX-8; PX-9; PX-10; PX-14; PX-15; Appx:2, ¶22.

There was never any other explanation for or reason behind this long course of

performance other than the loan in question.

When Erik Pampalone resigned from Capital Collision and the entities

became essentially just Hinojosa, 2RR:173, they continued to repay the loan to Dr.

Pampalone as agreed and exactly as they had been doing. 2RR:67, 113; PX-3; PX-

3A; Appx:2, ¶23.

After June, 2009, when Appellant Austin Capital Collision was formed, it

was also “basically just [Hinojosa],” and it continued to make payments with no

feasible explanation other than the loan at issue. Erik Pampalone, acting on his

mother’s behalf, sent correspondence concerning the loan to the

cptlcollision@aol.com email address and, in response, Appellant Austin Capital

Collision, LLC, made payments on the loan. 2RR:127; Appx:2, ¶34; PX-12a, PX-

13, PX-14.

Indeed, in September 2012 (years after the old company had been

terminated), when Erik Pampalone sent an email to the cptlcollision@aol.com

address requesting that Hinojosa change where he was sending the monthly

payments on the loan, Mirium Matta—Hinojosa’s sister-in-law and an employee of

Appellant Austin Capital Collision, LLC—responded from the

cptlcollision@aol.com email address with “received and updated.” 2RR:123-24;

PX-14; Appx:2, ¶35. And the payments continued. PX-3; PX-3A. Such behavior

has been found by courts to constitute “acts . . . sufficient to corroborate the

existence of an agreement . . . [and that] could not have been performed with any

purpose except to perform an agreement.” See, e.g., Stovall & Assocs. v. Hibbs

Fin. Ctr., Ltd., 409 S.W.3d 790, 801 (Tex. App.—Dallas 2013, no pet.) (looking to

acts of performance, in a statute of frauds dispute concerning a lease, such as dates

of possession, payments, knowing acceptance of services and performance, etc. to

determine whether performance was “unequivocally referable” to alleged

agreement).

Payments were made by Capital Collision and Appellant Austin Capital

Collision, LLC out of two accounts, although Dr. Pampalone, a direct deposit

recipient, did not realize it at the time. Notably, these payments, from either

account, were almost exclusively described on the bank statements as “Barbara

Pampalone Bill Payment.” PX-3A. It would be difficult to imagine a more

explicit indication that a payment was unequivocally referable to a loan made by

Dr. Barbara Pampalone, which required monthly payments of loan bills, than these

repeated bank account notations saying so in plain English.

5. There is no other credible reason for the payments.

Appellant’s suggestions that there could be other reasons for its 94 equal,

monthly payments over the course of eight years that referenced the loan and

complied with its terms are incredible. They consist of: (1) Hinojosa’s testimony

that monthly payments were made to Dr. Pampalone for basically no reason, but

merely “to help his childhood friend,” and (2) the fact that Erik Pampalone, Dr.

Pampalone’s son, who is not a party to this suit, brought and then nonsuited a

claim in another state seeking payment on his mother’s behalf.

As an initial matter, the trial court specifically found (and, again, Appellant

did not challenge the finding) that Hinojosa lacked credibility, especially in light of

the fact that he was wholly unprepared for his corporate representative deposition,

having not reviewed a single document or talked to any employees or

representatives regarding designated topics, and that he demonstrated a repeated

inability to provide substantive responses on his own behalf or on behalf of Austin

Capital Collision, LLC. 2RR:252; Appx:2, ¶48. Further, the trial court found that,

at trial, Hinojosa tried to change many of the answers he had provided at his

depositions just one month prior. Appx:2, ¶48. Indeed, Hinojosa was squarely

impeached at trial when he tried to testify that he knew why the monthly payments

were being made to Dr. Pampalone despite the fact that at his deposition he

testified he had “no idea.” 2RR: 184-86. The fact that Appellant now offers this

same testimony—which the trial court found to lack credibility—to this Court as a

so-called credible other reason for the payments to Dr. Pampalone is incredible in

and of itself. Quite simply, given his lack of credibility, Hinojosa can offer no

credible other reason.

Of Hinojosa’s two other explanations for the monthly payments, the first is

an argument that Hinojosa directed Capital Collision to make 94 payments over

eight years simply because he felt like it. Such an assertion is meaningless—in

every case the alleged partial performer could argue he took certain acts for no

reason at all. This is not sufficient to defeat the exception; an interested party’s

say-so does not defeat a showing that certain acts were made because of and in

partial performance of an oral contract. See, e.g., Kaiser, 692 S.W.2d at 526

(holding statute of frauds did not bar enforcement of oral loan agreement despite

debtor’s bald claim that money advanced pursuant to oral loan agreement was

instead a gift). Moreover, it flies in the face of all the evidence to the contrary

discussed above, including but not limited to the dates and schedules of the

payments, the testimony of the person who set up the payments for the company as

to why he did it, the many communications about the reasons for the payments,

where and how they should be directed, and the notations on the payments

themselves.

The second is a classic—but factually unsupportable—“gotcha” argument,

an attempt to use Dr. Pampalone’s son’s very efforts to recover for her, merely

because they were legally imperfect because not brought by the proper party in the

proper forum, to instead extinguish all Dr. Pampalone’s rights and entitle Capital

Collision to a windfall by keeping her money. Of course, it makes no logical sense

that an after-the-fact lawsuit could establish that years of payments

contemporaneously marked “Barbara Pampalone Bill Payment,” were instead

made for some other purpose. 5 Naturally, Appellant Austin Capital Collision can

cite to no authority supporting this position; it is not the law.

6. Breezevale does not save Appellant Austin Capital

Collision’s argument.

Appellant Austin Capital Collision relies on one case, Exxon Corp. v.

Breezevale Ltd., 82 S.W.3d 429, 439 (Tex. App.—Dallas 2002, pet. denied), to

support its argument. Breezevale does not stand for the propositions Defendant

advances and is distinguishable, among other reasons because it was based on the

existence of an independent obligation under a separate contract that equally

obligated the party to undertake the same purported partial performance. But, as

Nor has Capital Collision ever taken the position that it owed the money to Dr. Pampalone’s

son, Erik.

the court pointed out, a party taking acts it is otherwise obligated to do does not

evidence an oral agreement.

In Breezevale, the court found no evidence that the alleged partial

performance, a trip to Nigeria by a liaison, was unequivocally referable to a

working interest agreement that was being negotiated. Id. at 440. The trip was not

unequivocally referable to the working interest agreement because it did not show

strong evidence establishing the existence of that agreement and its terms. Id. On

the contrary, the trip was taken consistent with other liaison services being

performed in the same time period for the same client under a separate services

agreement. Id. The services were not more likely to have been taken under the

purported oral working interest agreement than under the separate services

agreement. Id. This is why the court noted that the mere possibility that such acts

could have been taken in furtherance of the contract sought to be enforced was not

enough; the performance must be solely referable to that contract. Id.

The Breezevale situation was thus similar to that in Westergren, where there

was a separate contract under which the party was already obligated to take the

acts alleged to be partial performance, and thus those acts were not “strong

evidence establishing the existence of the [oral] agreement and its terms.” Id. at

440 (also citing Rodriguez v. Klein, 960 S.W.2d 179, 186 (Tex. App.—Corpus

Christi 1997, no pet.) (holding that because party’s performance was required

under one or more of three agreements, including bill of sale, it could not be

unequivocally referable to the bill of sale)).

In this case, in sharp contrast to Breezevale, Westergren, and Rodriguez,

there simply is no other contract obligating Capital Collision to make monthly

payments to Dr. Pampalone. The regular payments, including those labeled

“Barbara Pampalone Bill Payment” are strong evidence establishing the existence

of the loan and its terms. They are unequivocally referable to the loan agreement,

and they remove it from the statute of frauds.

Additionally, the language in Breezevale requiring evidence that the

performance be solely referable to the contract is dicta, because the court also

based its holding on the fact that the claimant suffered no substantial detriment for

which there is no adequate remedy. It said, “even assuming there was evidence

that Breezevale’s actions were unequivocally referable to the working interest

agreement, the doctrine of partial performance also requires that the party acting in

reliance on the agreement suffer a substantial detriment for which there is no

adequate remedy. . . . Because there is no evidence that Breezevale’s partial

performance was unequivocally referable to the working interest agreement, and

because Breezevale did not suffer a substantial detriment for which it had no

adequate remedy, there is no evidence to support the jury’s finding on partial

performance.” Id. at 441.

CONCLUSION

Appellant Austin Capital Collision, LLC hopes—by obfuscating details of

the loan itself, bickering over to whom payments were due, or attempting to evade

payment by sharp business practices aimed to confuse its own identity—to evade

its debt completely, a debt both it and its predecessor acknowledged and paid for

nearly a decade. It urges this position because Dr. Pampalone failed to demand a

clearer, detailed, signed and written loan agreement before providing her own

personal funds as a creditor to the fledgling business. Appellant Austin Capital

Collision, LLC appeals to this Court to keep Dr. Pampalone’s money as a windfall,

despite the obvious writings and performance evidencing its obligation to repay.

Its argument about partial performance is factually wrong. It is contrary to

the law of the State of Texas on the statute of frauds and the longstanding partial-

performance exception thereto. And it is no way to treat a so-called friend since

childhood’s mother.

PRAYER

For the above reasons, Appellee Dr. Barbara Pampalone respectfully

requests that this Court affirm the judgment awarding her actual damages in the

amount of $56,758.68 plus reasonable and necessary attorneys’ fees and such other

and further relief to which she may be entitled in law or in equity.

Respectfully submitted,

MCGINNIS, LOCHRIDGE & KILGORE,

L.L.P.

Nelia J. Robbi

State Bar No. 24052296

Joe Lea

State Bar No. 24013257

Stephanie N. Duff-O’Bryan

State Bar No. 24087448

600 Congress Avenue, Suite 2100

Austin, Texas 78701

(512) 495-6000

(512) 495-6093 FAX

nrobbi@mcginnislaw.com

/s/ Nelia J. Robbi

Nelia J. Robbi

State Bar No. 24052296

ATTORNEYS FOR BARBARA

PAMPALONE

CERTIFICATE OF SERVICE

I hereby certify that on the 18th day of December, 2015, I electronically

filed the foregoing Pampalone’s Brief of Appellee with the Clerk of the Court

using the CM/ECF system which will send notification of such filing to the

following:

Michael Truesdale

mike@truesdalelaw.com

801 West Avenue, Suite 201

Austin, Texas 78701

(512) 482-8671

(866)-847-8719 FAX

Adam Pugh

apugh@slaterpugh.com

8400 N. Mopac Expressway, Suite 100

Austin, Texas 78759

(512) 472-2431

(512) 472-0432 FAX

Attorneys for Eric Hinojosa

/s/ Nelia J. Robbi

Nelia J. Robbi

Joe Lea

Stephanie N. Duff-O’Bryan

Attorneys for Barbara Pampalone

CERTIFICATE OF COMPLIANCE

I certify that the foregoing Amended Cross-Appellant’s Brief was prepared

with Microsoft Word 2007, and that, according to that program’s word-count

function, the sections covered by TEX. R. APP. P. 9.4(i)(1) contains 6,391 words. I

further certify that this brief complies with the typeface requirements of TEX. R.

APP. P. 9.4(e).

/s/ Nelia J. Robbi

Nelia J. Robbi

Joe Lea

Stephanie N. Duff O-Bryan

Attorneys for Barbara Pampalone

APPENDIX

1. Final Judgment

2. Findings of Fact and Conclusions of Law

3. TEX. BUS ORG. CODE § 11.052

4. TEX. BUS. ORG. CODE § 11.356

5. TEX. BUS. ORG. CODE § 21.223

6. TEX. BUS. & COMM. CODE § 24.006

7. TEX. R. APP. P. 43.3

8. Plaintiff’s Exhibit 3 (summary of payments)

9. Excerpts of Plaintiff’s Exhibit 3A (transfers)

10. Excerpts of Plaintiff’s Exhibit 3A (end of payments)

11. Stipulation of the Parties

12. 626 Joint Venture v. Spinks, 873 S.W.2d 73 (Tex.App.—Austin 1993, no

writ)

13. Estate of Kaiser v. Gifford, 692 S.W.2d 525 (Tex. App.—Houston [1st Dist.]

1985 writ ref’d n.r.e.)

14. Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (Tex. App.—Dallas 2002,

pet. denied)

15. National Property Holdings, LP v. Westergren, 453 S.W.3d 419 (Tex. 2015)

16. Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790 (Tex. App.—

Dallas 2013, no pet.)

APPENDIX

DC BK15175 PG1024

Filed in The District Court

of Travis County, Texas

JUN 1 8 2015 Cf).

At 02/ 4-lJJ. ~M.

Velva L. Prier., District C~rk

NO. D-1-GN-14-003207

BARBARA PAMP ALONii, § 1N THE DISTRICT COURT

Plaintiff, §

v. § TRAVIS COUNTY, TEXAS

ERIC IIINOJOSA AND AUSTIN §

CAPITAL COLLISION, LLC, §

Defendants. § 419rn JUDICIAL DISTRICT

FINAL JUDGMENT

On June 8, 2015, this case was called for trial. Plaintiff Barbara Pampalone appeared in

person and announced ready for trial. Defendant Eric Hinojosa appeared in person and

announced ready for trial. Defendant Austin Capital Collision, LLC, appeared through its

representative, Eric Hinojosa, and announced ready for trial.

All matters in controversy, legal and factual, were submitted to the Court for its

determination. The Court heard the evidence and arguments of counsel and announced its

decision for Plaintiff Barbara Pampalone.

The Court orally RENDERED judgment for Plaintiff Barbara Pampalone and against

Defendant Austin Capital Collision, LLC, on June 8, 2015, and this written judgment

memorializes that rendition.

IT JS THEREFORE ORDERED that Plaintiff recover the following from Defendant

Austin Capital Collision, LLC:

1. Actual damages in the amount of $56,758.68;

2. Plus reasonable and necessary attorneys' fees in the amount of$43,241.32; plus

3. Post-judgment interest at the rate of 5.0%, compounded annually from the date this

judgment is entered until all amounts are paid in full.

I004080302

111111111111111111111111111111111111111111111111111111

DC BK15175 PG1025

rt is further ORDERED that Defendants take nothing.

It is forther ORDERED that if Defendant Austin Capital Collision, LLC, unsuccessfully

appeals this judgment to an intermediate court of appeals, Plaintiff Barbara Pampalone will

additionally recover from Defendant Austin Capital Collision, LLC, the amount of $20,000.00,

representing the anticipated reasonable and necessary fees and expenses that would be incurred by

Plaintiff in defending the appeal.

It is further ORDERED that if Defendant Austin Capital Collision, LLC, unsuccessfully

appeals this judgment to the Texas Supreme Court, Plaintiff Barbara Pampalone will additionally

recover from Defondant Austin Capital Collision, LLC, the amount of $20,000.00, representing the

anticipated reasonable and necessary fees and expenses that would be incurred by Plaintiff in

defending the appeal.

It is further ORDERED that Plaintiff may have all writs, orders and executions necessary

for collection of this judgment, which may issue immediately.

It is further ORDERED that except as specifically provided herein, all relief not expressly

granted is hereby DENIED.

This judgment finally disposes of all parties and all claims and is appealable.

SIGNED this \<'$ dayofJune, 2015.

DC BK15175 PG1026

APPROVED AS TO FORM AND SUBSTANCE:

McGINNIS LOCHRIDGE

600 Congress A venue, Suite 2100

Austin, Texas 78701

(512) 495-6065

::~~~

L~ Joe Lea

State Bar No. 12082000

jlea@mcginnislaw.com

Nelia J. Robbi

State Bar No. 24052296

nrobbi@mcginnislaw.com

Jordan K. Mullins

State Bar No. 24070308

jrnullins@mcginnislaw.com

ATTORNEYS FOR BARBARA PAMP ALONE

APPROVED AS TO FORM ONLY:

SLATER PUGH, Ltd. LLP

8400 N. Mopac Expressway

Suite 100

Austin, Texas 78759

Telephone: (512)472-2431

Telecopier: (512) 472-0432

i~ t '\ I

/ ! II 1 !

Dy ', { ~,-/

Cu·.·\. __ {I _,.'

AdamPughc

State Bar No. 24044341

apugh@slaterpugh.com

Fil;~ in !he District Court

o rav1s County, Texas

JUL - 7 2D15 r--1__

NO. D-1-GN-14-003207

A t _ ,3,'i./ U 0

Velva L p · 0 M.

· nee, District cierk

BARBARA PAMPALONE, § IN THE DISTRICT COURT

Plaint(ff, §

v. § TRAVIS COUNTY, TEXAS

ERIC HINOJOSA AND AUSTIN §

CAPITAL COLLISION, LLC, §

Defendants. § 419TH JUDICIAL DISTRICT

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Introduction

On June 8, 2015, this case was called for trial, and all matters in controversy, legal and

factual, were submitted to the Court for its determination. In addition to all other findings

necessary to support the Judgment rendered in favor of Plaintiff and against Defendant Austin

Capital Collision, LLC, in this cause, the Court hereby makes and files the following specific

findings of fact and conclusions of law. Any finding of fact that should be construed as

conclusion of law is hereby adopted as such. Any conclusion of law that should be construed as

a finding of fact is hereby adopted as such.

II. Findings of Fact

A. Procedural History.

1. Plaintiff Barbara Pampalone ("Plaintiff') filed her original petition on August 26, 2014,

alleging causes of action for breach of contract against Defendant Eric Hinojosa and Defendant

Austin Capital Collision, LLC.

2. This is an expedited action under Texas Rule of Civil Procedure 169.

3. This case was called for bench trial on June 8, 2015, and the parties appeared and

announced ready for trial. At the close of trial, judgment was rendered in favor of Plaintiff and

Illllll lllll lllll lllll 111111111111111111111111111111111

004108045

against Defendant Austin Capital Collision, LLC. Judgment was signed on June 18, 2015.

4. Defendants requested findings of fact and conclusions oflaw on June 18, 2015.

B. The Parties and Associated Persons/Entities.

5. Defendant Eric Hinojosa is a resident of Texas. Eric Hinojosa previously lived in

California where he and Plaintiff's son, Erik Pampalone, became friends.

6. Plaintiff is a semi-retired dentist who resides in Chatsworth, California.

7. In 2005, when the loan at issue in this lawsuit was made, Eric Hinojosa was the president

and a 50% shareholder of Hinojosa Auto Body & Paint, Inc. (Texas), and Hinojosa Auto Body &

Paint, Inc. (Nevada), (collectively, the "HABP Entities"). Plaintiff's son, Erik Pampalone, was

the vice president and other 50% shareholder of the HABP Entities. The HABP Entities were the

general partners of Capital Collision, G.P., and the business-auto body repair shop--operated

under the assumed name filed by Eric Hinojosa of Capital Collision [Exh. P-19]. The HABP

Entities were terminated in July of 2010 and, accordingly, the general partnership of Capital

Collision, G.P. was also terminated.

8. Prior to the termination of the HABP Entities in 2010, Eric Hinojosa formed Defendant

Austin Capital Collision, LLC, in June of 2009. Eric Hinojosa is the sole managing member and

99% owner of Austin Capital Collision, LLC, which is also engaged in auto body repair. On the

same day that Austin Capital Collision, LLC, was formed, Defendant Eric Hinojosa filed an

assumed name certificate on behalf of Austin Capital Collision, LLC, for the name "Capital

Collision." Austin Capital Collision, LLC, continues to conduct business today as Capital

Collision.

C. The Loan Agreement.

9. Around March of 2005, Plaintiff loaned the principal sum of $80,000.00 to the owners of

the Capital Collision business which, at the time, were the HABP Entities as general partners of

Capital Collision, G.P. The owners of the Capital Collision business are referred to herein as

"Capital Collision."

10. At the time, Capital Collision had an option to purchase the land it was renting but lacked

the necessary funds. Erik Pampalone and Eric Hinojosa, as corporate officers/directors,

discussed the issue, and Erik Pampalone suggested to Eric Hinojosa that he could ask his mother,

Plaintiff, to loan the funds to Capital Collision. Eric Hinojosa agreed that Erik Pampalone

should ask Plaintiff to loan funds to Capital Collision.

11. Erik Pampalone, in his capacity as Vice-President of Capital Collision, approached

Plaintiff and proposed that Plaintiff loan Capital Collision the sum of $80,000.00 and, in

exchange, Capital Collision would repay the $80,000.00 over a twenty year period, plus annual

interest at the rate of 7%.

12. Plaintiff understood, and Capital Collision agreed, that the loaned funds would be used

for business purposes, including the possible purchase of land.

13. Plaintiff had previously loaned funds to Capital Collision for business purposes in 2003

and, at the time of the loan at issue in this lawsuit, was being repaid by Capital Collision as

agreed.

14. Plaintiff agreed to loan $80,000.00 to Capital Collision. Plaintiff performed under the

terms of the agreement and paid the funds to Capital Collision in two installments: $50,000.00

on or about March 24, 2005, and the remaining $30,000.00 on or about April 13, 2005. [Exhs. P-

l, P-2].

15. The loaned funds were deposited into Capital Collision's bank account, a Bank of

America account held in the names of"Capital Collision" and "Eric Hinojosa."

16. The parties have stipulated that there is no signed promissory note for the loan. However,

the terms of the loan were evidenced in yearly loan amortization schedules generated by Erik

Pampalone and sent to Defendants and their representatives. [Exhs. P-5, P-7, P-9, P-12, P-12A,

P-13, P-15, P-16, P-17].

17. The statute of frauds does not bar the agreement, even though it is not in writing, because

Plaintiff fully performed under the agreement, and Defendant Austin Capital Collision, LLC,

partially performed.

D. Payments on the Loan.

18. Thereafter, beginning on or about May 20, 2005, Capital Collision began performing

under the agreement by making monthly payments on the loan pursuant to the agreed upon terms.

Payments were made by electronic bill payment from Capital Collision's Bank of America

account held in the names of "Eric Hinojosa" and "Capital Collision" into Plaintiff's bank

account.

19. The parties stipulated that from May 2005 through April 2013, Plaintiff received 94

monthly payments on the loan. [Exhs. P-3, P-3A].

20. The 94 monthly payments were made by Capital Collision to Plaintiff as repayment on

the loan.

21. During this time period, there was email correspondence among the parties and persons

acting on their behalf acknowledging the existence of the loan and Defendants' indebtedness to

Plaintiff thereunder. [Exhs. P-5, P-7, P-8, P-9, P-10, P-11, P-12, P-12A, P-13, P-15, P-16, P-17].

E. Defendant Austin Capital Collision's Assumption of the Loan.

22. Erik Pampalone began the process of leaving Capital Collision in 2006, and he formally

resigned in approximately April of 2007. After resigning, Erik Pampalone assisted Plaintiff in

oversight of repayment of the loan, corresponding by telephone and email with Defendant Eric

Hinojosa and other Capital Collision employees concerning the loan.

23. Following Erik Pampalone's resignation, Defendant Eric Hinojosa became and remained

the sole officer/director of Capital Collision. Capital Collision continued to repay the Loan to

Plaintiff pursuant to the agreed upon terms.

24. In June of 2009, Defendant Eric Hinojosa formed a new company, Defendant Austin

Capital Collision, LLC, [Exh. P-20] which became the owner of the Capital Collision business and

filed an assumed name of"Capital Collision." [Exhs. P-21, 22].

25. Following its formation, Defendant Austin Capital Collision, LLC, assumed the loan to

Plaintiff.

26. Approximately one year later, in July of 2010, Defendant Eric Hinojosa terminated the

HABP Entities (and, accordingly, the general partnership). [Exh. P-24].

27. At the time of termination of the HABP Entities and formation of Austin Capital Collision,

LLC, all entities were operated solely by Defendant Eric Hinojosa.

28. Defendant Eric Hinojosa did not provide notice-statutory or otherwise-to Plaintiff or

Erik Pampalone that he was terminating the HABP Entities or that Capital Collision was owned or

being operated by a new entity, Austin Capital Collision, LLC.

29. Although there was no formal purchase or transfer of assets between Austin Capital

Collision, LLC, and the HABP Entities, Austin Capital Collision, LLC, continued to use the same

assumed name, business email address (cptlcollision@aol.com) and email signature block (with the

same name and physical address) as the as the HABP Entities [Exh. P-14]. Austin Capital

Collision, LLC, also retained some of the same employees, took over control of the bank accounts

of the HABP Entities, and operated the same general business as the HABP Entities.

30. Prior to institution of this lawsuit, neither Plaintiff nor Erik Pampalone was aware or had

any reason to be aware that the HABP Entities had been terminated or that a new entity, Austin

Capital Collision, LLC, was operating the business and using the assumed name of Capital

Collision.

31. Following formation of Austin Capital Collision, LLC, and termination of the HABP

Entities, Austin Capital Collision, LLC, d/b/a Capital Collision continued to make payments to

Plaintiff pursuant to the agreed upon terms of the loan.

32. Austin Capital Collision, LLC, d/b/a Capital Collision made its payments from the Bank of

America account held in the names of "Eric Hinojosa" and "Capital Collision" until approximately

March of 2010 when the payments began being made from a Bank of America account held in the

names of "Eric Hinojosa" and "Capital Collision GP." Because the payments were electronically

deposited into Plaintiff's bank account, Plaintiff was not aware of any change in the bank account

making the payments to her.

33. Defendant Austin Capital Collision, LLC, d/b/a Capital Collision was operating the Bank of

America accounts making the payments to Plaintiff. Its sole managing member and majority

owner, Defendant Eric Hinojosa, intentionally put money into the Bank of America account held in

the names of "Eric Hinojosa" and "Capital Collision, GP" to cover the monthly bill payments to

Plaintiff on the loan.

34. After Austin Capital Collision, LLC, was formed, Erik Pampalone, acting on behalf of

Plaintiff, continued to send correspondence concerning Plaintiffs loan to the

cptlcollision@aol.com email address. [Exhs. P-12a, P-13, P-14]. In response, Austin Capital

Collision, LLC, d/b/a Capital Collision continued to make payments on the loan as agreed. [Exhs.

P-3, P-3A].

35. In September of 2012, Erik Pampalone, acting on behalf of Plaintiff, sent an email to

cptlcollision@aol.com requesting that Eric Hinojosa change where he was sending the monthly

deposits to Plaintiff on her loan to Capital Collision. [Exh. P-14]. In response, Mirium Matta, Eric

Hinojosa's sister-in-law and an employee of Austin Capital Collision, LLC, responded from the

cptlcollision@aol.com email with "received and updated." [Exh. P-14].

36. Austin Capital Collision, LLC, acknowledged the loan to Plaintiff and its indebtedness

thereunder through its conduct and course of performance.

F. Austin Capital Collision, LLC's, Default on the Loan.

37. Defendant Austin Capital Collision, LLC, d/b/a Capital Collision made its last regular

monthly payment on the loan in April of2013. [Exhs. P-3, P-3A].

38. In October of 2013, Austin Capital Collision, LLC, d/b/a Capital Collision made a payment

of $6,000.00 to Plaintiff. [Exhs. P-3, P-3A]. No further payments have been made to Plaintiff.

Austin Capital Collision, LLC, d/b/a Capital Collision has breached and defaulted on the loan to

Plaintiff.

39. Plaintiff made demand for payment upon Defendants, but Defendants failed and refused to

cure the default on the loan. [Exhs. P-16, P-25].

G. Plaintiff's Damages.

40. As a result of Defendant Austin Capital Collision, LLC's, default on the loan to Plaintiff,

Plaintiff has suffered damages.

41. The parties stipulated that the amount due and owing on the loan as of the date of trial is

$56,758.68.

H. Attorneys' Fees.

42. As a result of Defendants' default, Plaintiff was compelled to file the instant lawsuit and

incur attorneys' fees and costs associated with same.

43. Through April 2015, Plaintiff incurred attorneys' fees in the amount of $44,950.30. [Exh.

P-18]. Plaintiffs fees incurred through trial are in excess of $90,000.00. These fees are reasonable

and necessary in Travis County, Texas.

44. The parties stipulated to Ms. Robbi's qualifications to present attorneys' fees testimony and

the reasonableness of the hourly rates being charged.

45. Plaintiffs attorneys were required to expend significant time engaging m discovery,

drafting and filing a motion to dismiss claims asserted by Defendants, compelling discovery from

Defendants, attempting to subpoena documents from Defendants' accountant, preparing for and

attending depositions and mediation, attending hearings on Defendants' special exceptions and

motion for continuance, preparing for and attending trial, and drafting pre-trial motions, including a

motion to exclude the testimony of Defendant's corporate representative, Eric Hinojosa, who was

wholly unprepared for his deposition in which it was agreed he would provide answers in his

individual capacity and as the corporate representative for Defendant Austin Capital Collision,

LLC.

46. Plaintiffs reasonable and necessary fees for Travis County in the event of an unsuccessful

appeal by either Defendant to the Court of Appeals are $20,000.00.

47. Plaintiffs reasonable and necessary fees for Travis County in the event of an unsuccessful

appeal by either Defendant to the Texas Supreme Court are $20,000.00.

L Other Findings by the Court.

48. Defendant Eric Hinojosa lacks credibility, especially in light of the fact that Eric Hinojosa

was wholly unprepared for his corporate representative deposition, had not reviewed a single

document produced in the lawsuit or otherwise talked to any Austin Capital Collision, LLC,

employees or representatives regarding the designated deposition topics, and demonstrated a

repeated inability to provide substantive responses on his own behalf or on behalf of Austin Capital

Collision, LLC. Further, at trial of this cause, Eric Hinojosa tried to change many of the answers he

provided at his deposition which occurred approximately one month before trial.

III. Conclusions of Law

A. Breach of Contract.

49. Plaintiff and Capital Collision ("Capital Collision," as indicated, supra, referring to the

owners of the Capital Collision business which, at the time, were the HABP Entities as the general

partners of Capital Collision, G.P.) intended to and did enter into an agreement whereby Plaintiff

would loan the sum of $80,000.00 to Capital Collision and, in exchange, Capital Collision would

repay the loan over 20 years at 7% interest.

50. This agreement constitutes a valid, enforceable contract.

51. The statute of frauds does not bar the agreement, even though it is not in writing, because

Plaintiff fully performed under the agreement, and Defendant Austin Capital Collision, LLC, d/b/a

Capital Collision partially performed.

52. Plaintiff fully performed under the terms of the agreement, paying the sum of $80,000.00 to

Capital Collision.

53. Capital Collision performed on the agreement prior to the termination of the HABP Entities

by making monthly payments on the loan as agreed.

54. Austin Capital Collision, LLC, d/b/a Capital Collision assumed the loan from the HABP

Entities though its conduct and course of performance, including by continuing to make payments

on the loan in accordance with the terms of the agreement.

55. Austin Capital Collision, LLC, d/b/a Capital Collision partially performed on the agreement

(1 I

by continuing to make payments on the loan to Plaintiff in accordance with the terms of the

agreement.

56. Austin Capital Collision, LLC, defaulted on the loan.

57. As a result of Austin Capital Collision, LLC's, default, Plaintiff suffered damages in the

amount of $56,758.68. Accordingly, Plaintiff is entitled to recover the sum of $56,758.68 from

Defendant Austin Capital Collision, LLC.

58. Plaintiff is entitled to post-judgment interest at the rate of 5%.

B. Attorneys' Fees.

59. Because this is an expedited action under Texas Rule of Civil Procedure 169 and Plaintiff

cannot recover more than $100,000.00 inclusive of attorneys' fees, Plaintiff is entitled to attorneys'

fees in the amount of $43,241.32 which fees are reasonable and necessary in Travis County, Texas.

60. Plaintiff is entitled to a conditional award of $20,000.00 in the case of an unsuccessful

appeal by either Defendant to the Court of Appeals. This sum is reasonable and necessary in Travis

County, Texas.

61. Plaintiff is entitled to an additional conditional award of $20,000.00 in the case of an

unsuccessful appeal by either Defendant to the Texas Supreme Court. This sum is reasonable and

necessary in Travis County, Texas.

C. Defendants' Affirmative and Other Defenses.

62. All of Defendants' affirmative or other defenses as alleged in its Fourth Amended Original

Answer, Verified Denial and Special Exceptions lack merit and any relief associated with same is

expressly denied.

63. Any conclusion of law deemed a finding of fact is hereby adopted as such.

SIGNED this 1 ~day of July, 2015.

DWONG

§ 11.052. WindinfJ Up Procedures, TX BUS ORG § 11.052

Vernon's Texas Statutes and Codes Annotated

Business Organizations Code (Refa & Annos)

Title 1. General Provisions (Refs & A1mos)

Chapter 11. vVinding up and Termination of Domestic Entity

Subehaplcr B. Winding up of Domestic Entity

V.T.C.A, Business Organizations Code§ 1i.052

§ 1i.052. Winding Up Procedures

Effective: September 1, 2013

Currentness

(a) Except as provided by the title of this code governing the domestic entity, on the occurrence of an event requiring winding up

of a domestic entity, unless the event requiring winding up is revoked under Section 11.151 or canceled under Section 11.152,

the owners, members, managerial officials, or other persons specified in the title of this code governing the domestic entity

shall, as soon as reasonably practicable, wind up the business and affairs of the domestic entity. The domestic entity shall:

(1) cease to carry on its business, except to the extent necessary to wind up its business;

(2) ifthe domestic entity is not a general partnership, send a written notice of the winding up to each known claimant against

the domestic entity;

(3) collect and sell its property to the extent the property is not to be distributed in kind to the domestic entity's owners or

members; and

(4) perform any other act required to wind up its business and affairs.

(b) During the winding up process, the domestic entity may prosecute or defend a civil, criminal, or administrative action.

Credits

:\cts 2003, 78th Leg., ch. 182, § I, eff. .Jan. L 2006. Amended by Acts 2013, 83rd Leg., ch. 9 (S.B. 847), § 3, eff Sept. L 2013.

:'1ole<, of Decisions (5)

V. T. C. A., Business Organizations Code§ 11.052, TX BUS ORO§ 11.052

Current through the end of the 2015 Regular Session of the 84th Legislature

'!;;' 2015 Thomson Reuters. No daim to original t .S. Gowrnnwm \\orb

cl2ii(n to

§ 11.356. Limited Survival After Tennination, TX BUS OHG § 11.356

Vernon's Texas Statutes and Codes Annotated

Business Organizations Code (Refs & Atmos)

Title 1. General Pnwisions (Refs & A1mos)

Chapter lL v\Tincling up and Termination of Domestic

Subcbapicr H. Claims Resolution nn Termination

V.T.C.A., Business Organizations Code § 1i.356

§ 1i.356. Limited Survival After Termination

Effective: January 1, 2006

Currentness

(a) Notwithstanding the termination of a domestic filing entity under this chapter, the terminated filing entity continues in

existence until the third anniversary of the effective date of the entity's termination only for purposes of:

(1) prosecuting or defending in the terminated filing entity's name an action or proceeding brought by or against the terminated

entity;

(2) permitting the survival of an existing claim by or against the terminated filing entity;

(3) holding title to and liquidating property that remained with the terminated filing entity at the time of termination or

property that is collected by the terminated filing entity after termination;

(4) applying or distributing prope1iy, or its proceeds, as provided by Section 11.05.3; and

(5) settling affairs not completed before termination.

(b) A terminated filing entity may not continue its existence for the purpose of continuing the business or affairs for which the

terminated filing entity was formed unless the terminated filing entity is reinstated under Subchapter E. 1

(c) If an action on an existing claim by or against a terminated filing entity has been brought before the expiration of the three-

year period after the date of the entity's termination and the claim was not extinguished under Section 11.359, the terminated

filing entity continues to survive for purposes of:

(1) the action until all judgments, orders, and decrees have been fully executed; and

(2) the application or distribution of any property of the terminated filing entity as provided by Section 11.053 until the

property has been applied or distributed.

§ 11.35f:L Limited Survival /\fter Termination, TX BUS ORG § 11.356

Credits

,\els 2003. 78th Leg .. ch. 182, s I, cff. Jan. l. 2006.

Footnotes

\'.I.( .. '\ .. Business Ori!ani1alinns Code~ l 1.201 ct seq.

V. T. C. A., Business Organizations Code§ 11.356, TX BUS ORG § 11.356

Current through the end of the 2015 Regular Session of the 84th Legislature

f3overnir1ent \/Vork~:;,

§ 21.22;:;. Limitation of for TX BUS ORG § 21,223

'Vernon's Texas Statutes and Codes Annotated

Business Organizations Code (Refs & Annos)

Title 2. Corporntions (Refs & A1mos)

Chapter 21. For-Profit Corporations (Refs & A1111os)

S11bcbapter K Sh<neholdcr Rights and Restrictions

V.T.C.A., Business Organizations Code § 2i.223

§ 2i.223. Limitation of Liability for Obligations

Effective: September 1, 2007

Currentness

(a) A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been

accepted, or any affiliate of such a holder, owner, or subscriber or of the corporation, may not be held liable to the corporation

or its obligees with respect to:

( 1) the shares, other than the obligation to pay to the corporation the full amount of consideration, fixed in compliance with

Sections 21. 157-21. 162, for which the shares were or are to be issued;

(2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that

the holder, beneficial owner, subscriber, or affiliate is or was the alter ego of the corporation or on the basis of actual or

constructive fraud, a sham to perpetrate a fraud, or other similar theory; or

(3) any obligation of the corporation on the basis of the failure of the corporation to observe any corporate formality, including

the failure to:

(A) comply with this code or the certificate of formation or bylaws of the corporation; or

(B) observe any requirement prescribed by this code or the certificate of formation or bylaws of the corporation for acts

to be taken by the corporation or its directors or shareholders.

(b) Subsection (a)(2) does not prevent or limit the liability of a holder, beneficial owner, subscriber, or affiliate if the obligee

demonstrates that the holder, beneficial owner, subscriber, or affiliate caused the corporation to be used for the purpose of

perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, beneficial

owner, subscriber, or affiliate.

Credits

Acts 2003. 78th Leg., ch. 182, § Leff Jan. 1, 2006. Amended by Acts 2007, 80th Leg., ch. 688, § 74, eff. Sept 1, 2007.

'.\Oles of Decisions (2 J3)

§ 21.223. Limitation of Liability for Obligations, TX BUS ORG § 21.223

V. T. C. A., Business Organizations Code§ 21.223, TX BUS ORG § 21.223

Current through the end of the 2015 Regular Session of the 84th Legislature

l ~:, { ; \ )\ \.' ~

i"ft~stlr;rvvf\.Je:-{r <f;) 2015 Thornson F<.f::uter:s_

§ 24.006. Transfers Fraudulent as to Present Creditors, TX BUS & COM § 24.006

KeyCite Yellow Flag- Negative Treatment

Unconstitutional or Preempted Negative Treatment Vacated by Gulky v. Sunbelt Sa\., F.S.lL 5th Cir.(Tex.), June 01, 1990

Vernon's Texas Statutes and Codes Annotated

Business and Commerce Code (Refs & A1111os)

Title 3. Insolvency, Fraudulent Transfers, and Fraud

Chapter 24. Uniform Fraudulent Transfer Act (Refs & Annos)

V.T.C.A., Bus. & C. § 24.006

Formerly cited as V.T.C.A., Bus. & C. Code § 24.03

§ 24.006. Transfers Fraudulent as to Present Creditors

Currentness

(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was

made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably

equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became

insolvent as a result of the transfer or obligation.

(b) A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer

was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to

believe that the debtor was insolvent.

Credits

Amended by Acts 1987, 70th Leg., ch. I004, § I, eff. Sept. 1, 1987.

Notes of Decisions (253)

V. T. C. A., Bus. & C. § 24.006, TX BUS & COM§ 24.006

Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document

43.3. Rendition Unless Remand Nece~ss<HV TX R /\PP Ru!e 43.3

Vernon's Texas Rules Annotated

Texas Rules of Appellate Proceclme

Section '1\vo ..Appeals from Trial Court .Judgments and Orders (Refs & A1rnos)

Rnle 43. ,Judgment oftlw Court oC Appeals (Refs & Annos)

TX Rules App.Proc., Rule 43.3

43.~-s. Rendition Appropriate Unless Remand Necessmy

Currentness

When reversing a trial court's judgment, the comi must render the judgment that the trial court should have rendered, except

when:

(a) a remand is necessary for further proceedings; or

(b) the interests of justice require a remand for another trial.

Credits

Eff. Sept. 1, 1997.

Notes of Decisions (52)

Rules App. Proc., Rule 43.3, TX RAPP Rule 43.3

Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through

September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration

are current with amendments received through September 1, 2015. Other state court rules and selected county rules are current

with rules verified through June 1, 2015.

,i .2! 1J:: Thom~,nn R1.?utl..'rs. No claim h) original U.S. (J1.)vernmcnt \Vorks.

CAUSE NO. D-1-GN-14-003207

BARBARA PAMPALONE, § IN THE DISTRICT COURT

Plaintiff, §

v. § TRAVIS COUNTY, TEXAS

ERIC HINOJOSA AND AUSTIN §

CAPITAL COLLISION, LLC, §

Defendants. § 419TH JUDICIAL DISTRICT

Sum~ary of Payments Made by Defendants to Plaintiff

No. Date Amount Bank Account

1. 05/20/2005 $675.09

2. 06/20/2005 $675.09

3. 07/20/2005 $675.09 Bank of America Business Advantage

4. 08/19/2005 $675.09 Checking Account No. XXXX XXXX

5. 09/20/2005 $675.09 9118

6. 10/20/2005 $675.09

7. 11118/2005 $675.09 Capital Collision

8. 12/20/2005 $675.09 Eric A. Hinojosa

9. 01/20/2006 $675.09

10. 02/17/2006 $675.09

11. 03/20/2006 $675.09

12. 04/20/2006 $675.09

13. 05/19/2006 $675.09

14. 06/20/2006 $675.09

15. 07/20/2006 $675.09

16. 08/18/2006 $675.09

17. 09/20/2006 $675.09

18. . 10/20/2006 $675.09

19. 11120/2006 $675.09

20. 12/20/2006 $675.09

21. 01/19/2007 $675.09

22. 02/20/2007 $675.09

23 .. 03/20/2007 $675.09

24. 04/20/2007 $675.09

25. 05/18/2007 $675.09

26. 06/20/2007 $675.09

27. 07/20/2007 $675.09

28. 08/06/2007 $505.07

08/20/2007 $170.02

\ No.

29.

30.

Date

09/20/2007

10/19/2007

Amount

$675.09

Bank Account

31. 11/20/2007 $675.09

32. 12/20/2007 $675.09

33. 01118/2008 $675.09

34. 02/20/2008 $675.09

35. 03/20/2008 $675.09

36. 04/18/2008 $675.09

37. 05/20/2008 $675.09

38. 06/20/2008 $675.09

39. 07/18/2008 $675.09

40. 08/20/2008 $675.09

41. 09/19/2008 $675.09

42. 10/20/2008 $675.09

43. 11/20/2008 $675.09

44. 12/19/2008 $675.09

45. 01/20/2009 $675.09

46. 02/20/2009 $675.09

47. 03/20/2009 $675.09

48. 04/20/2009 $675.09

49. 05/20/2009 $675.09

50. 06/19/2009 $675.09

51. 07/20/2009 $675.09

52. 08/20/2009 $675.09

53. 09/18/2009 $675.09

54. 10/20/2009 $675.09

55. 11120/2009 $675.09

56. 12/20/2009 $675.09

57. 01/20/2010 $675.09

58. 02/19/2010 $675.09

59. 03/19/2010 $675.09

60. 04/20/2010 $675.09 Bank of America Business Advantage

61. 05/20/2010 $675.09 Checking Account No. XXXX XXXX

62. 06/18/2010 $675.09 4193

63. 07/20/2010 $675.09

64. 08/20/2010 $675.09 Capital Collision GP

65. 09/20/2010 $675.09 Eric A. Hinojosa

66. 10/20/2010 $675.09

67. 11119/2010 $675.09

68. 12/20/2010 $675.09

69. 01/20/2011 $675.09

70. 02/18/2011 $675.09

03/--/2011 --

04/--/2011 --

Page 2 of3

r No. Date

05/--/2011

Amount

$675.00

Bank Account

71. 06/10/2011

72. 06/20/2011 $675.00

73. 07/20/2011 $675.00

74. 08/19/2011 $675.00

75. 09/20/2011 $675.00

76. 10/20/2011 $675.00

77. 11/18/2011 $675.00

78. 12/20/2011 $675.00

79. 01/20/2012 $675.00

80. 02/17/2012 $675.00

81. 03/20/2012 $675.00

82. 04/20/2012 $675.00

83. 05/18/2012 $675.00

84. 06/20/2012 $675.00

85. 07/20/2012 $675.00

86. 08/20/2012 $675.00

87. 09/20/2012 $675.00

88. 10/19/2012 $675.00

89. 11120/2012 $675.00

90. 12/20/2012 $675.00

91. 01118/2013 $675.00

92. 02/20/2013 $675.00

93. 03/20/2013 $675.00

94. 04/19/2013 $675.00

05/--/2013

06/--/2013

07/--/2013

08/--/2013

09/--/2013

95. 10/25/2013 $6,000.00

r Page 3of3

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DEL VALLE Ti< 78617-32?3

Our free Online lla11ldug service allow• you to chcct balances, iracl: occouut •ctivity. pay bills and 111ore.

Willi 0:-illnc Banking you can also viow up lo 13 months of Ibis stntemcnl unl!nc.

f.nroll at www.bankofamcric•.con\/smollbusincss.

We recently made changes to our Overdraft Protection Transfer Fee to better serve you. Effective

immediately, when we determine your account is overdrawn by a total amount less than $10 for a day

and we transfer runds from your linked savings account or line of credit to cover it. we will not charge an

Overdrart Protection Transfer Fee. Overdraft Protection lels you link your cl1ecki11g account to another

account to help avoid overdrafts. If you haven't already signed up, call the number on your statement or

visit your nearby banl~ing center and an associate can help you.

Stay ahead or your bills - such as rent. mortgage. credit card or utility payments - by setting up

automatic reminders to be sent right to your e-mail or smart phone. With Payment Reminders from Bank

of America®. it's easy to know when a payment is due.

Get starte<:l at banltofarnerica.com/solutions today.

=_j

Pazc 2 of 4

S1a1cmcn1 l'criod

CAPITAL COl.LlSlOI' 02101/10 through 02/28110

E.RIC II 11 INOJ OSA EO P PE OE 48

Enclosures 0 -

Account Number

Business Advantage Checking

CAPlTAL COLl.ISION ERIC A lllNOJOSA

Yuur Account ut 11 Gln11cc

Account Number Statement Reginning Balance S3,71 !.24

Statement Period 02/01/10 through 02/28/10 Amount of Deposits/Credits $7,002.90

Number of Deposits/Credits 8 Amount of Withdrawals/Debits SI0,501.42

Number of Withdrawals/Debits 21 Statement Ending Dal:mcc $212.72

Number of Deposited Items 6

Average Ledger Balance $2,174.17

Number of Days in Cyck 28 Service Charge so.oo

Your account has overdraft protection provided by Linc of Credit number 6871 1022 401299.

Your Business Pricing Relationship

Account Qualifying Type of

Name Balance Balance Date

Business Advantage Checking 2,549.01 Average 02-25

Totnl Qualifying Balance $2,549.01

Please note that the balances in your account(s) are below the minimum required to avoid the monthly maintenance fee. To give

you time to make adjustments, we have waived the monthly maintenance ree for this statement cycle ending 02/28/10. If you have

questions about your account or would like to discuss how you may avoid the monthly fee, please call us at the number listed

above.

J>cposits nnd Credits

nle Ull

Po~ted Amount ($) Description Reference

02/04 2,022.19 Deposit 813204730657492

02/05 1,756.00 Deposit 813204730902628

02/09 1,628.46 Deposit 813204730269247

il2/I 32 I 16. Deposit 813204730526383

~=0~2~/:6:,::::::::::::::::::::6~7~'i~Jl~9J~ n Ii n c Ban king trans fer fr om Chk 4193

Confirmation# 0136551719

957202167505928

02/19 300.00 Overdraft Protection From 68711022401299 080602190005922

02/22 100.00 Ovcrdnift Protection From 68711022401299 080602220011991

02125 200.00 BankCnrd Dcs:Merch Seti 10:430134840051477 902556010903684

lndn:Cnpilal Collision Co ID:1210001923 Ced

;"'

Page 3 of.\

St~tcmcnt Period

CAPITAi. COLLISION 02/0l/IO throu~b 02/:!SllO

El\IC /\ HINOJOSA fJI I' PE ()~ 48 014'.!211

E.ndo:rnrcs 0 -

Accou111 Number

Wlthtlrawuls 11nd Debit~

Other Debits

Dale Uauk

Poste<l Amount ($) Dcscript ion Reference

02101 436.45 Milchcll International Bill Pavmcnt 943202010008790

02/01 71.15 13ankCard J)e$;J·,1 erch Fees JD:ll3013'18400S M77 90::!532006926873

Jndn:Cnpital Collision Co ID:J21U001923 Ced

02101 6.47 Milchel! lnlernnlional Bill Payment ~43202010003800

02/02 39.95 Discover N~twork Dcs:Se11\cmcni ID:601101323c>56387 902532010206729

lndn:Eric A. Hinojosa, Dh:i Co ID:1510020270 Ceil

02/04 !,000.()0 'Jn!inc Banking transfer to C'.hk 4191 957102047530162

Confirmntionfl 3932735010

02/04 700.00 Home DeJlol Dcs:Onlinc Pint ID:56002S980320388 902534010998444

lndn:Capitul Collision Gp Co ID:Citiccsweb Web

02105 500.00 Ge Money Des:Paymcnt l0:504662Ul4152661 902535005381136

lndn:Hinojosa,Eric Co ID:1061537262 Web

02/05 200.00 Mlrna Crcdil Cards Rill l'aymenl 943202050008802

02/03 516.35 Exxonmobil Comm Dcs:Onlinc ?mt 10:560030703322458 902536010818361

l.ndn:Capilnl Collision Co ID:Citioi!web Web

02/09 1,600.00 Online Banking transfer to Ch!: 4193 957202097591378

Confirmn tionll 0375764844

02116 3,211.69 Online Banking tran$fcr to Chk 4193 957302167513449

Confirmation# 622Sl274:i4

02/16 1,146.06 2 Pawnee Lensing Dcs:Lease Pmt ID:320955 902547007520285

Indn:Capit:il Collision G.P. Co 10:3840884553 Ppd

r ""'16

02122

Card Account II

Dell Commercial Credit Bill Pavmcnl

um 11 one 1 a mcnt

943202160008797

943202190008795

080602190005923

080602220011992

02!01 905701291164022

02/01 905701290007749

02104 905702020337081

02/04 905702020739800

02/22 905702200677744

SubtQtal

Dully Ll!dgcr Balaaccs

Uate 13alance (S) Date tlalance ($) Date Balance ($)

02101 3,163.22 02108 3,862.07 02119 43.94

02/02 3,123.27 02/09 3,890.53 02/22 12.72

02/04 3,322.42 02111 4,211.69 02/25 212.72

02105 4,376.42 0211 (j 429.03

,...

(

• ....,.,

O:rnk of America, N .II.

P .0. Dox 1511&

T~mpo, FL 33622·~1 IS

Page I of 4

Stntcmcnl Period

02/01/10 lhrougb 02'28110

l!O p ra OB 44

0372574

llccount Number -

II 111ll 11 lu llu 111 II l111l11IIml1ll 111 l11 Il1 l1 lu I, l11 l11 I: I

01099 001 S0'.~99 \ 2 4 ~

CAPITAL COLLISION GP

ERIC A HINOJOSA

4304 BURCH DR

DEL VALLE TX 78617·3273

Our free Online Banking service ollow• you 10 check bobnccs, tr•ck •ccount •ctivity, poy bills :ind more.

With Onlinr llonl:ing you cun al•o vlo\\· up lo Ill months of thb sl:ltcmcnl onlino,

Enron r.1 www.bant..or.:amerlca.c('llm/1mla1lbusincss .

.ttr'

·\

We recently made changes to our Overdralt Protection Transfer Fee to better serve you. Effective

immediately, when we determine your account is overdrawn by a total amount less than $10 for a day

and we transfer funds rrorn your linked savings account or line of credit to cover it. we will not charge an

Overdraft Protection Transfer Fee. Overdraft Protection lets you link your checking account to another

account to help avoid overdrafts. If you haven't already signed up. call the number on your statement or

visit your nearby banking center and an associate can help you.

Stay ahead or your bills · such as rent, mortgage. credit card or utility payments • by setting up

automatic reminders to be sent right to your e·mail or smart phone. With Payment Reminders from Bank

of America®, lt's easy to know when a payment is due.

Get started at bankofamerica.com/solutions today.

!'age 2 of 4

St;. lcmen l I' er iod

CAPITAL COLLISION GP 02101110 throuuh 02/2:VIO

ERIC A HINOJOSA f:ll I' PU OU 44

Account Number -

,. ::·

'·"·

I :· .- ::·.

Business f.1.dvc.1n!age Cl•~cl~ing

CAPITAL COLLISION GP ER.IC A HINOJOSA

Your Account at n Gkn~c

Account Number - - Statement Beginning Balnncc S2,524.SO

Statcmcn< Period 02101110 th~ /\mount of Dcposits/Crcclil~ 528,160.08

Numhcr of Deposits/Credits 7 /\mount of WithdrawalsfJ)cbils :523,675.12

Number of WithdrawalslOebits 38 Statement J::n<ling Balance $7,009.76

Nun1bcr of Deposi11.:d items 7

i\Yerngc Ledger l3uhincc $6,613.07

Number of Days in Cycle 28 Service Charl!C $29.95

Help &void Overdrar. & ~lSF: Rotumod Item fees. Us:i Alerts lO get messages by email or tc:<t to inform ycu when you; balance Is

low. Use Overdraft ProteeUon lo transfer available runds lrom linlced savings. aedit card. or credit lin2 to yo:Jr eh:?d1ing account to

'""

t( ielp cover items t112t would overdraw your account. Call us for details.

Your Bu!dness Relationship

Account Qualifying Type of

Na ie Balance Bnl nee Date

Business Advantage Checking 6,129.33 Average 02-25

$5,1:1.9.33

Bnscd on your combined b2lance of $6,129.33, your Business Advantage account has boon charged a monthly malntcnoncc foe.

You c.:n avoid tllis fca In lhc ruwr:t by m.:intainlng 535.000 in combinad balsnces.

Deposits :ind Crccllts

ale an

Posted Amm1111 !S) Description Reference

02102 5,000.00 Online Banking advance from Loe 1299 957102027580889

Confirmation# 3915169063

02/0tl 1,000.00 Online 13anking tran::fcr from Chk 9111\ 957102047530163

Cunlirmationll 3932735010

02109 1,600.00 Online Banking iransfer from Chk 911~ 957202097591379

Confirmation# 0375764844

02116 3,211.69 Online Banking 1ran5fcr ironi Chk 91 IS 957302167513450

Confirmation# 6228127454

02/17 11,872.04 Dcpo~it 313204830622344

02117 1,164.60 Dcposil 813204830622343

02/23 4,3 I I. 75 Dcpo~it s13204730584475

~".!:;

~~'''

.._:• D~

Pngc 3 or 4

Stulcmcrtl P.:riod

CAPITAL COLLISION GI' 02101110 1hruu:;h O:!il8110

cR!C A HIHOJ OSA 1\0 P l'B Oil 4·1 0312S76

A«Ount Number • • • • •

Wtthdrnwnls &nd D~b!ts

Chee: ks

Check Date Bank Check Date Bani:

Nurrob.:r AiiHlt1n: (Sl Posted Reference £:!ur.ih-:r Amount {~) Po•lr,d R!;fr1·c11c~

5095 557.40 02101 l: I JOll'J\1923%654 20148 2.20 02/04 813009692604239

5097° 550.CtO 02/12 8130098922&4554 20149 2352 02/08 813006892470800

5103° 184.~li 02/16 813009292032928 20150 92.31 02117 813009292693306

20061° 95.CO 02/03 81300939245262 7 20151 215.57 02117 813009292693305

20088° 340.(1() 02/03 313009392452626 20152 69.99 02111 813009692 786278

20091° 12.98 02108 8 l 300l\79267653 I 20153 830.00 02/IO 813006592162010

20123° 500.l!O 02/IS 813204730039963 20154 150.00 02116 813008992748692

20129$ 71.00 02101 81300Gll92690586 20156• 261.63 02124 813009592563760

20131" 9SJi0 02/0S 11130091192124599 20157 178.14 02/23 813009292733366

20139" 671.25 02/08 813008892194461 20159• 6,109.14 02122 Sl30089920270SO

20140 116.65 02/02 313005992002173 20161° 2,198.63 02122 313006092750085

20141 747.lil 02104 813009592350002 20162 406.48 02125 813004092553$13

20143° 600.C-O 02108 813008792668691 '.?0163 1.829.41 02122 813002992359349

20144 3.272.55 02/0S 813007692811653 20164 360.80 02122 813204730398781

20145 172.00 02/08 813008792910492 20170" 192.57 02126 813009992586446

20147° 64.88 02112 813009992791685

Other Debits

Dale Bank

Poslcd Amount (S) Dcscri1,11 ion Reference

02/04 303.00 Dat;i Check Des:RcJcpchcck ID:020085 902535001904590

lndn:Cnpital Collision Gp Co !0:1261961596 Rck

02/04 32.48 Data Check Des:NSF Fee 10:020085 902535001904592

lndn:Capital Collision Gp Co 10:1261961596 Ppd

02/09 400.00 Online ll~nking ~~~mcnt to J.oe 1299 957302095105249

0.,116 ti?~ ?2 B~f~;n'J:.~ k"/n ...;

J :U!f.,~o C!Jk 0113 I 957202167505927

Confirmation# 0136551719

02125 663.31 Trail Creek Inve Dcs:Note Pmt lD:Capital Collisi 902555005209896

lndn :Cupit al Collision Co ID:3262646872 Ced

02126 600.00 Mirna Line Of Credit Bill Payment 943202260005105

02/26 29.95 Momhly Maintenance Fee

Total Overd1·art Fees r.ud NSF: Returned Item Fees

IOllll IOI' Tot.at

'i'his Period Ycnt·lo-Dat•

Total Overdrafi Fees S0.00 $35.00

Tot:il NSF: Rct11rnctl llcm rec~ so.oo $1(15.00

Udly Ledger Balances

Date 13;i lu nee {S) D:llc 13:i lance (S) Date Balance (S)

02101 l,896.40 02/09 2,611.96 02fl8 15,528.07

02102 6,779.75 02/10 I, 781.96 02122 5,030.09

02/03 6,344. 75 02111 1,711.97 02/23 9,163.70

02/04 6.259.26 02112 1,097.09 02124 8,902.07

02105 6,164.26 02/16 3,299.31 02125 7,832.28

02108 1,411.96 02/17 16,028,07 02/26 7,009.76

~ Balfli~\ aif America ,.,. . _

\ Bank of Amcricn. N.A. ~ !'age I of4

l'.0. llox 2~118 ':ti!". SUlcmcnl l'criod

Tamp>. ~-L 33622·5118 03101!10 through 03131/10

f.0 P PE OE 43 013Ui56

l!nclasurcs 0 -

/\ccuunt Number

ll111Il11l11It11mIII111I11II111I1l l1ul11II1l 1lnl1lu l11 l1 I

01099 001 SCM999 11 0

CJ\.l?ITAI, COLLISION

ERIC A HINOJOSA

4304 BURCH DR

DF.L VALLE TX 78617-3273

Our free Online Bankini; service nllows you lo chc"k l>olanccs, tr:1ck occuunt activity, pay bills nnd mot'c,

Wllh Online llnnldng you can olsP •·Jew up to 18 innntlu uf !Ills •lattincnl onllnc.

Enroll Ot www.b:\nkofamcrica.com/smallbu$incu.

··""

Business Advantage Checking

CAPITAL COLLISION ERIC A HINOJOSA

~unt nt 11 Glnncc

Account Number - - - Slntement Beginning Bnlance $212.72

Statement Period 03/01/10 through 03/31/10 Amount of Deposits/Credits Sl4,318.31

Number of Deposits/Credits 5 Amount of Withdrawals/Debits $14,531.03

Number of Witl1drawals/Dcbits 8 Statement ~nding Balance S0.00

Number or Deposited Items 0

Average Ledger Balance 5961.76

Number of Dnys in Cycle 31 Service Charge $0.00

Your account has ovcrdral\ protc:ction provided by Linc of Credit number 6871 1022 401299.

\ Page 2 of 4

Statement Period

CAl'ITAL COLl.lSION 03/01/10 through QJ/31/10

F.RIC A HINOJOSA EO P PE OE 4S

Enclosures 0 -

Account Nutnbcr

Your Business Advantugc Pricing Rclntionshlp

Account Account Qualifying Type of

Nnme Number Balance S Rnlance D te

Business Advantage Checking 922.81 Average 03-30

Total Qualifying Balance $922.81

Please note that the balances in your account(!>) are below the minimum required to avoid the monthly malntemmce fee. We have

waived the monthly maintenance fee for an additional cycle in case you need time to make balance adjustments. If your balances

are below the minimums next month you'll still enjoy all the many benems that come with your Business Ad11antage account, but

the monthly maintenance fee will apply. Please call us at the number listed above If you have questions about your account.

Deposits nncl Creillts

ate an

Posted Amount (S) Description Reference

03/04 2,658.42 Sf Mutual Des:A25Sf0001 ID:xxxxx6250Ka0301 902562006583464

lndn:Capitnl Collision Co ID:9A25Sf'OOOI Ced

Pmt lnfo:Nte"zzz*xxxxx6250Ka030l !370533100

03/17 2,797.16 Sf Mutunl Dcs:A25Sf0001 ID:xxxxx1236Ka0312 902575003591285

lndn:Cnpital Collision Co ID:9A25Sf0001 Ced

Pmt lnfo:Nte'"zzz•xxxxx 1236Ka0312l370533100

18 7,316.73 Sf Mutual Des:A25Sf0001 ID:xxxxxl784Ka0315 902576008234102

lndn:Capital Collision Co ID:9A25Sf0001 Ced

Pmt lnfo:Nte=t<zzz*J<xxxx 1784Ka03151370533100

03/26 805.00 BunkCard Oes:Merch Seti 10:430134840051477 902585006694446

lndn:Capital Collision Co ID:1210001923 Ced

03/29 741.00 Online Banking transfer from Chk 4193 957303297562545

Confirmation# 5288477014

Wltl1drawals nnd Debits

Other Debits

Date Bank

Posted Amount (S) Dcscr hll ion Reference

03/01 67.85 13ankCard Dcs:Merch Fees 10:430134840051477 902560012434131

lndn:Capital Collision Co ID:32l0001923 Ced

03/02 89.90 Discover Network Des:Sclllement ID:601101323656387 902560015685838

lndn:Eric A. Hinojosa, Oba Co ID:I510020270 Ced

03/04 794.00 Jlome Depot Dcs:Onlinc !'mt ID:56005317233lll2 902562007188203

lndn:Capital Collision Gp Co ID:Citiccsweb Web

03/08 100.00 Mbna Credit Cards Bill Payment 943203080008804

03/18 11,342.43 Online Banking transfer to Chk 4193 957203187554340

Conlirmationl/ 0692331669

03/26 805.00 Online Banking transfer to Chk 4193 957103267571096

Confirmationll 3762903721

03131 741.00 Home Depot Dcs:Onlinc Pmt 10:560076464300917 902589010785632

Card Account #

03/17

·······•WldlPlfapital Collision Gp Co ID:Citiccsweb Web

S90.8S CheckCard 0316 Entcrpri~e Rent-A-Car 90570':11(.J UW>29

" CAPITAi. COl.LlSION

ERIC A HINOJOSA

Page 3 of4

S101cmcn1 Period

03/01110 1hrough 03131/10

F.O I' PE OE 48

l!nclosurcs ()

Account Number

Withdrawals and Debits - Continued

Oilier Debits

Date Bank

Posted Amount (S} Description Reference

Suhtolul 590.85

Daily Ledger Balances

Date Balance (S) Date Hnlnnce ($) Date Balance($)

03/01 144.87 03/08 1,819.39 03/29 741.00

03/02 54.97 03/17 4,02.5.70 03/31 0.00

03/04 1,919.39 03/18 0.00

r .

Bonk of Amedeo, N.A. rage I of4

l'.O. Box 2SI 18 Stocement Period

1·:1mpa, FL 33622·5l18 03/0l/lll through 03131110

L'O P PB Oil 44 03°18980

Acooun1 Numbor -

11 ... n. ,1 .. lluu ,111 ... 1•• u. 11! 1 llu .1 .. 11r1. I11I1I11 Inl

0105~ 001

SG!~39 11 0

CAPITAL COLLISION GP

ERIC A HINOJOSA

4304 BURCH DR

DEL VALLE TX 78617-3273

Our free: Online B:tnking s.crvicc aUnw$ yon to check balilnccs, tr3ck ;;a.ccounc ;1ctiv1ly, p:iy bills nr1d n1otc.

With 011llpe Banking you cun ~ho vi~•v up to 18 monchs or

this statcmcnc onllnc.

Enroll at www.b;inl:ofamCTica.co1nlsma llbusiM•~.

·vz

Business Advantage Checking

CAPITAi- COLLISION GP ERIC A HINOJOSA

al a Gl:ince

Account Numbei- Statement Beginning Balance S7,009.76

Stalcmcnt Period 03/01/10 through 03/31/10 Amount of Deposits/Credits $16.357.41

Number of Deposits/Credits 6 Amount of Withdrawals/Debits s21;s2s.19

Number of Withdrawals/Debits 26 Statement Ending Balance Sl,841.38

Number or Deposited Items 4

Average Ledger Balance S3,195.62

Number of Days in Cycle 31 Service Charge $29.95

Help avoid Overdraft & NSF: Rcwmcd hem fees. Use Alerts to gel messages by email or text to inform you when your balance is

low. Uso Overdraft Protection to transfer avaih:ible funds from linked savings, credit card, or credit line to your checking account to

help cover items that would overdraw your account. Call us for details.

l'•i;c 2 of ·I

.Slah:menl PctioJ

CAPITAL COLLISIOr. Gr 0"01110 throush O~/Jl/10

J;RJC I\ lllNOJOSA 1:0 I' ro ou "-1

/\cc.oul\l Number -

Account Accvunl Q\1alifying Type of

Nam.: •·· . .-·r Bu!uncc S 13'1h•nr.c Date

nu~incs~ 1\dv:1n1ngc hcclung 3,532.49 Avcn:gc 03-30

1'otnl Qunllfying BcJanc~ :S3,5B2.t.!S

6as\!d on your combined b<ilt.ncc o~ SJ,58V!9, yi;ur Business Advimti::gc aceourrt has been charged n monthly maliltcnance lee.

You ei:n avoid !his ra:: in tho rutura by maintaining $35,00U in combinctl balances.

-----

Deposit:; amt Crctlits

ate 13anl<

J'o~lcd At'nou nt ($) Descrfo!ion Reference

03/08 497.50 Deposit 813204730856293

03118 11,342.43 Online Banking transfer from Chk 9118 957203 l 3755i134 I

Confirmation# 0692331669

03/22 2,593.20 Deposit 313204730423785

03123 319.20 Deposit 813204730616062

03/26 805.00 Online Banking tr:in~fcr from Chic 9118 957103267571097

Confirmation/I 3762903721

03/29 300.08 Deposi1 813204730042952

Witbdrn'll'als and Debits

Chcdts

Check ])n1c Bnnk Check Date Bank

Number Amo11111 (S) Posted Reference Number Amounl (~l Posted Reference

5101 557.40 03/01 813008992394512 20172 213.10 03102 813()03092277479

201io 8 2H.06 ~11~9

g8noo96921S4126

.__..,;.lo!-lllR~i..;.,..._ _ _ _~l~w2~R~.;;.._..,\jR~~f....

l1;u1 ggg~3~~cm I~ 20173

20174

20175

434.51

15.00

500.00

03/0l

03/04

03123

813008992065404

813009892820470

s 13009792480484

20167° 219.96 03/01 813006192752812 20176 10, 113.89 03/19 &13008992770587

20169° 1,142.98 03/01 313006192220154 20177 623.77 03/:!5 Nl32047306731i3

20171" 380.00 03/01 813008792863716

Other Ocbits

Date Bank

Posted Amount !S) l>cscripl ion Reference

0)/01 100.00 3 Pawnee Leasing Des:l.easc Pmt ID:320955 902560009530707

lndn:Capital Collision G.P. Co ID:4R408845S3 Ppd

03/02 400.00 Bank of America ·I.inc of Credit Dill Payment 943203020005110

03/04 500.00 Ge Money Oes:Payment JD:S04662014152661 902562006293580

lndn:llinojosa,Eric Co ID:l061537262 Web

03111 91.37 3 Pawnee l,c:isin~ Dcs:Lcase Pmt ID:320955 ')02569012439754

lndn:Caphal Collision O.P. C~1 ID:4S408S4553 Ppd

03/15 1,146.06 2 Pawnee Leasin~ Dcs:Leasc Pm1 ID:320955 902574003359778

lndn:Capital Collision G.P. Co ID:3340884553 Ppd

03/16 100.00 Dell Commerci:il Credit Bill Payment 943203160005104

03125 663.31 Trail Creel{ lnve Dcs:Note Pmt ID:Capilal Collisi 902583009909906

lndn:Capital Collision Co 10:32626461:72 Ced

rage 3 of 4

Su1einen1 Perfod

CAPITAL COLUS!ON GP 03101/lO through Ol/311!0

ERIC A HINOJOSA EO P Pll l)U 44 0)48982

Accoun1 Number -

Withdrnwuls anti Debits - Continued

Other D<:bits

Date Bank

Posted Ammrnl rs> Description Reference

0~/26 600.00 Mbna Linc Of Credit Bill Payment 943203260005108

03/29 741.00 Online Bankini,; transfer to Chk 9118 957303297562544

Con firmationtl 5288477014

03129 500.00 Ge Money J)es:Payment 10:504662014152661 902588010526693

lndn:llinojosa,Eric Co ID:1061537262 Web

03/29 400.UO Bank of Amcricn • Line of Credit Bill Payment 943203290005114

03/30 557.40 Marlin Lensing Bill Payment 943203300005107

03/31 2?.95 Monthly Maintenance Fee

Total Ovcrdr:ift Fees and NSF: Returned ltcm Fees

·rotat tor ·1 ol.al

Tlii" Period Year-to-DaL

Total Overdraft fees $0.00 S35.00

Total NSF: Returned Item fees $0.00 Sl05.00

Dally Ledger Dnlnnccs

Date Balance (S) Date Balance (S) Date Balance ($)

03/0J 4,174.91 03112 2,631.9~ 03/23 4,351.73

03/02 3,561.81 03/15 1,485.88 03125 3,064.65

03/04 3,<146.81 03/16 l,3S5.88 03/26 3,269.GS

03/08 3,544.31 03/18 12,053.22 03/29 2,428.73

03/09 3,273.31 03/19 1,939.33 03/30 1,871.33

0311 l 3,181.94 03/22 4,532.53 03/31 l,841.38

[bnl: of An1cric•, ~.A. l'of,C I of ·I

r.o. no: 2s11:1 St~tcmcn1 Period

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Cil.!'ITl\T. COLLISION

ERIC 1\ m:;oJOSA

4304 BURC:J DR

DRL VALLP. TX 78617-3273

Gm free Online Honking service allows you In chccl bolancc•, track o<eou111 nctn·ity, p:iy bills anti more.

Wlih Onl:nc Bnnldni: )'OU con 111~0 view u11 tu 13 monl:.• of tl1b •totem en I 0111111~.

Euioll Oll www.1•ankofamcrica.com/~mal1bu$incs.s.

Susiness Advantage Checking

CAPITAL COLLISION ERIC A HINOJOSA

Your Account ot i:: Glnn1:e

Account Numbc:r Stutcment Beginning Balance $0.00

St;itemcnt Period 04/01/10 through 04/30/10 A111ount of Dcposils/Crcdils SS,686.37

Number or DcpositsiCredits 3 Amount of Withdrawals/Debits SS,716.32

Number of Withdrawals/Debits 6 Statement Ending Balanc-.: S29.95-

Number of Deposited hem~ 0

Avcr;igc Ledger Bnlancc S9.74-

Number or 1.>ay5 in Cycle JO Service Charge $29.95

Your account has overdrafi protection provided by l.ine of Credit number 6il71 1022 401299.

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l'ai;c 2 of 4

Stolcmcnl l'~riod

CAPITAL COLLISION 04101110 lhrou~h 04/30!10

ERIC A HINOJOSA EO I' PE Ot: 48

t!nclosurcs 0

Account Number

Your Uusincss Advantngc Pricing Rclulionsl1ip

Account Account Qualifying Type: of

Name Number Jhlance . Bnlancc Date

Business Advantage Checking -9.74 Average 04-29

Totnl Qunllfylng Balance S9.74

Based on your combined balance of S9.7h your Business Advantage account has been charged a monthly maintemmce rec. You

cnn avoid this fee in the future by maintaining $35,000 In combined balances.

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.