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

ACCEPTED
03-15-00447-CV
7896313
THIRD COURT OF APPEALS
SEE AMEND BRF AUSTIN, TEXAS
FILED ON 12/1/15 11/18/2015 7:58:22 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00447-CV

In the Court of Appeals FILED IN
For the Third Judicial District of Texas 3rd COURT OF APPEALS
AUSTIN, TEXAS
at Austin 11/18/2015 7:58:22 PM
JEFFREY D. KYLE
Clerk
BARBARA PAMPALONE,
Cross-Appellant

v.

ERIC HINOJOSA,
Cross-Appellee

On Appeal from the 419th Judicial District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-14-003207

CROSS-APPELLANT’S BRIEF

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

ATTORNEYS FOR BARBARA PAMPALONE

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Parties to the Trial Courts Judgment

Plaintiff: Barbara Pampalone

Defendants: Austin Capital Collision, LLC
Eric Hinojosa

Names and Addresses of Trial and Appellate Counsel

Counsel for Plaintiff: Nelia J. Robbi
nrobbi@mcginnislaw.com
Joe Lea
jlea@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

Counsel for Michael Truesdale
Defendants: 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

ii
 TABLE OF CONTENTS

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

TABLE OF CONTENTS ................................................................................................... iii

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

STATEMENT OF THE CASE ........................................................................................... 1

STATEMENT REGARDING ORAL ARGUMENT ......................................................... 1

STATEMENT OF JURISDICTION ................................................................................... 2

ISSUE PRESENTED .......................................................................................................... 2

STATEMENT OF FACTS .................................................................................................. 3

A. Overview and the parties. ......................................................................................... 3

B. The business: Capital Collision. ............................................................................... 5

C. The loan. ................................................................................................................... 5

D. The payments: 94 monthly payments over 8 years. ................................................. 7

E. The fraud. ................................................................................................................. 8

1. Eric Hinojosa wholly owned and controlled Capital Collision. .................... 9

2. Mr. Hinojosa formed a new company, also called Capital
Collision, which he also wholly owned and controlled. ............................... 9

3. After his new company took over the business of the old
company, Mr. Hinojosa terminated the old company. ................................ 10

4. Mr. Hinojosa did not tell Dr. Pampalone that he had terminated
the company she had loaned money to........................................................ 10

5. Mr. Hinojosa terminated the old company to “close old debt,”
but continued to send and receive correspondence related to the
debt using the old company’s address. ........................................................ 11

iii
 6. Unbeknownst to Dr. Pampalone, Mr. Hinojosa transferred
payments on the loan to an account held in the name of the old
company that he had terminated and funded that account with
money from the new company and his own personal funds. ...................... 12

7. Three years after terminating the company to which Dr.
Pampalone had made the loan, Mr. Hinojosa stopped paying. ................... 13

F. The litigation. ......................................................................................................... 13

SUMMARY OF THE ARGUMENT ................................................................................ 14

ARGUMENT..................................................................................................................... 17

A. De Novo Standard of Review ................................................................................. 17

B. The trial court judgment should be reformed to impose liability on Eric
Hinojosa because the trial court erred in failing to impose alter ego
liability based on its factual findings and the undisputed evidence. ...................... 17

1. The trial court correctly found that Eric Hinojosa completely
owned and controlled both companies during the relevant time
periods. ........................................................................................................ 20

2. The trial court correctly found that Eric Hinojosa commingled
personal and corporate assets and obligations............................................. 22

3. Limiting liability would work an injustice because it is
undisputed that Eric Hinojosa emptied the original debtor to
make a new company without telling anyone. ............................................ 25

4. The requirement of fraud is established by the trial court’s
findings and the undisputed evidence at trial because the
findings and undisputed evidence established as a matter of law
(a) a fraudulent transfer under Tex. Bus. & Com. Code §
24.006(a), and (b) that Eric Hinojosa intentionally used the
companies to deceive his creditor for his personal benefit. ........................ 27

a. Eric Hinojosa effected a fraudulent transfer under Section
24.006 of the Texas Business and Commerce Code ........................ 28

b. Eric Hinojosa used the companies to deceive his creditor
for his personal benefit ..................................................................... 30

C. The proper remedy is to reform and render the judgment. ..................................... 32

iv
CONCLUSION ................................................................................................................. 33

PRAYER ........................................................................................................................... 33

CERTIFICATE OF SERVICE .......................................................................................... 35

CERTIFICATE OF COMPLIANCE ................................................................................ 36

APPENDIX ....................................................................................................................... 37

v
 INDEX OF AUTHORITIES
Cases

Castleberry v. Branscrum, 721 S.W.2d 270 (Tex. 1986) ..................... 18, 19, 28, 30

Dick’s Last Resort of West End, Inc. v. Market/Ross, Ltd., 273 S.W.3d 905 (Tex.
App.—Dallas 2008, pet. denied) ..........................................................................30

Dodd v. Savino, 426 S.W.3d 275 (Tex. App.—Houston [14 Dist.] 2014, no pet.) .23
Farr v. Sun World Savings Ass’n, 810 S.W.2d 294 (Tex. App.—El Paso).... 20, 28,
30, 32
Harco Energy, Inc. v. Re-Entry People, Inc., 23 S.W.3d 389 (Tex. App.—Amarillo
2000, no pet.) ................................................................................................. 20, 28
Mancorp, Inc. v. Culpepper, 802 S.W.2d 226 (Tex. 1990) ............................. passim
MBR & Associates, Inc. v. Lile, 02-11-00431-CV, 2012 WL 4661665, (Tex.
App.—Fort Worth Oct. 4, 2012, pet. denied) ......................................................22
Phillips v. Carlton Energy Group, LLC, No. 12-0255, 2015 WL 2148951 (Tex.
May 8, 2015) ............................................................................................. 1, 17, 18
Remington Arms Co., Inc. v. Luna, 966 S.W.2d 641 (Tex. App.—San Antonio
1998, pet. denied) .................................................................................................17
Schlueter v. Carey, 112 S.W.3d 164 (Tex. App.—Fort Worth 2003, pet.
denied) ........................................................................................................... 22, 23
Spring Street Partners-IV, L.P. v. Lam, 730 F.3d 427 (5th Cir. 2013) ...................30

SSP Partners v. Gladstrong Investments (USA) Corporation, 275 S.W.3d 444
(Tex. 2008) .................................................................................................... 26, 27

Cappuccitti v. Gulf Industrial Products, Inc., 222 S.W.3d 468 (Tex. App. —
Houston [14th Dist.] 1994, no pet.)............................................................... 24, 25
Stewart & Stevenson Services, Inc. v. Serv-Ttech, Inc., 879 S.W.2d 89 (Tex.
App.—Houston [14th Dist.] 1994, pet denied) ....................................................19

vi
Statutes

Tex. Bus. & Com. Code § 24.006(a), and (b) ........................................ iv, 27, 28, 37

Tex. Bus. Org. Code § 11.052 ......................................................................... 31, 37
Tex. Bus. Org. Code § 11.356 ................................................................... 26, 31, 37

Tex. Bus. Org. Code § 21.223 ......................................................................... 19, 37

Texas Civil Practice and Remedies Code § 51.012 ...................................................2
Rules

Tex. R. App. P. 43.3.......................................................................................... 32, 37
TEX. R. APP. P. 9.4(e) ...............................................................................................36
TEX. R. APP. P. 9.4(i)(1) ...........................................................................................36
Texas Rules of Appellate Procedure 38.1, 39.1, and 39.2 .........................................1
Other Authorities

6 McDonald & Carlson Tex. Civ. Prac. App. Prac. § 33:10 ...................................32

vii
 STATEMENT OF THE CASE
Nature of the Case: Cross-Appellant, Barbara Pampalone, sued Appellant,
Austin Capital Collision, LLC and Cross-Appellee, Eric
Hinojosa, for breach of contract.

Parties: Cross-Appellant/Plaintiff is Barbara Pampalone

Cross-Appellee/Defendant is Eric Hinojosa

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 Barbara Pampalone and against
Austin Capital Collision, LLC. The trial court found that
Eric Hinojosa was not individually liable under the
theory of piercing the corporate veil alleged by plaintiff.
Austin Capital Collision, LLC and 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.

STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rules of Appellate Procedure 38.1, 39.1, and 39.2, Cross-

Appellant requests oral argument before this Court of Appeals. Cross-Appellant

believes oral argument will assist the Court, as this appeal requests that this Court

apply the standard of review adopted very recently by the Texas Supreme Court in

Phillips v. Carlton Energy Group, LLC, No. 12-0255, 2015 WL 2148951, at *15

(Tex. May 8, 2015) in determining whether the trial court erred by not piercing the

corporate veil.
 STATEMENT OF JURISDICTION

This Court has jurisdiction of this appeal pursuant to Texas Civil Practice

and Remedies Code § 51.012.

ISSUE PRESENTED
1. Whether the trial court erred in refusing to pierce the corporate veil and

hold Eric Hinojosa individually liable for breach of contract.

2
TO THE HONORABLE THIRD COURT OF APPEALS:

STATEMENT OF FACTS
This case presents the precise factual scenario that the alter ego doctrine was

created to prevent. This is a story about a businessman, Eric Hinojosa, who found

himself mired in debt that he did not want to pay, whose business was flagging,

and who saw a simple way out: to go down to the Texas secretary of state, create a

new LLC, and walk away debt-free, with his business still intact. 2RR:111-12,

124-25, 175-76, 217-19, 222-24, 232-34; PX-5; PX-14; Appx:2, ¶29. And at least

one of Eric Hinojosa’s creditors—Barbara Pampalone, a semi-retired dentist who

obtained a second mortgage so that she could make an $80,000 loan to Mr.

Hinojosa’s first company—was none the wiser. 2RR:52-53. But, hiding behind

his new LLC, Eric Hinojosa now claims that he owes Barbara Pampalone nothing.

A. Overview and the parties.

The parties to this appeal—Barbara Pampalone and Eric Hinojosa—have

known each other since Eric Hinojosa was just a boy. 2RR:53-54. Dr. Pampalone

is a widow and semi-retired dentist who has been living in Chatsworth, California

for almost 40 years. 2RR:52-53; Appx:2, ¶6. Dr. Pampalone’s youngest child,

Erik Pampalone, and Eric Hinojosa were childhood friends—they went to

elementary and high school together before Mr. Hinojosa moved to Texas with his

family. 2RR:95-96. Erik and Eric remained close and, in approximately 2003,

3
they went into business together. 2RR:54-55, 96-97; Appx:2, ¶7. That business

was an auto body repair shop known as “Capital Collision.” Appx:2, ¶7. In 2005,

Dr. Pampalone loaned Capital Collision $80,000. Appx:2, ¶9. In accordance with

the terms of the agreement between Dr. Pampalone and the company, the company

immediately began repaying the loan. Appx:2, ¶18.

Two years later, in 2007, Erik Pampalone exited the company completely,

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

loan as agreed for another 6 years. 2RR:13; Appx:2, ¶¶22, 23, 27, 31. Only—

unbeknownst to Dr. Pampalone— the company she loaned the money to in 2005

was terminated by Eric Hinojosa in 2010, but not before Mr. Hinojosa had first

formed a new company (still run exclusively by him) in 2009 to take over the

business and assumed name of the old company. PX-20; PX-24; Appx:2, ¶¶30, 24,

26, 29. Eric Hinojosa never told Dr. Pampalone that he had terminated the

company she had loaned money to—and he certainly did not tell her that the

reason he was terminating that old company was to “close old debt.” 2RR:175-76;

Appx:2, ¶28. Instead, he kept the old company’s bank accounts open, funded those

accounts with money from the new company and with his own money, and

continued to quietly repay the loan to Dr. Pampalone until the statutory wind up

period for the old company had expired, leaving Dr. Pampalone with, presumably,

no one to sue. 2RR:194-203, 248-49; Appx:2, ¶¶29, 31, 33. Dr. Pampalone had

4
no reason to ever suspect anything was amiss until, in April 2013, the monthly

payments ceased. Appx:2, ¶37; Appx: 8.

B. The business: Capital Collision.

The business, Capital Collision, was formed by Eric Hinojosa in

approximately 2002 and was structured as two corporations—Hinojosa Auto Body

& Paint Inc. (Nevada) and Hinojosa Auto Body & Paint, Inc. (Texas)—operating

as a general partnership—Capital Collision, GP—and had an assumed name

certificate on file for and did business simply as “Capital Collision.” 2RR:97-99:

2RR:171-72; Appx:2, ¶7; PX-19; PX-24; PX-27.

Mr. Hinojosa was the president and a 50% shareholder of each of the

Hinojosa Auto Body & Paint, Inc. entities. 2RR:100-02; Appx:2, ¶7; PX-27; PX-

28; PX-29. Mr. Pampalone joined as the vice president and other 50% shareholder

of those entities. 2RR:100-02; Appx:2, ¶7; PX-27; PX-28; PX-29. Because Mr.

Pampalone was still living in California, he was not involved in the day-to-day

operations of the business. 2RR: 103.

C. The loan.

In early 2005, the business had an option to purchase the land it was

operating on but lacked the funds necessary to do so. 2RR:105, 176; Appx:2, ¶10.

Mr. Hinojosa and Mr. Pampalone, in their capacities as corporate

officers/directors, discussed the issue, and Mr. Pampalone suggested to Mr.

5
Hinojosa that he could ask his mother, Dr. Pampalone, to loan the funds to the

business. 2RR:105-06; Appx:2, ¶10. Mr. Hinojosa agreed that Mr. Pampalone

should ask Dr. Pampalone to make a loan to the business. 2RR:106, 110-11;

Appx:2, ¶10.

Accordingly, in his capacity as vice-president of Capital Collision, Mr.

Hinojosa approached Dr. Pampalone and proposed that she loan the sum of

$80,000 to Capital Collision and, in exchange, Capital Collision would repay the

$80,000 over a twenty-year period, plus annual interest at 7%. 2RR:59, 60, 106-

07; Appx:2, ¶11.

Dr. Pampalone specifically understood this to be a loan to the business—not

to her son personally—and further understood that the funds would be used for

business purposes, including the possible purchase of land. 2RR:57, 59; Appx:2,

¶12. Dr. Pampalone had previously loaned funds to Capital Collision for business

purposes in 2003 and, at the time of the loan at issue, was being repaid by Capital

Collision as agreed. 2RR:61-62; Appx:2, ¶13.

Dr. Pampalone agreed to loan the $80,000 to Capital Collision, and she

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 Capital

6
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. Dr. Pampalone had to take a second mortgage on her home in order

to advance the $80,000 to the business. 2RR:57.

Although there was no signed promissory note for the loan, the terms of the

loan were evidenced in yearly amortization schedules generated by Mr. Pampalone

on Dr. Pampalone’s behalf and sent to Mr. Hinojosa and the business. 2RR:59-60,

62; Appx:2, ¶16.

D. The payments: 94 monthly payments over 8 years.

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. 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

7
“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 that there was any

change in the bank account making the payments to her. 2RR:66, 79; Appx:2, ¶32.

Erik Pampalone began the process of leaving the business in 2006 and

formally resigned in approximately April 2007. 2RR:113; Appx:2, ¶22. After

resigning, Mr. Pampalone assisted Dr. Pampalone with oversight of repayment of

the loan, which involved corresponding by telephone and email with his friend and

former business partner, Mr. Hinojosa, and other Capital Collision employees

concerning the loan, and the payments on the loan continued following his exit.

2RR:115; PX-3; PX-3A; PX-5; PX-6; PX-8; PX-9; PX-10; PX-14; PX-15; Appx.2,

¶22.

E. The fraud.

With regular monthly payments hitting her bank account each month, as

agreed, Dr. Pampalone never suspected that Eric Hinojosa, a man she had known

since he was a child and someone she trusted, was actively defrauding her.

2RR:61, 79.

8
 1. Eric Hinojosa wholly owned and controlled Capital
Collision.

Following Mr. Pampalone’s resignation from Capital Collision, Mr.

Hinojosa became and remained the sole officer/corporate director of the Hinojosa

Auto Body & Paint, Inc. entities that comprised Capital Collision, GP d/b/a Capital

Collision. 2RR:173; Appx:2, ¶23. Capital Collision became, according to Mr.

Hinojosa’s own testimony, “essentially just [him].” 2RR:173. And that company

continued to repay the loan to Dr. Pampalone as agreed and exactly as it had been

doing. 2RR:67, 113; PX-3; PX-3A; Appx:2, ¶23. But change was afoot.

2. Mr. Hinojosa formed a new company, also called Capital
Collision, which he also wholly owned and controlled.

In June 2009, Mr. Hinojosa formed a new company, one of the named

defendants in the trial court: Austin Capital Collision, LLC. 2RR:173-74; PX-20;

Appx:2, ¶24. The new company, like the old company, was also “basically just

[him].” 2RR:174; Appx:2, ¶27. Mr. Hinojosa had a 99% ownership interest in

Austin Capital Collision, LLC (his wife holding the other 1%), and he was the

managing member. 2RR:173-74; Appx.2, ¶27. 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.

9
 3. After his new company took over the business of the old
company, Mr. Hinojosa terminated the old company.

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

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

same business as his old company, and his new company 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, Austin Capital Collision, LLC, retained

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

control of the Capital Collision Account and Capital Collision GP Account

(Appx.2, ¶29). After Austin Capital Collision, LLC, was formed, the old company

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

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

4. Mr. Hinojosa did not tell Dr. Pampalone that he had
terminated the company she had loaned money to.

Mr. Hinojosa did not tell Dr. Pampalone (or Erik Pampalone, who Mr.

Hinojosa claimed was like a “brother” to him, 2RR:241) any of this—and he

certainly did not provide her with any statutory notice that the company she had

loaned money to had been terminated and that “Capital Collision” was now being

operated as a brand new entity. 2RR:79, 127, 247. Instead, Mr. Hinojosa simply

10
continued to do business and repay Dr. Pampalone as Capital Collision, the only

name Dr. Pampalone ever knew the business by. 2RR:55; Appx:2,¶31.

5. Mr. Hinojosa terminated the old company to “close old
debt,” but continued to send and receive correspondence
related to the debt using the old company’s address.

Why the secrecy? Because the old company was failing. It had “a ton of

debt” that Mr. Hinojosa was eager to leave behind, so he terminated the old

company and formed the new company to, in his own words, “close old debt, and

whatever, from our previous company and relationships.” 2RR:175-76, 232-34.

Mr. Hinojosa testified that he took steps to wind up the old company, including

paying some debts—but not the debt to Dr. Pampalone. 2RR:236.

Instead, Mr. Hinojosa, in his capacity as the managing member of 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 Austin Capital Collision, LLC, communicated with Dr.

Pampalone and Erik Pampalone on Austin Capital Collision, LLC’s, behalf,

acknowledging the existence of the loan and 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, Austin Capital Collision,

LLC, continued to make payments on the loan. 2RR:127; Appx:2, ¶34; PX-12a,

11
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 Mr. Hinojosa change where he was sending the monthly

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

employee of 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.

6. Unbeknownst to Dr. Pampalone, Mr. Hinojosa transferred
payments on the loan to an account held in the name of the
old company that he had terminated and funded that
account with money from the new company and his own
personal funds.

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

Mr. Hinojosa switched the monthly payments on the loan to the Capital Collision

GP Account. 2RR:196-98; PX-3; PX-3A; Appx: 9. Around this same time, he

also began transferring funds from the Capital Collision Account into the Capital

Collision GP Account to cover the payments coming out of that account.

2RR:193-98; PX-3A; Appx:2, ¶32; Appx: 9. Mr. Hinojosa testified that he also

put his own personal funds into the Capital Collision GP account to cover the

payments being made from that account to Dr. Pampalone. 2RR:248-49; Appx:2,

¶33. Of note, the payments from both accounts were overwhelmingly described on

the bank statements as “Barbara Pampalone Bill Payment.” PX-3A.

12
 7. Three years after terminating the company to which Dr.
Pampalone had made the loan, Mr. Hinojosa stopped
paying.

Indeed, in early 2013, paying the loan to Dr. Pampalone was just about the

only thing that the Capital Collision GP account was doing. 2RR:209-12; PX-3A;

Appx. 10. In short, Mr. Hinojosa arranged for payments on the loan to be

transferred from a bank account held in the name of a company that was still in

existence (“Capital Collision” now belonging to Austin Capital Collision, LLC) to

a bank account held in the name of company that was defunct (Capital Collision

GP) and had no assets. Appx. 9. And when he stopped paying on the loan—three

years later—the period of limited survival for the old company had expired.

2RR:212-13:18; PX-3; PX-3A; Appx:2, ¶¶37-38; Appx. 10.

F. The litigation.

When the payments ceased, Dr. Pampalone—still unaware that the company

she had made the loan to had been terminated—made demand for payment, but

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

the trial court ensued in which Dr. Pampalone sued both Austin Capital Collision,

LLC, and Eric 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; Appx.2,

¶41.

13
 The trial court found in favor of Dr. Pampalone and rendered judgment

against Austin Capital Collision, LLC, for breach of the loan agreement. 2RR:252-

53; Appx:1. The trial court did not find Eric Hinojosa individually liable for

breach of contract based on piercing the corporate veil. 2RR:253. However, the

trial court specifically found that Mr. 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 the 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, Mr. Hinojosa tried to change many of the answers he had

provided at his deposition just one month prior. Appx:2, ¶48.

SUMMARY OF THE ARGUMENT
Eric Hinojosa, Defendant and Cross-Appellee, had a company (Capital

Collision GP) doing business as “Capital Collision.” In 2009, he wholly owned

and controlled that company, and business was not good. The company had, by

Mr. Hinojosa’s own admission, a “ton of debt,” including an $80,000/20year loan

it owed to Dr. Barbara Pampalone. Mr. Hinojosa saw a clear way out: he formed a

new company (Austin Capital Collision, LLC), and this company essentially took

over the old company—it used the same assumed name (“Capital Collision”), the

14
same email address, had some of the same employees, and used the same bank

accounts. Most importantly, the new company was also exclusively controlled by

Mr. Hinojosa. In sum, he formed the new company as a way to shake the old

company’s debt.

Among the debt he sought to avoid was that of Dr. Pampalone. In a

carefully orchestrated charade, Mr. Hinojosa tried to get rid of the debt to Dr.

Pampalone by changing the source of the monthly payments on the loan to a bank

account held specifically in the name of the old company (“Capital Collision GP”),

terminating that old company, failing to provide Dr. Pampalone with notice of that

termination, and then secretly funding that old company’s account and quietly

continuing to make payments to Dr. Pampalone from that account until the

statutory period for suing a terminated entity expired, leaving her with—

presumably—no one to sue.

But Eric Hinojosa’s efforts were too little, too late. Not only did his new

company, Austin Capital Collision, LLC, assume the loan to Dr. Pampalone (as the

trial court correctly found and concluded), but, as a matter of law, Eric Hinojosa is

liable on the loan in his individual capacity, too: the trial court’s findings of fact

and the undisputed evidence establish that, as the managing member and 99%

owner of Austin Capital Collision, LLC, the separation between both companies

15
and Eric Hinojosa had ceased to exist, and Mr. Hinojosa further caused each

company to be used to perpetrate a fraud against Dr. Pampalone.

In satisfaction of this last point, the findings of fact and undisputed facts

show that Eric Hinojosa used the corporate form to intentionally defraud Dr.

Pampalone. He lulled her into a sense of normalcy as she received regular monthly

payments from “Capital Collision” for years, and without any clue that the

company for which she had mortgaged her house in order to make an $80,000 loan

had been terminated, and a brand new company had taken over. This is exactly the

type of controlling, misleading behavior that the alter ego theory is intended to

prevent.

And moreover, even if this Court concludes that Eric Hinojosa’s deceit was

not intentional, such a conclusion is not fatal to a piercing claim. Rather,

intentionality is not needed for the limited purposes of showing “actual fraud”

under the alter ego theory where the elements of the Texas fraudulent transfer

statute are also satisfied. Here, the findings of fact and undisputed facts indeed

satisfy the elements of a fraudulent transfer, as they show, more simply, that (a)

Eric Hinojosa’s new company took control of the assets of the old company, and

(b) (by Mr. Hinojosa’s own admission), the old company was insolvent at the time

of its termination.

16
 ARGUMENT

A. De Novo Standard of Review

Under Texas law, factual disputes related to the bases for alter ego liability

are questions of fact for the factfinder. Phillips v. Carlton Energy Group, LLC,

No. 12-0255, 2015 WL 2148951, at *15 (Tex. May 8, 2015). However, as the

Texas Supreme Court has recently made clear, once the factfinder has resolved

those disputes, or when the facts are not disputed, the imposition of alter ego

liability becomes a matter of law for the court. Id. 1

Where, as here, the trial court’s factual findings are adequately supported, an

appellate court should accept those factual findings as true, but review the trial

court’s application of the law to those findings de novo. Remington Arms Co., Inc.

v. Luna, 966 S.W.2d 641, 643 (Tex. App.—San Antonio 1998, pet. denied). By

contrast, in those few places where the trial court made no findings of fact, this

Court should look to the undisputed evidence presented at trial. Phillips, 2015 WL

2148951, at *15.

B. The trial court judgment should be reformed to impose liability
on Eric Hinojosa because the trial court erred in failing to impose
alter ego liability based on its factual findings and the undisputed
evidence.

1
Applying this standard in Phillips, the Texas Supreme Court both affirmed a jury verdict
finding alter ego liability, and explicitly declared that such liability was established by the
evidence as a matter of law. Phillips, 2015 WL 2148951.

17
 Here, this Court should defer to the findings of fact that the trial court did

make, which explicitly support the conclusions of law made by the trial court and

additionally support disregarding the corporate fiction and holding Eric Hinojosa

liable individually on the breach of contract claim. Phillips, 2015 WL 2148951, at

*15. And to the extent that the trial court made no finding of fact, this Court

should look to the undisputed evidence in the trial record. Id.

Courts will pierce the corporate veil and hold an individual shareholder

personally liable for the acts of a corporation where the evidence shows that a

corporation is organized and operated as a mere tool or business conduit of the

shareholder. Castleberry v. Branscrum, 721 S.W.2d 270, 271 (Tex. 1986),

superseded by statute on other grounds. The touchstone of a successful alter ego

claim is a “blurring of identities, or a blurring of lines of distinction, both formal

and substantive, between two corporations or between an individual and a

corporation.” Hideca Petroleum Corp. v. Tampimex Oil Intern., Ltd. 740 S.W.2d

838, 843 (Tex. App.—Houston [1st Dist.] 1987, no writ). In other words, a finding

of “alter ego” is justified when “there is such a unity between the corporation and

individual . . . that the separateness between the two has ceased, and holding only

the corporation or just one of the corporations liable would result in injustice.” Id.

Importantly, an alter ego relationship may be shown from the total dealings of the

18
corporation and the individual. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228

(Tex. 1990).

Since Castleberry, three elements requisite for setting aside the corporate

form and holding an individual liable on the basis of the alter ego doctrine have

emerged: (1) The defendant must have some financial interest, ownership, or

control of the corporation, Stewart & Stevenson Services, Inc. v. Serv-Ttech, Inc.,

879 S.W.2d 89 (Tex. App.—Houston [14th Dist.] 1994, pet denied); (2) There

must be such a unity between the corporation and the individual that the

separateness of the single corporation has ceased, see Tex. PJC 108.2; Mancorp,

802 S.W.2d at 228; and (3) It would result in an injustice to hold only the

corporation liable, id. 2

Furthermore, where the underlying cause of action for which the plaintiff

seeks to hold the defendant liable is based on or relates to a contract, the plaintiff

must show that the defendant: (4) Caused the corporation to be used for the

purpose of perpetrating an actual fraud; and (5) Perpetrated an actual fraud on the

plaintiff primarily for the defendant’s direct personal benefit. TEX. BUS. ORG.

CODE § 21.223(b)3; Tex. PJC 108.2. However, in this limited context, there are

2
See also O’Connor’s Texas Causes of Action, Chapter 38-F, Principal-Agent Liability, Piercing
the Corporate Veil, § 2 (2015) (outlining the three elements of an alter ego claim).
3
Section 21.223(b) of the Texas Business Organizations code provides that liability of “any
affiliate of the corporation” will be limited with respect to “any contractual obligation of the
corporation or any matter relating to or arising from the obligation on the basis that the . . .
affiliate is or was the alter ego of the corporation,” unless the plaintiff demonstrates that the

19
multiple ways in which a plaintiff can show “actual fraud,” and a plaintiff need not

necessarily prove that the defendant had an actual intent to defraud the plaintiff.

But rather, where the plaintiff can merely show that the elements of the Texas

fraudulent transfer statute are satisfied (none of which call for a particular mental

state), the actual fraud requirement of an alter ego claim is likewise satisfied.

Harco Energy, Inc. v. Re-Entry People, Inc., 23 S.W.3d 389, 393 (Tex. App.—

Amarillo 2000, no pet.).

1. The trial court correctly found that Eric Hinojosa
completely owned and controlled both companies during
the relevant time periods.

The findings of fact explicitly note that “[a]t the time of termination of the

HABP [Hinojosa Auto Body & Paint, Inc.] Entities and the formation of Austin

Capital Collision, LLC, all entities were operated solely by Defendant Eric

Hinojosa.” Appx:2, ¶29. And even Mr. Hinojosa himself expressly admitted his

exclusive control of the old company:

Q: And at the time the [old] company was terminated,
you were the sole shareholder, right?
A: Correct.
Q: And you’re also the sole officer and director?
A: Correct.
....
Q: So the company was essentially just you?
A: Correct.

“affiliate caused the corporation to be used for the purpose of perpetrating and did perpetrate an
actual fraud on the oblige primarily for the direct personal benefit of the . . . affiliate.”). See also
Farr v. Sun World Savings Ass’n, 810 S.W.2d 294, 296 (Tex. App.—El Paso), no writ).

20
2RR:173 (emphasis added).

Mr. Hinojosa further testified as to his exclusive control of the new

company, Austin Capital Collision, LLC:

Q: Now, Austin Capital Collision, LLC was formed in
June of 2009; is that correct?
....
A: Yes.
Q: And you’re the managing member of that company?
A: Yes.
Q: You have a 99 percent ownership?
A: Correct.
Q: And your wife has 1 percent?
A: Correct.
Q: So the company is, basically, you?
A: Correct.

2RR:173-74 (emphasis added).

Moreover, the trial court found that Mr. Hinojosa’s new company, Austin

Capital Collision, LLC, took control over the bank accounts of his old company,

Capital Collision GP. Appx:2, ¶29. Additionally, the trial court made the factual

finding that Mr. Hinojosa intentionally put money into one of the bank accounts

owned and controlled by Austin Capital Collision (the account held in the names of

“Eric Hinojosa” and “Capital Collision, GP”) to pay Dr. Pampalone on the loan

made to the old company. Appx:2, ¶33. These findings of fact and the undisputed

evidence supporting these findings establish, as a matter of law, that Mr. Hinojosa

had some “financial interest, ownership, or control of the corporation.” See

21
Schlueter v. Carey, 112 S.W.3d 164, 170 (Tex. App.—Fort Worth 2003, pet.

denied). In Schlueter, the Court held that the defendant exercised “control” over a

corporation where the defendant owned all of the stock in the corporation, was one

of its only two officers, and had personally signed a lease on behalf of the

corporation that was now being sued for premises liability. Id.

Applying a similar threshold for “control,” Mr. Hinojosa clearly controlled

both the old and new companies. Appx:2, ¶27. He was the only shareholder,

officer, and director of the old company, and he was the majority owner and

managing member of the new company. 2RR:173-74. Furthermore, as the

managing member of Austin Capital Collision, LLC, he controlled all of the loan

payments being made to Dr. Pampalone. These facts are very similar to those

warranting a finding in Schlueter that the defendant “controlled” the corporation

for the purposes of piercing the veil and reaching the defendant’s personal assets. 4

2. The trial court correctly found that Eric Hinojosa
commingled personal and corporate assets and obligations.

Courts look to a number of factors in deciding whether there exists such a

unity between a defendant and the corporation that the separateness of the two has

4
Other courts examining similar facts have more recently reached the same conclusion. For
instance, in MBR & Associates, Inc. v. Lile, 02-11-00431-CV, 2012 WL 4661665, (Tex. App.—
Fort Worth Oct. 4, 2012, pet. denied), the court of appeals found that the following factors
supported an alter ego finding: that the defendant’s individual property was not kept separate
from the corporation’s, that the corporation was used for the personal purpose of holding the
defendant’s home, and that “the defendant was the sole shareholder and owner of the
corporation.” Id., at *6.

22
ceased: (1) whether there is a commingling of corporate and personal funds,

Mancorp, 802 S.W.2d at 228; (2) the amount of control the individual maintains

over the corporation, id.; (3) whether the corporation has been used for individual

purposes, id.. Furthermore, evidence serving as proof of alter ego can include: (1)

“payment of alleged corporate debts with personal checks or other commingling of

funds,” Dodd v. Savino, 426 S.W.3d 275, 291 (Tex. App.—Houston [14 Dist.]

2014, no pet.); (2) “representations that the individual will financially back the

corporation,” id.; (3) “diversion of company profits to the individual for the

individual’s personal use,” id.; (4) “inadequate capitalization,” id.; and (5) “any

other failure to keep corporate and personal assets separate,” id. No single factor

or combination of factors is necessarily dispositive and the list is not exclusive.

Dodd, 426 S.W.3d at 291 (indicating that alter ego is shown from the total dealings

of the corporation, and these are some factors included among those factors that

courts examine in determining whether to pierce the corporate veil).

Additionally, the Schlueter court found the fact that the individual defendant

often referred “to himself and [the corporation] interchangeably” to be persuasive

evidence, along with other evidence, that “there was a unity between them that the

separateness of [the corporation] had ceased and [the defendant] operated the

corporation as a mere business tool or conduit for himself.” 112 S.W.3d 164, 170

(Tex. App.—Fort Worth 2003, pet. denied).

23
 The courts’ prior rulings in at least two cases should persuade this Court to,

as a matter of law, pierce the veil and hold Mr. Hinojosa individually liable. In

Mancorp v. Culpepper, a seminal Texas Supreme Court case on alter ego liability,

the Court affirmed a jury finding of alter ego liability on a breach of contract claim

where the following evidence was presented to the jury: (a) checks showing

payment of corporate debts with the individual defendant’s personal funds; (b) the

individual’s business card, which bore words that might show he considered

himself to be indistinguishable from the corporation (specifically, the card read

“Culpepper Properties, Inc., John C. Culpepper, Jr., his self”); and (c) evidence that

he had personally guaranteed the loan in question and had behaved in such a way

that showed he personally backed the loan made. 802 S.W.2d at 228.

In Cappuccitti v. Gulf Industrial Products, Inc, a case very similar to the one

at hand, Cappuccitti, the individual defendant and president of the corporation,

Minerec, had signed an agreement with the plaintiff in his capacity as president.

222 S.W.3d 468 (Tex. App.—Houston [1st Dist.] 2007, no pet.). At some point

during his time as president of Minerec, the defendant paid at least one debt of

Minerec’s with a personal check. Id. at 475. He then later transferred ownership

of Minerec’s assets to a company called Flottec, leaving the first company

insolvent and unable to pay its debt on the agreement to the plaintiff. Id. at 476.

He was the sole owner of the new company, Flottec, which was a 90% owner of

24
the old company, Minerec. Id. at 482. The court found that this, in addition to the

fact that Cappuccitti had originally backed Minerec with a personal line of credit,

sufficient for finding that the old company, new company, and individual

defendant were so intertwined that piercing the corporate veil was justified.

Cappuccitti, 222 S.W.3d 468.

Similarly, in the instant case, the findings of fact and undisputed evidence

show that Mr. Hinojosa commingled corporate and personal funds (2RR:248-49),

held two bank accounts in both his name and the company name (one in the name

of “Eric Hinojosa” and “Capital Collision,” and a second in the name of “Eric

Hinojosa” and “Capital Collision GP”) (Appx:2, ¶33), paid alleged corporate debts

with personal funds (id.; 2RR:248-49), completely controlled both companies

(Appx:2, ¶29), and admitted at trial that both companies were just him (2RR:173-

74). These facts are more than sufficient to pierce the corporate veil as a matter of

law.

3. Limiting liability would work an injustice because it is
undisputed that Eric Hinojosa emptied the original debtor
to make a new company without telling anyone.

“Where a corporate entity is owned or controlled by an individual who

operates the company in a manner indistinguishable from his personal affairs and

in a manner calculated to mislead those dealing with him to their detriment, the

corporate fiction may be disregarded in order to prevent injustice.” Mancorp, 802

25
S.W.2d at 229 (internal quotation omitted). But as the Texas Supreme Court has

explained, “injustice” does not require “a subjective perception of unfairness by an

individual judge or juror”; rather, it is merely a “shorthand reference[] for the kinds

of abuse . . . that the corporate structure should not shield—fraud, evasion of

existing obligations, circumvention of statutes, monopolization, criminal conduct,

and the like.” SSP Partners v. Gladstrong Investments (USA) Corporation, 275

S.W.3d 444, 454-55 (Tex. 2008).

In the instant case, Mr. Hinojosa’s penchant for deceit and dishonesty was

readily apparent to the trial court, which noted that Mr. Hinojosa lacked credibility,

especially in light of his attempt to change so many of his answers at trial. Appx:2,

¶48. And the trial court’s findings of fact and the undisputed evidence establish

that Mr. Hinojosa laid behind the log, maintaining regular payments to Dr.

Pampalone while silently terminating the company she had loaned the money to in

an effort to wipe away that company’s debts. Appx:2, ¶ 22-39; 2RR:175-6. Mr.

Hinojosa continued payments to Dr. Pampalone for the three-year statutory period

for winding up, made one final, lump sum payment, and then—with the old

company Dr. Pampalone had originally loaned the money to officially off the

books—disavowed the debt. Appx:2, ¶26, 33,38; 2RR:239-42; TEX. BUS. ORG. §

11.356. Because these actions were undertaken by Mr. Hinojosa, it would be

unjust to hold only Austin Capital Collision, LLC, which assumed the debt, liable.

26
 Mr. Hinojosa’s actions and conduct misled Dr. Pampalone as to the status of

the first company and her rights as a creditor. 2RR:78-79. And even the trial court

explicitly noted in its findings of facts that Barbara Pampalone had no reason to

suspect that the old company had been terminated and a new company had been

formed. Appx:2, ¶30. Further, it is undisputed that Dr. Pampalone cannot be paid

back by the old company, as that company no longer exists. As a matter of law,

these undisputed facts warrant piercing the corporate veil in order to prevent

injustice on Dr. Pampalone. Mancorp, 802 S.W.2d at 229; SSP Partners, 275

S.W.3d at 454-55.

4. The requirement of fraud is established by the trial court’s
findings and the undisputed evidence at trial because the
findings and undisputed evidence established as a matter of
law (a) a fraudulent transfer under Tex. Bus. & Com. Code
§ 24.006(a), and (b) that Eric Hinojosa intentionally used
the companies to deceive his creditor for his personal
benefit.

Section 21.223 of the Texas Business Organizations Code requires that

before the corporate form can be disregarded in a breach of contract action, a

plaintiff must establish the defendant used the corporate form to perpetrate actual

fraud for his or her own benefit. TEX. BUS. ORGS. CODE § 21.223(b). A defendant

commits actual fraud when the defendant, among other things, either (a) makes a

fraudulent transfer under Section 24.006 of the Texas Business and Commerce

27
Code, Harco Energy, Inc. 23 S.W.3d at 393;5 or (b) commits actual fraud as

defined by the Supreme Court in Castleberry, Farr, 810 S.W.2d at 297-98.

a. Eric Hinojosa effected a fraudulent transfer under
Section 24.006 of the Texas Business and Commerce
Code

Section 24.006(a) provides:

A transfer made . . . by a debtor is fraudulent as to a
creditor whose claim arose before the transfer was made .
. . if the debtor made the transfer . . . without receiving a
reasonably equivalent value in exchange for the transfer .
. . and the debtor was insolvent at that time or the debtor
became insolvent as a result of the transfer . . . .

TEX. BUS. & COM. CODE § 24.006(a).

Here, the trial court judge found, and the undisputed evidence established,

that Eric Hinojosa transferred all of the assets of his old company to the new

company without any consideration or asset purchase agreement (and, tellingly,

without informing the creditors of his old company). The transfer of assets left the

old company insolvent, to the extent it was not already. Indeed, as Mr. Hinojosa

himself explained it:

Q: You don’t have an asset purchase agreement, do you,
between Austin Capital Collision, LLC, and Hinojosa
Auto Body & Paint, Inc. Texas or Nevada?
A: There were no assets.

5
See also O’Connor’s Texas Causes of Action, Chapter 38-F, Principal-Agent Liability-Piercing the Corporate Veil,
§ 2 (2015).

28
 Q: And there’s—so there’s no asset purchase agreement
at all, is there?
A: There were no assets, no.

2RR:176.

Similarly, the trial court found that Mr. Hinojosa’s new company took

control of the assets of his old company—including the bank accounts, name,

goodwill, and general business—“although there was no formal purchase or

transfer of assets between Austin Capital Collision, LLC, and the HABP Entities.”

Appx:2, ¶29.

By his own admission, the old company was insolvent at the time Mr.

Hinojosa left. 2RR:176. Moreover, the trial court found that he in fact took over

not only the bank accounts of the old company, but essentially the goodwill of the

old company, as it assumed the same business name (Capital Collision), the same

email address, retained some of the same employees, and “operated the same

general business.” 2RR:57; Appx:2, ¶57. Accordingly, the trial court’s finding of

facts coupled with the undisputed evidence show that Mr. Hinojosa effected a

fraudulent transfer of the assets of the old company, as he (a) (according to the trial

judge’s findings), took control of those assets to use for the new company, and (b)

(by his own admission), apparently left the old company with no assets. And as if

this was not enough and although certainly not a necessary fact on this point even

Mr. Hinojosa himself stated during his deposition (introduced at trial) that there

29
was only one reason to create the new company: “to close” his “old debt.”

2RR:176.

b. Eric Hinojosa used the companies to deceive his
creditor for his personal benefit

Additionally, the findings of fact and undisputed evidence are sufficient, as a

matter of law, to set aside the corporate fiction on the grounds that Mr. Hinojosa

committed actual fraud. For purposes of piercing, actual fraud “involves

dishonesty of purpose or intent to deceive.”6 Castleberry, 721 S.W.2d at 273.

Furthermore, it does not require findings on the traditional common law elements

of fraud by misrepresentation or omission. Dick’s Last Resort of West End, Inc. v.

Market/Ross, Ltd., 273 S.W.3d 905, 908-10 (Tex. App.—Dallas 2008, pet. denied).

Fraudulent intent may be deduced from all of the facts and circumstances. Spring

Street Partners-IV, L.P. v. Lam, 730 F.3d 427, 443 (5th Cir. 2013).

The findings of fact coupled with the undisputed facts show, as a matter of

law, that Eric Hinojosa was dishonest regarding his purpose and personal

intentions for the companies’ uses, that he intended to deceive Dr. Pampalone, and

6
While “intent to deceive” is not clearly defined anywhere, in Farr v. Sun World Savings
Association, the El Paso Court of Appeals found that the following facts gave rise to “an intent to
deceive”: (1) the defendant, a mortgage company, had been transacting with a third party, Fannie
Mae, despite not conforming to government regulations for engaging in such transactions; (2) the
mortgage company was in bad standing with two other banks in town; (3) the individual
defendant operating the mortgage company did not follow Texas laws governing the accounting
and holding of funds received from plaintiff; (4) proceeds that the mortgage company received
were used to pay other obligations, including some of the individual defendant’s personal
obligations, as opposed to plaintiff; and (5) the individual defendant was “running behind,” so it
knew when it took plaintiff’s money that it would not be repaying plaintiff. 810 S.W.2d 294,
297 (Tex. App.—El Paso 1991, no writ).

30
that he did so for his personal gain. Mr. Hinojosa himself admitted that he

exercised complete control over both companies, and that the old company did not

have the money to repay Dr. Pampalone. 2RR:173-74, 176. But money was owed

to Dr. Pampalone, so Eric Hinojosa personally made deposits into a bank account

held in the old company’s name, and from that account made monthly payments to

Dr. Pampalone for up to three years following the dissolution of the old company.

Appx:2, ¶26, 33,38; 2RR:239-42. Three years, of course, is the length of time that

a domestic filing entity survives for the limited purposes of suing and being sued

following termination. TEX. BUS. ORG. § 11.356. By continuing payments on the

loan from a bank account that belonged to a defunct entity for three years

following that entity’s termination, Mr. Hinojosa was clearly hoping to nullify the

debt. Tellingly, however, Mr. Hinojosa never gave notice to Dr. Pampalone that

he was winding down his old company. TEX. BUS. ORG. § 11.052 (requiring

written notice of winding up by the corporate general partners). Furthermore, he

continued to receive her loan statements at the same email address he had always

used, even once responding to one of her inquiries from that same email address.

2RR:125-27, 223-25. Accordingly, as the trial court found, Dr. Pampalone had no

reason to suspect anything was awry. Appx:2, ¶30. In the meantime, Hinojosa’s

new company took control of the old company’s accounts, business operations,

goodwill, and employees, and continued to operate without a hitch. Appx:2, ¶29.

31
 Exactly three years after he “terminated” the old company, exactly when the

statutory wind-down and look-back period was up, Eric Hinojosa ceased all

payments to Ms. Pampalone. See, e.g., Farr v. Sun World, 810 S.W.2d 294, 297

(Tex. App.—El Paso 1991, no writ) (finding that where an individual defendant

knew or should have known ahead of time that he would not be paying a plaintiff

because the company was behind on its payments, this supported finding that the

defendant had an “intent to deceive” the plaintiff when it took plaintiff’s money).

As 99% shareholder, Eric Pampalone personally profited from his scheme,

as he essentially, and intentionally, effected his own bankruptcy completely

outside of the court system, and in the process scraped off at least one major

creditor (if not more), Barbara Pampalone.

C. The proper remedy is to reform and render the judgment.

Because the issue before the court is a question of law, rather than a question

of fact, this Court should reform and render the judgment to pierce the corporate

veil and hold Eric Hinojosa liable, rather than remand the question to the trial

court. Generally, on finding that the trial court’s judgment should be reversed, the

court of appeals must render the judgment the lower court should have rendered,

except where remanding to the lower court for further proceedings is necessary.

Tex. R. App. P. 43.3; see also 6 McDonald & Carlson Tex. Civ. Prac. App. Prac. §

33:10 (2d ed.). Here, there is nothing that must by necessity be determined by the

32
trial court, as it has made the factual findings sufficient for this Court to render a

judgment against Eric Hinojosa individually.

CONCLUSION
For the above reasons, applying the alter ego doctrine, this Court should as a

matter of law pierce the corporate veil and hold Eric Hinojosa personally liable for

the debt owed on the loan made by Ms. Pampalone to Capital Collision. The

factual findings and undisputed facts show that Hinojosa controlled both

companies, that the separation between the companies and Hinojosa had long-

ceased to exist, that it would be unjust to hold only Austin Capital Collision liable

for the debt owed to Ms. Pampalone, that Eric Hinojosa never intended to pay Ms.

Pampalone the full amount of loan at the time he formed Austin Capital Collision,

and that Eric Hinojosa effected a fraudulent transfer of assets, leaving the old

company unable to pay off its obligations.

PRAYER
For the foregoing reasons, Cross-Appellant Barbara Pampalone respectfully

requests that this Court reform and render judgment against Cross-Appellee Eric

Hinojosa individually. Cross-Appellant Barbara Pampalone further requests this

Court grant it such other and further relief to which it may be entitled in law or in

equity.

33
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

34
 CERTIFICATE OF SERVICE

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

filed the foregoing Brief of Cross-Appellant Barbara Pampalone, 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

35
 CERTIFICATE OF COMPLIANCE

I certify that the foregoing 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 7,417 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

Date: November 18, 2015

36
 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

37
APPENDIX
1
 DC BK15175 PG1024

Filed in The District Court
of Travis County, Texas

JUN 1 8 2015 Cf).
At 02/ 4-lJJ. ~M.
Velva L. Prlco, District C~rk
NO. D-I-GN-14-003207

BARBARA PAMP ALONI;, § IN THE DISTRICT COURT
§
Plaintiff, §
§
V. § TRA VIS COUNTY, TEXAS
§
ERIC IIINOJOSA AND AUSTIN §
CAPITAL COLLISION, LLC, §
§
Defendants. § 419TII 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 IS 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.

1111111111\\ 11\\\ 111\\ 11\1\ 11\11 11111 11\\111111 \\1\ 111\
004080302

50
 DC BK15175 PG1025

It is further ORDERED that Defendants take nothing.

It is further 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 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 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 \<'$ day of June, 2015.

2
 DC BK15175 PG1026

APPROVED AS TO FORM AND SUBSTANCE:

McGINNIS LOCHRIDGE
600 Congress A venue, Suite 2100

::~~~
Austin, Texas 78701
(512) 495-6065

Joe Lea L~
State Bar No. 12082000
jlea@mcginnislaw.com
Nelia J. Robbi
State Bar No. 24052296
nrobbi@mcginnislaw.com
Jordan K. Mullins
State Bar No. 24070308
jmullins@mcginnislaw.com

ATTORNEYS FOR BARBARA PAMP ALONE

APPROVED AS TO FORM ONLY:

SLATER PUGH,Ltd. LLP
8400 N. Mopae Expressway
Suite 100
Austin, Texas 78759
Telephone: (512)472-2431
Telecopier: (512) 472-0432
/~ (
./ ! Ill!
'\ /
By'. l ~"I _
Cu-,-\ .. [ " I "

Adam Pugh
State Bar No. 24044341
apugh@slaterpugh.com

3
2
 FiI;~ in The District Court
o ravlS COunty, Texas

JUL - 7 2015 (~
NO. D-I-GN-14-003207
At_ .3,'4u 0
Velva L p . () M.
. nco, District derk
BARBARA PAMPALONE, § IN THE DISTRICT COURT
§
Plaintiff, §
§
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

1111111111111111111111111111111111111111111111111111111
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, Plaintiffloaned the principal sum of $80,000.00 to the owners of

2
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."

1O.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-

I, 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."

3
 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-ll, P-12, P-12A, P-13, P-15, P-16, P-17].

E. Defendant Austill 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

4
56
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 ofthe 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.

5
57
 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 ofthe 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, OP" 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].

6
 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 of2013, 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

7
59
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,

8
60
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

9
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 oflaw deemed a finding of fact is hereby adopted as such.

10
62
SIGNED this 1~ day of July, 2015.

DWONG

11
63
3
§ 11,052, Windinfj Up Procedures, TX BUS ORG § 11,052

Vernon's Texas Statutes and Codes Annotated
Business Organizations Code (Refs & Annos)
Title 1. General Provisions (Refs & Annos)
Chapter 11. Winding up and Termination of Domestic Entity
Subchapter B. Winding up of Domestic Entity

V.T.C.A, Business Organizations Code § 11.052

§ 11.052. 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 carryon its business, except to the extent necessary to wind up its business;

(2) if the 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
Acts 2003, 78th Leg., ch. 182, § I, eff.Jan, 1, 2006. Amended by Acts 20]3, 83rd Leg., ch. 9 (S.B. 847), § 3, eff Sept. 1. 2013.

:'ole'> 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

t, 2015 Thomson Reuters. No claim to original ( .S. Govcrnmcru \\ orb
4
§ 11.356. Limited Survival After Termination, TX BUS OFW § 11.356

Vernon's Texas Statutes and Codes Annotated
Business Organizations Code (Refs & Annos)
Title 1. General Provisions (Refs & Annos)
Chapter 11. Winding up and Termination of Domestic
Subchapter H. Claims Resolution on Termination

V.T.C.A., Business Organizations Code § 11.356

§ 11.356. 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 property, 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.
§ 11.35(:;' Limited Survival After Termination, TX BUS ORG § 11.356

Credits
,\c(s 2003, 781h Leg" ch. 182, S I, eff Jan. 1.2006.

Footnotes
V. lr, ..'\.. Business Ori!ani/alions Code ~ II.lOl ct seq.
V. T. C. A., Business Organizations Code § 11.356, TX BUS ORO § 11.356
Current through the end of the 20 IS Regular Session of the 84th Legislature

(30vern!Ylent \lVork~:;,
5
§ 21,22::1. Limitation of for TX BUS ORG § 21,223

'Vernon's Texas Statutes and Codes Annotated
Business Organizations Code (Refs & Annos)
Title 2, Corporations (Refs & Annes)
Chapter 21. For-Profit Corporations (Refs & Annos)
Sllbcbapter K Shareholder Rights and Restrictions

V.T.C.A., Business Organizations Code § 21.223

§ 21.223. 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 ofthe 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, § L eff Jan, 1,2006. Amended by Acts 2007, 80th Leg" ch. 688, § 74, eff. Sept 1,2007,

,'\Oles of Decisions (2 J 3)
§ 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
6
§ 24.006, Transfers Fraudulent as to Present Creditors, TX BUS s COM § 24,006

KeyCite Yellow Flag - Negative Treatment
Unconstitutional or Preempted Negative Treatment Vacated by Gullcv v. Sunbclt Sav., F.S.IL 5th Cir.f'Tex.), June 01, 1990

Vernon's Texas Statutes and Codes Annotated
Business and Commerce Code (Refs &: Annes)
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. 1004, § 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 ofthe 2015 Regular Session of the 84th Legislature

End of Document
7
43.3. Rendition TX R !\PP Ru!e 43.3

Vernon's Texas Rules Annotated
Texas Rules of Appellate Procedure
Section Two ..Appeals from Trial Court Judgments and Orders (Ret's & Annos)
Rule 43. Judgment oftho Court of Appeals (Refs &. Annos)

TX Rules App.Proc., Rule 43.3

43.~i. Rendition Appropriate Unless Remand Necessary

Current ness

When reversing a trial court's judgment, the cOUlimust 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 R APP 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 I, 2015.
8
 CAUSE NO. D-I-GN-14-003207

BARBARA PAMP ALONE, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § TRAVIS COUNTY, TEXAS
§
ERIC HINOJOSA AND AUSTIN §
CAPITAL COLLISION, LLC, §
§
Defendants. § 419TH JUDICIAL DISTRICT

Summary 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. 08/1912005 $675.09 Checking Account No. XXXX XXXX
5. 09/2012005 $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. 01120/2006 $675.09
10. 02/17/2006 $675.09
11. 0312012006 $675.09
12. 04/2012006 $675.09
13. 05/1912006 $675.09
14. 06120/2006 $675.09
15. 07/20/2006 $675.09
16. 08/18/2006 $675.09
17. 09/2012006 $675.09
18. o 10/20/2006 $675.09
19. 11120/2006 $675.09
20. 12120/2006 $675.09
21. 01119/2007 $675.09
22. 02/2012007 $675.09
23 .: 03/20/2007 $675.09
24. 0412012007 $675.09
25. 05/18/2007 $675.09
26. 0612012007 $675.09
27. 0712012007 $675.09
28. 08/06/2007 $505.07
08/20/2007 $170.02
r- No. Date Amount Bank Account
\
29. 09/2012007 $675.09
30. 10/1912007 $675.09
31. 11/20/2007 $675.09
32. 1212012007 $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. 05120/2008 $675.09
38. 06/20/2008 $675.09
39. 07/18/2008 $675.09
40. 08/20/2008 $675.09
41. 09119/2008 $675.09
42. 10/20/2008 $675.09
43. 11120/2008 $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. 09118/2009 $675.09
54. 10120/2009 $675.09
55. 11120/2009 $675.09
56. 12/20/2009 $675.09
57. 01120/2010 $675.09
58. 02119/2010 $67S.09
59. 03119/2010 $675.09
60. 04/20/2010 $675.09 Bank of America Business Advantage
61. OS/20/2010 $675.09 Checking Account No. XXXX XXXX
62. 06118/2010 $675.09 4193
63. 0712012010 $675.09
64. 08120/2010 $675.09 Capital Collision GP
65. 09120/2010 $67S.09 Eric A. Hinojosa
66. 1012012010 $67S.09
67. 11119/2010 $675.09
68. 12/20/2010 $675.09
69. 01120/2011 $675.09
70. 02/18/2011 $675.09
03/--/2011 --
04/--/2011 --
Page 2 of3
r No. Date
051--/2011
Amount
--
Bank Account

71. 06/1012011 $675.00
72. 06/20/2011 $675.00
73. 07/20/2011 $675.00
74. 08/19/2011 $675.00
75. 09120/2011 $675.00
76. 10/20/2011 $675.00
77. 11/18/2011 $675.00
78. 12/2012011 $675.00
79. 01120/2012 $675.00
80. 02/17/2012 $675.00
81. 03/2012012 $675.00
82. 04/20/2012 $675.00
83. 05/1812012 $675.00
84. 0612012012 $675.00
85. 07/2012012 $675.00
86. 08/20/2012 $675.00
87. 09/20/2012 $675.00
88. 10/19/2012 $675.00
89. 1112012012 $675.00
90. 12/2012012 $675.00
91. 01118/2013 $675.00
92. 02120/2013 $675.00
93. 03120/2013 $675.00
94. 04/19/2013 $675.00
051--/2013
06/--/2013
07/--/2013
08/--/2013
09/--/2013
95. 10/25/2013 $6,000.00

r:
Page 3 of3
9
 H
:'.~.

Il>nk of Amer ica , !'I.A. "'.)~t-, Page I or 4
1'.0. no, 2~IIU Statement Period
"IoIIIP3. f t, n(,2~·5IllS O~.'Oi:HJ Ill: ougll U:' ~:j I\.
"0 l' I'll 0); 48 OI4UC)')
Enctosu res 0
Account ~umbcl

It :0,11 I.,!i,: ,,. III••,1,111" ,1.11:uI. IIt .1,I.: \'\11 1••1.'
I:

01059 001 SCM999 I ~ 4 0
CAPITAl, COJ,!.ISION
ERIC A HINOJOSA
4)04 BURCH DR
DEL VALLE T'l< 78617-3273

Our free Online nankiug service allow. you (0 cll.C~ balances, \tad: account ,clivily. pay bill' and more.
Willi On ltne B~nkillt: you can Dbo vi ... "I' 10 13 month. of Ibis s t nt e m e nt on line.
Enroll al www.bankefamer ic a,e onll$m.llbusin.ss.

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 lotal amount less than $10 for a day
and we transfer runds Irom 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 checkinq 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 of 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 bantcofamerlca.com/sctutlons tOday.
I
~

==J
 H

paze 2 of 4
Statement Period
CAPITAL COl.L1S10l' 02101110 thrcugh 02128110
E.RIC 1\ lIlNOJ OSA EO P Pc. OE 48
Enclosures 0 _
Account Number

Business Advantage Checking
CAPiTAL COLI.lSION ERIC A IIINOJOSA

Yuur Account ut II Gln nc e
Account Number Statement Reginning Balance 53,711.24
Statement Period 02101/10 through 02/28/10 Amount of Deposits/Credits S7,002.90
Number of Deposits/Credits I; Amount of Withdrawals/Debits SIO,501.42
Number of WithdrawalslDcbits 21 Statement Ending Ba lance $212.72
Number of Deposited Items 6
Average Ledger Balance $2,174.17
Number of Days in Cyctc 28 Service Charge SO.OO

Your account has overdraft protection provided by Line 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
Total 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)eposits nnd Credits

nte IlIt
I'o~ted Amount ($) Descrintion Reference

02104 2,022.19 Deposit 813204730657492
02/05 1,756.00 Deposit 813204730902628
02109 1,628.46 Deposit 813204730269247
~iUtl:+/I~) 3.¥.!2~1
11:*16. Deposit 813204730526383
_f)~2:.:./,/.;6~) .....;6>:.7:..'i~:O~9J.:IOnline
Banking transfer from Chk 4193 957202167505928
Confirmationa 0136551719
02119 300.00 Overdraft Protection From 68711022401299 080602190005922
02122 100.00 Overdraft Protection From 68711022401299 0806022200 I1991
02125 200.00 Bank Card Dcs:Merch Sell 10:430134840051477 902556010903684
IndniCaph al Collision Co 1D:1210001923 Ccd
 H

Page 3 0(4
SI~I"mCnl Period
CAPITAl. COLLISION 02101110 rhrouch 0212&1)0
EIlIC " HINOJOSA HI I' PE ()~ 48
CndCl$UrCS 0 _
ACCOUIII Number

Withdrawals lind Dcblts
OlItCI' Debits

Date Uank
Posted Amount (S) J)cscripi ion Reference

02101 436.45 Mitchell International Bill Pavmcnt 943202010008790
02/01 71.15 l3ankCard DcstMer ch Fccs ID:1I3013'184()OSln7 902532006926873
Indn:Capital Collision Co 1D:321U001923 Ccd
02101 6.47 Milchel! International Bill Payment ~43202010003800
02/02 39.95 Discover Network DcstScu lcmcnt 1D:601101323c;56387 902532010206729
Indn:Eric A. Hinojosa, Dba Co 10:1510020270 C~U
02/04 l,!lOO.UO Online Banking transfer to Chk 419. 957102:)47530162
Confirmntionfi 3932735010
02/04 700.00 H orne Depot Dcs:Onlinc Pint 1D:56002S980320388 902534010998444
Indn:Capitul Collision Gr Co ID:Citiccsweb Web
02/05 500.00 Ge Money Des.Payment 1O:504662UI4 152661 902535005381136
Indn:Hinojosa,Eric Co 10:1061537262 Web
02/05 200.00 Mbna Credit Cards Rill Payment 943202050008802
02/03 516.35 Exxonmobil Comm Dcs:Onlinc Pmt 10:560030703322458 902536010818361
l.ndn:Capilnl Collision Co ID:Cilioilweb Web
02109 1,600.00 Online Banking transfer to Ch k 4193 957202097591378
Confirmn tionll 03757641;44
02116 3,211.69 Online Banking transfer 10 Chic 4193 957302167513449
Confirmation# 6228127454
02116 1,146.06 2 Pawnee Lensing Des.Lease Pmt 1D:320955 902547007520285

r
Indn:Capitul Collision G.P. Co ID:3840884553 Ppd
IV> '16 Dell Commercial Credit Bill Pavment 943202160008797
943202190008795
J 080602190005923
02122 10.00 080602220011992
Card Account
02{01
02101
/I
t.Ji
8.04
905701291164022
905701290007749
02104 79.80 905702020337081
02104 43.24 905702020739800
02122 121.22 905702200677744
Subto tut 278.21

Dully Ledger Batanc es
Dale Balance (5) Date Balance ($) Dalc Balance ($)

02101 3,163.22 02108 3,862.07 02/19 43.94
02/02 3,123.27 02109 3,890.53 02/22 12.72
02/04 3,322.42 02111 4,211.69 02/25 212.72
02105 4,378.42 02/16 429.03
 • ".,
..
...
83nk of Amer ica, N .11.
P.O. DOl< 1511&
T~mp3, FL 13622·~1IS
Page I
Slatemeni
4 or
Period
02/01/10 through 02'28110
1:0 p ra
OIl 44
H

0372574

IIcCOUII' Number _

1111111•• 1..II..11,111,111•• 11... 1.1I1I.1111111.lu I.1111111:I
CAPITAL COLLISION GP
ERIC ]).HINOJOSA
4304 BURCH DR
DEL V])'LLETX 78617-3273

Our free Online nonking service 3110w. you 10 check bobncos. If.ek account .clivil),. P')' bills 3nd more.
With Onllne IIDa"ing you e un .1'0 vi.,,· up 10 III munlh, of Ihb "3Iemenl e ntln e,
Enroll r.1 www.ban).oor.:amerlca.c(.Ii1\\/tIoUlDllbus1ncss .

. ".,
"\

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 funds from 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 of 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 Amerlca®. It's easy to know whon a payment is due.

Get started at bankofamerica,com/solutions today.
 H

rage 2 of 4
SIO' tcmcn l I' er ind
CAPITAL COLLISION GI' 02101110 throuuh 0212:1110
ERIC A HINOJOSA no I' PU OU 44

Account Number _

\. :." '.' ..
I :'.- ::',

Business [.l.dv(;1n!ageCI,~cl~ing
CAPITA.L COLLISION GP ER.IC A HINOJOSA

Your Account at a Gh!R~C
Account Number __ Statement Beginning Balnnce S2,524.30
Statement Period 02101110 th~ Amount of Deposits/Credits 528,160.08
Number of Deposits/Credits 7 Amount of WithdrawalsfDebils :523,675.12
Number of Wijhdrawa ls/Debit s 38 Statement Eliding Balance S7,009.76
Number of Deposit ed items 7
Average Ledger Be lance $6,6\3.07
Number of Days in Cycle 28 Service Charge S29.95

,'""
Help &vold Overdrar. & ~ISF: Returned Item fees. use Alerts to get messages by email or text to inform yeu when you; balance Is
low. Use Ovardr<~n Protection \0 transfer available funds Irom linlced savings. credit card. or credit Iin9 to your ch:!dli;1g account to

tt ielp cover items tl12l would ollerdraw your account. Call us for details..

You r Bus in es s
Account
Na re Date
Business Advantage Checking 02-25

Bnsed on your eomblncd balance of $6.129.33, your Businoss Advantage account has boon charged a monthly maintenance foe.
You can avoid tills fetl In tho fULUr:t by m.:intainlng 535,000 in comb in ad balances.

Deposits an d Credits
ale an
Posted Amounl (S) Rescription Reference

02102 5,000.00 Online Banking advance from Loc 1299 957102027580889
Conlirmation# 3915169063
02/0'1 1,000.00 On liuc Bunking transfer from Chk 9111\ 957102047530163
Cllnlirmationll 3932735010
02f09 1,600.00 Online Banking transfer from Chk 9\1~ 957202097591379
Con firmation# 0375764844
02116 3,21 \.69 Online Banking tr ansfcr from ChI; 911S 957302167513450
Confirmation# 6228127454
02117 11,872.04 Deposit 313204830622344
02117 1,164.60 Deposit 813204830622343
02123 4,311.75 Deposit 813204730584475
"'"
H
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~".!:;

... :0 D~
PORe 3 of 4
Statement Per iod
CAPITAl. COLLISION 01' 02101!10 Ihruu:;h 02ll8l1O
eRIC A HlHO) OSA 1;0 P 1'0 011 4.\ 0312576

Withdrllwnls an d De blt s
Checks
Check Dale Balik Check Date Bank
Number A,';u\lo: (Sl Posted Reference :t:!u..,h-:r Amount {~) Po<,,,d R!:f""'cl1c~
5095 551.40 02101 l:I 301}')\l923%654 20148 2.20 02/04 813009692604239
5097° 550.00 02/12 813009892284554 20149 2352 0210S 813006892470800
5103" IS·Ul! 02/16 813009292032928 20150 92.31 02117 813009292693306
20061° 95.(0 02/03 813009392452621 20151 215.57 02117 813009292693305
20088" 340.{lO 02103 313009392452626 20\52 69.99 02111 813009692786278
20091° 12.98 02108 813001179267653I 20153 830.00 02110 813006592162010
20123° 500.I!O 02lH; 813204730039963 20154 150.00 02116 813008992748692
20129$ 71.00 02/01 813001>1:926905116 20156" 261.63 02124 813009592563760
20131" 95JiO 02/05 III 3009R92 124599 20157 178.14 02/23 813009292733366
20139" 671.25 02/0S 813003892194461 20159· 6.109.14 02122 813008992027080
20140 116.65 02102 313005992002173 20161° 2.198.63 02122 313006092750085
20141 747.:;1 02104 813009592350002 20\62 406.48 02125 813004092553813
20143° 600.('.0 02l0ll 813008792668691 20163 1.829.41 02122 813002992359349
20144 3.272.55 02/0S &13007692811653 20164 360.80 02122 813204730398781
20145 172.00 02/08 813008792910492 20170" 192.57 02f26 813009992586446
20147° 64.88 ()2112 813009992791685

Of h er Debits

Dale Bank
Posted Amount (S) DcscriQI ion Reference
02104 303.00 Oal;! Check DesRcdcpchcek ID:020085 902535001904590
IndnCapiral Collision Gp Co 10:1261961596 Rck
02104 32.48 Data Check Des:NSF Fee 10:020085 902535001904592
Indn:Capital Collision Gp Co 10:1261961596 Ppd
02109 400.00 Online Bunking ~~~mcnl to l.oc 1299 957302095105249

Q"f!6 ti7~ 02 8~1~;mJ:!~ok,,;fn,,<;: m!?~QChk QI13 I 957202167505927
Conlirmationfl 01365517]9
02125 663.31 Trail Creek love Dcs:Note Pmt ID:Capilal Collis; 902555005209896
In dn .Cnpital Collision Co 1D:3262646872 Ccd
02126 600.00 Millin Line Of Credit Bill Payment 943202260005105
02126 29.9$ MOlllhly Maintenance Fee

Total OVerdl'aCt Fees nud NSF: Returned Item Fees

:.l'oll!! 101' Total
"'h'
1 IS P crro
. d Y"nt.to·Dat
Total ver dr a It Fees SO.OO $35.00
Total NSF: Returned Hem fee' SO.OO s 05.00

Udly Ledger Balances
Date /3;! la nee (S) D:nc Balance (S) Dale Balance (S)
02101 1,896.40 02/09 2,611.96 02f18 15,528.07
02f02 6,779.75 02/10 1,781.96 02122 5.030.09
02103 6.344.75 02111 1.711.97 02123 9.163.70
02104 6.259.26 02112 1,097.09 02124 8.902.07

r
02105 6,164.26 02116 3,299.31 02125 7,832.28
02108 1,411.96 02117 16.028,07 02126 7.009.76
 H
~
I(
Balfli~{at America .....
'-
Bank of America, N.A. ~ I'asc I of 4
I'.0. Box 2~us ':tIr' Statement Period
Tamp'. ~'L 33622·5118 03/31/10
03101{1O through
EO P PE OE 43 0132656
Enclosures e _
Account Number

11,"11 ••1.. 11"111 111... 1••1111.1.11,"11111.1.1 .. 1.1.. 1••1.1

CAPITAl. COLLISION
ERIC A HINOJOSA
4304 BURCH DR
DEL VALLE TX 78617-3273

Our free Online Bank in g service nllow$ you to check bala nces, rr ack account activitjl. pay bills and more,
Willi Online IInnldnll you can o!so vlew uplo la t""ntln or tllll ,taum"nl online.
Enroll Ot www.b:\nkofamcrica.com/smallbu$incu .

-, ""
\.

BUsiness Advantage Checking
CAPITAL COLLISION ERIC A HlNOJOSA

______________________________ ~~~u~I~lt~n~t~n~G~,~ln~n~c~e------------------ ___
Account Number Statement Beginning Balance $212.72
Statement Period 03/01110 through 03/31/10 Amount of Deposits/Credits SI4.318.31
Number of Deposits/Credits 5 Amount of Withdrawals/Debits $)4.531.03
Number of Withdrawals/Debits 8 Statement Ending Balance SO.OO
Number or Deposited Items 0
Average Ledger Balance 5961.76
Number of Days in Cycle 3) Service Charge SO.OO

Your account has overdral\ pr ot ect ion provided by Line of Credit number 6871 1022401299.

~
\
 H
~
\. Page 2 of 4
Statement Period
CAI'ITAL COLl.ISION 03/01/10 through 03131110
FoRIe A HINOJOSA EO P PI! OE 48
Enclosures 0 _
Account NUll1ber

Your Business Advnnt:lge Pricing Relationship
Account Account QualifYing Type of
Name Number Balance S Ba lance D te
Business Advantage Checking 922.81 Average 03-30
Total Qualifying Balance $922.81

Please note that the balances in your account(s) are below the minimum required to avoid the monthly maintenance 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 benefits that Come with your Business Advantage account, but
the monthly maintenance fee will apply. Please call us at the number listed above If you have questions about your account.

Deposits and Cre dtts
ate an
Posted Amount (S) Description Reference
03/04 2,658.42 Sf Mutual Des:A25SroOOI lD:xxxxx6250Ka0301 902562006583464
lndn.Capttnl Collision Co 1D:9A25Sro001 Ccd
Pmt In fo:Nte"zzz*xxxxx6250K a0301 1370533100
\
03/17 2,797.16 Sf Mutual Dcs:A25SfOOOI ID:xxxxx1236Ka0312 902575003591285
ludnCapit al Collision Co 1D:9A25SfO001 Ccd
Prnt 1nfo:Nlc"zzz·xxxxx 1236Ka03121370533100
\
18 7,316.73 Sf Mutual Des:A25SroOOI ID:xxxxx17S4Ka031S 902576008234102
Indn:Capital Collision Co ID:9A25SroOOl cea
Pmt Info:Nte$zzz*x.xxxx 1784Ka031513705331oo
\
03/26 805.00 Bank Card Des:Merch Setl ID:430134840051477 902585006694446
Indn:Capital Collision Co ID:1210001923 Ccd
03/29 741.00 Online Banking transfer from Chk 4]93 957303297562545
Confirmation# 5288477014
Wlth dra wa ls and Debits
Other Debits
Date Bank
Posted Amount (S) Dcscr int ion Reference
03/01 67.85 Bank Card Dcs:Merch Fees 10:430134840051477 902560012434131
indn:Capilal Collision Co ID:3210001923 Ccd
03/02 89.90 Discover Network Dcs.Sctt lcment 10:601101323656387 902560015685838
Indn:Eric A. Hinojosa, Dba Co 10:1510020270 Ced
03/04 794.00 Home Depot Dcs:Online Pmt 10:560053172331112 902562007188203
Indn:Cnpilal Collision Gp Co ID:Citiccsweb Web
03/08 100.00 Mbna Credit Cards Bill Payment 9432030S00088()4
03118 11,342.43 Online Banking transfer 10 Chk 4193 957203187554340
Confirmat iouu 0692331669
03126 805.00 Online Banking transfer to Chk 4193 957103267571096
Confirmationll 3762903721
03/31 741.00 Home Depot Dcs:Online Prnt 10:560076464300917 902589010785632
Card Account ##
•• I111••••• W'dlp.Fa Pital Collision Gp Co 1D:Citicesweb Web
03/17 S90.8S Check Card 0316 Enrerpeise Rcnt-A-Cnr 90570':11(d UW>29
"
H

"
Page 30f4
Statement Period
CAPITAl. COI.L1SION tl3/01110 Ihrough 03131110
ERIC A HINOJOSA EO I' PE OF. 48
Ilnc10surcs ()
Account Number

Withdrawals and Debits - Co n t lu ucd
Ot h er Debits

Date Bank
Posted Amount (S) Description Reference

Suhtolul 590.85

Daily Ledger Balances
Dale Balance ($) Date Baln nce ($) D:J.tc Balance ($)

03/01 144.87 03/01l 1.819.39 03/29 741.00
03/02 54.97 03117 4,025.70 03/31 0.00
03/04 1,919.39 03/18 0.00
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B.nk of Amodeo, N.A. rage I of4
1'.0. Box 25118 Statement Period
1·"mI'3. FL 33622·5 lIS OllOl/11l through 03131/10
ue P PB Oil 44 03.18980

Account Numb., _

11'1\11"1.. 11",, ,111... 1.,II! ,.I,lIull .. ll. I. 1,.1.1.. 1.. 1.'
o l05~ 001 SG!~39 ri 0

CAPITAL COLLISION GP
ERIC A HINOJOSA
4304 BURCH DR
DEL VALLE TX 78617-3273

Our (ree: Online Bank ing service aUnw$ yun (0 check bulances, tr3ck account ;lcliv1ly. P3Y bills and mor e.
With O"lIne Banking you CUD ~h(\ vi~,y up 10 18 months or Ihis SlQI~mcnl .. nl\n~.
Enroll at www.b;.nl:of3mCTica.co.nlsmallbusiM.~.

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Business Advantage Checking
CAPITAl. COLLISION Gl' ERIC A HINOJOSA

al a Glance
Account Number Statement Beginning Balance 57,009.76
Statement Period 03/011 Amount of Deposits/Credits 516.351.41
Number of Deposits/Credits Amount of Wilhdrawals/Debits 521;525.79
Number of Withdrawals/Debits Statement Ending Balance SI,841.38
Number of Deposited Items
Average: Ledger Balance 53.195.62
Number of Days in Cycle 31 Service Charge 529.95

Help avoid Overdraft & NSF: Rcwmcd Item fees. Use Alerts to get messages by email or text to inform you when your balance is
low. Usc Overdraft Protection to transfer available 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.
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1"1:" 2 of ..
Sli1h:menl Petiod
CAPITAL COLLISIOr. or 0"01110 IhrouSh O~lJlIIO
!;RIC A IIINOJOSA 1:0 I' PO OU "-1

Account Number _

Account Account Q\'al:fy:ns Type of
Namt: I urn rer Bu lancc S 13"I;'ncc Date
Business Advantngc hccking 3.532.49 Average 03-30
l'otnl Qunllfying Blljanc~ :S3,SB2.t.lS

6as~d on your combined batsnee o~ $3,582,119, :!Ilur Business Advllnt;:::ga acecum has been chDrgcd n monthly matntcnance 'e~,
You cl:n avoid (his ra:: in tho rutura by maintaining S35.001) in combinctl balances.
-----
Deposit:i ,:nit Credits
ate 13allt<
I'o~tcd Amount ($) Desctinrion Reference

03/0S 497.50 Deposit 813204730856293
oms 11.342.43 Online Banking transfer from Chk 9118 957203137551\341
Conlirmation# 0692331669
0)/22 2.593.20 Deposit 313204730423785
03/23 319.20 Deposit 813204730616062
03/26 805.00 Online Banking transfer fro", Chic 9118 957103267571097
Confirmationll 3762903721
0)/29 300.08 Dcposir 813204730042952

Witbdra'll'als an d Debits
Chedts
Check Dale Bank Cheek Dale Bank
Number Amount ($) Posted Reference Number Amounl (~) Posted Reference
5101 557.40 03/01 813008992394512 20172 213.10 03/02 SI3003092277479
...... ..,;.l~IR~t.,i:-I:-
201~0&
gggg~8~~ci~~
~l~~2'*R~;i-..;!8~~f*'J1~1
iH.60 ~M9 813009692184126
I~ 20173
20174
20175
434.51
15.00
500.00
03/01
03/04
03/23
813008992065404
813009892820470
813009792480484
20167" 219.96 03/01 813006192752812 20176 10,113.89 03/19 &13008992770587
20169° 1,142.98 03/01 313006192220154 20177 623.77 03/25 N132047306731i3
20171" 330.00 03/01 813008792863716

Otber Oebits
Date Bank
Posted Amount (S) Descrinl ion Reference

0)101 100.00 3 Pawnee Le3sing Destt.easc Prnt 10:320955 9025611009530707
lndn.Cnpit al Collision G.P. Co 1D:4R40884553 Ppd
03102 400.00 Bank of America. Line of Credit Dill Payment 943203020005110
03/04 500.00 Gc Money Des.Payment 10:504662014152661 902562Cl06293580
Indn.l l inojosa.Hr ic Co 1D:I061537262 Web
03/11 9\.37 3 Pawnee I,c:lsio~ Des.Lease Pmt ID:320955 ')02569012439754
ln dn.Capltn l Colhsion G.P. Co 1D:4S408S4553 Ppd
03115 1,146.06 2 Pawnee Leasin~ Des.Lease Prnt 10:320955 902574003359778
Inrln:Capital Collision G.P. Co 1D:3340884553 Ppd
03/16 100.00 Dell Commercial Credit Bill Payment 943203160005104
03125 663.31 Trail Creek love Des-Note Pmt ID:Capilal Collis; 902583009909906
lndn.Capitul Collision Co 10:3262646&72 Cell
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SUlo,oenl Per iod
CAPITAL COLLiSION GP 03101110 through 03131110
ERIC A HINOJOSA EO P Pil I)U 44 0)48982

ACCOUIlI Number _

WithdrllwlIls and Debits - Continued
Orh er Dcbit s
Date Bank
Posted Amonnt (5) Description Reference
O~/26 600.00 Mbl1a Line Of Credit Bill Payment 943203260005108
03129 741.00 Online Banking transfer to Chk 9118 957303297562544
Con firmationtl 5288477014
03129 500.00 Ge Money J)es:Payment 10:504662014152661 902588010526693
lndntHiuojosa.Er ic Co ID:l061537262 Web
OJ/29 400.00 Bank of Arncr ica • Line of Credit Bill Paymen t 943203290005114
03/30 557.40 Marlin Lensing Bill Payment 943203300005107
03/31 29.95 Monthly Maintenance Fee

Total Ovcrdrnfl Fees lind NSF: Rct u rn erl Hem Fees

r
__
.r0'-l!.! lor ., ola.'..
TM.. Period Year-to-Dat
Total Overdraft fees SO.OO S35.00
Total NSF: Returned Item fees SO.OO S105.00

Dully Ledger Balances
Date Balance ($) Date Balance (5) Date Balance ($)
03/0J 4,174.91 03112 2,631.9~ 03/23 4,351.73
03/02 3,56UII 03/15 1,485.88 03125 3,064.65
03/04 3,046.81 03/16 1,3S5.88 03/26 3.269.65
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
03/11 3,181.94 03/22 4,532.53 03/31 1,841.38

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\. [b.nl~ of Arnerica , !'.A. .";..;:':~";~')' I'ilf.(; 1 of 0'
p.O. II"" 25118 .;.: St at cmcnt Period
Tampa, FL 331122·5113 ';";,'?!. j(, !~:-\..t:b!l u~ .~n!f)
1:0 I' PF. O£ 4~ 0\711301
nnc\O>lHc> 0
Account :'\umbcl _

(I: I:\)ulllll"12: III: :IIIIIIII,ltlh.: t"UII,I. ,I,! I!I" t,1
0309~ O~l SCMQ99 1 2 1 U
CP.?ITI\T.COLLISION
ERIC 1\ m:;OJOSA
4304 BURC:J DR
DRL VALLP. TX 78617-3273

VIII free Online H.nking service allows you In (heel ha l au eus, tr ack account act rvity, I'''Y bills "lit! 1II(I'e.
Wlill On lin e Bunl"n!: )'ou CDn III~o vlcw U!' til 13 mont:.. of tl,b st at e m e at I>nllll~.
l-:ulo11 Oll www.1.3nkof3merica.com/~manbu$jncs.s.

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Business Advantage Checking
CAPITAL COLLISION ERIC A HINOJOSA

You, Account ot 1: Glan ce
Account Number Statement Beginning Balance $0.00
Statement Period 04101/10 through 04/30110 Amount of Deposits/Credits $:;,686.37
Number of Deposits/Credits 3 Amount of WilhdrawalslDebits S8,716.32
Number of Withdrawals/Debits 6 Statement Ending Balance S29.95-
Number of Deposited Items 0
Average Ledger Bulance S9.74-
Number or Days in Cycle 30 Service Charge $29.95

Your account has overdraft protection provided by Line of Credit number 6~;71 10224012')9.

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Statement Per iod
CAPITAL COLLISION 0410t1tO Ihrou~h 04/30.'10
ERIC A HINOJOSA EO P PI; 01: 48
I!nclosures 0
Account Number

Your Bus ln cs s Advantngc Pricing Rclulionsllip
Account Account Qualifying Type: of
Name Number Balance . Balance Date
Business Advantage Checking -9.74 Average 04-29
Tut o l Qualifying Balance - S9.74

Based on your combined balance of S9.74-, your Business Advantage account has been charged a monthly maintenance tee. Vou
can avoid this fee in the future by maintaining $35.000 In combined balances.

Deposits lind Credits

ale an'
Posted Amount (S) De~cript ion Reference

04/01 70.05 Online Banking transfer from Chk 4193 957104017596899
Con flrmai ions 3813438100
04113 82.31 Online Banking transfer from Chk 4193 957304137545894
Confirmat ionn 6217702175
04119 ll,534.01 Online Ranking transfer from Chk 4193 957204197556974
Contirmat ions 156S911673

,,.
,

:( .te
Withdrawllls and Debits
Ot h e r I>cbits

B.wk
Posted Amount ($) Description Reference

04/01 70.05 BankCard Dcs:Merch Fees 10:4301348400$1477 902591009342190
In dn.Capita l Collision Co 10:3210001923 Ccd
04/13 35.00 Over druft Item Fee For Activity or 04-12 934804120008265
Electronic Transaction
04119 35.00 Extended Overdrawn Balance Charge 971404190000102
04/19 8,464.01 IRS Des:U sataxpymt 10:270050900391617 902509010633189
ln dn iCapita l Collision Gp Co 10:3387702000 Ccd
04/30 29.95 Monlhly Ml1il1t~noncc Fee
Curd Account #:
04112 11",,)1 Check Card 0410 Waterfront Restaurant 905704101027032
Su btot al 82.31

To t a l Ovcrdrnft Fees nnd NSF: Returned Item Fees

101;1\ lor T olar
, This Period Year-to-Date
! Total Overdraft Fees S70.00 S70.00
T()tal NSF: Returned Item Fees SO.OO SO.OO

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'~t?'l"
,: ' Page 3 uf 4
. Statement Period
CAl'lTAI.. COI.J.JSION ().l/OIlIO through 04/30110
ERIC A HINOI0SA EO P PE O£ 48 0128303
enclosures 0
Account Number

Daily Ledger Balances
Dale Balance ($) Dnte Balance (S)
. 04/12 82.31- 04/19 0.00
i 04/13 35.00 - 04/30 29.95 -

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1'.0. Bnx 25118 Statement Pcriod
TDm!," , FL )3('22·~1I1l iJ~·C"'(J IhIO~t:h ~'I..lO·HI
EO I' I'B 06 44 0340S1~

Account Numb er _

II" ,iI••1"II ..... lll:a!., 11'11I,ll:" 1.,11,1.1,,1tllll"l:!
n)n!?9 ot'! S~~9? ! :2 ., (\

CAP:r.TJl..L
CQI.,LISTON GP
ERIC A HINOJOSA
4304 BURCH DR
DEL VALLE TX 78617-3273

OUf free Online B:lnkiult s cr v ice a lfows you lO check batanccs, 1([tck account c:.clivily. pay bins and more,
Wltlt Online nDnhlnll yDIO e e n .1<0 ,.i~w til' to m months or Ihl~ .tDI~n,enl online.
Enr<>11 .1 ww\Y.b.n!(or.m''fic~.coml.m"lIbu.incu.

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::ttf;:f;~~}1.~f;~!~fhl{~!~~W~~:;~~ti~&f~:l:~~Y\~m~j:~i.~L;:f1::::;~t,!,:;:r.~~~~!f;:~?¥.g~l#F~~~).~::\:~k~:k~
Buslneas Advantage Checldng
CAPITAL COLJ.lSJON OP ERIC A HINOJOSA

at a GInn ce
Account Number Statement Beginning Balance Sl,841.3~
Statement Period 04101110 through 04/30/10 Amount of Deposits/Credits $15,241.47
Number of Dcposlrs/Crcdits 5 Amount of Withdrawals/Debits S]7,458.75
Number of WithdrawalslDcbits 18 Statement ~nding. Balance S375.9().
Number of Deposited hems 4
Average Ledger Balance S2,736.'J3
Number of Days in Cycle 30 Service Charge S29.95
!-I3Ip avoid Overdraft 8: NSF: Returned Item tees, Use Alens to gel messages by cmnil or text to Inform you when your balanco is
1011/.U'.le Overdraft Protection to transter available funds from lint(ed stlvings, credit card. or credit line to your chcclling account to
help cover Ite:ns that would overdraw your account. Cnl! us lor details.

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Page 2 of 4
SIDlemcnl Period
CAP 1'1 hi. COLLISION UP 04/01/10 IhrouL:h ()4130/IO
F.HIC A IlINOJOSl\ EO P I'[J 011 44

Account Number

Pl-jClr-V
Account
Name Dale
Business Advantap.c Checking 04·29

Besed on your combined balance of $2,809.84. your Businoss AdvDnt1l9~ account has been :1111rged II mOOlt:,ly Maintenance fee.
YOLI can 04/19 813009992337563 20lSI SOO.OO 04116 813204730341334

Other Debits
Date Bank
POSh-:11'.r el"Gl'rule
Thl$ a.lance $hCuld mAIClI your flCW AccOtJnl RcgiMct a.'lMC~
wItMt~'K.Ils
•.
1(O'n Su~tolol
.•.. • S =======
Upo.'1 rec:otp of your 5lat~mcnt. (f:Uctent.,., ... any. shout:J be repOftl'd 10 100 h.,/\4 Pfomj;l~ly 'n v:tth:1g:u--d In aC:Ccu1:1uct: ....'Ittl provI5!o'~S in your (1O~1t
o;)fA:call u~ .0. I~f! 'f:f~hcnc numller listed M Ihe fron1 of Ihi~ !ol\\ICr:lr."· Itl It:U uS about I'll thongs of ndd/es,!"

UCpo,J1 Agreement. \\"'CO yctJ ope!1td )'Qu" 3cccur.t. you tE:oi ..... et! " Cepc»ll tlgrcernem an:: fCQ>SdlOO'ukJ ord cg."ced Ihoa: ~'Cur lICCC\.-rn\'.'Cult! be
g:wrrnP'd by the It!fm~ cI ~e 1.1.:CUtn4'tlt~. :t~ v..e may nnu:Jld L~ rr:.>mti'llC 1(1 111i,e'.lh~l· dccurnC1\l'5 are P"" cf Ute ccnlrl)C~ ror )'Ollt deposit ,;,ccc,nrnl
a"td 9O'ICfn ~II :r;)ns~ttiOtl$ rel~ing 10 your :!rc:::(X,J~~irc.!udIf\9 :\11 ~(Y.;,!S :::nd \.wildrilWi:lIS. COpie.s:~ b-01hthe (JcPOStl ~!JtCItmtr.t .nr.d fee SChci;fut8.
\\lli(h c~Din the CU1ftml velsicn of tho let.ft!a, :tn!t; Cont:tllo~ a: )"tXJf accu-urc rc:l~N)1Y..Jup. may lJIt!' tb"..!Jinefj tal ::w banking a:n1t'f$
(lee1r(lf1'C: Tr3ns1ers: In easo or ~ro.S or '1ueslicns tslwut your electronic "Ans'et5
II you tnlnk your S12ltfl".<:Rl 01 tfc:eipt .~ WfO"l9 0:" iI yo;. ot:cd ,r.o·c i.,tormnlicn abO~ ~n tlc{.tronlC tr811srtf \c 9. ATM tt'~ns~'\icm. direct d'cpO!U\" <:;r
wjl'ldrO\'/3tS. p~ir,,·ot·SD10 transactions) en the SltHcrnr.!U (I.' receIpt. u:le&:llonu or \'lute L'S a, the atltJr(>~s artC nlJI11t:J~rIiSled on tho franc of this $t3ttn10nt
DS SOOn ~s ;YO.J ~on. Wa mUSI l1e1.:rftcm yoa "0 t~tct th3:'l 6.'l day.5 alter we. ~t!ru ~(X. the fiRS, T ~10:crner.t (:"1 wf\ic.tl thd cner or p!'cbk-n" cl'P2llrtd.
• Ttl' us YCKJr n3:M o!ltl aCCQ1:nl numb<>f.
• Cc:;cri~ tne Crto:" or the u~fe: you arc ~me ~b:)l.f.. ~rd c"plo:in .:lS CI(~Hly l!~ yw eM \'~h'1 yeu bcl~t tnc!C I!\. ~n ~rrO" c: \'thy roo ne:d I1\.Cfe
infOI.n~tiDn.
• Tell u51he dellar a-noum ollhe SU$f.l'Cted etto,.
for COf'l~\l""et accOur.\s tl$oeJ primQrily for pcr!.Cnl;ll. tamtly cr "~\.Is-ehold p.urpo~. VJi! Vtltl IflveSti9ate y~JJ cerr·p!nin~ ~!'\d will c.orreet eny errtlr
",,,,,,pUy. 1/ We :a~o mCfR than 10 bUSlno~~ d~ys (10 CDr.ndor d~~ If you ~ro , M.SS~ChUSOIlS cus10mcrl 120 llusm<:os dnys if .¥OIIuro D r.Q\v cuslomcr.
tOt elcctrQ(l;c tranSfers oc.curtlng dU1ir.g \NJ Ilrst 3.0 C:a~ "tler lhe fir:;t dCl=oSi~ is ma(ta I:') )'O.lr ur.our.:} to r!:> '·II!o. we VJ!1l 'ec.redit your :\C.Cnunt 1M tho
arno,lN yO\. thtt'lk l! '" Ctret. SO that ycu Will t"cW'c u5C ef 1l1Cmor.cy dl..;tlOg !lta! m~ it tno(,c~us to ccmptetQ cur lfl·.-eo:.ttg.lt1cn
ror lltt~r o«e&.J1"J.s. \\1!' it'Ive5tigate. aM al \Vo r,r.d \w! h.,v.: m;.r'oP. an erro". '/IC. (Itdl. 'fOJI CY.cOt;o: at It~e CcrclU~.o1l of oar ir."'C~'fC}"tt OIl
Rcp01tir.g Other ProhJotns. You mus' eA-Dmlt\U }'Otr' ~~1e'N'f.! c.utefuUy 8.r\d
Vou OfC I~ 'he Dt!.l ~·:l~tje. to dl!.COVCf
ptO!'TIptl)'. e:·CfS 2nd unauthOtlzed
u.,,,sacuOtlS on Y~.ite"'TWlt 10 ttft:: CiJ! Ir HLe ~po~it Y.'~S mtldc ot1.~ !cM:1u~td.
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Bank or Amceica, ?V.A. raga I of 3
P.O. Bolt 25118 Stat"",uut Period
'ruml''', FI, 33622·5118 05/01/13 through 05/31/13
1:.'0 t: I'll EJl 44
Account NWllber _

1111,11,,1,,11 "1111111,,, III
til

01099 EOl SC~:99!) 0

CAPITAL COLLISION GP
ERIC A HINOJOSA
4304 BURCH DR STE A4
DEL VALLE, TX 78617-3275

Our Online nanking service allows you to cheek balances, track account activity and more.
With Onlhle B:wlting you can nlso view up to 18 months of tl.is ti'Cntcment euline,
Enroll nI. www.bankofomeric3.com/smnlJbu.inQss.

Good News! In response to customer feedback we've made some changes to your statements to make
them easier to read. Soon you will notice color and graphics to highlight account details and draw
attention to notifications and special offers. Over the next rew months, a guide will be included with your
new statement that will detail the enhancements. Stay tuned!
 P.O. nll;\ 15!!~~
Customer service intorrnaticn
1'£ tf1~!jn
\Villnil'lt!ha:;..

® Customer service: 1.8S8.BUSINESS

G bankotamerlca.corn

~ Bank of Americn, N.A.
CAPITAL COLLISION GP P.O. Box 25118
ERIC A HINOJOSA Tampa, FL 3362;;>·5118
1950 nUTlA.~D DR
AUSTIN.TX 7875&5420

Your Business Fundamentals Chk
for October 1. 2013 to October 31. 2013 Account number:

Account summary
Beginning balance on October 1. 2013 $21. 79
Ii of deooshs/credrts: 1
Deposits and oll'er credits 6.050_00
------ It of \·.ilhdrawah;/deblls: 2

--.
·6.0n.20
----------.----
Checks
----- ·0.00
1/01 deposited l:ems: 0

----._--------- t! or days in cycle: 31

.-.-- ._-------------
SClViCC fecs ·0.00
-.-----
Ending balance on October 31. 2013 S50.59
Averngc ledger balance: $598.04
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CAPITAt COLLISION GP Aecount October 01. 201310 October 31, 2013

IMPORTANT INFORMATION:
BANK DEPOSIT ACCOUNTS
Cnange of address - Please call us at the telephone number listed on the front of this statement to tell us about a
chilrge of address.

Deposit agreement - \;\11enyeu opened your account, you received a deposit agreement and fee scneduts and agreed
that your account would be governed by the terms of these documents. as we may amend them from time to lime.
These documents are part of the contract for your deposit account and govern all transactions relating to your account.
including all deposits and withdrawals. Copies of both the deposit agreement and fee schedule which contain the
current version of the tenns and conditlons of your account retatlonsblp may be obtained at our banlling centers.

Electlonic transfers: tn case of errors or Questions about your electronic transfers - If you think your statement or receipt
is wrong or you need more Intormation about an electronic transfer (e.g .• ATM transactions, direct deposits or
witlldrawals, pclnt-ot-sale transactions) on the statement or receipt, telephone or write us at the address end number
listed on the front of this statement as SOOI1 as you can. We must hear from you no later than 60 days after we sent you
the FIRST statement on which the error or problem appeared.

Tell us your name and account number.

Describe the error or transfer you are unsure about, and explain as clearly as you can why you believe there is an error Of
why you need 1110reinformation.

Tell us the dollar amount of the suspected error.

For consumer accounts used primarily for personal, family or household purposes, we will investigate your complaint and
will correct any error promptly. If we take more than 10 business days (10 calendar days If you are a Massachusetts
customer) (20 business da~'s if you are a new customer. for electronic transfers occurring during the first 30 days after
the first deposit is made to your occount) to do this, we will credit your account for the amount you think is in error. so
that you will have use ot the money during the time it will tal October 01. :1013 to October 3!.. 2_0_13 ~

Deposits and other credits
Onte DosCTipticn Amount

10/22/13 Ceposlt 6,050.00

Total depcslts and other credits $6,050.00

10/02/13 CHECKCARO 1001 EXPERIAN ~CREDITREPO 877-2847942 CA .21.20
2435:1.783274003500053331\ RECURRING CKCD 5968 46357200071461i32 4635 7200
07146432
~SU~b~tQ~rn~18i~Qr~c~a~m1a~~~o\~!Oit]#DI""""""""II==========~================::====::~~i2212o
~
Tetalwithdrawalsand other debits
-.----------------------~-~~
-$6,021.20

Dally ledger balances

r Doto

lOlOl
10£02
Balanee ($I

21.79
0.59
Date

10L22
.~---.-~ B81ancc($)

61050.59
D8te

10/25
aalance{$)

50.59

'"
\ Page30( 4
C,\PITAL COLLISION GP I AcCQunt 1/ I October 01, 2013 to October 31. 2013

This page Intentionally left blanl~

page 4 of 4
11
NOTICE THIS DOCUMENT CONTAINS SENSITIVE DATA
6/8/2015 8:29:09 AM
Velva L. Price
District Clerk
Travis County
D-1-GN-14-003207
NO. D-I-GN-14-003207

BARBARA PAMP ALONE, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § TRAVIS COUNTY, TEXAS
§
ERIC HINOJOSA AND AUSTIN §
CAPITAL COLLISION, LLC, §
§
Defendants. § 419TH JUDICIAL DISTRICT

STIPULATION OF THE PARTIES

Plaintiff Barbara Pampalone and Defendants Eric Hinojosa and Austin Capital Collision,

LLC, hereby agree and stipulate as follows:

1. If Plaintiff is entitled to damages arising from default on the loan she has alleged, then the

amount of damages is $56,758.68 as of June 8, 2015. This amount is calculated pursuant to the

amortization schedule attached as Exhibit A to Plaintiff's Second Amended Petition, and is

exclusive of attorneys' fees and other pleaded for relief.

2. The attorneys' fees and costs incurred by Plaintiff through April 2015 total $44,950.30.

This amount is established by the documents Bates-labeled BP_ 000403-BP _00431. These

documents are preadmitted for the purposes of attorneys' fees testimony and the hourly rates

reflected therein are reasonable. Further, Nelia J. Robbi may testify as to attorneys' fees in lieu of

Plaintiff's designated testifying expert, Joe Lea. Ms. Robbi is qualified in all respects to present

testimony as to attorneys' fees and costs on behalf of Plaintiff and may present direct testimony in

the narrative form. This agreement shall not preclude Plaintiff from offering testimony and

evidence as to attorneys' fees incurred and/or anticipated after April 20 15.

3. Any document produced by any Party in this lawsuit and used at trial as an exhibit by any

Party shall be preadmitted; the Parties reserve relevancy objections. This agreement shall apply to

41
those documents which have been produced by the Parties as of the date of this stipulation,

4, The Summary of Payments to Plaintiffs, attached hereto as Exhibit A, is a true and accurate

reflection of the information it purports to summarize.

5, There is no signed promissory note for the loan at issue in this lawsuit.

Respectfully submitted,

McGINNIS LOCHRIDGE
600 Congress Avenue, Suite 2100
Austin, Texas 78701
(512) 495-6065
(512) 495-6093 (Fax)

.By~'~~~J\.LJ
Joe Lea '-~~
State Bar No, 12082000
llei\(f..~?m9£irll.!isla,..W.tQQm.
Nelia J. Robbi
State Bar No, 24052296
mobbila)mcginnislaw.com
Jordan K. Mullins
State Bar No. 24070308
jmullins@'!,mQginnislaw.eom

ATTORNEYS FORBARBARAPAMPALONE

SLATER PUGH,Ltd,LLP
8400 N, Mopac Expressway
Suite 100
Austin', Texas 78759

TelePh~ne (5 2)
Te1ecopi· (5 2)472~;'
47~2i~ifo
By: ..,..-=-- _. . _&.._ ....
A am Pugh
State Bar No. 24044341
i'lllYJ?Mi)slatel'pu 1m, com

2
 CJWTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served via
5
facsimile and/or electronic mail on this the ThJune 2015 on the following:

Adam Pugh
8400 N. Mopac Expressway
Suite 100
Austin, Texas 78759
(5i2) 472-2431
(512) 472-0432 fax

3
Exhibit A
 CAUSE NO. D-I-GN-14-003207

BARBARA PAl'v1}J
ALONE, § IN rm: DISTIUCT COURT
§
Plaintiff, §
§
V. § 'I'RA VIS COUNTY, TEXAS
§
BlUC HINOJOSA AND AUSTIN §
CAPITAL COLLISION, LLC, §
§
Defendants. § 419TH JUDICIAL DISTRICT

Summary of Payments to Plaintiff

.jjiJ?;i/'+, .; ;-,'n.at~',':";;:;':1;:'(:
\~~:' ::'::iL;Y~;·:!~6ib'upf;;:h,::~?:~t~~~j.:;.
1. 05/20/2005 $675.09
2. 06/20/2005 $675.09
3. 07/20/2005 $675.09 Dm lie of America Business Advantage
4. 08119/2005 .- .. $675.09 Che eking Account No. XXXX xx:xx
5. 09/20/2005 ------$675.09 911 8
6. 10/20/2005 $675.09
7. 11/18/2005 $675.09 Cap ital Collision
8. 12/20/2005 $675.09 Eric A. Hinojosa
.---- ..... ---~ .. f----
9. 01/20/2006 $675.09
10. 02/1712006 $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. 11/20/2006 $675.09
i----.---"-'----
20. 12/20/2006 $675.09
2l. 01119/2007 $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
-- --, --
 05m:¢>\' .<.;;'::~I:"'·'L~;li;b-;;{it•.•.:.L-=~~=~~13)Jj~A~(hni:nt'_:>~;.'.-"
.:~...'",-''_:;.~..'.'....~i:
09/2o/2007 ~?.5.09
10/19/2007 $675.09
----- ---- '--,-----
11/20/2007 $675.09
~-------~~--~.~
12/20/2007
.':-'----t-..:c.:...;.,----- $675.09
-_.--.---
33. 01118/2008 $675.09
34. 02/20/2008
-,---- ..-.----.
$675.09
35. 03/2012008 $675.09
36. 04118/2008 $675.09
37. OS/20/2008 $675.09
38.
"------ -
06/20/2008 $675.09
-~-.-----------
39. 07/1812008 $675.09
40. 08/2012008 $675.09
41: 09/19/2008 $675.09
__ 42_.__ . 10/20/209~ -.1~~~~92,_
43. _J.lL~Q!2008 $67~_
44. 12/19/2008 $675.09
4S. 01/20/2009 $67S.09
46. 02/20/2009 $675.09
47. 03/20/2009 $675.09
48. 04/20/2009 $675.09
49. OS/20/2009 $675.09
50. 06/19/2009 $675.09
~---
5l. 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. 0112012010 __~-$67S.09
58. 02/19/2010 $67S.09
~--~~~--r---------------
___~ ,_ 03/19/2010 $675.09 .
60. 04/20/2010 $675.09 Bank of America Business Advantage
61. OS/20/2010 $675.09 Checking Account No. XXXX XXXX
62. 06/1812010 $675.09 4193
~-----~~~----~---~~~-4
63, 07120/2010 $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. 11/19/2010 $675.09
68. 12/20/2010 $675.09
69, 01120/2011 $675.09
--"--------
70. 02/1812011 $675.09
03/--/2011
04/--/2011
-----'----- ------------
Page 2 of3

46
 ~_73 " __ 1-:';-2-:'-O/-02C-::-=11:....::.1-+
1.-::0-,::,7 -::$--=:6-'::-c7
5:-.O,-:0----j
___ 74:._.
75.
-_.-----/---.--......,...--
08119/2011 $675.00
09/20/20 1··-c1·--t------:-$-:c67-:05-.
--j---,-----j
°
76. 10/20/2011 $675.00
77. 11/18/2011 $675.00
__ .J.3: ...... I_l_2c.../2_0'--/2....... 0;.;.cll"--I-__ ..... $675.00
79. 01/20/2012 $675.00
80. 02/1712012 $675.00
81. 03/20/2012 $675.00
------:8c'-'-2'--. ----I---cO:..:c.:4/·20/2012 $675.00
1---_ 8_3 . -t--:c-0 5-;-;/1::-:8-;:/2-::0-,12:--+
__ --=$::-::6:-,::,7
5,:-,-'0:-::0
__
84. 0612012012 $675.00
85. 07/20/2012 $675.00
86. 08120/20'--':1'':-2-1-----::-$--:-:67=-'=5-'-::.0--:.--0---1
..
87 ....__ -/--0,-,,::9.:.,-,12-::0/,-:::-2--:.--01,-:2,.-+
__ -::$:-,:-67,::-:5:,-:.0:-,:-0----;
88. 10119/2012 $675.00
89. 11/20/2012 $675.00
f---_9:,-:0:..:.... _-+...::.:12:::.,/::.;20:.:.,:/2::..:0...::..12=--1
__ '_$675.00
91. 01118/2013 $675.00
~.----+-~-----+----~---~
92. 02/20/2013 $675.00
93. 03120/2013 $675.00
_-'9....... 4,~. ~.~0.4/...::..1~9/~20~1~3-+
...... ..~$~15.0_0__
05/ ..../2013
061 ..../2013

09/ ....12013
95. $6,000.00 10125/2013
~---------~----~~-~----------------------~

Page 3 af3

47