McCarthy v. Wani Venture, A.S.

251 S.W.3d 573, 2007 WL 1845088
CourtCourt of Appeals of Texas
DecidedAugust 30, 2007
Docket01-04-00921-CV
StatusPublished
Cited by62 cases

This text of 251 S.W.3d 573 (McCarthy v. Wani Venture, A.S.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCarthy v. Wani Venture, A.S., 251 S.W.3d 573, 2007 WL 1845088 (Tex. Ct. App. 2007).

Opinions

OPINION

GEORGE C. HANKS, JR., Justice.

Appellee, Wani Venture, A.S., successor in interest to Norgips USA, Inc. (collectively “Norgips”) filed a suit on a sworn account against several defendants, alleging of fraud and seeking to pierce the corporate veil. As of the time of trial, all of the original defendants had filed bankruptcy, had been severed out of the case, or had been non-suited, with the exception of appellant, Marcie McCarthy. Following a jury trial, the trial court rendered judgment against McCarthy for $669,957.

In six issues, McCarthy argues that (1) the trial court erred in submitting an incorrect definition of “actual fraud” in the jury charge; (2) there is no evidence that her company, Triple M Supply LLC, committed an actual fraud; (3) there is no evidence to support the damages and attorney’s fees award; (4) there is no evidence or insufficient evidence that McCarthy caused Triple M Supply to be used to perpetrate an actual fraud and did perpetrate an actual fraud upon Norgips, primarily for her own direct personal benefit; and (5) the trial court erred in finding McCarthy individually liable for the amounts that the jury found that Triple M Supply owed Norgips. We affirm.

Background

Triple M Supply’s Purchase Order

Norgips, a Florida corporation, manufactures and sells wallboard, also known as drywall or sheetrock. John Kingston, Norgips’s president, testified that, in 2000, there was a severe shortage of wallboard in the marketplace, and “people were scrambling to try to find drywall any place in the world that they could in order to supply the U.S. production.” Kingston hired Steven Klubak to be Norgips’s general manager and to monitor the Texas and Florida markets. Kingston explained that part of the reason that he hired Klu-bak was because Klubak told him that “he had this customer in Texas that was a big player that could help [Norgips] be a major factor in the Texas market.” The “big player” was Triple M Supply, LLC.

Triple M Supply was a wallboard distributor owned, in three equal parts, by Anthony Moschella, Michael Moschella (Anthony’s brother), and Marcie McCarthy (Michael’s girlfriend). Triple M Supply completed Norgips’s confidential credit application, and it was agreed that Triple M Supply would be Norgips’s sole distributor in the east Texas market. Triple M Supply prepared a purchase order for Norgips to ship approximately $1.8 milion of wallboard from Poland to the Port of Houston. Once the shipment arrived, it was stored in a warehouse in the Port of Houston, and Norgips would deliver the wallboard incrementally, in response to individual invoices from Triple M Supply. Kingston testified that it was Norgips’s intention to hold Triple M Supply liable for the full amount of the purchase order. The first delivery was placed in April 2000. Triple M Supply was slow in making payments and, in October 2000, its $108,000 check was returned for insufficient funds. Kingston testified that, after the check bounced, “the red flag went up and we started having serious concerns as to whether or not we were going to get the money that was due to us.” Kingston testified that there was “constant communication” between Klubak and Anthony Moschella regarding Nor-gips’s outstanding bills. After Norgips received a $66,000 check from Triple M Supply in late October — $42,000 less than the amount owed from the bounced check, [577]*577Kingston asked Klubak to meet with Triple M Supply to review its accounts receivables. Kingston wanted Klubak to determine what payments were due to Triple M Supply from its customers and to explore the likelihood of whether it could satisfy its debt to Norgips.

In December 2000, Anthony Moschella provided Klubak with bookkeeping records of Triple M Supply’s accounts receivables.1 From these records, Kingston discovered that there were outstanding receivables for more than $500,000. He saw that Triple M Supply’s largest customer was JTMM Construction Company.2 Based on his review of these records, Kingston learned that Anthony Moschella, Michael Moschel-la, and Marcie McCarthy had another business, Triple M Operating. Triple M Supply had apparently stopped “invoicing” customers in July 2000, and Triple M Operating had begun invoicing the customers who purchased Norgips’s wallboard. Kingston testified that he was alarmed to discover that “the people that we had our contractual relationship with, Triple M Supply, was no longer distributing our board.” Instead, Triple M Operating was distributing the board. From the accounting records provided to Norgips, there appeared to be no distinction between the various companies. Kingston testified that this discovery “immediately raised a flag” because it seemed as though Triple M Supply, which “owed a lot of money to a lot of people,” was setting up new corporations in order to continue doing business. Kingston was concerned because handwritten notes on the accounts receivables records led him to believe that these were old debts that were not going to be paid. Kingston also discovered that, during the time that it was Norgips’s exclusive distributor, Triple M Supply was actually selling a competitor’s board, while Norgips’s board sat in the warehouse.

In January 2001, Kingston and Klubak met with Anthony and Michael Moschella in an attempt to determine whether Nor-gips was ever going to be paid. Anthony Moschella again provided a copy of Triple M Supply’s bookkeeping records of its accounts receivables.3 This second set of records showed that, in the month since the previous accounts receivables records had been provided to Norgips, Triple M Supply had collected more than $50,000— none of which had been used to pay the outstanding balance it owed to Norgips. Kingston testified that Anthony Moschella reassured him and explained that “he had $470,000 of good receivables there that he would expect to receive payment on.” Anthony Moschella “pledged” the receivables to Norgips. At that point, Triple M Supply owed Norgips $504,000. Kingston was surprised to learn from Anthony Moschella at the meeting, however, that Triple M Supply had collected $150,000 from sales of Norgips’s wallboard but had diverted those funds to Mexico to another of Anthony Mosehella’s business ventures.

Within a week of the meeting, a $71,170.87 check made out to Norgips from Triple M Supply was returned for insufficient funds. Norgips’s last delivery of [578]*578wallboard to Triple M Supply occurred in December 2000. Kingston testified that Norgips sold $1,047,000 of wallboard to Triple M Supply. However, Triple M Supply had paid Norgips only $504,800, and still owed Norgips $541,850.

In February 2001, Kingston was contacted by Leeland Dykes, a stock broker. Dykes explained that he had hired a private detective and had learned that Nor-gips was owed a lot of money by Triple M Supply. Kingston flew to Houston to meet with Dykes, and he was told that Klubak, who still worked for Norgips, and Anthony Moschella had been trying to corner the wallboard market and drive up the price so that they could sell it at a premium. Kingston learned that Klubak had been brokering other companies’ wallboard and had sold more than $500,000 of wallboard from Shamrock, a Norgips competitor, while he was Norgips’s general manager. Kingston was told that Shamrock had been “stiffed” for $105,000 and had obtained a judgment against Klubak for that amount. As soon as he returned from his meeting with Dykes, Kingston fired Klubak.

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Cite This Page — Counsel Stack

Bluebook (online)
251 S.W.3d 573, 2007 WL 1845088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarthy-v-wani-venture-as-texapp-2007.