Motion for Rehearing Denied; Opinion of October 31, 2013 Withdrawn; 

Affirmed and Substitute Opinion filed January 16, 2014.

In The

Fourteenth Court of Appeals

NO. 14-12-00555-CV

MICHAEL DODD AND 3D GLOBAL SOLUTIONS, INC., Appellants

V.

BRIAN J. SAVINO, Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2011-70013

S U B S T I T U T E O P I N I O N

We issued an opinion in this case on October 31, 2013, affirming the trial 

court’s judgment. Appellants subsequently filed a motion for rehearing. Without 

changing our previous disposition, we deny the motion for rehearing, withdraw our 

earlier opinion, and issue this substitute opinion in its place.

This is an appeal from a no-answer default judgment granted in favor of 

Brian J. Savino. Appellants Michael Dodd and 3D Global Solutions, Inc. present 
2

the following four questions for review: (1) whether Dodd may be held 

individually liable under an alter ego theory of liability; (2) whether the trial court 

abused its discretion by denying their Craddock motion for new trial; (3) whether 

the trial court erred by denying their special appearance; and (4) whether the 

evidence is legally sufficient to support the award of damages and attorney’s fees. 

We affirm the trial court’s judgment.

BACKGROUND1

The controversy in this case stems from a failed investment transaction. In 

June 2011, Michael Dodd, a California resident, mailed a stock offering to two 

prospective investors: Brian Savino, a Houston native; and Augusta Energy 

Partners, a Swiss company. The offer solicited a $10 million investment in 3D 

Global Solutions, Inc., a Delaware corporation where Dodd served as president and 

CEO. At the time of Dodd’s letter, 3D Global was actively trying to expand into 

the fuel distribution business. Dodd envisioned that Savino, an experienced oil 

trader, would facilitate the corporation’s expansion efforts. 

Savino considered the offer. Between July and September 2011, Dodd 

engaged in regular telephone and email communications with Savino in Texas. The 

parties discussed the building of a business relationship, which contemplated that

Savino and Augusta would become equity investors in 3D Global, and that Savino 

would work for 3D Global as an oil trader in Houston. Dodd requested that Savino 

and Augusta each provide $150,000 in earnest money, which would be refundable 

in ten days if their transaction failed to close. Dodd also requested that Savino and 

Augusta approve the use of $1.2 million of their investment proceeds to make 

 

1 Appellants contest some of the background facts. We base this background section on 

the findings of fact issued by the trial court, discussed infra. 
3

personal payments to Dodd. Savino agreed to the proposals and wire transferred 

the earnest money payment to Dodd’s bank account in Indiana.

After receiving the earnest money payment, Dodd traveled to Houston to 

meet with Savino and continue their business negotiations. The parties went to the

Houston offices of Ernst & Young, where Savino personally engaged the 

accounting firm to perform due diligence on the proposed transaction. Dodd agreed 

to reimburse Savino one-third of Ernst & Young’s fee, with Savino and Augusta 

bearing the remaining share. In another meeting, Dodd also agreed to reimburse 

certain expenses that Savino incurred when he traveled to 3D Global’s offices in 

New York and New Jersey.

Ernst & Young performed an accounting of 3D Global and found that its net 

present value did not correspond with the representations made by Dodd. Savino 

further learned during the course of due diligence that Dodd had commingled his 

personal funds with 3D Global’s and that the corporation was not adequately 

capitalized. Based on these findings, Savino and Augusta decided not to close on 

the investment. Savino requested, pursuant to the terms of his agreement with 

Dodd, that his earnest money be returned. Dodd made repeated assurances to

Savino that his reimbursement was forthcoming. Despite his representations, Dodd 

never returned the money.

On November 17, 2011, Savino filed an original petition in Texas alleging 

causes of action for breach of contract, quantum meruit, and money had and 

received. Savino claimed that appellants had failed to return his earnest money 

within ten days of their failed investment transaction. Savino also alleged that 

appellants had failed to reimburse him for the one-third share of the Ernst & 

Young fee and for other travel expenses that they had promised to pay. Savino 

effectuated service on the Texas Secretary of State, who forwarded the petition and 
4

citation to 3D Global’s registered agent in Delaware. Appellants’ answer was due 

to be filed no later than December 27, 2011, but no answer was timely received.

2

Savino filed a motion for default judgment on January 4, 2012, and an 

amended motion on February 6, 2012. After each filing, a copy of the motion and a 

notice of hearing were served on both Dodd and 3D Global. Again, appellants filed 

no responsive pleading. After the trial court granted Savino a default judgment, 

appellants filed a motion for new trial and special appearance. In denying 

appellants’ special appearance, the trial court signed written findings of fact and 

conclusions of law, determining that specific jurisdiction was proper over both 

Dodd and 3D Global. The court overruled appellants’ motion for new trial by 

operation of law.

SPECIAL APPEARANCE

We begin with appellants’ third issue, which disputes the trial court’s 

exercise of personal jurisdiction.

A. Governing Law

A court must have personal jurisdiction over a defendant before it can issue 

a binding judgment against him. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 

1996). If the defendant is a nonresident, a Texas court may exercise jurisdiction 

over him if the exercise is authorized by the Texas long-arm statute. See Tex. Civ. 

Prac. & Rem. Code § 17.042. The supreme court has interpreted the broad 

language of the Texas long-arm statute to extend Texas courts’ exercise of 

personal jurisdiction “as far as the federal constitutional requirements of due 

 

2

The Secretary of State was served with process as agent for 3D Global on November 

28, 2011. The Secretary was separately served with process as agent for Dodd on November 30. 

3D Global’s answer was due on Monday, December 19, whereas Dodd’s was due on Tuesday, 

December 27. For the sake of clarity and ease, we refer to appellants’ answer date as December 

27.
5

process will permit.” BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 

795 (Tex. 2002). Those requirements are fulfilled if the defendant has “certain 

minimum contacts with [the forum state] such that the maintenance of the suit does 

not offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. 

v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 

463 (1940)). Minimum contacts are sufficient to support the exercise of personal 

jurisdiction if they show that the nonresident defendant has purposefully availed

himself of the privilege of conducting activities within the forum statute, thus 

invoking the benefits and protections of its laws. See id. at 319; Michiana Easy 

Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). In determining 

whether the purposeful-availment requirement is satisfied, courts consider only the 

defendant’s contacts with the forum state, and not the unilateral activity of a third 

party. Michiana, 168 S.W.3d at 785. The defendant’s contacts with the forum state 

must be purposeful rather than merely fortuitous. Id. Additionally, the defendant 

must seek some benefit, advantage, or profit by availing himself of the forum. Id.

Personal jurisdiction may be either general or specific. Zinc Nacional, S.A. v. 

Bouche Trucking, Inc., 308 S.W.3d 395, 397 (Tex. 2010). A trial court may 

exercise general jurisdiction over a defendant whose contacts with the forum state 

have been continuous and systematic. Moki Mac River Expeditions v. Drugg, 221 

S.W.3d 569, 575 (Tex. 2007); BMC Software, 83 S.W.3d at 796. When general 

jurisdiction is at issue, only the defendant’s pre-suit contacts are relevant. PHCMinden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 169 (Tex. 2007). On the 

other hand, when there is a substantial connection between the defendant’s 

purposeful contacts with Texas and the operative facts of the litigation, a trial court 

may properly exercise specific jurisdiction over the defendant. Moki Mac, 221 

S.W.3d at 585.
6

A defendant challenging a Texas court’s personal jurisdiction must negate 

every jurisdictional basis that is alleged. BMC Software, 83 S.W.3d at 793; Nat’l 

Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 772 (Tex. 1995). Thus, the plaintiff 

has the initial burden of pleading sufficient facts to bring the nonresident defendant 

within the provisions of the Texas long-arm statute. BMC Software, 83 S.W.3d at 

793; Brocail v. Anderson, 132 S.W.3d 552, 556 (Tex. App.—Houston [14th Dist.] 

2004, pet. denied). If the plaintiff fails to do so, then proof of the defendant’s nonresidency is sufficient to negate personal jurisdiction. Kelly v. Gen. Interior 

Constr., Inc., 301 S.W.3d 653, 658–59 (Tex. 2010). If the plaintiff does allege 

sufficient jurisdictional facts, then the defendant can defeat jurisdiction in several 

ways. The defendant can introduce evidence contradicting the plaintiff’s factual 

allegations, or show that the defendant’s contacts with the forum state fall short of 

purposeful availment, or demonstrate that traditional notions of fair play and 

substantial justice are offended by the exercise of jurisdiction. Id. at 659. If specific 

jurisdiction is at issue, as here, then the defendant may also show that the 

plaintiff’s claims do not arise from the defendant’s contacts with Texas. Id.

B. Standard of Review

Whether a trial court has personal jurisdiction over a defendant is a question 

of law we review de novo. Moki Mac, 221 S.W.3d at 574; BMC Software, 83 

S.W.3d at 794. When, as here, the trial court issues findings of fact and 

conclusions of law in connection with its ruling on the special appearance, the 

defendant may challenge the trial court’s factual findings for legal and factual 

sufficiency. BMC Software, 83 S.W.3d at 794. On appeal, the scope of review 

includes all evidence in the record. Vosko v. Chase Manhattan Bank, N.A., 909 

S.W.2d 95, 99 (Tex. App.—Houston [14th Dist.] 1995, writ denied).
7

We review any challenged findings by applying the same standards used in 

reviewing jury findings. Wiese v. Pro Am Servs., Inc., 317 S.W.3d 857, 860 (Tex. 

App.—Houston [14th Dist.] 2010, no pet.). When reviewing for legal sufficiency, 

we consider the evidence in the light most favorable to the finding and indulge 

every reasonable inference that supports the challenged finding. City of Keller v. 

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We credit favorable evidence if a 

reasonable factfinder could and disregard contrary evidence unless a reasonable 

factfinder could not. Id. We will conclude that the evidence is legally insufficient 

to support the finding only if (a) there is a complete absence of evidence of a vital 

fact, (b) we are barred by rules of law or of evidence from giving weight to the 

only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital 

fact is no more than a mere scintilla, or (d) the evidence establishes conclusively 

the opposite of the vital fact. Id. at 810. In reviewing the factual sufficiency, we 

consider all of the evidence and will set aside a finding only if it is so against the 

great weight and preponderance of the evidence as to be clearly wrong and unjust. 

Meehl v. Wise, 285 S.W.3d 561, 565 (Tex. App.—Houston [14th Dist.] 2009, no 

pet.). We review the trial court’s legal conclusions de novo. Greenfield Energy, 

Inc. v. Duprey, 252 S.W.3d 721, 730 (Tex. App.—Houston [14th Dist.] 2008, no 

pet.).

C. Analysis

Appellants do not dispute that their actions were covered by the Texas longarm statute. See Tex. Civ. Prac. & Rem. Code § 17.042 (nonresident may be sued 

if, in addition to other acts that may constitute doing business, he contracts with a 

Texas resident, commits a tort in Texas, or recruits a Texas resident for 

employment inside or outside of Texas). Their only contention is that they never 

established minimum contacts in the state of Texas.
8

As indicated above, the touchstone of the minimum contacts analysis is 

purposeful availment. Spir Star AG v. Kimich, 310 S.W.3d 868, 873 (Tex. 2010).

Before a Texas court may exercise personal jurisdiction over a nonresident, the 

nonresident’s contacts must show that he purposefully availed himself of the 

privileges and protections of the forum’s laws. Nogle & Black Aviation, Inc. v. 

Favaretto, 290 S.W.3d 277, 281 (Tex. App.—Houston [14th Dist.] 2009, no pet.). 

Appellants contend this standard has not been met for several reasons. Their first 

reason focuses on the conduct of Savino, who traveled to New York and New 

Jersey several times to discuss the parties’ proposed business relationship. 

Appellants argue that the trial court could not exercise personal jurisdiction 

because Savino purposefully sought to invest outside of Texas. The focus of this 

argument is misplaced. In a jurisdictional analysis, “it is only the defendant’s 

contacts with the forum that count.” Michiana, 168 S.W.3d at 785. The unilateral 

activity of Savino, the plaintiff in this case, is not controlling. Id.; Cerbone v. Farb, 

225 S.W.3d 764, 768 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

Appellants contend next that minimum contacts have not been established 

because Dodd only made a single visit to Houston, whereas multiple face-to-face 

meetings between the parties occurred in New York and New Jersey. Based on 

Dodd’s isolated trip, appellants argue that there has not been “continuous and 

systematic contact” in the state of Texas. Continuous and systematic contact is 

necessary only when a trial court exercises general jurisdiction over a nonresident, 

however. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415–

16 (1984); DENSO Corp. v. Hall, 396 S.W.3d 681, 693 (Tex. App.—Houston 

[14th Dist.] 2013, no pet.). In this case, Savino invoked, and the trial court 

exercised, specific jurisdiction, not general jurisdiction.
9

Appellants also contend that their contract with a Texas resident is 

insufficient by itself to establish minimum contacts. It is true that “an individual’s 

contract with an out-of-state party alone [cannot] automatically establish sufficient 

minimum contacts in the other party’s home forum.” Burger King Corp. v. 

Rudzewicz, 471 U.S. 462, 478 (1985). A contract is “ordinarily but an intermediate 

step serving to tie up prior business negotiations with future consequences which 

themselves are the real object of the business transaction.” Id. at 479. “It is these 

factors—prior negotiations and contemplated future consequences, along with the 

terms of the contract and the parties’ actual course of dealing—that must be 

evaluated in determining whether the defendant purposefully established minimum 

contacts within the forum.” Id.

Appellants attempt to play down the significance of their prior negotiations. 

They argue that their phone calls, emails, and correspondence with Savino are of 

little value in a jurisdictional analysis because we live in an advanced society 

where interstate communications are commonplace. Appellants cite no authority 

for this proposition, however. The law is well-established that we must examine

the quality and nature of the defendant’s contacts, not their number or the ubiquity

of their means. Am. Type Culture Collection Inc. v. Coleman, 83 S.W.3d 801, 806

(Tex. 2002). Moreover, the question before us is not whether certain of appellants’ 

contacts with Texas, standing alone, are sufficient to subject them to personal 

jurisdiction here. Instead, it is whether there is a substantial connection between all 

of appellants’ Texas contacts, considered collectively, and the operative facts of 

the litigation. P.V.F., Inc. v. Pro Metals, Inc., 60 S.W.3d 320, 326 (Tex. App.—

Houston [14th Dist.] 2001, pet. denied); see also Polythane Sys., Inc. v. Marina 

Ventures Int’l, Ltd., 993 F.2d 1201, 1206 (5th Cir. 1993); Intercarga, S.A. v. Fritz 
10

Cos., No. 14-02-00297-CV, 2003 WL 21402583, at *7 (Tex. App.—Houston [14th 

Dist.] June 19, 2003, no pet.) (mem. op.).

Appellants’ contacts with Texas are stated in the trial court’s findings of 

fact, which show as follows:

Dodd mailed an offering memorandum to Savino, a Texas resident, 

soliciting Savino’s investment in 3D Global.

Over a span of several months, Dodd engaged in multiple telephone and 

email communications with Savino in Texas regarding the proposed 

investment.

One term of the proposed investment provided that Savino would work for 

3D Global as an oil trader from Savino’s personal offices in Houston.

Dodd executed an earnest money agreement with Savino, agreeing to refund 

Savino’s earnest money payment in ten days if the investment failed to 

close.

After receiving the earnest money payment, Dodd traveled to Houston 

voluntarily for the express purpose of conducting business in Texas.

While in Houston, Dodd went to the offices of Ernst & Young, where he 

agreed to reimburse Savino for his share of the accounting firm’s due 

diligence fee.

While in Houston, Dodd also agreed to reimburse Savino for Savino’s travel 

expenses to New York and New Jersey, where the offices of 3D Global are 

located.

Appellants did not present any evidence with their special appearance 

motion controverting these jurisdictional facts. In their brief, they attack the 
11

sufficiency of only one of these findings, claiming that there is no evidence that 

appellants ever contemplated that Savino would work for 3D Global from a 

Houston-based office. This finding is plainly supported by the record, however. 

Savino testified by affidavit that his “employment as an oil trader working for 3D

[Global] from Houston was an integral part of the proposed transaction.” Savino 

also attached exhibits of email communications showing that the parties had 

negotiated Savino’s salary and job title. We therefore reject appellants’ sufficiency 

challenge. See Herbert v. Greater Gulf Coast Enters., 915 S.W.2d 866, 872 (Tex. 

App.—Houston [1st Dist.] 1995, no writ) (finding must be upheld if there is any 

evidence of probative force to support it).

The record shows that appellants engaged in many dealings over several 

months, all of which were aimed at establishing a continuing business relationship 

with Savino, a Texas resident, and employing him in Texas. Although many of 

their communications occurred by phone and email, appellants’ contacts included 

an actual trip to Texas, where the parties resumed their negotiations and executed 

contracts in furtherance of their proposed investment transaction. While appellants 

were in Texas, the parties engaged the Houston offices of Ernst & Young to 

perform due diligence on their transaction. After the due diligence revealed 

unfavorable findings, the parties’ deal fell through, triggering the disputes that led

to the instant lawsuit. We conclude that there is a substantial connection between 

appellants’ purposeful contacts with Texas and the operative facts of Savino’s 

litigation. See Burger King, 471 U.S. at 479; Moki Mac, 221 S.W.3d at 585. The 

trial court did not err by concluding that appellants had established sufficient 

minimum contacts in Texas.3

 

3 We note that specific jurisdiction should be reviewed on a claim-by-claim basis. See 

Moncrief Oil Int’l Inc. v. OAO Gazprom, No. 11-0195, — S.W.3d —, 2013 WL 4608672, at *4 

(Tex. Aug. 30, 2013). A separate analysis is not required in this case, however, because Savino 
12

Once a court determines that a nonresident defendant has minimum contacts 

with the forum state, it must then decide whether exercise of personal jurisdiction 

offends traditional notions of fair play and substantial justice. Burger King, 471 

U.S. at 476. We consider the following factors when making this determination: 

(1) the burden on the defendant; (2) the interests of the forum state in adjudicating 

the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; 

(4) the interstate judicial system’s interest in obtaining the most efficient resolution 

of controversies; and (5) the shared interests of the several states in furthering 

fundamental substantive social policies. Horizon Shipbuilding, Inc. v. BLyn II 

Holding, LLC, 324 S.W.3d 840, 851 (Tex. App.—Houston [14th Dist.] 2010, no 

pet.). Only in rare instances will the exercise of jurisdiction not comport with fair 

play and substantial justice. Angelou v. African Overseas Union, 33 S.W.3d 269, 

281 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

The defendant bears the burden of presenting “a compelling case that the 

presence of some consideration would render jurisdiction unreasonable.” Guardian 

Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 231 

(Tex. 1991). Despite this burden, appellants present no argument on this point.

As shown above, appellants are clearly capable of traveling to Texas. 3D 

Global is a large corporation with offices in more than one state. On this record, 

the exercise of jurisdiction in Texas would not impose an unreasonable burden on 

appellants. Furthermore, Texas has an obvious interest in providing a forum for 

resolving Savino’s dispute. Two of the contracts at issue here were executed in 

Texas, and the other contract contemplated the creation of a business office in 

Texas, where Savino would personally work. The breach of these contracts plainly 

 

bases each of his claims on the same set of contacts with Texas. See id. (“Of course, a court need 

not assess contacts on a claim-by-claim basis if all claims arise from the same forum contacts.”).
13

resulted in foreseeable harm to Savino, a Texas resident. We conclude that the 

exercise of personal jurisdiction comported with the constitutional requirements of 

due process. The trial court did not err by denying appellants’ special appearance.

MOTION FOR NEW TRIAL

We next consider appellants’ motion for new trial, which was overruled by 

operation of law. We review a trial court’s refusal to grant a new trial for an abuse 

of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) 

(per curiam). A trial court abuses its discretion if it acts arbitrarily, unreasonably, 

or without reference to guiding rules or principles. Downer v. Aquamarine 

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

To set aside a default judgment, a defendant must usually establish the three 

factors set forth in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 

1939). These require a showing that (1) the failure to answer or appear was not 

intentional or the result of conscious indifference, but due to accident or mistake; 

(2) the defendant has a meritorious defense; and (3) the motion for new trial has 

been filed at such a time that granting it will not cause undue delay or injury to the 

plaintiff. Id. at 126. We address only the first factor because it is dispositive.

Consciously indifferent conduct occurs when “the defendant knew it was 

sued but did not care.” Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 

571, 576 (Tex. 2006) (per curiam). This standard requires a showing of more than 

mere negligence. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 

(Tex. 1995) (per curiam). It involves behavior such as a “pattern of ignoring 

deadlines and warnings from the opposing party.” Levine v. Shackelford, Melton & 

McKinley, L.L.P., 248 S.W.3d 166, 169 (Tex. 2008) (per curiam). We look to the 

knowledge and acts of the defaulting party to determine whether the failure to 

answer or appear was intentional or due to conscious indifference. Dir., State 
14

Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994).

Generally, “some excuse, although not necessarily a good one, will suffice to show 

that a defendant’s failure to file an answer was not because the defendant did not 

care.” In re R.R., 209 S.W.3d 112, 115 (Tex. 2006) (per curiam).

The excuse. Appellants’ argument focuses on the handling of this lawsuit by 

Haytham Faraj, the general counsel of 3D Global. Faraj received notice of the 

lawsuit on December 6, 2011, three full weeks before appellants’ answer was due. 

Faraj prepared an answer and a special appearance, but he filed neither by the 

answer deadline. Faraj, who is not licensed in this state, explained in his affidavit 

that he lacked ready contacts in Texas who could file the pleadings on behalf of 

appellants. Faraj also attested that he was engaged in other matters that required 

considerable investments in time and attention. In mid-December, Faraj was 

involved in a high-profile case involving allegations of sexual assault in the 

military. As that trial was ongoing, Faraj was also preparing for another highprofile case, in which he was defending a United States marine accused of wartime 

atrocities in Iraq. This second case ended on January 24, 2012, with a plea deal that 

sparked public controversy. Hackers from the Internet group “Anonymous” were 

so upset with the plea deal that they broke into Faraj’s email account and released

more than three gigabytes worth of confidential email communications, client files, 

and financial records. Faraj claimed that this breach of security required immediate 

attention and contributed to his delay in filing an answer. According to appellants, 

Faraj “accidentally dropped the ball.”

The warnings. Savino counters with a series of events, which he argues

show that appellants knew they were sued but did not care. On February 1, 2012, 

after the answer deadline had already passed, Faraj contacted Savino’s attorney by

telephone and acknowledged that a motion for default judgment had been pending. 
15

Faraj did not request a continuance or a stay of the proceedings. He offered a 

settlement instead, but it was rejected by Savino’s attorney. Faraj said that he 

would confer with appellants and propose another offer, but he never called back.

After the phone call, Savino prepared an amended motion for default 

judgment, which was filed on February 6 and set for a hearing on February 27.

Savino served appellants with notice of this hearing, even though he had no legal

duty to do so. See Brooks v. Assocs. Fin. Servs. Corp., 892 S.W.2d 91, 94 (Tex. 

App.—Houston [14th Dist.] 1994, no writ) (“After a citation and petition are 

served on a defendant, the plaintiff has no legal duty to notify the defendant before 

taking a default judgment on the causes of action asserted in the petition.”). 

Appellants did not respond to the notice, nor did they attend the hearing. The trial 

court accordingly entered its default judgment on February 29. A full month later, 

on March 30, appellants filed their Craddock motion for new trial.

The record shows that Faraj had actual awareness of the lawsuit three weeks 

before the answer deadline, and actual awareness of the default judgment at least a

month before it was entered. Faraj prepared an answer and special appearance, but 

he never filed them. Faraj stated that he would propose a settlement offer after his 

first offer was rejected, but he never called back. Faraj also twice received notice 

of a pending motion for default judgment, yet he never responded. It was within 

the trial court’s discretion to conclude that these facts fell within the rule stated in 

Levine, where the supreme court held that a “pattern of ignoring deadlines and 

warnings from the opposing counsel amounts to conscious indifference.” See 

Levine, 248 S.W.3d at 169 (the defendants’ attorney knew of deadline to file 

answer but did not do so, despite repeated discussions with the plaintiff and 

warnings of its intention to take a default judgment).
16

Appellants claim that, because they have proffered an excuse, the analysis 

should end. We disagree. See Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 

2012) (“We do not hold that forgetfulness alone is sufficient to satisfy the first 

Craddock element . . . .”). Although “some excuse” is often found to be sufficient 

to set aside a default judgment, the supreme court has never held that any excuse 

will negate a defaulting party’s intentional or consciously indifferent conduct. R.R., 

209 S.W.3d at 115. Levine illustrates this point well. In that case, the defendants’ 

attorney requested a written standstill agreement before filing an answer, hoping 

that the parties would resolve their dispute through mediation. When the plaintiffs 

refused, the attorney promised to file an answer by the deadline, but he never did 

so. Having received no answer, the plaintiffs advised the attorney that a default 

judgment would be taken. The attorney assured the other side that he would file an 

answer by the end of the week, but again he never did so. The plaintiffs 

subsequently filed a motion for default judgment, which the trial court granted 

without hearing. On appeal, the supreme court upheld the default judgment, despite 

the attorney’s claim that he had placed an answer in his outgoing mail bin four 

days before the default judgment was signed. The supreme court held that the 

attorney’s excuse was wholly insufficient because the attorney knew his answer 

date, he did not attempt to confirm that his answer had been filed, and he engaged 

in a pattern of ignoring deadlines and warnings. Levine, 248 S.W.3d at 168–69.

Following Levine, appellants needed to demonstrate that Faraj’s excuse, if 

true, negated his failure to respond to the warnings from opposing counsel. 

Appellants did not meet this burden. Faraj claimed in non-specific terms that he 

was preoccupied with remedying the damage caused by the hacking incident, but 

Faraj never explained when the hacking incident occurred or how much time his 

remedial efforts actually consumed. The timing of such matters is critical to a 
17

Craddock analysis, but Faraj’s affidavit is completely silent on this point. Cf. 

Sutherland, 376 S.W.3d at 755 (the first Craddock element was satisfied where the 

defaulting party claimed that he was unable to return to the office “due to weather 

conditions over a nearly three-week period during the Christmas holiday season”). 

The affidavit does not indicate whether the hacking incident occurred before or 

after the telephone conference on February 1, when Savino’s attorney warned Faraj 

of a looming default judgment. Nor does the affidavit establish that Faraj was so 

busy restoring his email security that he was incapable of filing an answer by 

February 29, when the trial court entered its default judgment.

This is not a case of an accident or mistake, where, for instance, the suit 

papers were lost or a party was misguided about his obligation to respond. See, 

e.g., Drewery, 186 S.W.3d at 575–76 (suit papers were discarded); R.R., 209 

S.W.3d at 115 (defendant believed she would have been appointed counsel); 

Evans, 889 S.W.2d at 269 (predecessor attorney misdated the trial date and 

conveyed the wrong information to successor). Faraj, an experienced litigator, 

knew the consequences of failing to answer, and even had prepared an answer and 

special appearance. Faraj claims that he could not file these pleadings because he 

lacked ready contacts in Texas, but as Savino points out, Faraj never even attested 

that he searched for local counsel before the trial court entered its default 

judgment. We do not doubt that the hacking incident was serious, but when viewed 

in the context of the entire record, Faraj has not established that this excuse negates 

his conscious indifference to the warnings from opposing counsel.

Appellants cannot show that their failure to answer was due to accident or 

mistake. Because they are unable to satisfy their burden under the first Craddock

element, appellants are not entitled to set aside the trial court’s default judgment. 
18

The trial court did not abuse its discretion by overruling their motion by operation 

of law.

ALTER EGO LIABILITY

In their next issue, appellants argue that the trial court erred by signing a 

judgment against Dodd as an individual, claiming that the pleadings fail to support 

a theory of alter ego liability. Appellants also argue that, to the extent the pleadings 

are not deficient, there is no evidence of alter ego.

Generally, the owner of a corporation is not liable for the contractual 

obligations of his corporation. See Tex. Bus. Orgs. Code § 21.223(a)(2). This rule 

is subject to the alter ego exception, which provides that the owner may be held 

liable if the obligee demonstrates that the owner “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 . . . owner.” See id. § 21.223(b). The 

alter ego doctrine applies “when there is such unity between corporation and 

individual that the separateness of the corporation has ceased and holding only the 

corporation liable would result in injustice.” Castleberry v. Branscum, 721 S.W.2d 

270, 272 (Tex. 1986); Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, 

Ltd., 237 S.W.3d 379, 387 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Actual 

fraud involves dishonesty of purpose or intent to deceive. See Castleberry, 721 

S.W.2d at 273.

Appellants argue that the pleadings are deficient because Savino did not 

specifically allege that Dodd had committed an actual fraud for his own benefit. 

We conclude that appellants failed to preserve error on this point. Under Rule 33.1, 

“the overruling by operation of law of a motion for new trial . . . preserves for 

appellate review a complaint properly made in the motion.” Tex. R. App. P. 

33.1(b). In their motion for new trial, appellants challenged Dodd’s individual 
19

liability by arguing only the following: (1) that Dodd was CEO of 3D Global at all 

times relevant to the instant lawsuit; (2) that all of Dodd’s actions with respect to 

Savino were performed in Dodd’s professional capacity as CEO; and (3) that Dodd

never commingled his funds with 3D Global. Nowhere in their motion did 

appellants complain about a deficiency in the pleadings or a failure by Savino to 

allege that Dodd had committed an actual fraud for his own benefit. Appellants’ 

complaint is therefore forfeited.

Even if we were to assume that appellants’ complaint was properly before 

this court, we would still conclude that their argument is incorrect. A default 

judgment will be held erroneous only if (1) the petition does not attempt to state a 

cause of action that is within the jurisdiction of the court, (2) the petition does not 

give fair notice to the defendant of the claim asserted, or (3) the petition 

affirmatively discloses the invalidity of such claim. Paramount Pipe & Supply Co., 

v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988). Appellants do not contend that 

Savino’s cause of action is unrecognized, outside the jurisdiction of the court, or 

affirmatively invalidated by the petition. Their only dispute is whether Savino’s 

petition gave fair notice of Dodd’s alter ego liability.

An original petition must contain “a short statement of the cause of action 

sufficient to give fair notice of the claim involved.” Tex. R. Civ. P. 47(a). The 

pleader satisfies this “fair notice” standard if the opposing party can ascertain from 

the pleading the nature and basic issues of the controversy and what testimony will 

be relevant. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 

2000). The purpose of this rule is to give the opposing party information sufficient 

to enable him to prepare a defense. Id. at 897. A petition is construed liberally in 

favor of the pleader if no special exceptions are filed. Id. “But, ‘liberally’ does not 
20

require a court to read into a petition what is plainly not there.” Wortham v. Dow 

Chem. Co., 179 S.W.3d 189, 199 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

Alter ego, or piercing the corporate veil, is not an independent cause of 

action, but is instead a means of imposing liability for an underlying cause of 

action. Wilson v. Davis, 305 S.W.3d 57, 68 (Tex. App.—Houston [1st Dist.] 2009, 

no pet.). Alter ego is shown from the total dealings of the corporation and the 

individual, including the degree to which corporate formalities have been followed 

and corporate and individual property have been kept separately; the amount of 

financial interest, ownership, and control the individual maintains over the 

corporation; and whether the corporation has been used for personal purposes. 

Castleberry, 721 S.W.2d at 272. Evidence as proof of an alter ego includes (1) the 

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

funds, (2) representations that the individual will financially back the corporation,

(3) the diversion of company profits to the individual for the individual’s personal 

use, (4) inadequate capitalization, and (5) any other failure to keep corporate and 

personal assets separate. Burchinal v. PJ Trailers-Seminole Mgmt. Co., LLC, 372 

S.W.3d 200, 218 (Tex. App.—Texarkana 2012, no pet.) (citing Mancorp, Inc. v. 

Culpepper, 802 S.W.2d 226, 229 (Tex. 1990)).

Savino gave adequate notice to Dodd that he was being sued under an alter 

ego theory of liability. Savino consistently referred to both Dodd and 3D Global as 

the breaching parties in his original petition. Savino also made specific factual 

allegations supporting the existence of an alter ego and of actual fraud, including 

the commingling of funds, the diversion of company profits to an individual, and 

inadequate capitalization.4Finally, Savino explicitly alleged in the “Parties” 

 

4

Savino’s exact allegations are as follows:
21

section of his petition that “3D Global Solutions was and functioned at all relevant 

times as Mr. Dodd’s agent and alter ego.”

Appellants suggest that these pleadings are somehow insufficient because 

Savino did not “specifically plead the reasons raised for piercing the corporate 

veil,” nor did he ask the trial court to make a finding of actual fraud. Appellants 

essentially contend that Savino was required to allege that Dodd had committed an 

“actual fraud” for his own benefit, and that without such specific pleadings, the 

default judgment was improper. We disagree. The case law is clear that a petition 

is sufficient if a cause of action may reasonably be inferred from what is 

specifically stated in the petition, “even if an element of the cause of action is not 

specifically alleged.” Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993); Westcliffe, 

Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 292 (Tex. App.—Dallas 2003, 

no pet.); see also Tex. R. Civ. P. 45(b) (“That an allegation be evidentiary or be of 

legal conclusion shall not be grounds for objection when fair notice to the 

opponent is given by the allegations as a whole.”). Actual fraud, a component of 

 

20. On or about July 16, 2011, Mr. Savino provided the agreed earnest money 

by a wire transfer of $150,000 from his bank account at Chase Bank in 

Houston, Texas to Mr. Dodd’s personal bank account in Elkhart, 

Indiana. . . .

29. During the due diligence, Mr. Savino learned facts indicating that Mr. 

Dodd and 3D Global Solutions commingled funds and did not maintain 

proper corporate separation between Mr. Dodd’s personal assets and 3D 

Global Solutions’ assets. Mr. Dodd received funds intended for 3D Global 

Solutions into his personal bank account. Mr. Dodd also solicited Mr. 

Savino and Augusta to approve the use of $1.2 million in investment 

proceeds from the proposed transaction to make payments to him 

personally.

30. Also during the course of the due diligence, Mr. Savino learned facts 

indicating that 3D Global Solutions was not adequately capitalized. . . .

31. Ernst & Young was not able to validate the $10,500,000 net present value 

for 3D Global Solutions that Mr. Dodd and 3D Global Solutions had 

represented in the offering memorandum.
22

alter ego liability, involves “dishonesty of purpose or intent to deceive.” See 

Castleberry, 721 S.W.2d at 273. The intent to deceive can be inferred because 

Savino’s factual allegations, when taken as true, support a finding that Dodd 

solicited an investment in 3D Global after misrepresenting its net present value. 

Based on the pleadings here, we conclude that an opposing attorney of reasonable 

competence could have ascertained Dodd’s alter ego liability. See Elite Door & 

Trim, Inc. v. Tapia, 355 S.W.3d 757, 766 (Tex. App.—Dallas 2011, no pet.); 

Schlueter v. Carey, 112 S.W.3d 164, 168–69 (Tex. App.—Fort Worth 2003, pet. 

denied).

Appellants also broadly challenge the sufficiency of the evidence supporting 

the theory of alter ego. However, in a no-answer default, the defendant admits all 

facts properly pleaded in the plaintiff’s petition, except for the amount of 

unliquidated damages. Dolgencorp, 288 S.W.3d at 930. If the facts set forth in the 

petition allege a cause of action, the default judgment conclusively establishes the 

defendant’s liability. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 

1984); see also Boyles, 855 S.W.2d at 601 (elements may be reasonably inferred 

from what is specifically alleged even if an element of a cause of action is not 

specifically alleged). Consequently, appellants are precluded from asserting a 

challenge as to the sufficiency of the evidence. See Norton v. Martinez, 935 

S.W.2d 898, 901 (Tex. App.—San Antonio 1996, no pet.) (“Appellants may not 

now challenge the sufficiency of the evidence where their failure to answer 

constitutes an admission of such liability.”).

DAMAGES

In their final issue, appellants contend there is no evidence of either breach 

of contract or of unliquidated damages. For reasons just stated, appellants cannot 

dispute the sufficiency of Savino’s breach of contract claims because the default 
23

judgment conclusively establishes their liability. See Dolgencorp, 288 S.W.3d at 

930; Morgan, 675 S.W.2d at 731. Accordingly, we consider only whether the 

evidence is sufficient to support the award of unliquidated damages. See Tex. R. 

Civ. P. 243; Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).

The final judgment awards Savino $187,386.90, plus interest. The largest 

portion of this award represents the reimbursement of $150,000 in earnest money, 

which appellants do not appear to challenge. The remaining share consists of the 

reimbursement of the Ernst & Young fee ($20,000), the reimbursement of Savino’s 

travel expenses ($4,986.87), and the award of reasonable and necessary attorney’s 

fees ($12,400). Appellants contend there is no evidence to support these specific 

awards, other than conclusory and self-serving statements, because there is no 

reporter’s record of the default judgment hearing. We address the contract damages

first.

A. Contract Damages

In the affidavit attached to his amended motion for default judgment, Savino 

attested that he and Augusta had collectively paid $40,000 to Ernst & Young, or 

two-thirds of the accounting firm’s $60,000 fee. Savino also attached an invoice 

from Ernst & Young, which showed an outstanding balance of $20,000. Savino 

further attested that he had incurred $4,986.87 in travel expenses, which he 

supported with two authenticated expense reports.

During a default judgment proceeding, affidavit testimony will support the 

award of unliquidated damages if the affidavit avers personal knowledge of the 

facts, describes the circumstances that resulted in the loss, and identifies the total 

amount owed as a result. See Tex. Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 

515, 517 (Tex. 1999) (per curiam). Savino’s affidavit does precisely that. Savino 

attested that appellants had agreed to bear one-third of the fees charged by Ernst & 
24

Young, and that Ernst & Young had issued an invoice for a total amount of 

$60,000. Savino also attested that appellants agreed to reimburse certain travel 

expenses, and that Savino had duly submitted documentation of these expenses in 

the amount of $4,986.87. We conclude that this evidence is sufficient to support 

the award of contract damages, notwithstanding the absence of a hearing transcript. 

See id. (upholding damages award on affidavit testimony where no oral testimony 

was taken at the default judgment hearing). Furthermore, because Savino described 

the underlying bases to support his claim for damages, we reject appellants’ 

suggestions that his affidavit is conclusory or self-serving. See Dolcefino v. 

Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet. 

denied) (“A conclusory statement is one that does not provide the underlying facts 

to support the conclusion.”).

B. Attorney’s Fees

Savino’s attorney’s fees award is supported by the affidavit of Amy Tabor, 

his retained trial counsel. Tabor attested that she spent approximately thirty-three 

hours working on the case. Based on her hourly rate of $375, Savino incurred a bill 

in the amount of $12,400. Tabor attested that these fees were reasonable and 

necessary “considering the nature of the case and the difficulty of the questions 

involved.”

Appellants attack this affidavit for similar reasons as before, claiming that it 

is conclusory and self-serving. Appellants also complain that the evidence is 

legally insufficient because Tabor did not attach any invoices, nor did she explain 

why more than thirty hours of work was necessary on this case.

We disagree with appellants’ argument that Tabor’s affidavit is conclusory.

Tabor attested that she is a duly licensed attorney and that she had personal 

knowledge of the work performed. Tabor specifically indicated that she had 
25

investigated claims, reviewed documents, drafted pleadings, and performed other 

actions necessary to her duties. Tabor’s affidavit testimony was sufficient by itself 

to support the award of attorney’s fees. See New, 3 S.W.3d at 517–18.

We also reject appellants’ argument that Tabor failed to explain the 

reasonableness of her fees. Tabor attested that her fees were based on a fixed 

hourly rate and the difficulty of the questions involved. These are factors described 

in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 

1997), which courts may consider when determining the reasonableness of 

attorney’s fees. See also Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 

706 (noting that there is no requirement that an attorney prove up the 

reasonableness of her fees with each of the Arthur Andersen factors).

We conclude that the evidence is legally sufficient to support the award of 

unliquidated damages.5

CONCLUSION

We overrule appellants’ four issues and affirm the judgment of the trial 

court.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Boyce, Jamison, and Busby.

 

5

The trial court awarded three cents more than the amount of damages claimed by 

Savino in the affidavits attached to his amended motion for default judgment. Appellants have 

not raised a specific complaint regarding this discrepancy. We are not inclined to disturb the trial 

court’s judgment because of this de minimis amount.