No. PLAINTIFF S ORIGINAL PETITION, REQUEST FOR DISCLOSURE AND REQUEST FOR PRODUCTION OF DOCUMENTS. Plaintiff, MIKE complains of defendants STEPHEN and

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1 No. Filed 09 February 21 P10:11 Loren Jackson District Clerk Harris District MIKE Plaintiff VS STEPHEN, SUPPORT, LLC, SOLUTIONS, LLC, and Defendants IN THE DISTRICT COURT HARRIS COUNTY, TEXAS JUDICIAL DISTRICT PLAINTIFF S ORIGINAL PETITION, REQUEST FOR DISCLOSURE AND REQUEST FOR PRODUCTION OF DOCUMENTS Plaintiff, MIKE complains of defendants STEPHEN and SUPPORT, LLC, and joins nominal defendant SOLUTIONS, LLC. Plaintiff would show the Court as follows: A. DISCOVERY CONTROL PLAN 1. Plaintiff intends to conduct discovery under Level 2 of Rule B. PARTIES 2. Plaintiff is Mike a natural person residing in Harris County, Texas. Plaintiff brings these claims both individually and on behalf of Solutions, LLC pursuant to art of the Texas Limited Liability Company Act and art of the Texas Business Corporations Act. Plaintiff is and was at all relevant times a member of Solutions, LLC and the owner of 350 LLC Units (35%) in that company. 3. Defendant Stephen is a natural person residing in Galveston County, Texas, and may be served with process at his residence. 4. Defendant Support, LLC is a Texas limited liability company with its principal office in Galveston County, Texas and may be served with process through its registered agent, Stephen. 1

2 5. Nominal defendant Solutions, LLC is a Texas limited liability company with its principal office in Harris County, Texas and may be served with process through its registered agent, Stephen. C. VENUE 6. Venue is proper in Harris County because one of the defendants, Solutions, LLC, is not a natural person and has its principle office at 6824 Lindbergh St., Houston, Texas 77087, which is within Harris County. Independently, all or a substantial part of the events or omissions giving rise to the claims occurred in Harris County. As further alleged herein, at all relevant times to the lawsuit, plaintiff resided in Harris County and worked at defendant Solutions, LLC s only facility, then located at 5858 Waltrip Street, Houston, Texas 77087, which is also in Harris County. All the acts and omissions giving rise to the cause of action, including all communications from the defendants, either happened to Plaintiff at work or at his home. D. Conclusion 7. Plaintiff and defendant formed Solutions, LLC on December 20, 2004 by filing Articles of Organization with the Texas Secretary of State. The two members also executed an Operating Agreement on that date. Solutions was set up as a membermanaged LLC, with as the 65% owner and plaintiff as the 35% owner. Voting was set up on the basis of ownership percentage. Therefore, had effective unilateral control over the company from the outset in all but a few matters set out in the Operating Agreement that required a supermajority of 66%. was also given exclusive control over the company s financial reporting in the Operating Agreement. While had effective control, plaintiff retained the right to participate in management and to be fully informed. Not only did plaintiff 2

3 have the contractual and statutory rights to inspect the company s records, but the member management structure created a fiduciary duty of full disclosure as to all the members. 8. In the express terms of the Operating Agreement, both members committed to work full-time for Solutions, LLC, with plaintiff contributing sales and shop expertise and defendant contributing management and engineering expertise. and plaintiff each made capital contributions in the amounts of $39, and $21,000.00, respectively. 9. Solutions, LLC did business under the assumed name of Power and provided products and services, which included design and manufacture of couplings, bearings and seals, as well as other products and services in the market. had originally suggested to plaintiff that they structure the business so that plaintiff would own a minority interest only in a subsidiary that would manufacture couplings, while would own 100% interest in all other operations of the business. Plaintiff refused, and the parties agreed that there would be only one company that would operate in all areas of the products and services market. and plaintiff located and rented space in a warehouse facility in Houston. They purchased equipment and outfitted the office so that both could work there. and plaintiff were the only two employees. 10. Almost from the beginning, however, refused to work in the space that the company was paying for, choosing instead for his own convenience to work from home. This situation made work for plaintiff very difficult, being the only person in the shop and having to handle both the actual production work and much of the administration of the company. This situation also had the effect of isolating plaintiff from information and from any real participation in the management decision-making process. was extremely secretive about company financial matters, denying plaintiff access to any financial records, and refusing 3

4 to provide any detailed financial information. Plaintiff was not given any financial records or reporting and was denied knowledge of the company s financial status, cash flow and expenditures. 11. In mid-2005, plaintiff and agreed to look for property on which the company could build its own facility that would be nearer to equidistant from both their homes. Plaintiff learned of a piece of land that was being sold in a tax auction on Highway 35 in Brazoria County and suggested to that this was a good candidate. attended the auction and purchased the property for far less than its market value, but he did so in his own name. When later disclosed to plaintiff that owned the property individually, and plaintiff objected, promised to put the property in the name of the company or to get plaintiff s name on the deed, but he did neither. 12. In August 2005, secretly formed Shackelford Services, LLC, which he then renamed Support, LLC. On information and belief, operated this company to provide engineering and design services in the market. These services were clearly in Solutions line of business, and the sale of these services through a different entity would both violate fiduciary duties to Solutions and to plaintiff and would breach the operating agreement committing him to full-time work for Solutions. never disclosed the existence of or business of Support. 13. During 2005 and 2006, exercised his domination and control over the company to manipulate the finances and to take secret benefits that were not shared with plaintiff. On information and belief, looted the company by charging personal expenses and reimbursing himself for the use of his house, even though the company was already paying for office space for him. effectively gave himself preferential distributions that 4

5 should have been shared with the plaintiff. For example, when preparing the company s 2005 tax return, instructed plaintiff to give him plaintiff s cell phone records for the previous year so that the company could claim these expenses as deductions; however, neither actually paid plaintiff the reimbursement for the cell phone nor credited plaintiff s capital account for that amount. 14. Solutions business was successful. The company never lost money, and was never forced to incur debt. The business grew continuously during 2005 and Both plaintiff and received their initial capital back in distributions. Nevertheless, domination and control over the business became increasingly objectionable to plaintiff. refused to work in the corporation s offices. refused plaintiff s repeated requests for information, particularly financial information, and for a meaningful participation in management decisions. was also absent for extended periods of time on non-company matters and may have been working on projects for Support. also put increasing pressure on plaintiff to keep up with the demands of a growing company, while did not do his fair share. 15. As a result, plaintiff approached on October 24, 2006 and stated that he could not continue to work under these conditions and requested that buy him out at a fair price that they would negotiate. agreed. However, immediately began referring to their agreement as a withdrawal by plaintiff, and wrote: Solutions LLC accepts your withdrawal effective The reason that did this was to try to fabricate a record that his agreement to buy-out plaintiff s interest for a fair price to be negotiated was actually a unilateral Withdrawal of Member under Section 7.2 of the Operating Agreement. Under that section, a member is not permitted to withdraw without the approval of a 5

6 supermajority of 66%. A member desiring to withdraw under that section is required to give at least 30 days written notice prior to the proposed effective date of withdrawal, which must be on the last day of a month. If the withdrawal is approved, then the members are required to pay a Withdrawal Compensation Amount equal to 100% of the value of the member s capital account on the effective date. The members are required to cause a reasonably prompt preparation of financial statements for the LLC as of the effective date of withdrawal for said Member, and then to pay the Withdrawal Compensation Amount within one year of the effective date. obviously believed that it was to his advantage to characterize their buy-out agreement as a withdrawal because payment of the value of the capital account would not include the going-concern value of this successful and growing business. 16. The agreement between plaintiff and was not a withdrawal under the terms of the Operating Agreement. Plaintiff did not propose to withdraw, but to be bought out at a negotiated price. Plaintiff did not give written notice. The so-called effective date was not at the end of a month. There was no vote of a supermajority to approve the withdrawal. was fully aware that the agreement was not for a withdrawal and was also fully aware that plaintiff did not understand and appreciate the significance of his characterizing the agreement as a withdrawal. Yet in violation of his fiduciary duties, knowingly took advantage of plaintiff s ignorance. For his part, plaintiff continued to request that give him an offer for the buy-out, and plaintiff objected to giving up his keys on the grounds that he was still an owner until he and agreed on a price. protested that he was too busy to put the financial information together at that time and offered to pay plaintiff a down payment of $10, and that they would negotiate the rest of the deal when time permitted. Plaintiff agreed and was paid on October 27, wrote Partial Withdrawal Compensation 6

7 in the memo section of the check. Again, plaintiff did not understand or appreciate the meaning and significance of use of the phrase, and knowingly took advantage of plaintiff s ignorance. 17. After October 24, 2006, despite the fact that he had not paid or offered to pay a fair price for plaintiff s LLC units, denied that plaintiff was an owner, and reported to the IRS on a Form K-1 that plaintiff s ownership interest was zero. 18. Despite plaintiff s repeated requests, never prepared or forwarded financial statements to plaintiff and never made an offer; rather he continued to delay and stonewall for more than a year. On or about November 30, 2007, plaintiff received a letter from demanding that he sign a release and tendering a check for $24, as the remainder of his withdrawal compensation. did not provide any explanation, back-up or financial information. In response to plaintiff s demands, on December 7, 2007, accountant provided a summary Income Statement and incomplete Balance Sheet for the period ending October 24, 2006, showing how the withdrawal compensation amount was calculated. However, the accountant admitted to plaintiff that he had merely arranged these numbers on the page and had no idea on what they were based and could not vouch for their accuracy. When plaintiff reviewed the financial statements, even though he had been given no access to any real financial information relating to the company, plaintiff knew immediately that the documents had been manipulated and were inaccurate. There were equipment values that Plaintiff knew did not reflect amounts of purchases. The equipment list also had glaring omissions. Large amounts were listed as expenditures that plaintiff knew the company did not incur, such as almost $4000 for utilities when plaintiff knew that utilities had been included in the rent. 7

8 19. Plaintiff refused to accept the check or sign the release. Ultimately, in a sworn court filing, repudiated his position that there had been a withdrawal under the Operating Agreement, claiming instead that plaintiff had breached the Operating Agreement by failing to give 30 days written notice before withdrawing and that therefore did not owe anything more. However, continued to maintain that plaintiff was not an owner thereby depriving plaintiff of his ownership interest for far less than fair value. E. CAUSES OF ACTION CAUSE OF ACTION NO. 1 BREACH OF FIDUCIARY DUTIES 20. As member and officer of Solutions LLC, defendant owed fiduciary duties of good faith, utmost honesty, undivided loyalty, and due care to the company and its other members. By the acts and omissions alleged herein, violated his fiduciary duties by usurping corporate opportunities, looting the company, manipulating the company s finances for personal gain, failing to disclose matters to the members, and otherwise. These acts and omissions proximately caused harm and financial damage to Solutions LLC and to plaintiff. Therefore, Solutions LLC and plaintiff are entitled to actual damages, and further to equitable relief including constructive trust and an accounting. Because breached his fiduciary duties willfully, intentionally, maliciously and with reckless disregard to the rights and welfare of the company and its members, Solutions and plaintiff are entitled to an award of exemplary damages in an amount to be determined by a jury and not subject to limitation because the wrongdoing constitutes a violation of the Texas Penal Code as provided in Texas Civil Practice and Remedies Code Plaintiff has standing to bring a derivative action on behalf of Solutions, LLC. All conditions precedent have been satisfied. Plaintiff is entitled to recover his expenses and 8

9 reasonable and necessary attorney s fees pursuant to TBCA art. 5.14(J). Solutions LLC is closely-held within the meaning of TBCA art. 5.14(L), and justice requires that this action be treated by the Court as a direct action brought by plaintiff for his own benefit and that the recovery be paid directly to the plaintiff. CAUSE OF ACTION NO. 2 OPPRESSION 22. The acts and omissions of defendant as alleged above constitute a pattern of oppressive conduct that substantially defeated the objectively reasonable expectations of plaintiff that were central to his decision to invest and that were harsh and burdensome and violative the duty of good faith and fair dealing. Because of defendant s oppressive conduct, plaintiff has been deprived of any real value of his ownership, and therefore plaintiff is entitled to an order from this Court requiring defendant or defendant Solutions, LLC to buy out Plaintiff s interest for a fair value as determined by the Court, or other equitable remedy necessary and sufficient to do equity to plaintiff. Plaintiff is without adequate remedy at law. All conditions precedent have been satisfied. CAUSE OF ACTION NO. 3 DECLARATORY JUDGEMENT 23. An actual, ripe controversy exists between plaintiff and defendants as to the rights, status, and legal relations between the parties and as to the construction and validity of the Operating Agreement. Therefore, plaintiff is entitled to a declaratory judgment pursuant to CPRC et seq as to (1) whether he is a member and owner of Solutions LLC, (2) whether he withdrew on October 24, 2006 pursuant to 7.02 of the Operating Agreement, (3) whether any such withdrawal was waived or was invalid as a result of non-disclosure, fraud, or breach of fiduciary duty. Plaintiff is entitled to equitable relief to enforce and sustain 9

10 the declaration by the Court, and plaintiff is entitled to recover his expenses and reasonable and necessary attorney s fees pursuant to the Declaratory Judgment Act. CAUSE OF ACTION NO. 4 BREACH OF THE OPERATING AGREEMENT 24. In the alternative, in the event that the Court determines that 7.02 of the Operating Agreement does govern the transaction, then defendant breached the Operating Agreement by failure to provide financial statements reasonably promptly, by failure to tender payment within one year of the effective date, and by failure to tender the correct Withdrawal Compensation Amount. Plaintiff is entitled to actual damages in the amount of full Withdrawal Compensation Amount, including the amounts that should have been credited to that account if defendant had not looted the company and usurped corporate opportunities. Plaintiff is further entitled to his reasonable and necessary attorney s fees pursuant to CPRC et seq. Presentment has been made. Plaintiff is further entitled to prejudgment interest on the award at the contractual rate of 10% compounded annually. All conditions precedent have been satisfied. CAUSE OF ACTION NO. 5 AIDING AND ABETTING/KNOWING PARTICIPATION 25. Defendant Support, LLC materially aided and abetted and knowingly participated in defendant breaches of fiduciary duties as to Solutions LLC and to plaintiff. Therefore, Support, LLC is jointly and severally liable for any damages awarded against Furthermore, Support LLC s conduct was committed willfully, intentionally, maliciously and with reckless disregard to the rights and welfare of the Solutions and plaintiff; therefore plaintiff, individually and on behalf of Solutions, is entitled to an award of exemplary damages in an amount to be determined by a jury and not subject to limitation because the wrongdoing constitutes a violation of the Texas Penal Code as provided in CPRC

11 F. PRAYER 26. Therefore, on the basis of the foregoing, plaintiff Mike respectfully requests that defendants named herein be cited and served and that, upon trial of these claims, plaintiff be awarded his actual damages, exemplary damages, expenses, costs, attorney s fees, equitable remedies including accounting, constructive trust and forced buy-out, declaratory judgment, prejudgment and post-judgment interest, and such other and further relief to which plaintiff may be justly entitled. Plaintiff demands his right to trial by jury. H. REQUEST FOR DISCLOSURE 27. Pursuant to Rule 194, defendants are each requested to disclose, within 50 days of service of this request, the information or material described in Rule H. REQUEST FOR PRODUCTION OF DOCUMENTS 28. Pursuant to Rule 196, defendants are each requested to produce for inspection or copying all documents in their possession, custody or control responsive to the categories and descriptions listed below, including all or other documents or files in electronic or magnetic form, which should be produced as searchable PDFs or printed, and all pictures, audio, video in readable or playable format. The response to this request for production is due no later than 50 days after service of this request, and shall be produced at the office of plaintiff s counsel listed in the signature block. Please produce the following: a. All , correspondence or other communications to or from plaintiff. b. All documents authored, in whole or in part, by plaintiff. c. All financial records and tax filings of each of the defendants for the years present. 11

12 d. All bank statements, accounting ledgers, financial records or other documents showing or relating to the revenue, income, cost of goods sold, expenses, assets, liabilities, equity, cash flow, fixed assets, tools and equipment, tangible or intangible property, cash or capital of Solutions, LLC from the date of formation to present. e. All bank statements, checks, billing documents, purchase orders, receipts, customer files and other documents showing or relating to any revenue, income, refunds, contributions, investments or other money or property coming into or earned by Solutions LLC during 2005 and f. All bank statements, checks, billing documents, purchase orders, receipts, vendor files and other documents showing or relating to any purchases, expenses, payments, disbursements, distributions or other money paid by or otherwise going out of Solutions during 2005 or g. All documents showing or relating to the amount of accounts receivable, accounts payable or work in process for Solutions LLC as of October 24, h. All tax returns, pay stubs, invoices, receipts, checks, deposits, bank statements, or other documents showing or relating to any fees, income, revenue, reimbursement or compensation earned or acquired by defendant or by defendant Support LLC in any way relating to products or services in the market from 2005 to present. i. All documents, receipts, bank statement, checks, work sheets, computations, notes or other documents showing, evidencing, or relating to each and every number 12

13 entry on all Form 1065s, Form K-1s, or other form filed with the Internal Revenue Service by Solutions LLC for tax years 2005 and j. All documents, receipts, bank statements, checks, work sheets, computations, notes or other documents showing, evidencing, or relating to each and every number entry on the income statement, balance sheet and capital account calculations provided to Mike to support the amount of the check tendered in 2007, and all , correspondence, notes, drafts, or other documents relating to the creation of the financial information provided to Mike to support the amount of the check tendered in k. All documents relating to the purchase, maintenance, improvement and value of the property on Hwy 35, Alvin Texas l. All audio or video recordings or photographs or digital images depicting plaintiff in any way. m. All documents showing or relating to all tools and equipment owned by Solutions LLC on October 24, 2006, including the purchase price of such tools or equipment, the maintenance and repair of such tools and equipment, depreciation and the value of such tools and equipment. n. All documents showing or relating to any money or property paid to, contributed to, invested in, loaned to, paid or spent on behalf of, or paid, spent or used for the benefit of Solutions LLC by either of its members during o. All documents showing or relating to any money or property paid to, contributed to, reimbursed to invested in, loaned to, paid or spent on behalf of, or paid, spent 13

14 or used for the benefit of either of its members by Solutions LLC during p. All documents relating to the formation, ownership, and governance of Solutions LLC or Support, LLC. q. All documents evidencing or relating to any work done by or goods or services sold or provided by of Support LLC, all sales, receipts and revenue Support LLC, and all profits or income generated by Support LLC. Respectfully submitted, Fryar Law Firm, P.C. By: Eric Fryar Texas Bar No FM 1960 W, Ste 400 Houston, TX Tel Fax ATTORNEY FOR PLAINTIFF 14