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CAUSE NO. 352-214202-05
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RAYMOND SPOTH, GEORGE RAY,
INC., PSI PARTNERS, LTD., and PSI
GP, LLC as the General Partner of PSI
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IN THE DISTRICT COURT
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Partners, Ltd., §
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Plaintiffs, §
§ OF TARRANT COUNTY, TEXAS
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PAUL PEEBLES, and FIRST OLD §
CAPITAL, INC., §
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Defendants. § 352ND JUDICIAL DISTRICT
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND
APPLICATION FOR INJUNCTIVE RELIEF
Plaintiffs, Raymond Spoth, George Ray, Inc., PSI Partners, Ltd., and PSI GP, LLC as the
General Partner of PSI Partners, Ltd., (collectively, "Plaintiffs") file this Original Petition and
Application for Injunctive Relief against Paul Peebles and First Old Capital, Inc. (collectively,
"Defendants") and would respectfully represent the following:
I. DISCOVERY CONTROL PLAN
1. Plaintiffs intend to conduct discovery under Level 3 pursuant to Rule 190.3 of the TEXAS
RULES OF CIVIL PROCEDURE.
II. PARTIES
2. Plaintiff PSI Partners, Ltd. is a partnership duly organized and existing under the laws of
the state of Texas with itsprincipal place of business at 3309 Sweet Gum Lane, Grapevine, TX
76051.
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 1
3. Plaintiff PSI GP, LLC is a limited liability company duly organized and existing under
the laws of the state ofTexas with its principal place ofbusiness at P.O. Box 353, Colleyville, Texas
76034-0353. PSI GP, LLC is the General Partner ofPSI Partners, Ltd.
4. Plaintiff Raymond Spath ("Mr. Spath") is a natural person and a limited partner of PSI
Partners, Ltd., and he is a citizen of the state of Texas residing at 6309 Connie Lane, Colleyville, TX
76034.
5. Plaintiff George Ray, Inc. is a corporation organized and existing under the laws of the
state of Texas with its principal place ofbusiness at P.O. Box 1015, Colleyville, Texas 76034.
6. On information and belief, Defendant First Old Capital, Inc. is a Texas corporation
having a principal place ofbusiness at 3309 Sweet Gum Lane, Grapevine, Texas 76051.
7. On information and belief, Defendant Paul Peebles is a natural person and limited partner
of PSI Partners, Ltd., and he is a citizen of the state of Texas, residing at 3309 Sweet Gum Lane,
Grapevine, Texas 76051.
Ill. JURISDICTION AND VENUE
8. This Court has jurisdiction over this matter because the amount in controversy exceeds
this Court's minimum jurisdictional amount. Venue is proper in this Court pursuant to Texas Civil
Practice and Remedies Code§ 15.002 because the Defendants reside in Tarrant County, Texas, and
all or a substantial part of the events or omissions giving rise to this claim have occurred in Tarrant
County, Texas.
9. In filing this Original Petition, Plaintiffs are not seeking relief under federal laws,
including federal statutes, treaties, or constitutions.
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND. AND APPLICATION FOR INJUNCTIVE RELIEF- PAGE 2
IV. FACTUAL BACKGROUND
10. On or about September 29, 2003, PlaintiffRaymond Spath ( 11 Mr. Spath") and Defendant
Paul Peebles ("Mr. Peebles") formed PSI Partners, Ltd., which operated as a management company
in Colleyville, Texas.
11. PSI GP, LLC is the General Partner of PSI Partners, Ltd.
12. On August 18, 2005, Mr. Peebles' attorney, Randall Johnson, Esq., sent a letter to Mr.
Spath seeking to dissolve PSI Partners, Ltd. ("the partnership 11 ).Mr. Peebles now seeks to walk
away from the partnership despite the fact that: (1) Mr. Peebles owes at least $235,000 to Plaintiffs
in partnership and other debts; and (2) Mr. Peebles' wrongfully misappropriated Mr. Spoth's and
George Ray, Inc.'s website located at www.ocrl.com and is using the website to conduct business for
Mr. Peebles' personal side mortgage business.
13. Mr. Peebles' also wrongfully used the capital, assets, and manpower of the partnership to
operate his personal side mortgage business.
14. At the core of the dissolution of the partnership is a dispute over ownership and control of
Mr. Spoth and George Ray, Inc.'s website domain located at www.ocrl.com.
15. Mr. Spath invested, and continues to invest, substantial sums of money, as well as time,
effort, and creative talent, to create and maintain an original website, located at www.ocrl.com.
16. The website, located at www.ocrl.com, is titled "Old Capital" and is owned by Mr. Spoth
by and through his corporation George Ray, Inc.
17. Mr. Peebles, by and through Richard Gray and First Choice Computers, intentionally and
wrongfully induced Network Solutions, the provider of the website domain www.ocrl.com, to
perform an unauthorized transfer of Mr. Spath and George Ray, Inc.'s website domain to Mr.
Peebles and Defendant First Old Capital Inc., Mr. Peebles' personal side mortgage business.
PLAINTIFFS' FIRST AMENDED PETITION. JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF- PAGE 3
18. Despite receiving cease and desist letters from Plaintiffs on or about August 20, 2005,
September 1, 2005, and September 16, 2005, Defendants continue to operate their personal side
mortgage business, First Old Capital Inc., on the website domain, www.ocrl.com.
19. Defendant's wrongful actions have shut down Mr. Spoth and George Ray, Inc.'s website
and continue to prevent them from conducting important business via the website.
20. Plaintiffs still cannot gain access to the Pl~intiffs customer list, e-mail, and other
proprietary information owned by the Plaintiffs. Plaintiffs move this Court for preliminary and
permanent injunctive relief ordering Plaintiffs to relinquish this information to Plaintiffs and
ordering Defendants not to use Plaintiffs' information to its benefit.
V. UNFAIR COMPETITION
21. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-20,
inclusive.
22. Defendants acted in bad faith by, without authorization, wrongfully inducing Network
Solutions, the provider of the website address, to perform an unauthorized transfer of Mr. Spoth and
George Ray, Inc.'s website domain located at www.ocrl.com from Plaintiffs to Mr. Peebles and
Defendant First Old Capital Inc.
23. On information and belief, without authorization, Defendants continue to use the website
domain located at www .ocrl.com for personal business purposes, shutting down the website and
preventing Mr. Spoth and George Ray, Inc. from conducting important business.
24. Plaintiffs stillcannot gain access to Plaintiffs customer list, e-mail, and other valuable
proprietary information owned by the Plaintiffs. Plaintiffs move this Court for preliminary and
permanent injunctive relief ordering Defendants to relinquish this information to Plaintiffs· and
ordering Defendants not to use Plaintiffs' information to its benefit.
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND. AND APPLICATION FOR INJUNCTIVE RELIEF- PAGE 4
25. The foregoing acts and conduct of Defendants constitute an appropriation and invasion of
the property rights of Plaintiffs and constitute unfair competition because the public is also likely to
confuse Defendants' web site constructed from the url www.ocrl.com with that of Mr. Spoth and
George Ray, Inc.'s website url www.ocrl.com.
26. As a direct and proximate result of Defendants' conduct, as averred herein, Plaintiffs are
further entitled to recover all proceeds and other compensation received or to be received by
Defendants arising from its misappropriation of Plaintiffs url www.ocrl.com.
27. Plaintiffs request the Court to order Defendants to render an accounting to ascertain the
amount of such profits and compensation.
28. As a direct and proximate result of Defendants' unfair competition, Plaintiffs have been
damaged and Defendants have been unjustly enriched in an amount that shall be proved at trial for
which damages and/or restitution and disgorgement is appropriate.
29. Plaintiffs request the Court to order that Defendants convey to Plaintiffs its url
www.ocrl.com and all the gross receipts received or to be received that are attributable to
infringement by the infringing website.
30. Through its conduct averred herein, Defendants are guilty of oppression, fraud, and/or .
malice and Plaintiffs are, in addition to their actual damages, by reason thereof, entitled to recover
exemplary and punitive damages against Defendants.
31. Defendants' conduct, as hereinabove averred, is caused and is causing, and unless
enjoined and restrained by this Court, will continue to cause Plaintiffs great and irreparable injury
that cannot fully be compensated or measured in money alone.
32. Plaintiffs have no adequate remedy at law and is entitled to and requests the Court to
order preliminary and permanent injunctions prohibiting further acts of unfair competition.
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 5
VI. DECLARATORY JUDGMENT
33. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-32,
inclusive.
34. On August 18, 2005, Mr. Peebles' attorney, Randall Johnson, Esq., sent a letter to Mr.
Spoth seeking to dissolve PSI Partners, Ltd. ("the partnership"). Mr. Peebles seeks to walk away
from the partnership despite away from the partnership despite the fact that: (1) Mr. Peebles owes
$235,000 to Plaintiffs in partnership and other debts; and (2) Mr. Peebles wrongfully
misappropriated Plaintiffs' website located at www .ocrl.com and is using the website to conduct
business for Mr. Peebles' personal side mortgage business.
35. Pursuant to 13 U.S.C. § 1367 and Section 37.001, et. seq., of the Texas Civil Practice &
Remedies Code (the "Uniform Declaratory Judgments Act"), a justiciable controversy concerning
the rights, status, and legal relations exists by and among the parties. Therefore, pursuant to the
Uniform Declaratory Judgment Act, Plaintiffs request a declaratory judgment declaring as follows:
a. Pursuant to the Limited Partnership Agreement of PSI Partners, Ltd. and
the Regulations ofPSI-GP Associates LLC, PSI Partners, Ltd. and PSI-GP
are hereby dissolved;
b. Pursuant to his duties and obligations under the partnership agreement,
Mr. Peebles owes the following amounts to Plaintiffs: (1) half of the
current liabilities of the partnership, which are approximately $165,000;
(2) half of the projected liabilities for the existing rent and associated
expenditures to comply with the terms of the lease through December 1,
2006, which is estimated to be $125,000; (3) $102,250 for Mr. Peebles'
misappropriation of partnership assets including supplies, utilities,rental
space, food, services, and the use of staff for use in his personal side
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 6
mortgage business; and (4) an estimated $90,000 owed to George Ray,
Inc. for origination of the following loans: Dugger, Riek, Yolk, and loans
originated under the loan officers Parker, Muhm, Whelan, DellAngelo,
Webster, Newberry, Spoth, Torres, Donoghue, Moore, Hawks, Shore and
Hull. The total amount due to Plaintiffs is $235,000.
c. Pursuant to his fiduciary duties under the partnership agreement, Mr.
Peebles void all estoppel certificates signed on behalf of the partnership
without prior approval;
d. Pursuant to his duties under the partnership, Mr. Peebles in a timely
fashion comply with repeated requests for financial information necessary
to file tax returns on behalf of the partnership;
e. Defendants relinquish title to all partnership assets to Plaintiffs;
f. Plaintiffs are the rightful owners of the website domain located at
www .ocrl.corn;
g. Defendants cease and desist its unauthorized use of the url www.ocrl.com
and relinquish all rights and control to Plaintiffs, the rightful owners;
h. Defendants produce to Plaintiffs all proprietary materials and contents
from the website, including customer lists, and that the Defendants not use
this information to their benefit.
36. As established by the facts set forth above, there is an actual, present, and practical need
for declaratory relief. A justiciable controversy exists in this matter because (1) there is a real and
substantial controversy between the parties; and (2) the controversy is one that will actually be
determined by the judicial declaration sought.
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION I<'OR INJUNCTIVE RELIEF PAGE 7
VII. TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS
37. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-36,
inclusive.
38. Plaintiffs would show that the above-described willful and intentional actions by
Defendants are unjustified and have resulted in damage to Plaintiffs' contractual relationships with
existing customers. Defendants' misappropriation of Plaintiffs' website domain located at
www.ocrl.com, presumably will result in damage to the Plaintiffs existing contractual relationships
with its customers. Moreover, Defendants' wrongful actions have also resulted in, and are calculated
to result in, damage to Plaintiffs' prospective relationships with customers.
39. As a consequence of the foregoing, Defendants are jointly and severally liable for
damages from their misappropriation of the website domain, www.ocrl.com.
VIII. CONVERSION
40. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-39,
inclusive.
41. By its deliberate and wrongful conduct described above, Defendants have wrongfully
assumed and exercised dominion and control over Plaintiffs' rights to utilize its website domain
located at www .ocrl.com to the exclusion of, and inconsistent with, Plaintiffs' lawful rights.
42. Mr. Peebles, by and through Richard Gray and First Choice Computers, intentionally and
without authorization, induced Network Solutions, the provider of the website domain
www.ocrl.com, to perform an unauthorized transfer of the website domain from Mr. Spath and
George Ray, Inc. to Mr. Peebles and Defendant First Old Capital Inc., Mr. Peebles' personal side
mortgage business.
43. Despite receiving a cease and desist letter from Plaintiffs on or about August 20, 2005
and September 1, 2005, Defendants continued to operate their personal side mortgage business, First
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 8
Old Capital Inc., on Plaintiffs' website domain, www.ocrl.com, until on or about September 13,
2005.
44. On or about September 13, 2005, Defendants removed all of Plaintiffs' proprietary
materials and content from www.ocrl.com, but Defendants continue to operate a separate website for
. First Old Capital Inc. at the website domain, www.ocrl.com.
45. Defendant's wrongful actions have shut down the website and continue to prevent Mr.
Spoth and George Ray, Inc. from conducting important business via its website.
46. As a direct and proximate result of Defendants' conversion, Plaintiffs have suffered
damages and request an order returning its website domain, www.ocrl.com.
IX. BREACH OF FIDUCIARY DUTY
47. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-46,
inclusive.
48. Defendants and Plaintiffs had a fiduciary relationship.
49. Mr. Peebles breached his fiduciary duty to Plaintiffs by Mr. Peebles' wrongfully (1) using
the capital, assets, and manpower of the partnership to operate his personal side mortgage business;
(2) misappropriating Mr. Spoth's and George Ray, Inc.'swebsite located at www.ocrl.com and is
using the website to conduct business for Mr. Peebles' personal side mortgage business; and (3)
failing to pay Mr. Spoth for his loan originations.
50. For such breach of fiduciary duty, Plaintiffs seek all damages resulting from Mr. Peebles'
wrongful acts in an amount within the jurisdictional limits of this Court.
X. UNJUST ENRICHMENT
51. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-50,
inclusive.
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGJ): 9
52. Defendants obtained a benefit from Plaintiffs by fraud, duress and by taking undue
advantage of Plaintiffs.
53. In addition to seeking judgment from and against Defendants in the amount that
Defendants were unjustly enriched, Plaintiffs further seek as additional remedy their attorney's fees,
expenses and costs of court, and pre- and post-judgment interest.
XI. PROMISSORY ESTOPPEL
54. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-53,
inclusive.
55. Plaintiffs plead promissory estoppel as a defense to Defendants allegations.
56. Defendants made a promise to do something in the future that was made to induce action
or was reasonably calculated to induce action, in other words, the Defendants should have been able
to foresee that Plaintiffs would rely upon Defendants' promise.
57. Plaintiffs made a definite and substantial act in reliance on Defendants' promise to
Plaintiffs detriment.
58. Defendants agreed to pay Mr. Spoth a fee-split for Mr. Spoth's loan originations.
Therefore, Defendants are estopped from relying upon or enforcing any provision, in the Partnership
Agreement or otherwise, preventing Mr. Spoth from being rightfully paid for his loan originations.
59. Injustice can be avoided only by enforcement of the promise.
XII. REQUEST FOR TEMPORARY AND PERMANENT INJUNCTION
60. The verified facts and exhibits supporting the claims asserted establish that Plaintiffs
have a probable right to recovery and will suffer imminent and irreparable harm for which no
adequate remedy at law exists if injunctive relief is not entered. Accordingly, Plaintiffs request that
Defendants be cited to appear at a hearing and show cause why a temporary injunction should not be
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF- PAGE10
entered requiring that Defendants perform the actions set forth below and be restrained from other
activities as set forth below:
a. Defendants and their representatives, agents, servants, employees,
attorneys, and all persons acting in concert or participation with
Defendants immediately cease and desist its unauthorized use of the
website located at www.ocrl.com or, at a minimum, allow Plaintiffs access
to the website located at www.ocrl.com;
b. Defendants and their representatives, agents, servants, employees,
attorneys, and all persons acting in concert or participation with
Defendants immediately relinquish Plantiffs customer list, e-mail, and
other proprietary information owned by Plaintiffs located on
www.ocrl.com.
61. For the reasons set forth above, Plaintiffs request that the Court enter a temporary
injunction against Defendants pending a trialon the merits. In this regard, Plaintiffs will suffer
irreparable harm before a trial on the merits of this case can be conducted for which, as noted above,
Plaintiffs have no adequate remedy at law.
62. Additionally, and for the reasons set forth above, Plaintiffs further request that following
a trial on the merits of this case, the Court enter a permanent injunction against Defendants.
Plaintiffs request a permanent injunction to the extent necessary to preserve the relief granted by the
temporary injunction, and to prevent further breaches by Defendants.
XIII. CONDITIONS PRECEDENT
63. All conditions precedent have been performed or have occurred. Plaintiffs are ready,
willing, and able to perform each and every obligation imposed by the Limited Partnership
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 11
Agreement of PSI .Partners, Ltd. and the Regulations of PSI-GP Associates LLC, PSI Partners, Ltd.
and PSI-GP and to perform any equitable acts the Court deems necessary.
XIV. DAMAGES
64. Plaintiffs reiterate and reallege each and every averment contained in paragraphs l-63,
inclusive.
65. Through the acts of the Defendants, as mentioned in the preceding paragraphs, Plaintiffs
face damage to their business reputation for honesty and fair dealing- specifically with regard to
their goodwill and practice of upholding their contractual obligations. This hard-earned reputation
will be damaged because of Defendants' unfounded claims that Plaintiffs somehow breached their
obligations. This kind of injury to Plaintiffs' business reputation is irreparable, and Plaintiffs
therefore seek damages in a sum within the jurisdictional limits of this Court.
66. Moreover, as mentioned in the preceding paragraphs, Defendants' tortious conduct and
multiple breaches of their fiduciary duties have caused significant damage to Plaintiffs. Plaintiffs
therefore seek specific damages in a sum within the jurisdictional limits of this Court.
XV. REQUEST FOR TRIAL BY JURY
67. In their Original Petition, Plaintiffs made a demand for a trial by jury pursuant to Texas
Rule of Civil Procedure 216 as to all issues and submitted a fee therewith.
XVI. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:
68. That the Court enter an order granting Plaintiffs temporary and permanent
injunctive relief described supra;
69. That the Court make the declarations requested herein;
70. That the Court award Plaintiff damages, including actual and specific damages;
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, .AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 12
71. That the Court award cost of suit, attorney's fees and prejudgment and
postjudgment interest as provided by law; and
72. That the Court award such other and further relief to which Plaintiff may be justly
entitled.
Respectfully submitted,
William Frank Carroll
State Bar No. 03892500
Jennifer L. Murphy
State Bar No. 24027560
Thomas B. Alleman
State BarNo. 01017485
5400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270-2199
(214) 754-5400 Telephone
(214) 745-5390 Facsimile
ATTORNEYS FOR RAYMOND SPOTH,
GEORGE RAY, INC., PSI PARTNERS, LTD.,
AND PSI GP, LLC AS THE GENERAL
PARTNER OF PSI PARTNERS, LTD.,
CERTIFICATE OF SERVICE
The undersigned counsel affirms that the above document was served pursuant to the
Texas Rules of Civil Procedure on all counsel or parties of record this 14th day of July, 2006.
PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF- PAGE 13
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~t'::::l (;:r' CAUSE NO. 352-214202-05 ce, RAYMOND SPOTH, GEORGE RAY, INC., PSI PARTNERS, LTD., and PSI GP, LLC as the General Partner of PSI § § § IN THE DISTRICT COURT - r·- .{::"' -o :::1' Partners, Ltd., § § s:: Plaintiffs, § § OF TARRANT COUNTY, TEXAS ""'' (f" ~'v[.,.../ v. § § PAUL PEEBLES, and FIRST OLD § CAPITAL, INC., § § Defendants. § 352ND JUDICIAL DISTRICT PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF Plaintiffs, Raymond Spoth, George Ray, Inc., PSI Partners, Ltd., and PSI GP, LLC as the General Partner of PSI Partners, Ltd., (collectively, "Plaintiffs") file this Original Petition and Application for Injunctive Relief against Paul Peebles and First Old Capital, Inc. (collectively, "Defendants") and would respectfully represent the following: I. DISCOVERY CONTROL PLAN 1. Plaintiffs intend to conduct discovery under Level 3 pursuant to Rule 190.3 of the TEXAS RULES OF CIVIL PROCEDURE. II. PARTIES 2. Plaintiff PSI Partners, Ltd. is a partnership duly organized and existing under the laws of the state of Texas with itsprincipal place of business at 3309 Sweet Gum Lane, Grapevine, TX 76051. PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 1 3. Plaintiff PSI GP, LLC is a limited liability company duly organized and existing under the laws of the state ofTexas with its principal place ofbusiness at P.O. Box 353, Colleyville, Texas 76034-0353. PSI GP, LLC is the General Partner ofPSI Partners, Ltd. 4. Plaintiff Raymond Spath ("Mr. Spath") is a natural person and a limited partner of PSI Partners, Ltd., and he is a citizen of the state of Texas residing at 6309 Connie Lane, Colleyville, TX 76034. 5. Plaintiff George Ray, Inc. is a corporation organized and existing under the laws of the state of Texas with its principal place ofbusiness at P.O. Box 1015, Colleyville, Texas 76034. 6. On information and belief, Defendant First Old Capital, Inc. is a Texas corporation having a principal place ofbusiness at 3309 Sweet Gum Lane, Grapevine, Texas 76051. 7. On information and belief, Defendant Paul Peebles is a natural person and limited partner of PSI Partners, Ltd., and he is a citizen of the state of Texas, residing at 3309 Sweet Gum Lane, Grapevine, Texas 76051. Ill. JURISDICTION AND VENUE 8. This Court has jurisdiction over this matter because the amount in controversy exceeds this Court's minimum jurisdictional amount. Venue is proper in this Court pursuant to Texas Civil Practice and Remedies Code§ 15.002 because the Defendants reside in Tarrant County, Texas, and all or a substantial part of the events or omissions giving rise to this claim have occurred in Tarrant County, Texas. 9. In filing this Original Petition, Plaintiffs are not seeking relief under federal laws, including federal statutes, treaties, or constitutions. PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND. AND APPLICATION FOR INJUNCTIVE RELIEF- PAGE 2 IV. FACTUAL BACKGROUND 10. On or about September 29, 2003, PlaintiffRaymond Spath ( 11 Mr. Spath") and Defendant Paul Peebles ("Mr. Peebles") formed PSI Partners, Ltd., which operated as a management company in Colleyville, Texas. 11. PSI GP, LLC is the General Partner of PSI Partners, Ltd. 12. On August 18, 2005, Mr. Peebles' attorney, Randall Johnson, Esq., sent a letter to Mr. Spath seeking to dissolve PSI Partners, Ltd. ("the partnership 11 ).Mr. Peebles now seeks to walk away from the partnership despite the fact that: (1) Mr. Peebles owes at least $235,000 to Plaintiffs in partnership and other debts; and (2) Mr. Peebles' wrongfully misappropriated Mr. Spoth's and George Ray, Inc.'s website located at www.ocrl.com and is using the website to conduct business for Mr. Peebles' personal side mortgage business. 13. Mr. Peebles' also wrongfully used the capital, assets, and manpower of the partnership to operate his personal side mortgage business. 14. At the core of the dissolution of the partnership is a dispute over ownership and control of Mr. Spoth and George Ray, Inc.'s website domain located at www.ocrl.com. 15. Mr. Spath invested, and continues to invest, substantial sums of money, as well as time, effort, and creative talent, to create and maintain an original website, located at www.ocrl.com. 16. The website, located at www.ocrl.com, is titled "Old Capital" and is owned by Mr. Spoth by and through his corporation George Ray, Inc. 17. Mr. Peebles, by and through Richard Gray and First Choice Computers, intentionally and wrongfully induced Network Solutions, the provider of the website domain www.ocrl.com, to perform an unauthorized transfer of Mr. Spath and George Ray, Inc.'s website domain to Mr. Peebles and Defendant First Old Capital Inc., Mr. Peebles' personal side mortgage business. PLAINTIFFS' FIRST AMENDED PETITION. JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF- PAGE 3 18. Despite receiving cease and desist letters from Plaintiffs on or about August 20, 2005, September 1, 2005, and September 16, 2005, Defendants continue to operate their personal side mortgage business, First Old Capital Inc., on the website domain, www.ocrl.com. 19. Defendant's wrongful actions have shut down Mr. Spoth and George Ray, Inc.'s website and continue to prevent them from conducting important business via the website. 20. Plaintiffs still cannot gain access to the Pl~intiffs customer list, e-mail, and other proprietary information owned by the Plaintiffs. Plaintiffs move this Court for preliminary and permanent injunctive relief ordering Plaintiffs to relinquish this information to Plaintiffs and ordering Defendants not to use Plaintiffs' information to its benefit. V. UNFAIR COMPETITION 21. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-20, inclusive. 22. Defendants acted in bad faith by, without authorization, wrongfully inducing Network Solutions, the provider of the website address, to perform an unauthorized transfer of Mr. Spoth and George Ray, Inc.'s website domain located at www.ocrl.com from Plaintiffs to Mr. Peebles and Defendant First Old Capital Inc. 23. On information and belief, without authorization, Defendants continue to use the website domain located at www .ocrl.com for personal business purposes, shutting down the website and preventing Mr. Spoth and George Ray, Inc. from conducting important business. 24. Plaintiffs stillcannot gain access to Plaintiffs customer list, e-mail, and other valuable proprietary information owned by the Plaintiffs. Plaintiffs move this Court for preliminary and permanent injunctive relief ordering Defendants to relinquish this information to Plaintiffs· and ordering Defendants not to use Plaintiffs' information to its benefit. PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND. AND APPLICATION FOR INJUNCTIVE RELIEF- PAGE 4 25. The foregoing acts and conduct of Defendants constitute an appropriation and invasion of the property rights of Plaintiffs and constitute unfair competition because the public is also likely to confuse Defendants' web site constructed from the url www.ocrl.com with that of Mr. Spoth and George Ray, Inc.'s website url www.ocrl.com. 26. As a direct and proximate result of Defendants' conduct, as averred herein, Plaintiffs are further entitled to recover all proceeds and other compensation received or to be received by Defendants arising from its misappropriation of Plaintiffs url www.ocrl.com. 27. Plaintiffs request the Court to order Defendants to render an accounting to ascertain the amount of such profits and compensation. 28. As a direct and proximate result of Defendants' unfair competition, Plaintiffs have been damaged and Defendants have been unjustly enriched in an amount that shall be proved at trial for which damages and/or restitution and disgorgement is appropriate. 29. Plaintiffs request the Court to order that Defendants convey to Plaintiffs its url www.ocrl.com and all the gross receipts received or to be received that are attributable to infringement by the infringing website. 30. Through its conduct averred herein, Defendants are guilty of oppression, fraud, and/or . malice and Plaintiffs are, in addition to their actual damages, by reason thereof, entitled to recover exemplary and punitive damages against Defendants. 31. Defendants' conduct, as hereinabove averred, is caused and is causing, and unless enjoined and restrained by this Court, will continue to cause Plaintiffs great and irreparable injury that cannot fully be compensated or measured in money alone. 32. Plaintiffs have no adequate remedy at law and is entitled to and requests the Court to order preliminary and permanent injunctions prohibiting further acts of unfair competition. PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 5 VI. DECLARATORY JUDGMENT 33. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-32, inclusive. 34. On August 18, 2005, Mr. Peebles' attorney, Randall Johnson, Esq., sent a letter to Mr. Spoth seeking to dissolve PSI Partners, Ltd. ("the partnership"). Mr. Peebles seeks to walk away from the partnership despite away from the partnership despite the fact that: (1) Mr. Peebles owes $235,000 to Plaintiffs in partnership and other debts; and (2) Mr. Peebles wrongfully misappropriated Plaintiffs' website located at www .ocrl.com and is using the website to conduct business for Mr. Peebles' personal side mortgage business. 35. Pursuant to 13 U.S.C. § 1367 and Section 37.001, et. seq., of the Texas Civil Practice & Remedies Code (the "Uniform Declaratory Judgments Act"), a justiciable controversy concerning the rights, status, and legal relations exists by and among the parties. Therefore, pursuant to the Uniform Declaratory Judgment Act, Plaintiffs request a declaratory judgment declaring as follows: a. Pursuant to the Limited Partnership Agreement of PSI Partners, Ltd. and the Regulations ofPSI-GP Associates LLC, PSI Partners, Ltd. and PSI-GP are hereby dissolved; b. Pursuant to his duties and obligations under the partnership agreement, Mr. Peebles owes the following amounts to Plaintiffs: (1) half of the current liabilities of the partnership, which are approximately $165,000; (2) half of the projected liabilities for the existing rent and associated expenditures to comply with the terms of the lease through December 1, 2006, which is estimated to be $125,000; (3) $102,250 for Mr. Peebles' misappropriation of partnership assets including supplies, utilities,rental space, food, services, and the use of staff for use in his personal side PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 6 mortgage business; and (4) an estimated $90,000 owed to George Ray, Inc. for origination of the following loans: Dugger, Riek, Yolk, and loans originated under the loan officers Parker, Muhm, Whelan, DellAngelo, Webster, Newberry, Spoth, Torres, Donoghue, Moore, Hawks, Shore and Hull. The total amount due to Plaintiffs is $235,000. c. Pursuant to his fiduciary duties under the partnership agreement, Mr. Peebles void all estoppel certificates signed on behalf of the partnership without prior approval; d. Pursuant to his duties under the partnership, Mr. Peebles in a timely fashion comply with repeated requests for financial information necessary to file tax returns on behalf of the partnership; e. Defendants relinquish title to all partnership assets to Plaintiffs; f. Plaintiffs are the rightful owners of the website domain located at www .ocrl.corn; g. Defendants cease and desist its unauthorized use of the url www.ocrl.com and relinquish all rights and control to Plaintiffs, the rightful owners; h. Defendants produce to Plaintiffs all proprietary materials and contents from the website, including customer lists, and that the Defendants not use this information to their benefit. 36. As established by the facts set forth above, there is an actual, present, and practical need for declaratory relief. A justiciable controversy exists in this matter because (1) there is a real and substantial controversy between the parties; and (2) the controversy is one that will actually be determined by the judicial declaration sought. PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION I<'OR INJUNCTIVE RELIEF PAGE 7 VII. TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS 37. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-36, inclusive. 38. Plaintiffs would show that the above-described willful and intentional actions by Defendants are unjustified and have resulted in damage to Plaintiffs' contractual relationships with existing customers. Defendants' misappropriation of Plaintiffs' website domain located at www.ocrl.com, presumably will result in damage to the Plaintiffs existing contractual relationships with its customers. Moreover, Defendants' wrongful actions have also resulted in, and are calculated to result in, damage to Plaintiffs' prospective relationships with customers. 39. As a consequence of the foregoing, Defendants are jointly and severally liable for damages from their misappropriation of the website domain, www.ocrl.com. VIII. CONVERSION 40. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-39, inclusive. 41. By its deliberate and wrongful conduct described above, Defendants have wrongfully assumed and exercised dominion and control over Plaintiffs' rights to utilize its website domain located at www .ocrl.com to the exclusion of, and inconsistent with, Plaintiffs' lawful rights. 42. Mr. Peebles, by and through Richard Gray and First Choice Computers, intentionally and without authorization, induced Network Solutions, the provider of the website domain www.ocrl.com, to perform an unauthorized transfer of the website domain from Mr. Spath and George Ray, Inc. to Mr. Peebles and Defendant First Old Capital Inc., Mr. Peebles' personal side mortgage business. 43. Despite receiving a cease and desist letter from Plaintiffs on or about August 20, 2005 and September 1, 2005, Defendants continued to operate their personal side mortgage business, First PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 8 Old Capital Inc., on Plaintiffs' website domain, www.ocrl.com, until on or about September 13, 2005. 44. On or about September 13, 2005, Defendants removed all of Plaintiffs' proprietary materials and content from www.ocrl.com, but Defendants continue to operate a separate website for . First Old Capital Inc. at the website domain, www.ocrl.com. 45. Defendant's wrongful actions have shut down the website and continue to prevent Mr. Spoth and George Ray, Inc. from conducting important business via its website. 46. As a direct and proximate result of Defendants' conversion, Plaintiffs have suffered damages and request an order returning its website domain, www.ocrl.com. IX. BREACH OF FIDUCIARY DUTY 47. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-46, inclusive. 48. Defendants and Plaintiffs had a fiduciary relationship. 49. Mr. Peebles breached his fiduciary duty to Plaintiffs by Mr. Peebles' wrongfully (1) using the capital, assets, and manpower of the partnership to operate his personal side mortgage business; (2) misappropriating Mr. Spoth's and George Ray, Inc.'swebsite located at www.ocrl.com and is using the website to conduct business for Mr. Peebles' personal side mortgage business; and (3) failing to pay Mr. Spoth for his loan originations. 50. For such breach of fiduciary duty, Plaintiffs seek all damages resulting from Mr. Peebles' wrongful acts in an amount within the jurisdictional limits of this Court. X. UNJUST ENRICHMENT 51. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-50, inclusive. PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGJ): 9 52. Defendants obtained a benefit from Plaintiffs by fraud, duress and by taking undue advantage of Plaintiffs. 53. In addition to seeking judgment from and against Defendants in the amount that Defendants were unjustly enriched, Plaintiffs further seek as additional remedy their attorney's fees, expenses and costs of court, and pre- and post-judgment interest. XI. PROMISSORY ESTOPPEL 54. Plaintiffs reiterate and reallege each and every averment contained in paragraphs 1-53, inclusive. 55. Plaintiffs plead promissory estoppel as a defense to Defendants allegations. 56. Defendants made a promise to do something in the future that was made to induce action or was reasonably calculated to induce action, in other words, the Defendants should have been able to foresee that Plaintiffs would rely upon Defendants' promise. 57. Plaintiffs made a definite and substantial act in reliance on Defendants' promise to Plaintiffs detriment. 58. Defendants agreed to pay Mr. Spoth a fee-split for Mr. Spoth's loan originations. Therefore, Defendants are estopped from relying upon or enforcing any provision, in the Partnership Agreement or otherwise, preventing Mr. Spoth from being rightfully paid for his loan originations. 59. Injustice can be avoided only by enforcement of the promise. XII. REQUEST FOR TEMPORARY AND PERMANENT INJUNCTION 60. The verified facts and exhibits supporting the claims asserted establish that Plaintiffs have a probable right to recovery and will suffer imminent and irreparable harm for which no adequate remedy at law exists if injunctive relief is not entered. Accordingly, Plaintiffs request that Defendants be cited to appear at a hearing and show cause why a temporary injunction should not be PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF- PAGE10 entered requiring that Defendants perform the actions set forth below and be restrained from other activities as set forth below: a. Defendants and their representatives, agents, servants, employees, attorneys, and all persons acting in concert or participation with Defendants immediately cease and desist its unauthorized use of the website located at www.ocrl.com or, at a minimum, allow Plaintiffs access to the website located at www.ocrl.com; b. Defendants and their representatives, agents, servants, employees, attorneys, and all persons acting in concert or participation with Defendants immediately relinquish Plantiffs customer list, e-mail, and other proprietary information owned by Plaintiffs located on www.ocrl.com. 61. For the reasons set forth above, Plaintiffs request that the Court enter a temporary injunction against Defendants pending a trialon the merits. In this regard, Plaintiffs will suffer irreparable harm before a trial on the merits of this case can be conducted for which, as noted above, Plaintiffs have no adequate remedy at law. 62. Additionally, and for the reasons set forth above, Plaintiffs further request that following a trial on the merits of this case, the Court enter a permanent injunction against Defendants. Plaintiffs request a permanent injunction to the extent necessary to preserve the relief granted by the temporary injunction, and to prevent further breaches by Defendants. XIII. CONDITIONS PRECEDENT 63. All conditions precedent have been performed or have occurred. Plaintiffs are ready, willing, and able to perform each and every obligation imposed by the Limited Partnership PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 11 Agreement of PSI .Partners, Ltd. and the Regulations of PSI-GP Associates LLC, PSI Partners, Ltd. and PSI-GP and to perform any equitable acts the Court deems necessary. XIV. DAMAGES 64. Plaintiffs reiterate and reallege each and every averment contained in paragraphs l-63, inclusive. 65. Through the acts of the Defendants, as mentioned in the preceding paragraphs, Plaintiffs face damage to their business reputation for honesty and fair dealing- specifically with regard to their goodwill and practice of upholding their contractual obligations. This hard-earned reputation will be damaged because of Defendants' unfounded claims that Plaintiffs somehow breached their obligations. This kind of injury to Plaintiffs' business reputation is irreparable, and Plaintiffs therefore seek damages in a sum within the jurisdictional limits of this Court. 66. Moreover, as mentioned in the preceding paragraphs, Defendants' tortious conduct and multiple breaches of their fiduciary duties have caused significant damage to Plaintiffs. Plaintiffs therefore seek specific damages in a sum within the jurisdictional limits of this Court. XV. REQUEST FOR TRIAL BY JURY 67. In their Original Petition, Plaintiffs made a demand for a trial by jury pursuant to Texas Rule of Civil Procedure 216 as to all issues and submitted a fee therewith. XVI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against Defendants as follows: 68. That the Court enter an order granting Plaintiffs temporary and permanent injunctive relief described supra; 69. That the Court make the declarations requested herein; 70. That the Court award Plaintiff damages, including actual and specific damages; PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, .AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 12 71. That the Court award cost of suit, attorney's fees and prejudgment and postjudgment interest as provided by law; and 72. That the Court award such other and further relief to which Plaintiff may be justly entitled. Respectfully submitted, William Frank Carroll State Bar No. 03892500 Jennifer L. Murphy State Bar No. 24027560 Thomas B. Alleman State BarNo. 01017485 5400 Renaissance Tower 1201 Elm Street Dallas, Texas 75270-2199 (214) 754-5400 Telephone (214) 745-5390 Facsimile ATTORNEYS FOR RAYMOND SPOTH, GEORGE RAY, INC., PSI PARTNERS, LTD., AND PSI GP, LLC AS THE GENERAL PARTNER OF PSI PARTNERS, LTD., CERTIFICATE OF SERVICE The undersigned counsel affirms that the above document was served pursuant to the Texas Rules of Civil Procedure on all counsel or parties of record this 14th day of July, 2006. PLAINTIFFS' FIRST AMENDED PETITION, JURY DEMAND, AND APPLICATION FOR INJUNCTIVE RELIEF- PAGE 13