Preview
FILED
2/20/2020 8:43PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
CAUSE NO. DC-18-05517
JASON MARTINEZ § IN THE DISTRICT COURT
Plaintiff §
§
V. § 101“ JUDICIAL DISTRICT
§
JOHN SHERMAN §
Defendant § DALLAS COUNTY TEXAS
DEFENDANT’S MOTION TO COMPEL MEDIATION OR. IN THE ALTERNATIVE.
MOTION TO COMPEL DEPOSITION OF JASON MARTINEZ
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant John Sherman requesting the Court t0 enforce the parties’
mandatory dispute resolution clause. Or, in the alternative, order Plaintiff t0 be produced for
deposition Within seven (7) days at Plaintiff” s expense.
I.
1. This matter was last before this Court 0n January 22, 2020, for a hearing 0n
Defendant’s Motion t0 Dismiss for Failure to Comply with the Parties’ Alternative Dispute
Resolution Clause. At the hearing, Defendant presented the parties” contract drafted by the
Plaintiff, which provided for dispute resolution:
10. Bispute Resolution
With the excepfiou of the paragraphs pertaining to Partner's obligations regarding
Confidential Information and Partner’s obligations after termination of this Agreement (which
paragraphs shall be enforceable by injunctive relief). any dispute, claim or controversy: ?rising fmt of or
related in any way to this Agreement, including but not limited to its enforceablllty, valldity,or
interpretation, shall be first be submitted to non-binding mediation with a mutually agreed upon
mediator in Dallas County, Texas. In the event that the parties cannot agree upon a mediator, then they
shall each select a mediator, and those two mediators shall select a third to mfdiate tlfe tliSpute. If the
parties are unable to settle the dispute, claim or controversy through non-bindlng magnatuom, the}: such
dispute, claim or controversy shall be submitted to and resolved by binding arbitrynon wnth the
American Arbitration Association in Dallas, Texas, in accordance with the Commercml Arbitration
Rules of the American Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. It is specifically agreed that this
arbitration provision shall be binding on Partner’s heirs, executors, administrators, and personal
representatives. This paragraph (except for the provision pertaining to injunctive relief)shall be
governed by the Federal Arbitration Act.
See EX. A, Purchase Agreement dated December 22, 2016.
PAGE 1 0F 5
2. Plaintiff Jason Martinez signed the contract in his capacity as President of the
company and in his individual capacity and is therefore personally bound by the parties’ mediation
clause. Below is the contract’s signature page Where Plaintiff signed the document twice clearly
intending to be held personally liable:
Bavarian AS, LLC
P 'hn an
Date: /Z'z L’%//
By: JasonM inez President
Its:
Date: IZéi—Aé
I I
04.
V
See Ex. A at p. 5.
3. Plaintiff’s counsel argued on January 22, 2020, that Plaintiff Jason Martinez did
not sign the document in his individual capacity, despite the clear lack of any indication that he
was acting in any agency capacity With respect to the second signature. The Dallas Fifth Circuit
has held many times that it is the duty 0f an agent, in order t0 avoid personal liability 0n a contract
he signs, t0 disclose he is acting in a representative capacity and also t0 disclose the identity 0f his
PAGE 2 0F 5
principal. See Southwestern Bell Media, Inc. v. Trepper, 784 S.W. 2d 68, 72 (TeX. App.—-Dallas
1989, n0 writ). It iswell settled the law makes n0 presumption 0f agency. Id. An agent Will be
held personally liable 0n a contract the agent signs if the agent "does not disclose the fact and
intent 0f his agency." Ward v. Property Tax Valuation, Inc. 847 S.W.2d 298, 300 (TeX. App.— -
Dallas 1992, writ denied. Therefore, in order t0 avoid personal liability, an agent must prove he:
(1) disclosed his representative capacity t0 the other contracting party, and (2) identified the true
principal for whom he was acting. See Di Giammatteo v. Olney, 794 S.W.2d 103 104 (TeX. App.-
-Dallas 1990, no writ).
4. Despite the rulings 0f the Fifth Circuit and the evidence that Plaintiff signed the
contract twice — once as an agent 0f his company and a second time in his individual capacity,
Your Honor was uncertain if Plaintiff’s signature was a personal guarantee. Rather that rule 0n
the motion, the Court recessed allowing the parties 30-45 days t0 conduct limited discovery and
also t0 attend mediation.
5. The afternoon 0f the hearing, Defense counsel requested Plaintiff’s depositon but
heard n0 response. Over the next 30 days, Defense counsel sent m separate written requests
for Plaintiff’s deposition, including a Notice 0f Deposition, Without any response from Plaintiff:
a. On January 23, 2020, Defendant requested Plaintiff’s deposition.
b. On January 24, 2020, Defendant requested Plaintiff’s deposition.
c. On January 29, 2020, Defendant requested Plaintiff’s deposition.
e. On Febuary 5, 2020, Defendant requested Plaintiff’s deposition.
f. On Febuary 10, 2020, Defendant sent Plaintiff a Notice of Deposition.
g. On Febuary 17, 2020, Defendant wrote to confirm Plaintiff’s deposition.
h. On Febuary 18, 2020, Defendant requested an alternative date for Plaintiff’s
deposition.
PAGE 3 0F 5
i. On February 19, 2020, Defendant requested a telephone conference.
j. Defense counsel also sent proposed mediation dates to Plaintiff, With n0 response.
See Ex. B ,
Various Requests for Deposition and Notice 0f Deposition of Jason Martinez.
6. Clearly, the Plaintiff does not want to g0 on record admitting the personal
guarantee.
PRAYER FOR RELIEF
For these reasons, Defendant requests an Order enforcing the parties’ dispute resolution
clause. In the alternative, Defendant requests an Order compeling Plaintiff to be produced for
deposition at Plaintiff’s expense. Defendant further requests that Plaintiff be ordered t0 pay
Defendant’s attorney’s fees in the amount of $1000 pursuant t0 Rule 215.1(d) for having t0 draft
and file this motion. The parties were directed to complete the discovery and mediation within 30
— 45 days and the Plaintiff isdeliberately obstructing the Court’s instructions.
Respectfully submitted,
REDMOND & EILAND, PLLC
Nigel H. Redmond
State Bar N0. 24058852
19 1 0 Pacific Avenue
Suite 501 5 Dallas, Texas 75201
Telephone: 469-301 -2400
Email: nigel@nigelredmondlaw.com
SHERMAN LAW, P.C.
/s/ Stephanie Brooks Sherman
Stephanie Brooks Sherman
State Bar N0. 24006906
sshermantx@gmail.com
PAGE 4 0F 5
CERTIFICATE OF CONFERENCE
I certify that I made a reasonable attempt t0 confer with Plaintiff’s counsel regarding this
Motion but Plaintiff’s counsel would not respond.
812m
Stephanie B. Sherman
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing was served on counsel for Jason Martinez Via
e-file.
/s/ Stephanie Brooks Sherman
PAGE 5 0F 5
P URCHASE AGREEMENT
Thi s Purchase . . . .,
(th e “A gr eem e" t” )
'
doing bus iness
Agreement
.
Bavarian AS, LLC, a Texas llmuted hablllty company,
. _
9,
” s4
spo rts (the “Com P any
_
ner Is entered mto
thls 2nd ofaiaBnaVanan Auto )an d J0 h nSherman (as a Part
'”
),
day “P 3rt' afler a careful
h
"ary, 2017- The Company and the Partner (collectivel y th.6 leS )a
review of the
tenns set f0 ”h . _ . _
'n thls Agreement and an opportunity to discuss 1t With their respective attorneys,
agree as follows:
Q
l. s ervlces to be Performed b Partner:
(_a) Partner will perform the following services for the Compény in the form of managerial duties
to be d ec’ded by the
shareholders.
Palmer, as a material part of this Agreement, acknowle
dges and represents and warrants the
following)
for $350,000 with fiJture shares
will receive 15% of the company in exchange
(i) Paftner
being available at a later date.
payout being received by existing outgoing
(ii) Partner will receive his shares upon the full
partner, (Elan Zonis).
Payments to begin on April
years at a rate of 15%,
(iii)Investment will be paid back over 3 tor.
inves
month to Peter A. Sher man as soul
14‘”, 201 7 at a rate of $1 1,180.00 per
2. Payment for Performed Services
Partner the
Company, the Company agrees
to pay
For all services rendered by Partner to the
(a) 15% of comp anies net
Partner will earn a salary
of $10,000 per month and
following:
, per month.
of auto sales and auto services
ial Information
3. Trade Secrets and Confident
marketing plan(s), financial data,
as used in thisAgreement, means sales or
Tradé Secrets, is know n to the
(a) method or formula, that (i)
office policy and procedure,
design, process, adva ntage over
employee data,
and gives the Com pan y an
confi dential by the Company, (iii)
Compan y, (ii) isconsidered
competitors who do not
kno w or use it.
nonpublic and proprietary
as used in this Agreement, means all
Confidential Information, business. Confi dential
(b)
that may be used in the Company’s
used or
information or procedures/processes or non-patentable information;
infomation; patentable
both writ ten and unwritten information.
Information includes or non—copyrightable
e information; and copyrightable
and non- trademar kabl and inffnmat ion
trademarkable belongs to the Company; (ii)
information that
Information includes (i) Information Includes,
Confidential or others. Confidential
the Com pan y by its customers customer
confidentially provided to Company wages,
personnel information, Com pany salaries,
without limitation, employee files,
I
C mpany Initials
PartnerInitials
“A”
EXHIBIT
va_r——.V-A..,. .-u _-v_r ,,.._
"' r' L-w—ww-imm r‘
r--~'1~<
account information, customer files, customer lists,invoices, contracts, information contained in customer
files, information provided by customers and pertaining to their treatment, financial statements or financial
infomation, current or contemplated future business plans, designs, marketing plans, strategies or pricing
(customers, vendors or other third parties),and computer data or documentation. All Trade Secrets are also
Confidential Information.
(c) All leads and customer databases provided by Bavarian AS LLC is considered confidential
information including but not limited to: Buyer's Phone Number, Email address, physical address etc. is
owned by Bavarian AS LLC and will be used strictlyfor Bavarian AS LLC to sell vehicles or service only
during the duration of this signed agreement. Partner may use customer information for any other purpose nor
divulge information to anyone outside of Bavarian AS LLC. Once the agreement terminates, all contact with
Bavarian AS LLC leads, Clients, Lead Sources, Vendors, etc., must cease and desist. If contact is made after
this contract is dissolved, Bavarian AS LLC has the right to pursue legal action to the fullest extent. If Partner
deletes leads or destroys customer databases, or destructs any email marketing, or internal databases from
subscription 3rd party companies, that Bavarian AS LLC has provided, created, and paid for, Bavarian AS
LLC will pursue criminal legal action for theft to the fullest extent.
4. Partner Access to Confidential Information; Non-Solicitation and Non-Disclosure Agreement
NON—DISCLOSURE. Accordingly, with reSpect to all Trade Secrets and Confidential
(a)
Information made available to the Partner or which he may acquire during the Term of this Agreement, the
Partner agrees:
(i) To hold all Trade Secrets and Confidential Information in strictest confidence and, unless
Company gives Partner prior written consent to do so, not to disclose or use any such
Trade Secrets or Confidential Information (except as required in the performance of her
duties for the Company) either during the term of this Agreement or after the termination
of this Agreement;
(ii)Never to use Trade Secrets or Confidential Information other than in the course of
executing he services to the Company under this Agreement;
To
(iii) use all reasonable measures to prevent the unauthorized use of Trade Secrets and
Confidential Information by others;
(iv)To advise the President of the Company immediately if anyone from outside or within the
Company attempts to cause Partner to disclose Trade Secrets or Confidential
Information;
(v) That allTrade Secrets and Confidential Information belong solely to the Company or, as
applicable, to its customers. Partner understands that her unauthorized disclosure of
Trade Secrets or Confidential Information may result in the termination of this
Agreement, and a lawsuit by the Company against the Partner to obtain restitution forany
losses or injunction against any losses resulting from unauthorized disclosures;
(vi)Not to use or encourage others to use reverse engineering, component analysis, or similar
means to acquire Trade Secrets of the Company that the Company does not disclose to
Partner.
2
Company Initials
artner Initials
5. Company’s Right to Seek Iniunctive Relief
The Parties agree that if the Partner violates any of the paragraphs in this Agreement pertaining to
Non—Disclosure of Company’s trade secrets or confidential information or Non-Solicitation of Company’s
customers or employees, the Company will suffer immediate and irreparable harm that cannot accurately be
calculated in monetary damages. The Parties further agree that the Company’s remedy atlaw for any such
breach would be inadequate. Therefore, the Parties agree that Company shall be entitled immediately to
temporary or permanent injunctive relief to stop such a violation. This injunctive relief shall be in addition to
other or the Company entitled to receive, including reimbursement for all
any legal equitable relief is
reasonable attomey’s fees and court costs.
6. Address for Notice
Notices under this Agreement shall be sent to the following addresses:
To Company:
Bavarian Auto Sports
Attn: Jason Martinez
Q56, TAaPLE‘Q’ 20
CA—razm—ura ~ “2v
'7 500 C
To: John 'Sherman
wSr 150x
7-
The provisions of this Agreement
affect the validity and enforceability
M
are severable.
of the
The
other
V
invalidity or unenforceability
provisions. If any provision
of any provision
of this
shall not
Agreement is
unenforceable for any reason, such provision shall be appropriately limited and given effect to extent that it
may be enforceable.
8. Entire Agreement
This Agreement contains the entire understanding between the Parties with respect to the subjects covered in
such Agreement, and supersedes all prior agreements and understandings between the Parties, both written
and oral.
9. Governing LawNenue
This Agreemgnt shall be governed by the laws of the State of Texas and venue for any action arising
hereunder, or m connectlon herewith, shall lie in a court of competent jurisdiction in Dallas County, Texas.
3
Company Initials
farmer Initials
10. Dispute Resolution
With the exception of the paragraphs pertaining to Partner’s obligations regarding
Confidential Information and Partner’s obligations after termination of this Agreement (which
paragraphs shall be enforceable by injunctive reliet), any dispute, claim or controversy arising out of or
related in any way to this Agreement, including but not limited to its enforceability, validity, or
interpretation, shall be first be submitted to non-binding mediation with a mutually agreed upon
mediator in Dallas County, Texas. In the event that the parties cannot agree upon a mediator, then they
shall each select a mediator, and those two mediators shall select a third to mediate the diSpute. If the
parties are unable to settle the dispute, claim or controversy through non-binding mediation, then such
dispute, claim or controversy shall be submitted to and resolved by binding arbitration with the
American Arbitration Association in Dallas, Texas, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. It is specifically agreed that this
arbitration provision shall be binding on Partner’s heirs, executors, administrators, and personal
representatives. This paragraph (except for the provision pertaining to injunctive relief) shall be
governed by the Federal Arbitration Act.
ll. Waiver
The Company’s waiver of any default or breach of any term of this Agreement shall not waive the
Company’s rights as to subsequent default or breach of this Agreement. The Company’s rights under this
Agreement may not be changed or waived by an oral agreement or oral statement, but may only be changed
or waived by a written agreement signed by the President ofthe Company and Partner.
12. Successors and Assigns
This Agreement shall inure to the benefit of, and be binding upon, the successors and legal
representatives of the Company. The Company may freely assign its rights and duties under this Agreement
by notifying Partner. Partner agrees not assign its rights and duties under this Agreement without first
obtaining the written consent of the Company.
l3. Conflict of Interest
Partner agrees not purchase or sell any vehicles or conduct transactions outside of Bavarian AS, LLC.
Partner also agrees to not Open his own location during the duration of his partnership status or invest in other
dealership or likeness therein.
Company Initials
'
PartnerInitials
§.igy_a.tu_re_s
Bavarian AS, LLC
inez Its:President
m.
,
w‘fia‘,_w,firv_wu
<‘v
@Company Initials
7 PartnerInitials
.-
<‘_- -_ ,,A—,: -
- figxxnm—
,‘A.L..: ~17:
., ».-_ ,‘x-r—
.
BAVARIAN AS LLC
BALANCE SHEET
As of November 30. 201 6
TOTAL
ASSETS
Current Assets
Bank Accounts
BUSINESS CHECKING (5104) 40.75523
WF Checking -
1179 100-00
WF Checking -
4334 356-05
TotalBank Aoco'unts $41 .21 1 .28
Other Current Assets
Inventory 432,725.73
Total Other Current Assets $432,725.73
Total Current Assets $473,937.01
Fixed Assets
Furniture& Equipment 22,971 .68
Total Fixed Assets $22,971 .68
TOTAL ASSETS $496,903.69
LIABILITIES AND EQUITY
Liabilities
CurrentLiabilities
Other Current Liabilities
Child Support Martinez -4,51 0.35
N/P - Nextgear 247,725.73
N/P - Pvt FPlan 60,000.00
N/P -WFS Floor 125,000.00
Tbtal o'thér current Liabilities $428,215.33
Total Current Liabilities $428.21 5.38
Total Liabilities $428.21 5.38
Equity
Martinez Contributions -7,000.00
Martinez Draws 28,553.95
Retained Earnings
Zonis Contribitions 505,1 78.50
Zonis Draws -28,250.00
“Net Incomf
féiaT'E‘qmty
' W _~_ W. M mm “
-372.681 .24
’i's'siééfi?
TOTAL LIABILITIES AND EQUIITY $496,908.69
(/
Accrual BasisWednesday. December 21. 2016 02:51PM GMT-8
From: Stephanie Sherman ssherman@martinbaughman.com 6
Subiect: Martinez v. Sherman - Request for Deposition of Jason Martinez
Date: January 22, 2020 at 1 :23 PM
To: rowlettattorney@aol.com
Bradley,
Please provide a date and location for your client to be deposed within the next two
weeks. His deposition should take place before mediation. As you know, we have
45 days to complete the discovery and mediation.
Thank you,
MARTIN I
BAUGI—IMAN
Stephanie Brooks Sherman l Attorney
3710 Rawlins Street, Suite 1230 l Dallas, TX 75219
0ffice(214)761-6614 | Direct(214)210-4408 | Fax (214)744-7590
ssherman@martinbaughman.com| martinbaughman.com
EXHIBIT “B”
7
From: Stephanie Sherman ssherman@martinbaughman.com 6
Subiect: Re: Martinez v. Sherman: Defendant's Notice of Intent to Take the Oral and Videotaped Deposition Duces
of Plaintiff with
Tecum
Date: February 10, 2020 at1:01PM
To: rowlettattorney rowlettattorney@ao|.com
Bradley,
Please see the attached Notice of Deposition setting the deposition for February_
20. 2020 at 10:00 am. Ifthe location is not convenient, please provide an
alternate location as soon as possible.
Thank you,
ER“ $2
MARTIN |
BAUGHMAN
Stephanie Brooks Sherman l Attorney
3710 Rawlins Street, Suite 1230 | Dallas, TX 75219
Office(214)761-6614 | Direct(214)210-4408 | Fax (214)744-7590
ssherman@martinbaughman.com| martinbaughman.com
\
PDF
Martinez -
Deposi...tiff.pdf
From: Stephanie Sherman ssherman@martinbaughman.com
Subject: Re: Martinezv.Sherman -
JUNEAU FULL DAY
(defamation/fraudulent inducement)
Date: January 29, 2020 at 1:15 PM
To: rowlettattorney rowlettattorney@aol.com
Bradley,
|
my
have not heard anything regarding email ofMonday regarding: 1) mediation and 2) a deposition date and location for your client.
As you know, Judge Williams wants us
tocomplete the discovery and mediation
in30-45 days. Please provide a response today.
Thank you,
Stephanie Brooks Sherman |Attorney
3710 Rawlins Street, Suite 1230
| Dallas, TX 75219
Office (214) 761-6614| Direct (214) 210-4408| Fax (214) 744-7590
ssherman@martinbaughman.com| martinbaughman.com
On PM, "Stephanie Sherman" wrote:
1/27/20, 3:39
Bradley,
Please advise on a date.
| Of course we need to complete the depositions before the mediation
can make any of these dates work.
so |need to know when and where you are producing Jason Martinez so we can also firm up Peter Sherman's deposition.
Thanks,
Stephanie
Stephanie Brooks Sherman |Attorney
3710 Rawlins Street, Suite 1230| Dallas, TX 75219
Office (214) 761-6614 |Direct (214) 210-4408 | Fax (214) 744-7590
ssherman@martinbaughman.coml martinbaughman.com
On AM, "Brenda
1/27/20, 10:52
Gutierrez" wrote:
January 31 st
February 4th, 11th
April 6th, 7th, 8th, 9th, 10th, 13th, 17th, 21st, 27th, 28th, 29th, 30th
*Please be advised that any dates provided
toyou have also been provided and are not
to other requests/cases you
final until
have received the confirmation packet.*
Brenda Gutierrez
Group
Gilbert Mediation
Scheduling Coordinator for James Juneau, Ashley (de la Cerda) Evans,
Michael Carnahan, Todd Betanzos, Jennifer Stephens,
Clayton Devin, Greg McCarthy, Nancy Carnahan and Ken Wright
12001 N. Central Expressway, Suite 650
Texas
Dallas, 75243
303-4505
Direct (214)
www.gmgtexas.com
'Rip' Parker.
Contact Debbie Adest at debbie@gmgtexas.com for Mark Gilbert, Courtenay Bass, Brian Gerron and Walter E.
Contact Beth at beth@gmgtexas.com or 214-292-4210 for Coleman Sylvan.
Message-----
----- Original
From: Stephanie Sherman
Sent: Monday, January 27, 2020 10:50 AM
To:Brenda Gutierrez
Cc: rowlettattorney
thinr‘f- Mlorliafinn
_MlarI-ino7
\IQhormnn (annmafinn/franrlnlnn‘l- inrlnnomnnfi
From: Stephanie Sherman ssherman@martinbaughman.com é
Subiect: Martinez v. Sherman: Defendant's Notice of Intent to Take the Oral and Videotaped Deposition of Duces Tecum
Plaintiff with
Date: PM
February 5, 2020 at 12:21
To: rowlettattorney rowlettattorney@aol.com
Bradley,
Please see the attached. As you know, we are under a short deadline to get the
Preview
FILED 2/20/2020 8:43PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY CAUSE NO. DC-18-05517 JASON MARTINEZ § IN THE DISTRICT COURT Plaintiff § § V. § 101“ JUDICIAL DISTRICT § JOHN SHERMAN § Defendant § DALLAS COUNTY TEXAS DEFENDANT’S MOTION TO COMPEL MEDIATION OR. IN THE ALTERNATIVE. MOTION TO COMPEL DEPOSITION OF JASON MARTINEZ TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant John Sherman requesting the Court t0 enforce the parties’ mandatory dispute resolution clause. Or, in the alternative, order Plaintiff t0 be produced for deposition Within seven (7) days at Plaintiff” s expense. I. 1. This matter was last before this Court 0n January 22, 2020, for a hearing 0n Defendant’s Motion t0 Dismiss for Failure to Comply with the Parties’ Alternative Dispute Resolution Clause. At the hearing, Defendant presented the parties” contract drafted by the Plaintiff, which provided for dispute resolution: 10. Bispute Resolution With the excepfiou of the paragraphs pertaining to Partner's obligations regarding Confidential Information and Partner’s obligations after termination of this Agreement (which paragraphs shall be enforceable by injunctive relief). any dispute, claim or controversy: ?rising fmt of or related in any way to this Agreement, including but not limited to its enforceablllty, valldity,or interpretation, shall be first be submitted to non-binding mediation with a mutually agreed upon mediator in Dallas County, Texas. In the event that the parties cannot agree upon a mediator, then they shall each select a mediator, and those two mediators shall select a third to mfdiate tlfe tliSpute. If the parties are unable to settle the dispute, claim or controversy through non-bindlng magnatuom, the}: such dispute, claim or controversy shall be submitted to and resolved by binding arbitrynon wnth the American Arbitration Association in Dallas, Texas, in accordance with the Commercml Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. It is specifically agreed that this arbitration provision shall be binding on Partner’s heirs, executors, administrators, and personal representatives. This paragraph (except for the provision pertaining to injunctive relief)shall be governed by the Federal Arbitration Act. See EX. A, Purchase Agreement dated December 22, 2016. PAGE 1 0F 5 2. Plaintiff Jason Martinez signed the contract in his capacity as President of the company and in his individual capacity and is therefore personally bound by the parties’ mediation clause. Below is the contract’s signature page Where Plaintiff signed the document twice clearly intending to be held personally liable: Bavarian AS, LLC P 'hn an Date: /Z'z L’%// By: JasonM inez President Its: Date: IZéi—Aé I I 04. V See Ex. A at p. 5. 3. Plaintiff’s counsel argued on January 22, 2020, that Plaintiff Jason Martinez did not sign the document in his individual capacity, despite the clear lack of any indication that he was acting in any agency capacity With respect to the second signature. The Dallas Fifth Circuit has held many times that it is the duty 0f an agent, in order t0 avoid personal liability 0n a contract he signs, t0 disclose he is acting in a representative capacity and also t0 disclose the identity 0f his PAGE 2 0F 5 principal. See Southwestern Bell Media, Inc. v. Trepper, 784 S.W. 2d 68, 72 (TeX. App.—-Dallas 1989, n0 writ). It iswell settled the law makes n0 presumption 0f agency. Id. An agent Will be held personally liable 0n a contract the agent signs if the agent "does not disclose the fact and intent 0f his agency." Ward v. Property Tax Valuation, Inc. 847 S.W.2d 298, 300 (TeX. App.— - Dallas 1992, writ denied. Therefore, in order t0 avoid personal liability, an agent must prove he: (1) disclosed his representative capacity t0 the other contracting party, and (2) identified the true principal for whom he was acting. See Di Giammatteo v. Olney, 794 S.W.2d 103 104 (TeX. App.- -Dallas 1990, no writ). 4. Despite the rulings 0f the Fifth Circuit and the evidence that Plaintiff signed the contract twice — once as an agent 0f his company and a second time in his individual capacity, Your Honor was uncertain if Plaintiff’s signature was a personal guarantee. Rather that rule 0n the motion, the Court recessed allowing the parties 30-45 days t0 conduct limited discovery and also t0 attend mediation. 5. The afternoon 0f the hearing, Defense counsel requested Plaintiff’s depositon but heard n0 response. Over the next 30 days, Defense counsel sent m separate written requests for Plaintiff’s deposition, including a Notice 0f Deposition, Without any response from Plaintiff: a. On January 23, 2020, Defendant requested Plaintiff’s deposition. b. On January 24, 2020, Defendant requested Plaintiff’s deposition. c. On January 29, 2020, Defendant requested Plaintiff’s deposition. e. On Febuary 5, 2020, Defendant requested Plaintiff’s deposition. f. On Febuary 10, 2020, Defendant sent Plaintiff a Notice of Deposition. g. On Febuary 17, 2020, Defendant wrote to confirm Plaintiff’s deposition. h. On Febuary 18, 2020, Defendant requested an alternative date for Plaintiff’s deposition. PAGE 3 0F 5 i. On February 19, 2020, Defendant requested a telephone conference. j. Defense counsel also sent proposed mediation dates to Plaintiff, With n0 response. See Ex. B , Various Requests for Deposition and Notice 0f Deposition of Jason Martinez. 6. Clearly, the Plaintiff does not want to g0 on record admitting the personal guarantee. PRAYER FOR RELIEF For these reasons, Defendant requests an Order enforcing the parties’ dispute resolution clause. In the alternative, Defendant requests an Order compeling Plaintiff to be produced for deposition at Plaintiff’s expense. Defendant further requests that Plaintiff be ordered t0 pay Defendant’s attorney’s fees in the amount of $1000 pursuant t0 Rule 215.1(d) for having t0 draft and file this motion. The parties were directed to complete the discovery and mediation within 30 — 45 days and the Plaintiff isdeliberately obstructing the Court’s instructions. Respectfully submitted, REDMOND & EILAND, PLLC Nigel H. Redmond State Bar N0. 24058852 19 1 0 Pacific Avenue Suite 501 5 Dallas, Texas 75201 Telephone: 469-301 -2400 Email: nigel@nigelredmondlaw.com SHERMAN LAW, P.C. /s/ Stephanie Brooks Sherman Stephanie Brooks Sherman State Bar N0. 24006906 sshermantx@gmail.com PAGE 4 0F 5 CERTIFICATE OF CONFERENCE I certify that I made a reasonable attempt t0 confer with Plaintiff’s counsel regarding this Motion but Plaintiff’s counsel would not respond. 812m Stephanie B. Sherman CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was served on counsel for Jason Martinez Via e-file. /s/ Stephanie Brooks Sherman PAGE 5 0F 5 P URCHASE AGREEMENT Thi s Purchase . . . ., (th e “A gr eem e" t” ) ' doing bus iness Agreement . Bavarian AS, LLC, a Texas llmuted hablllty company, . _ 9, ” s4 spo rts (the “Com P any _ ner Is entered mto thls 2nd ofaiaBnaVanan Auto )an d J0 h nSherman (as a Part '” ), day “P 3rt' afler a careful h "ary, 2017- The Company and the Partner (collectivel y th.6 leS )a review of the tenns set f0 ”h . _ . _ 'n thls Agreement and an opportunity to discuss 1t With their respective attorneys, agree as follows: Q l. s ervlces to be Performed b Partner: (_a) Partner will perform the following services for the Compény in the form of managerial duties to be d ec’ded by the shareholders. Palmer, as a material part of this Agreement, acknowle dges and represents and warrants the following) for $350,000 with fiJture shares will receive 15% of the company in exchange (i) Paftner being available at a later date. payout being received by existing outgoing (ii) Partner will receive his shares upon the full partner, (Elan Zonis). Payments to begin on April years at a rate of 15%, (iii)Investment will be paid back over 3 tor. inves month to Peter A. Sher man as soul 14‘”, 201 7 at a rate of $1 1,180.00 per 2. Payment for Performed Services Partner the Company, the Company agrees to pay For all services rendered by Partner to the (a) 15% of comp anies net Partner will earn a salary of $10,000 per month and following: , per month. of auto sales and auto services ial Information 3. Trade Secrets and Confident marketing plan(s), financial data, as used in thisAgreement, means sales or Tradé Secrets, is know n to the (a) method or formula, that (i) office policy and procedure, design, process, adva ntage over employee data, and gives the Com pan y an confi dential by the Company, (iii) Compan y, (ii) isconsidered competitors who do not kno w or use it. nonpublic and proprietary as used in this Agreement, means all Confidential Information, business. Confi dential (b) that may be used in the Company’s used or information or procedures/processes or non-patentable information; infomation; patentable both writ ten and unwritten information. Information includes or non—copyrightable e information; and copyrightable and non- trademar kabl and inffnmat ion trademarkable belongs to the Company; (ii) information that Information includes (i) Information Includes, Confidential or others. Confidential the Com pan y by its customers customer confidentially provided to Company wages, personnel information, Com pany salaries, without limitation, employee files, I C mpany Initials PartnerInitials “A” EXHIBIT va_r——.V-A..,. .-u _-v_r ,,.._ "' r' L-w—ww-imm r‘ r--~'1~< account information, customer files, customer lists,invoices, contracts, information contained in customer files, information provided by customers and pertaining to their treatment, financial statements or financial infomation, current or contemplated future business plans, designs, marketing plans, strategies or pricing (customers, vendors or other third parties),and computer data or documentation. All Trade Secrets are also Confidential Information. (c) All leads and customer databases provided by Bavarian AS LLC is considered confidential information including but not limited to: Buyer's Phone Number, Email address, physical address etc. is owned by Bavarian AS LLC and will be used strictlyfor Bavarian AS LLC to sell vehicles or service only during the duration of this signed agreement. Partner may use customer information for any other purpose nor divulge information to anyone outside of Bavarian AS LLC. Once the agreement terminates, all contact with Bavarian AS LLC leads, Clients, Lead Sources, Vendors, etc., must cease and desist. If contact is made after this contract is dissolved, Bavarian AS LLC has the right to pursue legal action to the fullest extent. If Partner deletes leads or destroys customer databases, or destructs any email marketing, or internal databases from subscription 3rd party companies, that Bavarian AS LLC has provided, created, and paid for, Bavarian AS LLC will pursue criminal legal action for theft to the fullest extent. 4. Partner Access to Confidential Information; Non-Solicitation and Non-Disclosure Agreement NON—DISCLOSURE. Accordingly, with reSpect to all Trade Secrets and Confidential (a) Information made available to the Partner or which he may acquire during the Term of this Agreement, the Partner agrees: (i) To hold all Trade Secrets and Confidential Information in strictest confidence and, unless Company gives Partner prior written consent to do so, not to disclose or use any such Trade Secrets or Confidential Information (except as required in the performance of her duties for the Company) either during the term of this Agreement or after the termination of this Agreement; (ii)Never to use Trade Secrets or Confidential Information other than in the course of executing he services to the Company under this Agreement; To (iii) use all reasonable measures to prevent the unauthorized use of Trade Secrets and Confidential Information by others; (iv)To advise the President of the Company immediately if anyone from outside or within the Company attempts to cause Partner to disclose Trade Secrets or Confidential Information; (v) That allTrade Secrets and Confidential Information belong solely to the Company or, as applicable, to its customers. Partner understands that her unauthorized disclosure of Trade Secrets or Confidential Information may result in the termination of this Agreement, and a lawsuit by the Company against the Partner to obtain restitution forany losses or injunction against any losses resulting from unauthorized disclosures; (vi)Not to use or encourage others to use reverse engineering, component analysis, or similar means to acquire Trade Secrets of the Company that the Company does not disclose to Partner. 2 Company Initials artner Initials 5. Company’s Right to Seek Iniunctive Relief The Parties agree that if the Partner violates any of the paragraphs in this Agreement pertaining to Non—Disclosure of Company’s trade secrets or confidential information or Non-Solicitation of Company’s customers or employees, the Company will suffer immediate and irreparable harm that cannot accurately be calculated in monetary damages. The Parties further agree that the Company’s remedy atlaw for any such breach would be inadequate. Therefore, the Parties agree that Company shall be entitled immediately to temporary or permanent injunctive relief to stop such a violation. This injunctive relief shall be in addition to other or the Company entitled to receive, including reimbursement for all any legal equitable relief is reasonable attomey’s fees and court costs. 6. Address for Notice Notices under this Agreement shall be sent to the following addresses: To Company: Bavarian Auto Sports Attn: Jason Martinez Q56, TAaPLE‘Q’ 20 CA—razm—ura ~ “2v '7 500 C To: John 'Sherman wSr 150x 7- The provisions of this Agreement affect the validity and enforceability M are severable. of the The other V invalidity or unenforceability provisions. If any provision of any provision of this shall not Agreement is unenforceable for any reason, such provision shall be appropriately limited and given effect to extent that it may be enforceable. 8. Entire Agreement This Agreement contains the entire understanding between the Parties with respect to the subjects covered in such Agreement, and supersedes all prior agreements and understandings between the Parties, both written and oral. 9. Governing LawNenue This Agreemgnt shall be governed by the laws of the State of Texas and venue for any action arising hereunder, or m connectlon herewith, shall lie in a court of competent jurisdiction in Dallas County, Texas. 3 Company Initials farmer Initials 10. Dispute Resolution With the exception of the paragraphs pertaining to Partner’s obligations regarding Confidential Information and Partner’s obligations after termination of this Agreement (which paragraphs shall be enforceable by injunctive reliet), any dispute, claim or controversy arising out of or related in any way to this Agreement, including but not limited to its enforceability, validity, or interpretation, shall be first be submitted to non-binding mediation with a mutually agreed upon mediator in Dallas County, Texas. In the event that the parties cannot agree upon a mediator, then they shall each select a mediator, and those two mediators shall select a third to mediate the diSpute. If the parties are unable to settle the dispute, claim or controversy through non-binding mediation, then such dispute, claim or controversy shall be submitted to and resolved by binding arbitration with the American Arbitration Association in Dallas, Texas, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. It is specifically agreed that this arbitration provision shall be binding on Partner’s heirs, executors, administrators, and personal representatives. This paragraph (except for the provision pertaining to injunctive relief) shall be governed by the Federal Arbitration Act. ll. Waiver The Company’s waiver of any default or breach of any term of this Agreement shall not waive the Company’s rights as to subsequent default or breach of this Agreement. The Company’s rights under this Agreement may not be changed or waived by an oral agreement or oral statement, but may only be changed or waived by a written agreement signed by the President ofthe Company and Partner. 12. Successors and Assigns This Agreement shall inure to the benefit of, and be binding upon, the successors and legal representatives of the Company. The Company may freely assign its rights and duties under this Agreement by notifying Partner. Partner agrees not assign its rights and duties under this Agreement without first obtaining the written consent of the Company. l3. Conflict of Interest Partner agrees not purchase or sell any vehicles or conduct transactions outside of Bavarian AS, LLC. Partner also agrees to not Open his own location during the duration of his partnership status or invest in other dealership or likeness therein. Company Initials ' PartnerInitials §.igy_a.tu_re_s Bavarian AS, LLC inez Its:President m. , w‘fia‘,_w,firv_wu <‘v @Company Initials 7 PartnerInitials .- <‘_- -_ ,,A—,: - - figxxnm— ,‘A.L..: ~17: ., ».-_ ,‘x-r— . BAVARIAN AS LLC BALANCE SHEET As of November 30. 201 6 TOTAL ASSETS Current Assets Bank Accounts BUSINESS CHECKING (5104) 40.75523 WF Checking - 1179 100-00 WF Checking - 4334 356-05 TotalBank Aoco'unts $41 .21 1 .28 Other Current Assets Inventory 432,725.73 Total Other Current Assets $432,725.73 Total Current Assets $473,937.01 Fixed Assets Furniture& Equipment 22,971 .68 Total Fixed Assets $22,971 .68 TOTAL ASSETS $496,903.69 LIABILITIES AND EQUITY Liabilities CurrentLiabilities Other Current Liabilities Child Support Martinez -4,51 0.35 N/P - Nextgear 247,725.73 N/P - Pvt FPlan 60,000.00 N/P -WFS Floor 125,000.00 Tbtal o'thér current Liabilities $428,215.33 Total Current Liabilities $428.21 5.38 Total Liabilities $428.21 5.38 Equity Martinez Contributions -7,000.00 Martinez Draws 28,553.95 Retained Earnings Zonis Contribitions 505,1 78.50 Zonis Draws -28,250.00 “Net Incomf féiaT'E‘qmty ' W _~_ W. M mm “ -372.681 .24 ’i's'siééfi? TOTAL LIABILITIES AND EQUIITY $496,908.69 (/ Accrual BasisWednesday. December 21. 2016 02:51PM GMT-8 From: Stephanie Sherman ssherman@martinbaughman.com 6 Subiect: Martinez v. Sherman - Request for Deposition of Jason Martinez Date: January 22, 2020 at 1 :23 PM To: rowlettattorney@aol.com Bradley, Please provide a date and location for your client to be deposed within the next two weeks. His deposition should take place before mediation. As you know, we have 45 days to complete the discovery and mediation. Thank you, MARTIN I BAUGI—IMAN Stephanie Brooks Sherman l Attorney 3710 Rawlins Street, Suite 1230 l Dallas, TX 75219 0ffice(214)761-6614 | Direct(214)210-4408 | Fax (214)744-7590 ssherman@martinbaughman.com| martinbaughman.com EXHIBIT “B” 7 From: Stephanie Sherman ssherman@martinbaughman.com 6 Subiect: Re: Martinez v. Sherman: Defendant's Notice of Intent to Take the Oral and Videotaped Deposition Duces of Plaintiff with Tecum Date: February 10, 2020 at1:01PM To: rowlettattorney rowlettattorney@ao|.com Bradley, Please see the attached Notice of Deposition setting the deposition for February_ 20. 2020 at 10:00 am. Ifthe location is not convenient, please provide an alternate location as soon as possible. Thank you, ER“ $2 MARTIN | BAUGHMAN Stephanie Brooks Sherman l Attorney 3710 Rawlins Street, Suite 1230 | Dallas, TX 75219 Office(214)761-6614 | Direct(214)210-4408 | Fax (214)744-7590 ssherman@martinbaughman.com| martinbaughman.com \ PDF Martinez - Deposi...tiff.pdf From: Stephanie Sherman ssherman@martinbaughman.com Subject: Re: Martinezv.Sherman - JUNEAU FULL DAY (defamation/fraudulent inducement) Date: January 29, 2020 at 1:15 PM To: rowlettattorney rowlettattorney@aol.com Bradley, | my have not heard anything regarding email ofMonday regarding: 1) mediation and 2) a deposition date and location for your client. As you know, Judge Williams wants us tocomplete the discovery and mediation in30-45 days. Please provide a response today. Thank you, Stephanie Brooks Sherman |Attorney 3710 Rawlins Street, Suite 1230 | Dallas, TX 75219 Office (214) 761-6614| Direct (214) 210-4408| Fax (214) 744-7590 ssherman@martinbaughman.com| martinbaughman.com On PM, "Stephanie Sherman" wrote: 1/27/20, 3:39 Bradley, Please advise on a date. | Of course we need to complete the depositions before the mediation can make any of these dates work. so |need to know when and where you are producing Jason Martinez so we can also firm up Peter Sherman's deposition. Thanks, Stephanie Stephanie Brooks Sherman |Attorney 3710 Rawlins Street, Suite 1230| Dallas, TX 75219 Office (214) 761-6614 |Direct (214) 210-4408 | Fax (214) 744-7590 ssherman@martinbaughman.coml martinbaughman.com On AM, "Brenda 1/27/20, 10:52 Gutierrez" wrote: January 31 st February 4th, 11th April 6th, 7th, 8th, 9th, 10th, 13th, 17th, 21st, 27th, 28th, 29th, 30th *Please be advised that any dates provided toyou have also been provided and are not to other requests/cases you final until have received the confirmation packet.* Brenda Gutierrez Group Gilbert Mediation Scheduling Coordinator for James Juneau, Ashley (de la Cerda) Evans, Michael Carnahan, Todd Betanzos, Jennifer Stephens, Clayton Devin, Greg McCarthy, Nancy Carnahan and Ken Wright 12001 N. Central Expressway, Suite 650 Texas Dallas, 75243 303-4505 Direct (214) www.gmgtexas.com 'Rip' Parker. Contact Debbie Adest at debbie@gmgtexas.com for Mark Gilbert, Courtenay Bass, Brian Gerron and Walter E. Contact Beth at beth@gmgtexas.com or 214-292-4210 for Coleman Sylvan. Message----- ----- Original From: Stephanie Sherman Sent: Monday, January 27, 2020 10:50 AM To:Brenda Gutierrez Cc: rowlettattorney thinr‘f- Mlorliafinn _MlarI-ino7 \IQhormnn (annmafinn/franrlnlnn‘l- inrlnnomnnfi From: Stephanie Sherman ssherman@martinbaughman.com é Subiect: Martinez v. Sherman: Defendant's Notice of Intent to Take the Oral and Videotaped Deposition of Duces Tecum Plaintiff with Date: PM February 5, 2020 at 12:21 To: rowlettattorney rowlettattorney@aol.com Bradley, Please see the attached. As you know, we are under a short deadline to get the