Preview
Cause No. _________
DAJ TX HOLDINGS, LLC FKA IN THE DISTRICT COURT OF
DAJ HOLDINGS, LLC
Plaintiff,
MONTGOMERY COUNTY, TEXAS
REGIMENT CONSTRUCTIONSERVICES,
LLC;MCCUNE CONSTRUCTION FUNDS
MANAGEMENT, LLC FKA MCCUNE
CONSTRUCTION SERVICES GROUP, LLC;
andSIMMONS BANK, SUCCESSOR BY
MERGER TO SPIRIT OF TEXAS BANK,
Defendants. _____ JUDICIAL DISTRICT
PLAINTIFF ORIGINAL PETITION
AND APPLICATION FOR INJUNCTIVE RELIEF
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff, DAJ TX HOLDINGS, LLC FKA DAJ HOLDINGS, LLC
through attorney of record and files this its Original Petition and Application for Injunctive
Relief against Regiment Construction Services, LLC, McCune Construction Funds Management,
LLC FKA McCune Construction Services Group, LLC, and Simmons Bank successor by merger
to Spirit of Texas Bank, SSB, and would show the Court as follows:
DISCOVERY
Discovery is intended to be conducted under Level 2 of Tex. R. Civ. P. § 190.3.
CLAIMS FOR RELIEF
Pursuant to Rule 47(c)(3) of the Texas Rules of Civil Procedure, Plaintiff seeks damages
of monetary relief over $1,000,000 and non-monetary relief.
1
JURISDICTION AND VENUE
The matter and the amount in controversy are within the jurisdiction limits of this Court.
Venue in Montgomery County is proper in this cause because all or a substantial part of
the events or omissions giving rise to this lawsuit occurred in this County. Tex. Civ. Prac. Rem.
Code § 15.002(a)(1).
IV. PARTIES
Plaintiff, DAJ TX Holdings, LLC FKA DAJ Holdings, LLC (“DAJ TX” and/or
“Plaintiff”), is a Texas limited liability company with its princip place of business in
MontgomeryCounty, Texas.
Defendant, Regiment Construction Services, LLC Regiment”), is a Texas limited
liability company with its principal place of business in Montgomery County, Texas. Regiment
may be served through its registered agent, Victory Tax Services, located at 5511 Flower Grove
Rosharon, TX 77583.
Defendant, McCune Construction Funds Management, LLC FKA McCune Construction
Services Group, LLC (“McCune”), is a Texas limited liability company with its principal place of
business in Tarrant County, Texas. McCune may be served through its registered agent, Steve
McCune, located at 5316 Woodway Drive, Fort Worth, Texas 7
Defendant, Simmons Bank, successor by merger to Spirit of Texas Bank, SSB
(“Simmons”), is a state chartered bank organized under the laws of Arkansas and authorized to do
business in the State of Texas. Simmons may be served through its registered agent, Charles K.
Eastman, 2200 West 7 Street, Suite 212, Fort Worth, Texas 76107.
FACTUAL BACKGROUND
This lawsuit concerns real property located at 18905 Freeport Drive, Montgomery, Texas
77356, which is more particularly described as:
Lot 3, Block 1, of WALDEN ROAD BUSINESS PARK, a
subdivision in Montgomery County, Texas, according to the map or
plat thereof recorded in Cabinet 0, Sheet 85 of the Map and/or Plat
Records of Montgomery County, Texas (together with the
improvements locatedthereon the “Property”).
On or about June 25, 2021, DAJ TX acquired the Property, which consisted of
approximately acres of unimproved real property.
On or about July 20, 2021, DAJ TX and Powerplay Gymnastics Academy, Inc.
(“Powerplay”) obtained a loan in the amount of Seven Hundred Sixty Four Thousand Nine
Hundred Fifty and 00/100 Dollars ($764,950.00) from Simmons (the “Loan”). In connection with
obtaining the Loan, DAJ TX and Powerplay executed the Real Estate Lien Note (“Note”), the
Deed, Construction Loan Agreement (“Construction Note”), and various other loan documents
(collectively, the “Loan Agreement”).
The purpose of the Loan to DAJ TX and Powerplay was to provide funds for the
construction of an 18,000 square foot gymnastics academy to be known as Powerplay Gymnastics
(the “Project”).DAJ TX retained Regiment to be the general contractor for the Project.
During the course of the Project, Simmons made numerous and repeated errors giving rise
to DAJ TX’s grievances. Simmons overstepped its bounds as a lender and often attempted to act
as a Project manager. An example of this overreach was its requirement that DAJ TX hire and pay
substantial sums to McCune to serve as a third party inspector
As required by Simmons, on July 8, 2021 DAJ TX, Simmons, and McCune entered into a
Funds Disbursement to General Contractor, Subcontractors, and Vendors Services Agreement
McCune Agreement”). The funds isbursement ervices to be provided by McCune include
review of the Contractor’s Applications for Payments (draw ), corresponding Site Reviews,
Progress Review Reports, and Disbursement of Funds to the Contractor(s) and Vendors. Services
also include the collection of applicable Lien Waivers from Payees.
The McCune Agreement states that “[Simmons] appoints McCune as its agent for the sole
purpose of providing Progress Reviews and Funds Disbursement services on the Project, including
but not limited to periodic Progress Reviews and Reports. As a part of the function of McCune’s
role, McCune was required to follow the construction Project to determine whether work was
performed and whether the general contractor was entitled to a distribution of funds. McCune was
also responsible for reviewing all applications for payment for “completeness and accuracy,”
require that change orders were submitted with supporting evidence, and ensure the Project
architect approved and signed each draw request. It was represented by Simmons and McCune
that McCune closely followed the construction schedule to make sure the general contractor
completed all necessary tasks before being paid and, further, would make sure that the construction
Project stayed on course in terms of construction and distribution of funds based on work actually
completed without defects. DAJ TX paid McCune to conduct site inspections and distribute funds
for work performed.
However, McCune failed to meet its contractual obligations and allowed hundreds of
thousands of dollars to be distributed to Regiment despite Regiment furnishing defective work and
its failure to complete the work it invoiced for. In fact, McCune did not even perform a site visit
prior to paying Regiment $415,000.00 on or about July 22, 2021 in spite of its contractual
obligation to check funding requests for “accuracy and completeness.” McCune was also required
to send all reports to DAJ TX and Simmons for approval; however, McCune failed to send a single
report to DAJ TX. Instead, Simmons would send a report many weeks after the funds were already
distributed by Simmons to McCune and subsequently to Regiment. McCune also approved cost
increases of supplies needed for the Project without change orders signed by both DAJ TX and
Regiment, further driving up the cost of the Project and leading DAJ TX down the path of Project
failure. Further, each pay application submitted by Regiment was required to include the signature
of the architect, Carter Architects, In prior to disbursing funds. However, Regiment would place
“N/A” where the architect’s signature was requiredanother red flag that was completely ignored
by McCuneand Simmons
When Regiment ultimately abandoned the job, DAJ TX sought recourse from Simmons
and McCune for the mismanagement of the Project. However, McCune and Simmons did nothing.
Instead, Simmons seized the opportunity to declare DAJ TX in default of the Loan Agreement and
threatened foreclosure of the Property. An unconscionable attempt to take advantage of a situation
it created.
Prior to executing the Loan Agreement, Regiment submitted a bid for the proposed
construction work. After reviewing the bid, DAJ TX accepted the bid provided by Regiment
subject to Simmons’ review and agreement. Simmons informed DAJ TX that it conducted due
diligence on Regiment and, ultimately, agreed that DAJ TX could hire Regiment to serve as the
neral contractor for the construction of the gym. DAJ TX and Regiment executed the prime
contract on January 20, 2021
Regimentlater admitted that the Project wassignificantly underbid as the prices it used to
formulate the bid were from December 2019 and Regiment failed to update the bid prior to signing
the contract January 2021. Simmons became aware that Regiment had underbid the Project as
well as other issues with the Project on or about July 8, 2021. At this time, McCune provided
Simmons with an Initial Project Review (“IPR”) report, which was paid for by DAJ TX. However,
the IPR was not furnished to DAJ TX by Simmons McCune until March 9, 2022long after
the Loan Documents had been executed. The IPR raised several red flags, including missing
approved construction plans, MEP drawings, foundation drawings, and outdated drawings from
October 2012 despite having a “For Construction” set of signed and approved plans. The IPR
indicated that there were several issues DAJ TX needed to address and that there was not enough
information to provide a complete report. Unequivocally, DAJ TX would not have executed the
Loan Agreement had it known of these outstanding issues. Simmons and McCune undoubtedly
knew this, which is why this information was withheld from DAJ TX as the owner of the Property.
The false construction bid was just the start of Regiment’s incompetency and
misrepresentationsas it continued its path of deception as follows:
On January 22, 2021, Regiment provided Simmons with a letter representing that
Regiment was registered to provide services in the City of Conroe and Montgomery
County. This was false.
Regiment signed an affidavit of commencement as part of the loan documents
certifying that no work had started prior to the loan closing. This was false as its
work began January 25, 2021 as approved and allowed by Simmonsseveral
months priorto the loan closing.
Failure to adhere to City of Conroe and DAJ TX’s engineers’ approved and
permitted plans for dirt work.
Failure to request City of Conroe pre inspections of dirt work and size placement
of rebarprior to concrete pour
Failure to adhere to City of Conroe approved and permitted plans for parking lot.
Failure to adhere to City of Conroe approved plumbing plans.
Failure to adhere to City of Conroe approved and permitted plans for foundation.
Forgery: Signing of Conditional / Unconditional lien release as related to KAHL
AC, $52,000.
Constant misrepresentations regarding Project costs and equipment arrival dates.
Failure to request architect site visits despite being required to do so by the prime
contract and theMcCune Agreement
Failure to pay ubcontractors for work performed although paid by McCune for
said work, thus exposing he Property to liens.
Failure to seek required city inspections and approval of compliance with city
ordinances and building plan for the rebar or electrical work.
Failure to request any city permits for the rebar or concrete work associated with
the parking lot or building foundation or any of the electrical work, thus requiring
removal and reconstructing of the improvements as the City of Conroe will not
permit the current parking lot or foundation.
Director of Regiment David Miller’s use of his wife, Jonnie Kay Miller, sign and
notarizeall fraudulent financial forms and applications for payment
In addition to mismanagement of the Project, Regiment also failed to perform the actual
work with reasonable care and/or hire and supervise its subcontractors to ensure work was
performed with reasonable care. Regiment had a duty to ensure the work was done with reasonable
care pursuant to common law and contract; however, Regiment breached the duty it owed to DAJ
TX as outlined herein. As a result of Regiment’s negligence, DAJ TX suffered damages. Such
damages include property damage, “rip and tear” damages, demolition, and other work resulting
from Regiment’s breach. Additionally, DAJ TX has suffered damage to its representation as well
as the reputation of its owners, loss of use, lost profits, emotional distress and mental anguish
caused by the continuous cascading negligence of Regiment.
Despite demands from DAJ TX, Regiment wholly failed to cure the defects and the
damaged property caused by the subcontractors Regiment hired to furnish the work. DAJ TX was
left with no choice but to begin the process of seeking replacement contractors to finish the scope
of work Regiment failed to complete pursuant to the plans and specifications and correct the
property damage caused by Regiment and its subcontractors.
As a result of Regiment’s negligence and failures to perform in accordance with the prime
contract, DAJ TX will incur costs to complete and repair the scope of work, including but not
limited to, demolition of defective and negligent work, repair of property damage, and additional
overhead and management expenses regarding this work. DAJ TX also incurred additional direct
and indirect costs, including but not limited to, attorney’s fees, business interruption, lost profits
damage to reputation, financial distress, and mental anguish.
Simmons’ failure to timely fund construction, when work was actually performed,
multiple occasions contributed to the deterioration of the relationship between DAJ TX and
Regiment as well as between Regiment and its subcontractors and material suppliers. Simmons,
with assistance from McCune, intentionally delayed and held the disbursement of funds for draws
to setup DAJ TX for failure. This was evident its decision to move forward with an underbid
Project and its decision to approve commencement of construction prior to the execution of the
Loan Agreement. Defendants have replicated this scheme and used similar approaches with other
unsuspecting customers.
As time progressed and the construction lingered, DAJ TX learned that Regiment fell
behind in paying subcontractors and was requesting payment for work that was not performed.
DAJ TX complained to Simmons that McCune was not performing its duties and was monitoring
the distribution of funds as required, but Simmons refused to act. Simmons and McCune recklessly
released funds to Regiment without confirming that the construction Project was progressing as
intended, designed, approved by the architect, and in compliance with city ordinances. Ultimately,
Simmons informed DAJ TX that it would stop releasing construction funds altogether because the
Project was now overbudget. However, the Loan Agreement did not authorize Simmons to cease
funding the Project once it was overbudget, especially since that budget was erroneously,
negligently, and/or intentionally approved with Simmons’ knowledge that the Project was under
funded and doomed to failas described in the Initial Project Review
In the rare instance McCune actually did its job, Simmons ignored McCune’s
recommendations and breached conditions identified in the Loan Agreement. For example, on or
about September 17, 2021, McCune’s site visit and subsequent site review report stated that it did
not recommend approving the AC funding request because the equipment could verified as
reported by Regimen ; however, Simmons disregarded the report and funded Regiment’s draw
request in the amount of $52,000 On information and belief, Regiment forged the AC company’s
signature on conditional and unconditional lien releases justifying McCune’s recommendation.
DAJ TX provided Simmons with an affidavit from the AC company regarding Regiment’s forgery
and fraud. Simmons responded with, “our lawyers do not want to get between a client and a
contractor.” Time and time again Simmons would disburse funds when it should not and refuse to
disburse funds when it should have.
McCune was aware or became aware that Regiment was not completing the construction
Project as required and was making numerous construction errors and defects. Yet, McCune and
Simmons opened the checkbook and issued payment after payment for unperformed and faulty
work. These reckless errors caused the costs and the Project in total to spin out of control. To date,
DAJ TX is left with nothing but a concrete slab and parking lot it cannot obtain permits for,
incomplete and nonconforming plumbing work, a substantial amount of work yet to be performed,
numerous errors to remedy, increased costs of construction, and a lender who is refusing to release
any of the remaining construction funds.
When DAJ TX desperately tried to formulate a resolution to the problem to save the
Project, DAJ TX was faced with false promises from Simmons regarding its commitment to assist
with salvaging the Project DAJ TX and Simmons had conversations regarding potential loan
modifications, increases, interest only payments, as well as discussions about hiring a new general
contractor. Simmons never accepted any of the proposals submitted by DAJ TX, which would
have allowed the Project to move forward. Simmons only entertained DAJ TX becoming current
on the loan, finding a new lender, or selling the Property. However, Simmons ultimately
abandoned allpotential remedies to the problem it created and opted to deny DAJ TX’s proposals
and demand payment of the balance of the loan in full by July 15, 2022.
Simmons also misapplied and refused to distribute back to DAJ TX a $55,000 cash
injection secured by DAJ TX to be used to secure a 7a loan earmarked for equipment and working
capital. Simmons, through representative James Hayden, misled DAJ TX regarding Simmons’
intention and use of these funds and failed to disclose this information prior to closing.
Simmons even refused to issue a $17,156 draw request for the soil, rebar, and concrete
testing required by the City of Conroe, which could potentially avoid the economic waste of
demolishing and reconstructing the work, which would go along way to mitigating the damages.
Further showing Simmons utter lack of good faith in its dealings with DAJ TX.
Defendants’ actions and inactions have cost DAJ TX hundreds of thousands of dollars. All
DAJ TX ever wanted was to complete the construction of the gym with the hopes that one day it
would be a cornerstone in the athletics community in Montgomery County. Defendants actions
and inactions constitute breach of contract; fraud; conspiracy; lender liability breach of good
faith and fair dealing, lender liability negligence, lender liability breach of fiduciary duty, gross
negligence; money had and received; and violations of the Texas Deceptive Trade Practices Act
(“DTPA”). Plaintiff seeks all recoverable damages, including treble damages for the hundreds of
thousands of dollars damages caused by Defendants intentional, fraudulent, deceptive, and
nefarious acts and omissions.
VI. CAUSES OF ACTION
REACH OF ONTRACT EFENDANTS
DAJ TX incorporates the preceding factual allegations into this section as if fully set out
herein.
DAJ TX entered into valid and enforceable agreements with Defendant , which Defendants
have breached in numerous respects.
Simmons has refused to fund construction despite contractual obligations to do so. Such
refusals to fund construction constitute a material breachof the loan documents which Plaintiff
and Simmonsare parties.
McCune has utterly failed and refused to honor the terms of the McCune Agreement, which
required McCune to follow the construction Project to determine whether work was performed
and whether the general contractor was entitled to a distribution of funds. McCune was supposed
to closely follow the construction schedule to make sure the general contractor completed all
necessary tasks before disbursing funds and, further, was supposed to make sure that the
construction Project stayed on course in terms of construction and issue funds based on work
actually completed without defects.
DAJ TX paid McCune to conduct site inspections and distribute funds for work performed.
However, McCune failed to meet its contractual obligations and allowed hundreds of thousands of
dollars to be distributed to Regiment despite Regiment furnishing defective work and its failure to
complete the work it invoiced for. When Regiment ultimately abandoned the job, DAJ TX sought
recourse from Simmons and McCune for the mismanagement of the Project. However, McCune
and Simmons did nothing. Instead, Simmons seizedthe opportunity to declare DAJ TX in default
of the Loan Agreement and threatened foreclosure of the Property. An unconscionable attempt to
take advantage of a situation it created.
Further, Regiment knowing submitted a false bid for the proposed construction work.
Regiment later admitted the bid it submitted was false, as it was based on December 2019 prices,
and that it had significantly underbid the Project. Additionally, Regiment failed to perform the
work with reasonable care and/or hire and supervise its subcontractors to ensure work was
performed with reasonable care. Regiment had a duty to ensure the work was done with reasonable
care pursuant to common law and contract; however, Regiment breached the duty it owed to DAJ
as outlined above. As a result of Regiment’s negligence and breach of the prime contract, DAJ
TX suffered damages. Such damages include property damage, “rip and tear” damages,
demolition, and other work resulting from Regiment’s breach.
As a result of Regiment’s failures to perform in accordance with the prime contract, DAJ
TX will incur costs to complete and repair the scope of work, including but not limited to,
demolition of defective and negligent work, repair property damage, and additional overhead and
management expenses regarding this work. DAJ TX also incurred additional direct and indirect
costs, including but not limited to, attorney’s fees, business interruption, and lost profits.
Accordingly, Defendants are in breach. Plaintiff has suffered and continues to suffer
damages as a result of Defendants’ acts and omissions. DAJ TX suffered monetary damages as a
result of Defendants’breach and the agreements entered into by and between the parties
RAUD RAUD IN THE NDUCEMENT AND RAUDULENT ISREPRESENTATION
EFENDANTS
DAJ TX incorporates the preceding factual allegations into this section as if fully set out
herein.
Simmons made representations to Plaintiff that were material and false. When Simmons
made the representations to Plaintiff, Simmons knew or should have known that such
representations were false or made recklessly without knowledge of the truth. Simmons made
representations to Plaintiff with the intent that Plaintiff act on such representations. Plaintiff relied
on such representations causing Plaintiff injury and damage. Simmons omission ere material
as Plaintiff would not have entered into the Project if he had known what Simmons planning
to do.
Simmons also told Plaintiff that McCune would serve as a third party inspector and would
inspect and oversee the general contractor completing the roject as it was occurring, and issue
funds appropriately for work properly completed. Simmons told Plaintiff that McCune would
prepare and provide progress reviews and inspect the construction progress to determine whether
work was performed and whether the general contractor was entitled to a distribution of funds and
only approve fund distributions to the general contractor that were warranted. Defendants
specifically represented that McCune would closely follow the construction schedule to make sure
that the general contractor completed all necessary tasks before being paid, and that the
construction Project would stay on course. Simmons represented that they had worked with
McCune many times before.
Simmons knew that their representations were false. Simmons also knew of plan to
sabotage the roject and steal the roperty from Plaintiff and thus knowingly omitted to tell
Plaintiff that information. Simmons knew that McCune would not perform under the terms of the
McCune Agreement; namely, that McCune would not inspect and oversee the construction at the
Project to ensure it was done correctly and stayed on track and that McCune would issue the funds
to the general contractor despite the general contract completing the work it was supposed
to.
Simmons intended that Plaintiff would act on its false representations. Simmons also
recognized that Plaintiff would not be expecting Simmons to use the loan to try and take the
Property for itself Simmons further assuaged any skepticism on Plaintiff s part by ensuring
Plaintiff that McCune would inspect and oversee the Project as it was completed to alert Plaintiff
to any problems. Simmons further assuaged Plaintiff of any concerns by telling Plaintiff that had
worked with McCune on many roject s before. Yet Simmons knew that if Plaintiff was aware of
the falsity of these statements and the material omissions, Plaintiff would not enter into the loan
agreement with Simmons. Thus, Simmons deliberately omitted to tell Plaintiff of true intent,
and deliberately misrepresented what McCune would do so that Plaintiff would enter the Loan
Agreement
It was reasonable for Plaintiff to rely on Simmons misrepresentations. Plaintiff had no
reason to suspect that Simmons not operating in good faith and would try to steal the Property
away from and cause the Project to fail. Simmons assurances that it had used McCune many
times before made it all the more reasonable for Plaintiff to believe that McCune would perform
as promised.
Simmons scheme played out exactly Simmons anticipated. Simmons concocted and
executed a scheme where interfered with and interjected itself into the construction Project
beyond merely funding the loans. The scheme had a common purpose and goal to be accomplished
to take over the construction Project and, ultimately, seek to steal valuable real Property and
improvements from Plaintiff, specifically, the Property. Plaintiff worked diligently to develop and
construct a gymnastics center on the Property. But Simmons had other plans. Simmons hid the fact
that Regiment underbid the Project and that it could not be completed for the amount bid or the
amount it approved for the construction loan. Once the Project went over budget, Simmons sprung
their trap. Rather than acknowledge their ill desires and ineptitude, Simmons doubled down and
refused to issue any morefunds for the Project and threatened to foreclose on the Property
To make matters worse, Simmons used McCune to further defraud Plaintiff. Simmons
again overstepped bounds and mandated that Plaintiff hire McCune to serve as the third party
inspector for the construction Project. As Simmons anticipated, McCune appeared to fall asleep at
the wheel and allowed Regimentto trample all over the construction Project and receive payment
for work not performed. When Plaintiff complained that McCune not performing and w
acting recklessly with construction funds, Simmons shooed Plaintiff away and refused to remove
McCune
As Simmons apparently done many times to unsuspecting developers and Property
owners, Simmonsconspired with McCune to require Plaintiff to enter into lucrative contract with
McCune. As to the date of filing this petition, Plaintiff paid McCune thous ds for work it failed
to perform
Defendants devised a scheme and plotted to unlawfully take Plaintiff s valuable and unique
real Property. Defendants committed unlawful acts to further their course of action to defraud
Plaintiff. Defendants intentionally and knowingly defrauded DAJ TX and Defendants’ conduct
was extreme and outrageous for which the law allows for the imposition of exemplary damages,
jointly and severally, for which DAJ TXhereby sues.
Further, Defendants’ actions and omissions constitute fraudulent inducement. Defendants
fraudulently induced DAJ TX to enter into the Loan Agreement and the McCune Agreement
concealing the nature of the fraudulent scheme to steal Plaintiff’s Property
DAJ TX was induced to enter into the agreements and Defendants intended to deceive or
in the alternative, misrepresented their plan and thereby caused reliance by DAJ TX on the false
representations, causing a material and substantial inducement to enter into agreements.
Had DAJ TX been aware that Defendants never intended to comply with their
representations and promises to DAJ TX DAJ TX would not have entered into the agreements.
DAJ TX is entitled to damages, including emotional distress and mental anguish, as a result of
Defendants’fraudulent inducement and misrepresentations
ONSPIRACY IMMONS AND UNE
DAJ TX incorporates the preceding factual allegations into this section as if fully set out
herein.
An actionable civil conspiracy is a combination by two or more persons to accomplish an
unlawful purpose or to accomplish a lawful purpose by unlawful means. A civil conspiracy
requires (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on
the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the
proximate result. Once a civil conspiracy is proven, each co conspirator is responsible for all acts
done by any of the conspirators in furtherance of the unlawful combination.
DAJ TX additionally shows that Defendants were a part of a combination of two or more
persons and entities that had as their object obtaining the agreements without intending to comply
with the agreements and to perpetrate a fraudulent scheme against DAJ TX. There was a meeting
of the minds to convince DAJ TX to enter into the agreements for fraudulent purposes. Defendants
representations and information provided to DAJ TX were represented to be truthful and accurate.
Defendants knew those representations were not truthful and accurate. As a result of Defendants
misrepresentations, DAJ TXhas been injured and thereby suffered damages.
DAJ TX additionally shows that Defendants conspired with one another for the common
purpose of accomplishing an unlawful purpose or to accomplish a lawful purpose by unlawful
means. Defendants knowingly and purposely committed one or more overt acts in furtherance of
the conspiracy. As a result of this conspiracy, DAJ TX has been damaged and is entitled to recover
from Defendants, jointly and severally, all damages proximately resulting from Defendants
wrongful conduct.
Defendants devised a scheme and plotted to unlawfully take Plaintiff's valuable and unique
real Property with substantial equity. Defendants are two or more individuals and entities that
conspired to defraud Plaintiff. The members of the conspiracy, i.e., Defendants, had a meeting of
the minds to defraud Plaintiff. Defendants committed unlawful acts to further their course of action
to defraud Plaintiff.
Further, Defendants acted in a wanton and malicious manner for the purpose of causing
harm to DAJ TX. Such conduct entitle DAJ TX to punitive damages to act as a deterrent to prevent
similar behavior in the future, such amount being in excess of the minimum jurisdictional limits
of this Court.
EGLIGENCE AND ROSS EGLIGENCE EFENDANTS
DAJ TX incorporates the preceding factual allegations into this section as if fully set out
herein.
Regiment owed a legal duty to Plaintiff and violated such duty causing harm to Plaintiff’s
Property Regiment has failed to comply with the terms of the prime contract and utilized
subcontractors that performed negligently and caused extensive property damage to the Property.
As described above, Regiment failed to perform the work with reasonable care and/or hire
and supervise its subcontractors to ensure work was performed with reasonable care. Regiment
had a duty to ensure the work was done with reasonable care pursuant to common law and contract;
however, Regiment breached the duty it owed to DAJ TX as outlined above. As a result of
Regiment’s negligence, DAJ TX suffered damages. Such damages include property damage, “rip
and tear” damagesdemolition, and other work resulting from Regiment ’s breach.
Despite demands from DAJ TX Regiment wholly failed to cure the defects and the
damaged property caused by the subcontractors Regiment hired to furnish the work. DAJ TX was
left with no choice but to beginthe process of seekingreplacement contractors to finish the cope
of ork Regiment failed to complete pursuant to the plans and specifications and correct the
property damage caused by Regimentand its subcontractors.
As a result of Regiment’s failures to perform in accordance with the prime contract DAJ
will incur costs to complete and repair the cope of ork, including but not limited to,
demolition of defective and negligent work, repair property damage, and additional overhead and
management expenses regarding this work. DAJ TX also incurred additional direct and indirect
costs, including but not limited to, attorney’s fees, business interruption, and lost profits.
Likewise, McCune and Simmons owed a legal duty to Plaintiff and violated such duty
causing harm to Plaintiff. McCune and Simmons knew their acts or omissions involved an extreme
degree of risk, considering the probability and magnitude of the potential harm to Plaintiff. Despite
having actual subjective awareness of the risks involved, Defendants proceeded in conscious
indifference to the rights, safety, or welfare of Plaintiff.
McCune wholly failed to do their job, costing Plaintiff hundreds of thousands of dollars
As time progressed and the construction lingered, Plaintiff learned that Regiment fell behind in
paying subcontractors and was requesting payment for work that was not performed. Plaintiff
complained to Simmons that McCune was not performing duties and not monitoring the
distribution of funds as required, but Simmons refused to remove McCune and refused to allow
Plaintiff to hire an inspector who would actually perform the duties and functions of its role.
McCune and Simmons recklessly released funds to Regiment without confirming that the
construction Projectwas progressing as intended.
Simmons had an obligation to provide a loan for Plaintiff that would allow it to complete
the construction Project in a timely and cost effective way, thus ensuring that it could recoup the
money owed to . Instead, Simmons structured the loan, and therefore the construction Project, in
a manner that severely inhibited Plaintiff s ability to complete the Project within budget resulting
in the collapse of the construction Project and the basis for Simmons’ decision to stop funding the
Project
By failing to fund the construction Project and exercising excessive control over Plaintiff
business, Simmons breached their duty to Plaintiff which led to substantial loss and damages
incurred by Plaintiff
ENDER IABILITY EGLIGENCE
DAJ TX incorporates the preceding factual allegations into this section as if fully set out
herein.
Simmons owed a legal duty to Plaintiff and violated such duty causing harm to Plaintiff.
Simmons had an obligation to provide a loan for Plaintiff that would allow it to complete the
construction Project in a timely and cost effective way, thus ensuring that it could recoup the
money owed to Simmons. Instead, Simmons hid the fact that Regiment’s bid would leave the
Project underfunded and that it would refuse to continue to fund the Project should it go over
budget rather than modifying the loan, thus resulting in the collapse of the construction Project.
By failing to fund the construction Project and exercising excessive control over Plaintiff's
business, Simmons breached their duty to Plaintiff which led to the loss and substantial damages.
INDER IABILITY REACH OF UTY OF OOD AITH AND AIR EALING
DAJ TX incorporates the preceding factual allegations into this section as if fully set out
herein.
A claim for breach of duty of good faith and fair dealing is a tort action that arises from an
underlying contract that creates a “special relationship” between the parties. A special relationship
arises from the element of trust necessary to accomplish the goals of the undertaking or when
imposed by the courts due to an imbalance of bargaining power.
Plaintiff is a small, limited liability company owned by husband and wife, Dane and
Danielle Jordan. Simmon has been in business for many years in the United States.
Simmons’ used their superior bargaining position, misrepresentations, and material
omissions to induce Plaintiff to enter into a insufficient loan that put construction Project in
jeopardy.
Further, the close business relationship between Simmons and McCune put Simmons in
the position of being able to have excessive control over Plaintiff s business dealings. Each step
of the loan and construction process was executed under the control and coercion of Simmons
The contract between Simmons and Plaintiff created a special relationship between the
parties due to Simmons’ excessive control over Plaintiff s business dealings. This excessive
control created a fiduciary relationship between Simmons and Plaintiff which in turn created an
implied duty of good faith and fair dealing for Simmons
By taking advantage of the Parties special relationship and manipulating and controlling
Plaintiff, Simmons breached their duty of good faith and fair dealing, which ended up costing
Plaintiff potentially millions of dollars
ENDER IABILITY REACH OF IDUCIARY UTY
DAJ TX incorporates the preceding factual allegations into this section as if fully set out
herein.
“Lender liability” occurs when a lender exercises too much control over a borrower. When
a lender interjects into the Project and exercises excessive control over the borrower, the lender
assumes the role of a fiduciary and is no longer merely a creditor. As a result of Simmons
excessive interference in the construction Project and Plaintiff s business affairs, Plaintiff and
Simmons had a fiduciary relationship. Simmons breached fiduciary duties, including duties of
care, loyalty, good faith, and fair dealings with Plaintiff resulting in financial injury.
Simmons informed Plaintiff that Plaintiff was required to hire McCuneto serve as a third
party inspector.After demanding that Plaintiff hire McCune Simmons moved forward and
brokered an agreement requiring Plaintiff to use McCune as a third party inspector to oversee and
distribute the funds to Regiment. Plaintiff, as well as Regiment and Simmons, entered into written
agreements with McCune to perform such services. As a part of the function of McCune role,
McCune required to follow the construction Project to determine whether work was performed
to distribute funds to the general contractor, Regiment. It was represented by Simmons and
McCune that McCun would closely follow the construction schedule to make sure the general
contractor completed all necessary tasks before being paid and, further, would make sure that the
construction Project stayed on course in terms of construction and distribution of funds based on
work actually completed. Plaintiff paid McCune to conduct site inspections and distribute funds
for work performed.
By its deceit and material omissions, Simmons orchestrated the circumstances surrounding
the loan so that Plaintiff would be at mercy. Simmons arranged for Plaintiff to owe
significant amount of money with Plaintiff s most valuable asset, the Property, being held as
collateral. Based on the circumstances of the loan that Simmons arranged, there was always a
possibility of foreclosure because the funds were being distributed to Regiment despite work not
being completedin addition to the fact that Simmons was fully aware that Regiment underbid the
Project. This was exactly what Simmonshad intended.
These actions breached Simmons fiduciary duties, including duties of care, loyalty, good
faith, and fair dealings with Plaintiff resulting in financial injury.
IOLATIONS OF THE EXAS ECEPTIVE TRADE PRACTICES ACT (DTPA)
EFENDANTS
DAJ TX incorporates the preceding factual allegations into this section as if fully set out
herein.
Defendants have violated Sections 17.46 and 17.50(a)(1) of the Texas Business and
Commerce Code, by conspiring to have Plaintiff take out loans for the construction of the Project
with Plaintiff Property as collateral, and then orchestrating the circumstances surrounding the
Project so that it could not be completed according to the terms of the loan so that Simmons could
obtain the Property for less than market value at Plaintiff expense; and Defendants used
deceptive representations in order to induce Plaintiff to enter into the oan greement and the
McCune Agreement. Plaintiff qualifies as a consumer. Defendants engaged in false, misleading,
or deceptive actions. Plaintiff did not discover, no should have discovered Defendants false,
misleading, and deceptive practices until well after the Loan Agreement and McCune Agreement
were executed and the Project was well underway
Further, as to Regiment, certain representations and warranties concerning the work to be
performed the cost of the work, the skill level/experience of the subcontractors, the ability of
Regiment to complete the work, as well as repair defects in its work, that were made to Plaintiff
Regiment have proven to be false and misleading and constitute violations of the DTPA. These
violations consist of the following:
Representing that the work would be of a particular standard, quality, or grade when
it is not;
Representing that the purchase of the work conferred involved rights, remedies, or
obligations which it does not;
Knowingly making false or misleading statements of fact concerning the lack of, or
need for, work;
Failing to disclose information concerning the work which was known at the time to
Regiment entered into the prime contract, which induced Plaintiff into a transaction
would have not entered into had the information been disclosed; and
Making false, misleading, and deceptive statements in the conduct of business.
The acts were a producing cause of Plaintiff s damages, including emotional distress and
mental anguish. As a consequence of Defendants actions and omissions, Plaintiff is entitled to
compensation in an amount to be proven at trial
EQUEST FOR SSUANCE OF A EMPORARY NJUNCTION
AND ERMANENT NJUNCTION
Plaintiff requests that this Court enter a temporary restraining order that Simmons and
Simmons’ officers, employees, agents, representatives, and attorneys are temporarily restrained
and enjoined from conducting a non judicial foreclosure sale of the Property, and order a hearing
for a temporary injunction, granting the relief requested herein.
Plaintiff has a substantial likelihood of prevailing on the merits of case and causes of
action, primarily because Simmons’ actions and inactions have caused Plaintiff s inability to pay
the loan according to its terms or obtain refinancing of the loan.
Immediate injunctive relief in the form of a temporary restraining order is needed to prevent
Simmons from conducting an inequitable and unlawful non judicial foreclosure sale of the
Property.
Without this immediate injunctive relief, Plaintiff will suffer an imminent and irreparable
injury by reason of Simmons conducting an inequitable and unlawful non judicial foreclosure sale
of the Property, for which there is no adequate remedy at law.
Plaintiff is willing to post a bond for the issuance of this Court s temporary restraining
order.
Plaintiff further requests that this Court set a hearing on Plaintiff s request for a temporary
injunction and at the conclusion of such hearing, this Court issue a temporary injunction enjoining
Simmons and Simmons’ officers, employees, agents, representatives, and attorneys from
conducting a non-judicial foreclosure sale of the Property.
Plaintiff further requests that upon the trial of this cause, this Court issue a permanent
injunction enjoining Simmons and Simmons’ officers, employees, agents, representatives, and
attorneys from conducting a non-judicial foreclosure sale of the Property.
VII. DAMAGES AND RELIEF
All conditions precedent for recovery have been met.
DAJ TX incorporates the preceding factual allegations into this section as if fully set out
herein.
Attorneys’ Fees. Plaintiff has been required to retain the services of attorneys to enforce
its rights and is entitled to recover reasonable and necessary attorneys’ fees and costs of court. In
accordance with Section 38.001 of the Texas Civil Practice & Remedies Code, Section 17.50 of
the Texas Business and Commerce Code, and Section 541.152 of the Texas Insurance Code, and
the principles of equity, Plaintiff is entitled to seek and obtain attorneys’ fees from Defendants.
Pursuant to the usual and customary fees for a claim of this type, Plaintiff is entitled to reasonable
and necessary attorneys’ fees for the preparation and trial of this case and additional attorneys’ fees
in the event of an appeal or other proceedings.
Exemplary Damages. Defendants’ acts as set forth herein constitute fraud, malice, or gross
negligence. As a result of the acts or omissions set forth herein, Plaintiff is entitled to the recovery
of exemplary damages in addition to damages for mental anguish and emotional distress as to all
Defendants.
Treble Damages. As a result of Defendants’ unlawful conduct, Plaintiff is entitled to
recover “three times” Plaintiff s economic damages in accordance with Section 17.50 of the Texas
Business and Commerce Code
VIII. DEMAND FOR TRIAL BY JURY
Plaintiff demands a trial by jury pursuant to TEX. R. CIV. P. 216. Simultaneous with the
filing of this Jury Demand, Plaintiff submits herewith its Jury Fee payable to the District Clerk.
VIII. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that it be awarded judgment
against Defendants as follows:
1. Plaintiff have judgment against Defendants and recover all damages including, but not limited
to, actual damages, consequential damages, mental anguish, economic damages, non-economic
damages, loss of credit, loss of equity, damage to credit, special damages, treble damages, statutory
damages, and all other damages and recovery available at law or in equity;
2. A temporary restraining order that Defendant and Defendant s officers, employees, agents,
representatives, and attorneys are temporarily restrained and enjoined from conducting a non
judicial foreclosure sale of the Property;
3. A temporary injunction that Defendant and Defendant s officers, employees, agents,
representatives, and attorneys are temporarily restrained and enjoined from conducting a non
judicial foreclosure sale of the Property;
4. A permanent injunction that Defendant and Defendant s officers, employees, agents,
representatives, and attorneys are permanently restrained and enjoined from conducting a non
judicial foreclosure sale of the Property;
5. Such writs and processes to preserve the Plaintiff's title and possession of the Property;
6. Plaintiff have judgment and recover on its causes of action as asserted herein;
7. Court costs;
. Reasonable and necessary attorneys ’ f
Preview
Cause No. _________ DAJ TX HOLDINGS, LLC FKA IN THE DISTRICT COURT OF DAJ HOLDINGS, LLC Plaintiff, MONTGOMERY COUNTY, TEXAS REGIMENT CONSTRUCTIONSERVICES, LLC;MCCUNE CONSTRUCTION FUNDS MANAGEMENT, LLC FKA MCCUNE CONSTRUCTION SERVICES GROUP, LLC; andSIMMONS BANK, SUCCESSOR BY MERGER TO SPIRIT OF TEXAS BANK, Defendants. _____ JUDICIAL DISTRICT PLAINTIFF ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff, DAJ TX HOLDINGS, LLC FKA DAJ HOLDINGS, LLC through attorney of record and files this its Original Petition and Application for Injunctive Relief against Regiment Construction Services, LLC, McCune Construction Funds Management, LLC FKA McCune Construction Services Group, LLC, and Simmons Bank successor by merger to Spirit of Texas Bank, SSB, and would show the Court as follows: DISCOVERY Discovery is intended to be conducted under Level 2 of Tex. R. Civ. P. § 190.3. CLAIMS FOR RELIEF Pursuant to Rule 47(c)(3) of the Texas Rules of Civil Procedure, Plaintiff seeks damages of monetary relief over $1,000,000 and non-monetary relief. 1 JURISDICTION AND VENUE The matter and the amount in controversy are within the jurisdiction limits of this Court. Venue in Montgomery County is proper in this cause because all or a substantial part of the events or omissions giving rise to this lawsuit occurred in this County. Tex. Civ. Prac. Rem. Code § 15.002(a)(1). IV. PARTIES Plaintiff, DAJ TX Holdings, LLC FKA DAJ Holdings, LLC (“DAJ TX” and/or “Plaintiff”), is a Texas limited liability company with its princip place of business in MontgomeryCounty, Texas. Defendant, Regiment Construction Services, LLC Regiment”), is a Texas limited liability company with its principal place of business in Montgomery County, Texas. Regiment may be served through its registered agent, Victory Tax Services, located at 5511 Flower Grove Rosharon, TX 77583. Defendant, McCune Construction Funds Management, LLC FKA McCune Construction Services Group, LLC (“McCune”), is a Texas limited liability company with its principal place of business in Tarrant County, Texas. McCune may be served through its registered agent, Steve McCune, located at 5316 Woodway Drive, Fort Worth, Texas 7 Defendant, Simmons Bank, successor by merger to Spirit of Texas Bank, SSB (“Simmons”), is a state chartered bank organized under the laws of Arkansas and authorized to do business in the State of Texas. Simmons may be served through its registered agent, Charles K. Eastman, 2200 West 7 Street, Suite 212, Fort Worth, Texas 76107. FACTUAL BACKGROUND This lawsuit concerns real property located at 18905 Freeport Drive, Montgomery, Texas 77356, which is more particularly described as: Lot 3, Block 1, of WALDEN ROAD BUSINESS PARK, a subdivision in Montgomery County, Texas, according to the map or plat thereof recorded in Cabinet 0, Sheet 85 of the Map and/or Plat Records of Montgomery County, Texas (together with the improvements locatedthereon the “Property”). On or about June 25, 2021, DAJ TX acquired the Property, which consisted of approximately acres of unimproved real property. On or about July 20, 2021, DAJ TX and Powerplay Gymnastics Academy, Inc. (“Powerplay”) obtained a loan in the amount of Seven Hundred Sixty Four Thousand Nine Hundred Fifty and 00/100 Dollars ($764,950.00) from Simmons (the “Loan”). In connection with obtaining the Loan, DAJ TX and Powerplay executed the Real Estate Lien Note (“Note”), the Deed, Construction Loan Agreement (“Construction Note”), and various other loan documents (collectively, the “Loan Agreement”). The purpose of the Loan to DAJ TX and Powerplay was to provide funds for the construction of an 18,000 square foot gymnastics academy to be known as Powerplay Gymnastics (the “Project”).DAJ TX retained Regiment to be the general contractor for the Project. During the course of the Project, Simmons made numerous and repeated errors giving rise to DAJ TX’s grievances. Simmons overstepped its bounds as a lender and often attempted to act as a Project manager. An example of this overreach was its requirement that DAJ TX hire and pay substantial sums to McCune to serve as a third party inspector As required by Simmons, on July 8, 2021 DAJ TX, Simmons, and McCune entered into a Funds Disbursement to General Contractor, Subcontractors, and Vendors Services Agreement McCune Agreement”). The funds isbursement ervices to be provided by McCune include review of the Contractor’s Applications for Payments (draw ), corresponding Site Reviews, Progress Review Reports, and Disbursement of Funds to the Contractor(s) and Vendors. Services also include the collection of applicable Lien Waivers from Payees. The McCune Agreement states that “[Simmons] appoints McCune as its agent for the sole purpose of providing Progress Reviews and Funds Disbursement services on the Project, including but not limited to periodic Progress Reviews and Reports. As a part of the function of McCune’s role, McCune was required to follow the construction Project to determine whether work was performed and whether the general contractor was entitled to a distribution of funds. McCune was also responsible for reviewing all applications for payment for “completeness and accuracy,” require that change orders were submitted with supporting evidence, and ensure the Project architect approved and signed each draw request. It was represented by Simmons and McCune that McCune closely followed the construction schedule to make sure the general contractor completed all necessary tasks before being paid and, further, would make sure that the construction Project stayed on course in terms of construction and distribution of funds based on work actually completed without defects. DAJ TX paid McCune to conduct site inspections and distribute funds for work performed. However, McCune failed to meet its contractual obligations and allowed hundreds of thousands of dollars to be distributed to Regiment despite Regiment furnishing defective work and its failure to complete the work it invoiced for. In fact, McCune did not even perform a site visit prior to paying Regiment $415,000.00 on or about July 22, 2021 in spite of its contractual obligation to check funding requests for “accuracy and completeness.” McCune was also required to send all reports to DAJ TX and Simmons for approval; however, McCune failed to send a single report to DAJ TX. Instead, Simmons would send a report many weeks after the funds were already distributed by Simmons to McCune and subsequently to Regiment. McCune also approved cost increases of supplies needed for the Project without change orders signed by both DAJ TX and Regiment, further driving up the cost of the Project and leading DAJ TX down the path of Project failure. Further, each pay application submitted by Regiment was required to include the signature of the architect, Carter Architects, In prior to disbursing funds. However, Regiment would place “N/A” where the architect’s signature was requiredanother red flag that was completely ignored by McCuneand Simmons When Regiment ultimately abandoned the job, DAJ TX sought recourse from Simmons and McCune for the mismanagement of the Project. However, McCune and Simmons did nothing. Instead, Simmons seized the opportunity to declare DAJ TX in default of the Loan Agreement and threatened foreclosure of the Property. An unconscionable attempt to take advantage of a situation it created. Prior to executing the Loan Agreement, Regiment submitted a bid for the proposed construction work. After reviewing the bid, DAJ TX accepted the bid provided by Regiment subject to Simmons’ review and agreement. Simmons informed DAJ TX that it conducted due diligence on Regiment and, ultimately, agreed that DAJ TX could hire Regiment to serve as the neral contractor for the construction of the gym. DAJ TX and Regiment executed the prime contract on January 20, 2021 Regimentlater admitted that the Project wassignificantly underbid as the prices it used to formulate the bid were from December 2019 and Regiment failed to update the bid prior to signing the contract January 2021. Simmons became aware that Regiment had underbid the Project as well as other issues with the Project on or about July 8, 2021. At this time, McCune provided Simmons with an Initial Project Review (“IPR”) report, which was paid for by DAJ TX. However, the IPR was not furnished to DAJ TX by Simmons McCune until March 9, 2022long after the Loan Documents had been executed. The IPR raised several red flags, including missing approved construction plans, MEP drawings, foundation drawings, and outdated drawings from October 2012 despite having a “For Construction” set of signed and approved plans. The IPR indicated that there were several issues DAJ TX needed to address and that there was not enough information to provide a complete report. Unequivocally, DAJ TX would not have executed the Loan Agreement had it known of these outstanding issues. Simmons and McCune undoubtedly knew this, which is why this information was withheld from DAJ TX as the owner of the Property. The false construction bid was just the start of Regiment’s incompetency and misrepresentationsas it continued its path of deception as follows: On January 22, 2021, Regiment provided Simmons with a letter representing that Regiment was registered to provide services in the City of Conroe and Montgomery County. This was false. Regiment signed an affidavit of commencement as part of the loan documents certifying that no work had started prior to the loan closing. This was false as its work began January 25, 2021 as approved and allowed by Simmonsseveral months priorto the loan closing. Failure to adhere to City of Conroe and DAJ TX’s engineers’ approved and permitted plans for dirt work. Failure to request City of Conroe pre inspections of dirt work and size placement of rebarprior to concrete pour Failure to adhere to City of Conroe approved and permitted plans for parking lot. Failure to adhere to City of Conroe approved plumbing plans. Failure to adhere to City of Conroe approved and permitted plans for foundation. Forgery: Signing of Conditional / Unconditional lien release as related to KAHL AC, $52,000. Constant misrepresentations regarding Project costs and equipment arrival dates. Failure to request architect site visits despite being required to do so by the prime contract and theMcCune Agreement Failure to pay ubcontractors for work performed although paid by McCune for said work, thus exposing he Property to liens. Failure to seek required city inspections and approval of compliance with city ordinances and building plan for the rebar or electrical work. Failure to request any city permits for the rebar or concrete work associated with the parking lot or building foundation or any of the electrical work, thus requiring removal and reconstructing of the improvements as the City of Conroe will not permit the current parking lot or foundation. Director of Regiment David Miller’s use of his wife, Jonnie Kay Miller, sign and notarizeall fraudulent financial forms and applications for payment In addition to mismanagement of the Project, Regiment also failed to perform the actual work with reasonable care and/or hire and supervise its subcontractors to ensure work was performed with reasonable care. Regiment had a duty to ensure the work was done with reasonable care pursuant to common law and contract; however, Regiment breached the duty it owed to DAJ TX as outlined herein. As a result of Regiment’s negligence, DAJ TX suffered damages. Such damages include property damage, “rip and tear” damages, demolition, and other work resulting from Regiment’s breach. Additionally, DAJ TX has suffered damage to its representation as well as the reputation of its owners, loss of use, lost profits, emotional distress and mental anguish caused by the continuous cascading negligence of Regiment. Despite demands from DAJ TX, Regiment wholly failed to cure the defects and the damaged property caused by the subcontractors Regiment hired to furnish the work. DAJ TX was left with no choice but to begin the process of seeking replacement contractors to finish the scope of work Regiment failed to complete pursuant to the plans and specifications and correct the property damage caused by Regiment and its subcontractors. As a result of Regiment’s negligence and failures to perform in accordance with the prime contract, DAJ TX will incur costs to complete and repair the scope of work, including but not limited to, demolition of defective and negligent work, repair of property damage, and additional overhead and management expenses regarding this work. DAJ TX also incurred additional direct and indirect costs, including but not limited to, attorney’s fees, business interruption, lost profits damage to reputation, financial distress, and mental anguish. Simmons’ failure to timely fund construction, when work was actually performed, multiple occasions contributed to the deterioration of the relationship between DAJ TX and Regiment as well as between Regiment and its subcontractors and material suppliers. Simmons, with assistance from McCune, intentionally delayed and held the disbursement of funds for draws to setup DAJ TX for failure. This was evident its decision to move forward with an underbid Project and its decision to approve commencement of construction prior to the execution of the Loan Agreement. Defendants have replicated this scheme and used similar approaches with other unsuspecting customers. As time progressed and the construction lingered, DAJ TX learned that Regiment fell behind in paying subcontractors and was requesting payment for work that was not performed. DAJ TX complained to Simmons that McCune was not performing its duties and was monitoring the distribution of funds as required, but Simmons refused to act. Simmons and McCune recklessly released funds to Regiment without confirming that the construction Project was progressing as intended, designed, approved by the architect, and in compliance with city ordinances. Ultimately, Simmons informed DAJ TX that it would stop releasing construction funds altogether because the Project was now overbudget. However, the Loan Agreement did not authorize Simmons to cease funding the Project once it was overbudget, especially since that budget was erroneously, negligently, and/or intentionally approved with Simmons’ knowledge that the Project was under funded and doomed to failas described in the Initial Project Review In the rare instance McCune actually did its job, Simmons ignored McCune’s recommendations and breached conditions identified in the Loan Agreement. For example, on or about September 17, 2021, McCune’s site visit and subsequent site review report stated that it did not recommend approving the AC funding request because the equipment could verified as reported by Regimen ; however, Simmons disregarded the report and funded Regiment’s draw request in the amount of $52,000 On information and belief, Regiment forged the AC company’s signature on conditional and unconditional lien releases justifying McCune’s recommendation. DAJ TX provided Simmons with an affidavit from the AC company regarding Regiment’s forgery and fraud. Simmons responded with, “our lawyers do not want to get between a client and a contractor.” Time and time again Simmons would disburse funds when it should not and refuse to disburse funds when it should have. McCune was aware or became aware that Regiment was not completing the construction Project as required and was making numerous construction errors and defects. Yet, McCune and Simmons opened the checkbook and issued payment after payment for unperformed and faulty work. These reckless errors caused the costs and the Project in total to spin out of control. To date, DAJ TX is left with nothing but a concrete slab and parking lot it cannot obtain permits for, incomplete and nonconforming plumbing work, a substantial amount of work yet to be performed, numerous errors to remedy, increased costs of construction, and a lender who is refusing to release any of the remaining construction funds. When DAJ TX desperately tried to formulate a resolution to the problem to save the Project, DAJ TX was faced with false promises from Simmons regarding its commitment to assist with salvaging the Project DAJ TX and Simmons had conversations regarding potential loan modifications, increases, interest only payments, as well as discussions about hiring a new general contractor. Simmons never accepted any of the proposals submitted by DAJ TX, which would have allowed the Project to move forward. Simmons only entertained DAJ TX becoming current on the loan, finding a new lender, or selling the Property. However, Simmons ultimately abandoned allpotential remedies to the problem it created and opted to deny DAJ TX’s proposals and demand payment of the balance of the loan in full by July 15, 2022. Simmons also misapplied and refused to distribute back to DAJ TX a $55,000 cash injection secured by DAJ TX to be used to secure a 7a loan earmarked for equipment and working capital. Simmons, through representative James Hayden, misled DAJ TX regarding Simmons’ intention and use of these funds and failed to disclose this information prior to closing. Simmons even refused to issue a $17,156 draw request for the soil, rebar, and concrete testing required by the City of Conroe, which could potentially avoid the economic waste of demolishing and reconstructing the work, which would go along way to mitigating the damages. Further showing Simmons utter lack of good faith in its dealings with DAJ TX. Defendants’ actions and inactions have cost DAJ TX hundreds of thousands of dollars. All DAJ TX ever wanted was to complete the construction of the gym with the hopes that one day it would be a cornerstone in the athletics community in Montgomery County. Defendants actions and inactions constitute breach of contract; fraud; conspiracy; lender liability breach of good faith and fair dealing, lender liability negligence, lender liability breach of fiduciary duty, gross negligence; money had and received; and violations of the Texas Deceptive Trade Practices Act (“DTPA”). Plaintiff seeks all recoverable damages, including treble damages for the hundreds of thousands of dollars damages caused by Defendants intentional, fraudulent, deceptive, and nefarious acts and omissions. VI. CAUSES OF ACTION REACH OF ONTRACT EFENDANTS DAJ TX incorporates the preceding factual allegations into this section as if fully set out herein. DAJ TX entered into valid and enforceable agreements with Defendant , which Defendants have breached in numerous respects. Simmons has refused to fund construction despite contractual obligations to do so. Such refusals to fund construction constitute a material breachof the loan documents which Plaintiff and Simmonsare parties. McCune has utterly failed and refused to honor the terms of the McCune Agreement, which required McCune to follow the construction Project to determine whether work was performed and whether the general contractor was entitled to a distribution of funds. McCune was supposed to closely follow the construction schedule to make sure the general contractor completed all necessary tasks before disbursing funds and, further, was supposed to make sure that the construction Project stayed on course in terms of construction and issue funds based on work actually completed without defects. DAJ TX paid McCune to conduct site inspections and distribute funds for work performed. However, McCune failed to meet its contractual obligations and allowed hundreds of thousands of dollars to be distributed to Regiment despite Regiment furnishing defective work and its failure to complete the work it invoiced for. When Regiment ultimately abandoned the job, DAJ TX sought recourse from Simmons and McCune for the mismanagement of the Project. However, McCune and Simmons did nothing. Instead, Simmons seizedthe opportunity to declare DAJ TX in default of the Loan Agreement and threatened foreclosure of the Property. An unconscionable attempt to take advantage of a situation it created. Further, Regiment knowing submitted a false bid for the proposed construction work. Regiment later admitted the bid it submitted was false, as it was based on December 2019 prices, and that it had significantly underbid the Project. Additionally, Regiment failed to perform the work with reasonable care and/or hire and supervise its subcontractors to ensure work was performed with reasonable care. Regiment had a duty to ensure the work was done with reasonable care pursuant to common law and contract; however, Regiment breached the duty it owed to DAJ as outlined above. As a result of Regiment’s negligence and breach of the prime contract, DAJ TX suffered damages. Such damages include property damage, “rip and tear” damages, demolition, and other work resulting from Regiment’s breach. As a result of Regiment’s failures to perform in accordance with the prime contract, DAJ TX will incur costs to complete and repair the scope of work, including but not limited to, demolition of defective and negligent work, repair property damage, and additional overhead and management expenses regarding this work. DAJ TX also incurred additional direct and indirect costs, including but not limited to, attorney’s fees, business interruption, and lost profits. Accordingly, Defendants are in breach. Plaintiff has suffered and continues to suffer damages as a result of Defendants’ acts and omissions. DAJ TX suffered monetary damages as a result of Defendants’breach and the agreements entered into by and between the parties RAUD RAUD IN THE NDUCEMENT AND RAUDULENT ISREPRESENTATION EFENDANTS DAJ TX incorporates the preceding factual allegations into this section as if fully set out herein. Simmons made representations to Plaintiff that were material and false. When Simmons made the representations to Plaintiff, Simmons knew or should have known that such representations were false or made recklessly without knowledge of the truth. Simmons made representations to Plaintiff with the intent that Plaintiff act on such representations. Plaintiff relied on such representations causing Plaintiff injury and damage. Simmons omission ere material as Plaintiff would not have entered into the Project if he had known what Simmons planning to do. Simmons also told Plaintiff that McCune would serve as a third party inspector and would inspect and oversee the general contractor completing the roject as it was occurring, and issue funds appropriately for work properly completed. Simmons told Plaintiff that McCune would prepare and provide progress reviews and inspect the construction progress to determine whether work was performed and whether the general contractor was entitled to a distribution of funds and only approve fund distributions to the general contractor that were warranted. Defendants specifically represented that McCune would closely follow the construction schedule to make sure that the general contractor completed all necessary tasks before being paid, and that the construction Project would stay on course. Simmons represented that they had worked with McCune many times before. Simmons knew that their representations were false. Simmons also knew of plan to sabotage the roject and steal the roperty from Plaintiff and thus knowingly omitted to tell Plaintiff that information. Simmons knew that McCune would not perform under the terms of the McCune Agreement; namely, that McCune would not inspect and oversee the construction at the Project to ensure it was done correctly and stayed on track and that McCune would issue the funds to the general contractor despite the general contract completing the work it was supposed to. Simmons intended that Plaintiff would act on its false representations. Simmons also recognized that Plaintiff would not be expecting Simmons to use the loan to try and take the Property for itself Simmons further assuaged any skepticism on Plaintiff s part by ensuring Plaintiff that McCune would inspect and oversee the Project as it was completed to alert Plaintiff to any problems. Simmons further assuaged Plaintiff of any concerns by telling Plaintiff that had worked with McCune on many roject s before. Yet Simmons knew that if Plaintiff was aware of the falsity of these statements and the material omissions, Plaintiff would not enter into the loan agreement with Simmons. Thus, Simmons deliberately omitted to tell Plaintiff of true intent, and deliberately misrepresented what McCune would do so that Plaintiff would enter the Loan Agreement It was reasonable for Plaintiff to rely on Simmons misrepresentations. Plaintiff had no reason to suspect that Simmons not operating in good faith and would try to steal the Property away from and cause the Project to fail. Simmons assurances that it had used McCune many times before made it all the more reasonable for Plaintiff to believe that McCune would perform as promised. Simmons scheme played out exactly Simmons anticipated. Simmons concocted and executed a scheme where interfered with and interjected itself into the construction Project beyond merely funding the loans. The scheme had a common purpose and goal to be accomplished to take over the construction Project and, ultimately, seek to steal valuable real Property and improvements from Plaintiff, specifically, the Property. Plaintiff worked diligently to develop and construct a gymnastics center on the Property. But Simmons had other plans. Simmons hid the fact that Regiment underbid the Project and that it could not be completed for the amount bid or the amount it approved for the construction loan. Once the Project went over budget, Simmons sprung their trap. Rather than acknowledge their ill desires and ineptitude, Simmons doubled down and refused to issue any morefunds for the Project and threatened to foreclose on the Property To make matters worse, Simmons used McCune to further defraud Plaintiff. Simmons again overstepped bounds and mandated that Plaintiff hire McCune to serve as the third party inspector for the construction Project. As Simmons anticipated, McCune appeared to fall asleep at the wheel and allowed Regimentto trample all over the construction Project and receive payment for work not performed. When Plaintiff complained that McCune not performing and w acting recklessly with construction funds, Simmons shooed Plaintiff away and refused to remove McCune As Simmons apparently done many times to unsuspecting developers and Property owners, Simmonsconspired with McCune to require Plaintiff to enter into lucrative contract with McCune. As to the date of filing this petition, Plaintiff paid McCune thous ds for work it failed to perform Defendants devised a scheme and plotted to unlawfully take Plaintiff s valuable and unique real Property. Defendants committed unlawful acts to further their course of action to defraud Plaintiff. Defendants intentionally and knowingly defrauded DAJ TX and Defendants’ conduct was extreme and outrageous for which the law allows for the imposition of exemplary damages, jointly and severally, for which DAJ TXhereby sues. Further, Defendants’ actions and omissions constitute fraudulent inducement. Defendants fraudulently induced DAJ TX to enter into the Loan Agreement and the McCune Agreement concealing the nature of the fraudulent scheme to steal Plaintiff’s Property DAJ TX was induced to enter into the agreements and Defendants intended to deceive or in the alternative, misrepresented their plan and thereby caused reliance by DAJ TX on the false representations, causing a material and substantial inducement to enter into agreements. Had DAJ TX been aware that Defendants never intended to comply with their representations and promises to DAJ TX DAJ TX would not have entered into the agreements. DAJ TX is entitled to damages, including emotional distress and mental anguish, as a result of Defendants’fraudulent inducement and misrepresentations ONSPIRACY IMMONS AND UNE DAJ TX incorporates the preceding factual allegations into this section as if fully set out herein. An actionable civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. A civil conspiracy requires (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. Once a civil conspiracy is proven, each co conspirator is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination. DAJ TX additionally shows that Defendants were a part of a combination of two or more persons and entities that had as their object obtaining the agreements without intending to comply with the agreements and to perpetrate a fraudulent scheme against DAJ TX. There was a meeting of the minds to convince DAJ TX to enter into the agreements for fraudulent purposes. Defendants representations and information provided to DAJ TX were represented to be truthful and accurate. Defendants knew those representations were not truthful and accurate. As a result of Defendants misrepresentations, DAJ TXhas been injured and thereby suffered damages. DAJ TX additionally shows that Defendants conspired with one another for the common purpose of accomplishing an unlawful purpose or to accomplish a lawful purpose by unlawful means. Defendants knowingly and purposely committed one or more overt acts in furtherance of the conspiracy. As a result of this conspiracy, DAJ TX has been damaged and is entitled to recover from Defendants, jointly and severally, all damages proximately resulting from Defendants wrongful conduct. Defendants devised a scheme and plotted to unlawfully take Plaintiff's valuable and unique real Property with substantial equity. Defendants are two or more individuals and entities that conspired to defraud Plaintiff. The members of the conspiracy, i.e., Defendants, had a meeting of the minds to defraud Plaintiff. Defendants committed unlawful acts to further their course of action to defraud Plaintiff. Further, Defendants acted in a wanton and malicious manner for the purpose of causing harm to DAJ TX. Such conduct entitle DAJ TX to punitive damages to act as a deterrent to prevent similar behavior in the future, such amount being in excess of the minimum jurisdictional limits of this Court. EGLIGENCE AND ROSS EGLIGENCE EFENDANTS DAJ TX incorporates the preceding factual allegations into this section as if fully set out herein. Regiment owed a legal duty to Plaintiff and violated such duty causing harm to Plaintiff’s Property Regiment has failed to comply with the terms of the prime contract and utilized subcontractors that performed negligently and caused extensive property damage to the Property. As described above, Regiment failed to perform the work with reasonable care and/or hire and supervise its subcontractors to ensure work was performed with reasonable care. Regiment had a duty to ensure the work was done with reasonable care pursuant to common law and contract; however, Regiment breached the duty it owed to DAJ TX as outlined above. As a result of Regiment’s negligence, DAJ TX suffered damages. Such damages include property damage, “rip and tear” damagesdemolition, and other work resulting from Regiment ’s breach. Despite demands from DAJ TX Regiment wholly failed to cure the defects and the damaged property caused by the subcontractors Regiment hired to furnish the work. DAJ TX was left with no choice but to beginthe process of seekingreplacement contractors to finish the cope of ork Regiment failed to complete pursuant to the plans and specifications and correct the property damage caused by Regimentand its subcontractors. As a result of Regiment’s failures to perform in accordance with the prime contract DAJ will incur costs to complete and repair the cope of ork, including but not limited to, demolition of defective and negligent work, repair property damage, and additional overhead and management expenses regarding this work. DAJ TX also incurred additional direct and indirect costs, including but not limited to, attorney’s fees, business interruption, and lost profits. Likewise, McCune and Simmons owed a legal duty to Plaintiff and violated such duty causing harm to Plaintiff. McCune and Simmons knew their acts or omissions involved an extreme degree of risk, considering the probability and magnitude of the potential harm to Plaintiff. Despite having actual subjective awareness of the risks involved, Defendants proceeded in conscious indifference to the rights, safety, or welfare of Plaintiff. McCune wholly failed to do their job, costing Plaintiff hundreds of thousands of dollars As time progressed and the construction lingered, Plaintiff learned that Regiment fell behind in paying subcontractors and was requesting payment for work that was not performed. Plaintiff complained to Simmons that McCune was not performing duties and not monitoring the distribution of funds as required, but Simmons refused to remove McCune and refused to allow Plaintiff to hire an inspector who would actually perform the duties and functions of its role. McCune and Simmons recklessly released funds to Regiment without confirming that the construction Projectwas progressing as intended. Simmons had an obligation to provide a loan for Plaintiff that would allow it to complete the construction Project in a timely and cost effective way, thus ensuring that it could recoup the money owed to . Instead, Simmons structured the loan, and therefore the construction Project, in a manner that severely inhibited Plaintiff s ability to complete the Project within budget resulting in the collapse of the construction Project and the basis for Simmons’ decision to stop funding the Project By failing to fund the construction Project and exercising excessive control over Plaintiff business, Simmons breached their duty to Plaintiff which led to substantial loss and damages incurred by Plaintiff ENDER IABILITY EGLIGENCE DAJ TX incorporates the preceding factual allegations into this section as if fully set out herein. Simmons owed a legal duty to Plaintiff and violated such duty causing harm to Plaintiff. Simmons had an obligation to provide a loan for Plaintiff that would allow it to complete the construction Project in a timely and cost effective way, thus ensuring that it could recoup the money owed to Simmons. Instead, Simmons hid the fact that Regiment’s bid would leave the Project underfunded and that it would refuse to continue to fund the Project should it go over budget rather than modifying the loan, thus resulting in the collapse of the construction Project. By failing to fund the construction Project and exercising excessive control over Plaintiff's business, Simmons breached their duty to Plaintiff which led to the loss and substantial damages. INDER IABILITY REACH OF UTY OF OOD AITH AND AIR EALING DAJ TX incorporates the preceding factual allegations into this section as if fully set out herein. A claim for breach of duty of good faith and fair dealing is a tort action that arises from an underlying contract that creates a “special relationship” between the parties. A special relationship arises from the element of trust necessary to accomplish the goals of the undertaking or when imposed by the courts due to an imbalance of bargaining power. Plaintiff is a small, limited liability company owned by husband and wife, Dane and Danielle Jordan. Simmon has been in business for many years in the United States. Simmons’ used their superior bargaining position, misrepresentations, and material omissions to induce Plaintiff to enter into a insufficient loan that put construction Project in jeopardy. Further, the close business relationship between Simmons and McCune put Simmons in the position of being able to have excessive control over Plaintiff s business dealings. Each step of the loan and construction process was executed under the control and coercion of Simmons The contract between Simmons and Plaintiff created a special relationship between the parties due to Simmons’ excessive control over Plaintiff s business dealings. This excessive control created a fiduciary relationship between Simmons and Plaintiff which in turn created an implied duty of good faith and fair dealing for Simmons By taking advantage of the Parties special relationship and manipulating and controlling Plaintiff, Simmons breached their duty of good faith and fair dealing, which ended up costing Plaintiff potentially millions of dollars ENDER IABILITY REACH OF IDUCIARY UTY DAJ TX incorporates the preceding factual allegations into this section as if fully set out herein. “Lender liability” occurs when a lender exercises too much control over a borrower. When a lender interjects into the Project and exercises excessive control over the borrower, the lender assumes the role of a fiduciary and is no longer merely a creditor. As a result of Simmons excessive interference in the construction Project and Plaintiff s business affairs, Plaintiff and Simmons had a fiduciary relationship. Simmons breached fiduciary duties, including duties of care, loyalty, good faith, and fair dealings with Plaintiff resulting in financial injury. Simmons informed Plaintiff that Plaintiff was required to hire McCuneto serve as a third party inspector.After demanding that Plaintiff hire McCune Simmons moved forward and brokered an agreement requiring Plaintiff to use McCune as a third party inspector to oversee and distribute the funds to Regiment. Plaintiff, as well as Regiment and Simmons, entered into written agreements with McCune to perform such services. As a part of the function of McCune role, McCune required to follow the construction Project to determine whether work was performed to distribute funds to the general contractor, Regiment. It was represented by Simmons and McCune that McCun would closely follow the construction schedule to make sure the general contractor completed all necessary tasks before being paid and, further, would make sure that the construction Project stayed on course in terms of construction and distribution of funds based on work actually completed. Plaintiff paid McCune to conduct site inspections and distribute funds for work performed. By its deceit and material omissions, Simmons orchestrated the circumstances surrounding the loan so that Plaintiff would be at mercy. Simmons arranged for Plaintiff to owe significant amount of money with Plaintiff s most valuable asset, the Property, being held as collateral. Based on the circumstances of the loan that Simmons arranged, there was always a possibility of foreclosure because the funds were being distributed to Regiment despite work not being completedin addition to the fact that Simmons was fully aware that Regiment underbid the Project. This was exactly what Simmonshad intended. These actions breached Simmons fiduciary duties, including duties of care, loyalty, good faith, and fair dealings with Plaintiff resulting in financial injury. IOLATIONS OF THE EXAS ECEPTIVE TRADE PRACTICES ACT (DTPA) EFENDANTS DAJ TX incorporates the preceding factual allegations into this section as if fully set out herein. Defendants have violated Sections 17.46 and 17.50(a)(1) of the Texas Business and Commerce Code, by conspiring to have Plaintiff take out loans for the construction of the Project with Plaintiff Property as collateral, and then orchestrating the circumstances surrounding the Project so that it could not be completed according to the terms of the loan so that Simmons could obtain the Property for less than market value at Plaintiff expense; and Defendants used deceptive representations in order to induce Plaintiff to enter into the oan greement and the McCune Agreement. Plaintiff qualifies as a consumer. Defendants engaged in false, misleading, or deceptive actions. Plaintiff did not discover, no should have discovered Defendants false, misleading, and deceptive practices until well after the Loan Agreement and McCune Agreement were executed and the Project was well underway Further, as to Regiment, certain representations and warranties concerning the work to be performed the cost of the work, the skill level/experience of the subcontractors, the ability of Regiment to complete the work, as well as repair defects in its work, that were made to Plaintiff Regiment have proven to be false and misleading and constitute violations of the DTPA. These violations consist of the following: Representing that the work would be of a particular standard, quality, or grade when it is not; Representing that the purchase of the work conferred involved rights, remedies, or obligations which it does not; Knowingly making false or misleading statements of fact concerning the lack of, or need for, work; Failing to disclose information concerning the work which was known at the time to Regiment entered into the prime contract, which induced Plaintiff into a transaction would have not entered into had the information been disclosed; and Making false, misleading, and deceptive statements in the conduct of business. The acts were a producing cause of Plaintiff s damages, including emotional distress and mental anguish. As a consequence of Defendants actions and omissions, Plaintiff is entitled to compensation in an amount to be proven at trial EQUEST FOR SSUANCE OF A EMPORARY NJUNCTION AND ERMANENT NJUNCTION Plaintiff requests that this Court enter a temporary restraining order that Simmons and Simmons’ officers, employees, agents, representatives, and attorneys are temporarily restrained and enjoined from conducting a non judicial foreclosure sale of the Property, and order a hearing for a temporary injunction, granting the relief requested herein. Plaintiff has a substantial likelihood of prevailing on the merits of case and causes of action, primarily because Simmons’ actions and inactions have caused Plaintiff s inability to pay the loan according to its terms or obtain refinancing of the loan. Immediate injunctive relief in the form of a temporary restraining order is needed to prevent Simmons from conducting an inequitable and unlawful non judicial foreclosure sale of the Property. Without this immediate injunctive relief, Plaintiff will suffer an imminent and irreparable injury by reason of Simmons conducting an inequitable and unlawful non judicial foreclosure sale of the Property, for which there is no adequate remedy at law. Plaintiff is willing to post a bond for the issuance of this Court s temporary restraining order. Plaintiff further requests that this Court set a hearing on Plaintiff s request for a temporary injunction and at the conclusion of such hearing, this Court issue a temporary injunction enjoining Simmons and Simmons’ officers, employees, agents, representatives, and attorneys from conducting a non-judicial foreclosure sale of the Property. Plaintiff further requests that upon the trial of this cause, this Court issue a permanent injunction enjoining Simmons and Simmons’ officers, employees, agents, representatives, and attorneys from conducting a non-judicial foreclosure sale of the Property. VII. DAMAGES AND RELIEF All conditions precedent for recovery have been met. DAJ TX incorporates the preceding factual allegations into this section as if fully set out herein. Attorneys’ Fees. Plaintiff has been required to retain the services of attorneys to enforce its rights and is entitled to recover reasonable and necessary attorneys’ fees and costs of court. In accordance with Section 38.001 of the Texas Civil Practice & Remedies Code, Section 17.50 of the Texas Business and Commerce Code, and Section 541.152 of the Texas Insurance Code, and the principles of equity, Plaintiff is entitled to seek and obtain attorneys’ fees from Defendants. Pursuant to the usual and customary fees for a claim of this type, Plaintiff is entitled to reasonable and necessary attorneys’ fees for the preparation and trial of this case and additional attorneys’ fees in the event of an appeal or other proceedings. Exemplary Damages. Defendants’ acts as set forth herein constitute fraud, malice, or gross negligence. As a result of the acts or omissions set forth herein, Plaintiff is entitled to the recovery of exemplary damages in addition to damages for mental anguish and emotional distress as to all Defendants. Treble Damages. As a result of Defendants’ unlawful conduct, Plaintiff is entitled to recover “three times” Plaintiff s economic damages in accordance with Section 17.50 of the Texas Business and Commerce Code VIII. DEMAND FOR TRIAL BY JURY Plaintiff demands a trial by jury pursuant to TEX. R. CIV. P. 216. Simultaneous with the filing of this Jury Demand, Plaintiff submits herewith its Jury Fee payable to the District Clerk. VIII. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that it be awarded judgment against Defendants as follows: 1. Plaintiff have judgment against Defendants and recover all damages including, but not limited to, actual damages, consequential damages, mental anguish, economic damages, non-economic damages, loss of credit, loss of equity, damage to credit, special damages, treble damages, statutory damages, and all other damages and recovery available at law or in equity; 2. A temporary restraining order that Defendant and Defendant s officers, employees, agents, representatives, and attorneys are temporarily restrained and enjoined from conducting a non judicial foreclosure sale of the Property; 3. A temporary injunction that Defendant and Defendant s officers, employees, agents, representatives, and attorneys are temporarily restrained and enjoined from conducting a non judicial foreclosure sale of the Property; 4. A permanent injunction that Defendant and Defendant s officers, employees, agents, representatives, and attorneys are permanently restrained and enjoined from conducting a non judicial foreclosure sale of the Property; 5. Such writs and processes to preserve the Plaintiff's title and possession of the Property; 6. Plaintiff have judgment and recover on its causes of action as asserted herein; 7. Court costs; . Reasonable and necessary attorneys ’ f