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CAUSE NO.
HARRISON O’NEAL KERR IN THE DISTRICT COURT
Plaintiff
MONTGOMERY COUNTY, TEXAS
WHITENER ENTERPRISES,
INCORPORATED d/b/a WHITENER
FUEL & LUBRICANT
Defendant. _______ JUDICIAL DISTRICT
ORIGINAL PETITION
NOW COMES, Plaintiff, Harrison O’Neal Kerr Kerr”) filing this Original Petition
complaining of efendant”, who referenced herein as follows:
PARTIES
Plaintiff Harrison O’Neal Kerr an individual.
Defendant Whitener Enterprises, Incorporated [Taxpayer ID 17418869073 Gasoline
and Diesel, PO BOX 1077, Conroe, TX 77305 d/b/a Whitener Enterprises, Inc. and
d/b/a “Whitener Fuel” and d/b/a “Whitener Fuel & Lubricant and d/b/a “OPS Fuel
Service, Inc., a division of Bethamy, Inc.” Whitener , together with any of
Whitener’s aliases, alter egos, assumed names, joint enterprises, or fictitious enterprise,
including but not limited to OPS Fuel, Fuel & Lubricants Purification Specialists (an
unregistered assumed name); Bethamy, Inc. [Taxpayer ID 17604600837 Gasoline
and Diesel / PO BOX 1077, Conroe, TX 77305
In support of his Original Petition, Kerr respectfully shows the following.
PLAINTIFF’S ORIGINAL PETITION Page
I. DISCOVERY LEVEL AND CLAIM FOR RELIEF
1. For good cause shown, Pursuant to Tex. R. Civ. P. 190.4, Kerr intends this case to be
conducted by a tailored discovery control plan, and until such time as any Order is issued pursuant
to Rule 190.5, discovery should be conducted pursuant to Discovery Control Plan – Level 2, Rule
190.3. Plaintiff requests an equitable Accounting of one or more entities or persons.
2. Pursuant to Tex. R. Civ. P. 47(c)(3), Kerr seeks monetary relief over $250,000.00 but not
more than $1,000,000.00, and pursuant to Tex. R. Civ. P. 47(d) Kerr reserves his right to make
demands for judgments for all other relief to which Kerr is entitled, including recoveries pursuant
to the Texas Uniform Fraudulent Transfer Act and declarations pursuant to the Uniform
Declaratory Judgments Act.
3. Pursuant to Tex. R. Civ. P. 54, all conditions precedent to Plaintiff’s right to recover
under this Petition have been performed or have occurred.
II. PARTIES & CONTRACTS IN WRITING
4. Plaintiff, Harrison O’Neal Kerr, is a natural person, a resident of Montgomery County,
Texas.
a) Pursuant to Tex. Civ. Prac. & Rem. Code § 30.014(a)(1) & (2), Kerr provides his
partial identification information as follows:
i) the last three numbers of Kerr’s driver’s license number issued by Texas are:
525; and
ii) the last three numbers of Kerr’s social security number issued by the United
States of America are 510.
PLAINTIFF’S ORIGINAL PETITION Page 2 of 16
b) Kerr’s Tex. Civ. Prac. & Rem. Code § 30.015 “Current Address of Party in Civil
Action” is his residence at 417 Patina Drive, Montgomery, Texas 77316.
c) Kerr may be served notice in this proceeding by and through his lead counsel of
record and attorney in charge, David A. Ward, Jr., Ward Law Firm, 10077 Grogan’s Mill
Road, Suite 540, The Woodlands, TX 77380, ward@dwardlaw.com.
5. Defendant, Whitener Enterprises, Incorporated d/b/a “Whitener Enterprises, Inc.” and
d/b/a “Whitener Fuel” and d/b/a “Whitener Fuel & Lubricants” and d/b/a “OPS Fuel Service, Inc.,
a division of Bethamy, Inc.” (“Whitener”), is a Texas corporation.
a) Whitener may be served notice in this proceeding by and through its attorney,
Michael Starzyk, Starzyk & Associates, P.C., 8665 New Trails, Suite 160, The Woodlands,
TX 77381, mstarzyk@starzyklaw.com.
6. Kerr and Whitener entered into an at-will, full-time employment relationship pursuant to
an “Offer of Employment” provided to Kerr on January 25, 2018, said “Offer of Employment”
was incorporated into a later “Employment Agreement” by and between Kerr (as employee) and
Whitener Enterprises, Incorporated, doing business as “Whitener Enterprises, Inc.” (as employer)
presented to Kerr, and executed by Kerr, on March 29, 2018.
III. JURISDICTION & VENUE
7. This civil matter involves a monetary amount in controversy in excess of the minimal
jurisdictional limit of this Court.
8. Venue is proper in Montgomery County, Texas pursuant to Tex. Civ. Prac. & Rem. Code
§ 15.002(a) because:
a) (a)(1) Montgomery County is the county in which a substantial part of the events
or omissions giving rise to the claim occurred.
PLAINTIFF’S ORIGINAL PETITION Page 3 of 16
b) (a)(2) Montgomery County is the county of residence for many of the natural person
Defendants.
c) (a)(3) Montgomery County is the county of Whitener’s principal office (currently
disclosed to the Comptroller of Public Accounts of Texas as a “PO BOX” located in
Conroe).
d) (a)(4) Alternatively, Kerr resided in Montgomery County at the time of the accrual
of the causes of action.
IV. NATURE OF CASE AND FACTS
9. Kerr was, until his termination in March of 2024, a high-volume producing salesperson
and Whitener’s foremost salesperson by customer retention. Despite Kerr’s spectacular
performance, Whitener’s officers engaged in inside-dealing and nepotism designed to siphon away
gross profits owed to Kerr and to redirect those profits to the ever-increasing number of Whitener’s
related employees.
10. Moreover, Whitener wholly failed to provide Kerr with independent consideration at the
time of the Employment Agreement, and therefore the non-solicitation restrictions are not
enforceable under existing Texas law. Whitener never presented Kerr with additional access to
confidential or proprietary information sufficient to serve as consideration for the non-compete
covenants in the Employment Agreement. Whitener’s proscriptions against Kerr are overly broad
and impose greater restraints than are necessary to protect Whitener’s goodwill because, inter alia,
Texas recognizes that non-solicitation agreements are only enforceable against employees such as
Kerr to the extent, that they concern customers with whom Kerr had actual or potential business
dealings.
11. The Employment Agreement includes:
PLAINTIFF’S ORIGINAL PETITION Page 4 of 16
a) Offer of Employment – Commission: General Commission: After fifteen
thousand dollars ($15,000.00) of gross profit has been sold (less standard freight),
a commission of twenty percent (20%) shall be paid on each gross profit dollar
thereafter. The Commission shall be paid in good faith so that customers considered
in the sales representative’s book of business shall pay for goods and services
invoiced and received. If after sixty (60) days the invoices remain outstanding, any
commission earned for said invoices may be subtracted from future commissions
earned.
b) Employment Agreement, ⁋ 12. Other Agreements. Employee and Employer
may, by separate written agreement, establish or modify Employee’s compensation,
duties, and other terms of employment. No such change in compensation or duties
shall amend, waive, or alter the terms of this Agreement.
c) Employment Agreement, ⁋ 18. Entire Agreement. … This Agreement may
not be modified in any way except by a single written agreement signed by both
parties and which specifically refers to this paragraph 18.
12. Whitener has, since March 2018, failed to pay commission wages due to Kerr according to
the binding, written Employment Agreement and Offer of Employment. Specifically, Whitener:
a) unilaterally interfered in Kerr’s contractual right to keep and maintain a “book of
business” for earnings, including by removing accounts originated by Kerr;
b) Whitener breached the terms of the Employment Agreement and Texas law by
reducing certain commission amounts on Kerr’s “book of business” (originated or managed
accounts) below 20%;
c) breached the Employment Agreement and Texas law by refusing to recognize
commissions as earned at the time of sale and instead accounted for sales commissions as
earned 60 days or more after the event of sale;
d) breached the Employment Agreement and Texas law by accounting for
commissions without separate and itemized “deductions from wages”;
e) breached the terms of the Employment Agreement and Texas law by failing to pay
all commissions within one calendar month of the date earned; including by withholding
PLAINTIFF’S ORIGINAL PETITION Page 5 of 16
commissions earned for 60 days or longer to determine account delinquency before making
payments; and
f) breached the terms of the Employment Agreement and Texas law by refusing to
pay Kerr on certain accounts with delinquencies – and despite that Kerr was not granted
access to customer credit information.
13. Whitener has failed and refused to provide any accounting of Whitener’s “gross profit” for
the purposes of computing commissions on sales, and upon information and belief because
Whitener and its owners wish to conceal Whitener’s fabrication of freight costs and false reporting
of fuel depot pricing, so as to fraudulently conceal commission wages due and owing to Whitener
employees.
14. Whitener keeps, maintains, and utilizes its books as to Kerr’s book of business, and Kerr
receives only a statement of his total commissions earned, without supporting calculations. Kerr
is not granted access to invoices, account statements, or profit/loss accounting of his own sales
activities. Kerr previously demanded, in writing and by an attorney, that Whitener present a full
accounting of all commissions paid to Kerr during the years 2020, 2021, 2022, & 2023. This
Accounting was categorically refused.
15. Whitener induced Kerr into a partnership by joint venture regarding Kerr’s customer, Star
Concrete Pumping, by explaining that Kerr was required to work for free on Star Concrete
Pumping until Whitener recovered a certain amount of costs, but that after recovery, Kerr would
receive a share of the profits. However, when Whitener consummated its relationship with Star
Concrete Pumping, in 2024, Whitener executives refused to explain to Kerr when and in what
amounts Kerr would be receiving compensation, but they did confirm that he had not been paid
for any of his labor performed in favor of the partnership. Kerr was terminated as a result of
PLAINTIFF’S ORIGINAL PETITION Page 6 of 16
inquiring with Whitener when and how he would be compensated for his work on Star Concrete
Pumping.
16. Kerr previously remitted a demand for the relief requested herein to Whitener, in writing,
and by attorney, and Whitener has refused and is refusing to grant any such relief.
17. On a date after Kerr remitted his first demand letter to Whitener, Whitener removed Kerr’s
access to his email account entirely for a short time. Whitener shortly reactivated Kerr’s email
account for business work but with certain emails removed from Kerr’s access, including
spreadsheets for profit computations of commission.
18. On a date after Kerr remitted his first demand letter to Whitener, Whitener provided 2
different statements of gross profits relating to Kerr’s commissions, one officer sent numbers
concerning gross profits on one date, and then another officer sent Kerr different numbers a few
days later. The difference for December of 2023 alone was more than $5,000.00.
19. Kerr has not yet discovered the full extent of his injuries.
20. Kerr’s causes of action for each breach of contract (each payment due) do not accrue
until Kerr possesses the accounting necessary to determine underpayments. Fagan v. Aaron &
Quirk, LLP, No. 04-21-00302-CV, 2022 Tex. App. LEXIS 5182, at *12 (Tex. App.—San Antonio
July 27, 2022, no pet. h.) (“But here, Defendants presented no evidence that before Fagan received
the bi-weekly commission payments and the accompanying explanatory accounting summaries
showing the payment details, he could have reasonably discovered any underpayment of
commissions.”).
V. CAUSES OF ACTION & DAMAGES
ALTERNATIVE COUNT ONE: BREACH OF CONTRACT - AGAINST WHITENER.
21. Plaintiff incorporates paragraphs 1-20 above as if set forth expressly herein.
PLAINTIFF’S ORIGINAL PETITION Page 7 of 16
22. Plaintiff seeks actual damages for breach of contract by refusal to timely pay, compute,
and account for Kerr’s wages due, and deductions therefrom.
23. Plaintiff and Whitener formed a valid Employment Agreement, Plaintiff performed
under the Agreement, Defendant breached the Agreement, and Plaintiff sustained damages as a
result.
24. Pursuant to Tex. Civ. Prac. & Rem. Code § 38.001, Plaintiff seeks an award of
reasonable and necessary attorneys’ fees from Defendant.
25. The Employment Agreement is governed by the Texas Payday Act.
In 1915, the Legislature enacted the first Texas Payday Law, requiring certain types
of employers to promptly and regularly pay employees the full amount of wages
due. At present, it requires private employers of all types and sizes to pay wages
owed to employees in full, on time, and on regularly scheduled paydays. TEX.
LAB. CODE § 61.011. Originally, employees pursued unpaid wage claims in court,
if at all. In 1989, the Legislature authorized the Texas Employment Commission
(now part of TWC) to receive and adjudicate complaints for failure to pay wages
owed. Act of May 31, 1989, 71st Leg., R.S., ch. 1039, § 3.01, 1989 Tex. Gen. Laws
4172, 4213-16 (current version at TEX. LAB. CODE §§ 61.051-.067). This
amendment gives employees the option of filing in court or with TWC to recover
unpaid wages. TEX. LAB. CODE § 61.051(a) ("An employee who is not paid
wages as prescribed by this chapter may file a wage claim with the commission.")
(emphasis added). Although there are no statutory limitations on the amount a wage
claimant may pursue at TWC, typically the claims are too small to justify a lawsuit.
Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 81-82 (Tex. 2008).
Under the Payday Act, an employee may seek wages from an employer by pursuing
either judicial action against the employer or seeking an administrative remedy as
prescribed by the Act. TEX. LAB. CODE ANN. § 61.051(a) (Vernon 2006) ("An
employee who is not paid wages as prescribed by this chapter may file a wage claim
with the commission.") (emphasis added); Igal v. Brightstar Information Tech.
Group, Inc., 250 S.W.3d 78, 82 (Tex. 2008) (providing that Act gives employee
option of filing in court or with Texas Workforce Commission); Hull v. Davis, 211
S.W.3d 461, 464 (Tex. App.--Houston [14th Dist.] 2006, no pet.). The objective of
the Payday Act is to discourage employers from withholding wages from
employees by providing employees an avenue to enforce wage claims. Wal-Mart
Stores, Inc. v. Lopez, 93 S.W.3d 548, 561 (Tex. App.--Houston [14th Dist.] 2002,
no pet.). Section 61.001(7) of the Texas Payday Law defines "wages" as including
PLAINTIFF’S ORIGINAL PETITION Page 8 of 16
"compensation owed by an employer for . . . services rendered by an employee,
whether computed on a time, task, piece, commission, or other basis." TEX.
LABOR CODE ANN. § 61.001(7) (Vernon 2006).
Cent. Tex. Orthopedic Prods. v. Espinoza, No. 04-09-00148-CV, 2009 Tex. App. LEXIS 9355, at
*10-11 (Tex. App.—San Antonio Dec. 9, 2009, pet. denied) (citing Igal v. Brightstar Information
Tech. Group, Inc., 250 S.W.3d 78, 82 (Tex. 2008).
26. Without cause or justification, Whitener believes it is not required to comply with the
Texas Payday Act in the context of contractual performance. However, with regard to the Texas
Payday Act, the statutory restrictions are, expressly, public policy and this Court must enforce all
statutory requirements during the construction and enforcement of the Employment Agreement.
“All that the cautionary remarks may be interpreted to mean is that in determining whether a
contract is against public policy there must be kept in view the rule that, where there is no statutory
prohibition, the courts do not readily pronounce an agreement invalid on the ground of policy or
convenience …” Sherrill v. Union Lumber Co., 207 S.W. 149, 153 (Tex. Civ. App.—Beaumont
1918, no writ).
27. Whitener’s intentional contractual omissions violate the following statutory
requirements found in the Texas Payday Act:
a)
(7) “Wages” means compensation owed by an employer for:
(A) labor or services rendered by an employee, whether computed on a time,
task, piece, commission, or other basis; and
(B) vacation pay, holiday pay, sick leave pay, parental leave pay, or severance
pay owed to an employee under a written agreement with the employer or under
a written policy of the employer.
Tex. Lab. Code § 61.001. Definitions. Whitener treated Kerr’s commission payments as
contractual consideration, but not as “wages”.
PLAINTIFF’S ORIGINAL PETITION Page 9 of 16
b)
(a) An employer shall pay wages to each employee who is exempt from the
overtime pay provisions of the Fair Labor Standards Act of 1938 (29 U.S.C.
Section 201 et seq.) at least once a month.
(b) An employer shall pay wages to an employee other than an employee
covered by Subsection (a) at least twice a month.
(c) If wages are paid twice a month, each pay period must consist as nearly as
possible of an equal number of days.
Tex. Lab. Code § 61.011. Paydays. Whitener failed to pay all wages earned at least once a month.
c)
(a) An employer shall pay in full an employee who is discharged from
employment not later than the sixth day after the date the employee is
discharged.
(b) An employer shall pay in full an employee who leaves employment other
than by discharge not later than the next regularly scheduled payday.
Tex. Lab. Code § 61.014. Payment After Termination of Employment. Whitener treated Kerr’s
post-termination commission payments as contractual consideration, but not as “wages” due
within six days of termination.
d)
(a) Wages paid on commission and bonuses are due according to the terms of:
(1) an agreement between the employee and employer; or
(2) an applicable collective bargaining agreement.
(b) An employer shall pay wages paid on commission and bonuses to an
employee in a timely manner as required for the payment of other wages under
this chapter.
Tex. Lab. Code § 61.015. Payment of Commissions and Bonuses. Whitener failed to pay all wages
due to Kerr according to the terms of the entire, binding Employment Agreement.
e)
An employer may not withhold or divert any part of an employee’s wages
unless the employer:
(1) is ordered to do so by a court of competent jurisdiction.
(2) is authorized to do so by state or federal law; or
PLAINTIFF’S ORIGINAL PETITION Page 10 of 16
(3) has written authorization from the employee to deduct part of the wages
for a lawful purpose.
Tex. Lab. Code § 61.018. Deduction from Wages. Whitener computed commissions and
deductions into a single wage and failed to account for total amounts due to Kerr as a gross amount
with itemized deductions therefrom, and Whitener otherwise failed to compute deductions and
terms of deductions according to the Employment Agreement.
f)
(a) An employer commits an offense if:
(1) at the time of hiring an employee, the employer intends to avoid payment
of wages owed to the employee; and
(2) the employer fails after demand to pay those wages.
(b) An employer commits an offense if the employer:
(1) intends to avoid payment of wages owed to an employee.
(2) intends to continue to employ the employee; and
(3) fails after demand to pay those wages.
(c) An employer commits a separate offense under Subsection (b) for each pay
period during which the employee earns wages that the employer fails to pay.
(d) An offense under this section is a felony of the third degree.
Tex. Lab. Code § 61.018. Failure to Pay Wages, Criminal Penalty. Whitener’s conduct is offensive
to public policy. Whitener’s failure to pay Kerr all wages due was intentional based on the conduct
of the Defendant.
28. “For contracts involving commissions, all the usual ‘rules of construction’ apply, like
the familiar presumptions favoring consistent usage, disfavoring surplusage, and using the plain
meaning of undefined terms.” Perthuis v. Baylor Miraca Genetics Labs., LLC, 645 S.W.3d 228,
236 (Tex. 2022). The event “earning” the commission is governed by the rule of procuring-cause,
which by default analyzes whether the broker’s action produced the purchaser and whether the
sale was consummated. Id., at 236.
PLAINTIFF’S ORIGINAL PETITION Page 11 of 16
29. In sum, Kerr earns his 20% commissions when he is the solicitor invoking the purchase
and at the time a sales event occurs beyond $15,000.00 gross profit, and all amounts earned are
due to Kerr within one calendar month.
COUNT TWO: PARTIAL PERFORMANCE EQUITABLE EXCEPTION; EQUITABLE
ESTOPPEL; PROMISSORY ESTOPPEL; AND DECLARATORY JUDGMENT AS TO
PARTNERSHIP.
30. Plaintiff incorporates paragraphs 1-20 above as if set forth expressly herein.
31. Whitener is estopped from denying the existence of the joint venture and partnership
agreement by and between Whitener and Kerr because Kerr already performed and was already
the procuring cause of Whitener’s solidifying relationship with Star Concrete Pumping, and to
deny Kerr the benefits of the bargain would enact a fraud upon Kerr.
32. Specifically, Whitener’s officers continued to insist, without Kerr’s written permission,
that Kerr provide services and labor for Whitener’s attempts to conduct business with Star
Concrete Pumping outside the terms of all written agreements and without any defined or
guaranteed compensation. Whitener’s officers further confirmed the existence of a joint venture
or partnership with Kerr by their insistence that Kerr would be compensated “at some time” and
“in some form.” However, they continued to insist upon Kerr’s performance under the risk that he
would never be paid (sharing of losses) until Whitener recovered its costs by gross profits (sharing
of profits). All parties agreed that Kerr would have rights of control over the Star Concrete
Pumping account. Whitener refused to commit Kerr’s compensation terms to writing throughout
all of Kerr’s performances in securing the Star Concrete Pumping account, which implies an
intention to share in losses & profits. Because Kerr shared in the risk of loss by contributing unpaid
labor to Star Concrete Pumping, Kerr is now due and entitled to declare and enforce his
PLAINTIFF’S ORIGINAL PETITION Page 12 of 16
presumptive 1/2 interest in the joint venture or partnership between Whitener and Kerr. Tex.
Business Organizations Code § 152.052.
33. Because Whitener refuses to agree to the amount of profit sharing as a result of the joint
venture and partnership concerning Star Concrete Pumping, Kerr requests a declaration of
partnership, and alternatively profit sharing, by and between Whitener and Kerr as to all future
revenue from Star Concrete Pumping, pursuant to the Uniform Declaratory Judgments Act,
together with attorneys’ fees.
34. Kerr demands an accounting from Whitener as to the joint venture and partnership.
COUNT THREE: COMMON FRAUD BY INDUCMENT INTO WRITTEN
AGREEMENT.
35. Plaintiff incorporates paragraphs 1-20 above as if set forth expressly herein.
36. Kerr was induced to enter into the Employment Agreement and to continuously accept
employment with Whitener in reliance on Whitener’s false representations that it would comply
with all compensation terms of the written Employment Agreement, and any written amendments
thereto. “[F]raud in the inducement of the employment…is not precluded by the parol evidence
rule…” Zoeller v. Howard Gardiner, Inc., 585 S.W.2d 920, 923 (Tex. Civ. App.—Amarillo 1979,
writ ref'd n.r.e.).
37. In Isenhower v. Bell, 365 S.W.2d 354, 359 (Tex.1963) the court construed the parol
evidence rule in a non-promissory note matter. The court stated:
When the issue of fraud is raised, competent evidence that has a reasonable bearing
on the issue is admissible and may be considered by the jury. All the facts and
circumstances leading up to and connected with the transaction are, ordinarily,
admissible. . ..
Zoeller v. Howard Gardiner, Inc., 585 S.W.2d 920, 922-23 (Tex. Civ. App.—Amarillo 1979, writ
ref'd n.r.e.).
PLAINTIFF’S ORIGINAL PETITION Page 13 of 16
The elements for actionable fraud under Texas law are: (1) a material representation
was made; (2) it was false when made; (3) the speaker knew it was false, or made
it recklessly without knowledge of its truth and as a positive assertion; (4) the
speaker made it with the intent that it should be acted upon; and (5) the party acted
in reliance and suffered injury as a result. Cocke v. Meridian Sav. Ass'n., 778
S.W.2d 516, 520 (Tex. App.-Corpus Christi 1989, no writ). Of critical importance
here is that a promise to do an act in the future is not fraud unless it is made with
the intent not to perform. M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731
S.W.2d 620, 624 (Tex. App.-Houston 1987, no writ).
Beijing Metals & Minerals Imp. /Export Corp. v. Am. Bus. Ctr., Inc., 993 F.2d 1178, 1185 (5th
Cir. 1993).
38. Defendants are jointly liable for fraud as the controlling principals, agents, and officers
of Whitener, with a conspiracy and common mind of unlawfully diverting funds due to
salespersons away from these employees and for their enrichment; and because each aided and
abetted the others.
39. Kerr demands an accounting from Whitener as to all commissions earned from 2018 to
the present. Kerr’s damages are in the hundreds of thousands of dollars.
COUNT FOUR: COMMON FRAUD BY MISREPRESENTATION.
40. Plaintiff incorporates paragraphs 1-20 above as if set forth expressly herein.
41. Kerr was injured when Whitener conspired to falsely represent to Kerr, after the
Employment Agreement, that he was being compensated according to the written terms of the
Employment Agreement, and falsely represented to Kerr the amounts and computations of his
wages earned, and falsely represented to Kerr and others the basis of its computations of gross
profits, costs, net profits, expenses, and deductions.
42. Kerr was induced not to question his compensation and to continue laboring under the
terms of the written Employment Agreement and was injured as a result.
PLAINTIFF’S ORIGINAL PETITION Page 14 of 16
43. Kerr demands an accounting from Whitener as to all commissions earned from 2018 to
the present. Kerr’s damages are in the hundreds of thousands of dollars.
44. Whitener through its controlling principals, agents, and officers, conspired with a
common purpose to unlawfully divert funds due to salespersons away from these employees and
for their enrichment; and because each aided and abetted the others.
VI. JURY DEMAND
45. Plaintiff demands a trial by jury to resolve all fact issues in this case and has paid the
appropriate fee.
VII. PRAYER
WHEREFORE, Plaintiff, Kerr, requests that he have a judgment against Defendants for:
Equitable Accounting with an award for costs.
Declaratory Judgment as to partnership or joint venture, with attorneys’ fees.
If Fraud: liquidated damages; and equitable disgorgement of profits.
If Breach: damages and attorney’s fees.
Exemplary damages.
Pre-judgment interest at the highest rate allowed by law.
Post-judgment interest at the highest rate allowed by law.
Costs of Court; and
Such other and further equitable relief as Kerr may show himself justly entitled.
PLAINTIFF’S ORIGINAL PETITION Page 15 of 16
Respectfully submitted,
WARD LAW FIRM
By: /s/ David A. Ward, Jr.
David A. Ward, Jr.
SBN 00785177
Camden B. Chancellor
SBN 24082800
Parkwood One
10077 Grogan’s Mill Road, Suite 540
The Woodlands, Texas 77380
Telephone: (281) 362-7728
Facsimile: (281) 362-7743
ward@dwardlaw.com
chancellor@dwardlaw.com
ATTORNEYS FOR PLAINTIFF
HARRISON O’NEAL KERR
PLAINTIFF’S ORIGINAL PETITION Page 16 of 16
Preview
CAUSE NO. HARRISON O’NEAL KERR IN THE DISTRICT COURT Plaintiff MONTGOMERY COUNTY, TEXAS WHITENER ENTERPRISES, INCORPORATED d/b/a WHITENER FUEL & LUBRICANT Defendant. _______ JUDICIAL DISTRICT ORIGINAL PETITION NOW COMES, Plaintiff, Harrison O’Neal Kerr Kerr”) filing this Original Petition complaining of efendant”, who referenced herein as follows: PARTIES Plaintiff Harrison O’Neal Kerr an individual. Defendant Whitener Enterprises, Incorporated [Taxpayer ID 17418869073 Gasoline and Diesel, PO BOX 1077, Conroe, TX 77305 d/b/a Whitener Enterprises, Inc. and d/b/a “Whitener Fuel” and d/b/a “Whitener Fuel & Lubricant and d/b/a “OPS Fuel Service, Inc., a division of Bethamy, Inc.” Whitener , together with any of Whitener’s aliases, alter egos, assumed names, joint enterprises, or fictitious enterprise, including but not limited to OPS Fuel, Fuel & Lubricants Purification Specialists (an unregistered assumed name); Bethamy, Inc. [Taxpayer ID 17604600837 Gasoline and Diesel / PO BOX 1077, Conroe, TX 77305 In support of his Original Petition, Kerr respectfully shows the following. PLAINTIFF’S ORIGINAL PETITION Page I. DISCOVERY LEVEL AND CLAIM FOR RELIEF 1. For good cause shown, Pursuant to Tex. R. Civ. P. 190.4, Kerr intends this case to be conducted by a tailored discovery control plan, and until such time as any Order is issued pursuant to Rule 190.5, discovery should be conducted pursuant to Discovery Control Plan – Level 2, Rule 190.3. Plaintiff requests an equitable Accounting of one or more entities or persons. 2. Pursuant to Tex. R. Civ. P. 47(c)(3), Kerr seeks monetary relief over $250,000.00 but not more than $1,000,000.00, and pursuant to Tex. R. Civ. P. 47(d) Kerr reserves his right to make demands for judgments for all other relief to which Kerr is entitled, including recoveries pursuant to the Texas Uniform Fraudulent Transfer Act and declarations pursuant to the Uniform Declaratory Judgments Act. 3. Pursuant to Tex. R. Civ. P. 54, all conditions precedent to Plaintiff’s right to recover under this Petition have been performed or have occurred. II. PARTIES & CONTRACTS IN WRITING 4. Plaintiff, Harrison O’Neal Kerr, is a natural person, a resident of Montgomery County, Texas. a) Pursuant to Tex. Civ. Prac. & Rem. Code § 30.014(a)(1) & (2), Kerr provides his partial identification information as follows: i) the last three numbers of Kerr’s driver’s license number issued by Texas are: 525; and ii) the last three numbers of Kerr’s social security number issued by the United States of America are 510. PLAINTIFF’S ORIGINAL PETITION Page 2 of 16 b) Kerr’s Tex. Civ. Prac. & Rem. Code § 30.015 “Current Address of Party in Civil Action” is his residence at 417 Patina Drive, Montgomery, Texas 77316. c) Kerr may be served notice in this proceeding by and through his lead counsel of record and attorney in charge, David A. Ward, Jr., Ward Law Firm, 10077 Grogan’s Mill Road, Suite 540, The Woodlands, TX 77380, ward@dwardlaw.com. 5. Defendant, Whitener Enterprises, Incorporated d/b/a “Whitener Enterprises, Inc.” and d/b/a “Whitener Fuel” and d/b/a “Whitener Fuel & Lubricants” and d/b/a “OPS Fuel Service, Inc., a division of Bethamy, Inc.” (“Whitener”), is a Texas corporation. a) Whitener may be served notice in this proceeding by and through its attorney, Michael Starzyk, Starzyk & Associates, P.C., 8665 New Trails, Suite 160, The Woodlands, TX 77381, mstarzyk@starzyklaw.com. 6. Kerr and Whitener entered into an at-will, full-time employment relationship pursuant to an “Offer of Employment” provided to Kerr on January 25, 2018, said “Offer of Employment” was incorporated into a later “Employment Agreement” by and between Kerr (as employee) and Whitener Enterprises, Incorporated, doing business as “Whitener Enterprises, Inc.” (as employer) presented to Kerr, and executed by Kerr, on March 29, 2018. III. JURISDICTION & VENUE 7. This civil matter involves a monetary amount in controversy in excess of the minimal jurisdictional limit of this Court. 8. Venue is proper in Montgomery County, Texas pursuant to Tex. Civ. Prac. & Rem. Code § 15.002(a) because: a) (a)(1) Montgomery County is the county in which a substantial part of the events or omissions giving rise to the claim occurred. PLAINTIFF’S ORIGINAL PETITION Page 3 of 16 b) (a)(2) Montgomery County is the county of residence for many of the natural person Defendants. c) (a)(3) Montgomery County is the county of Whitener’s principal office (currently disclosed to the Comptroller of Public Accounts of Texas as a “PO BOX” located in Conroe). d) (a)(4) Alternatively, Kerr resided in Montgomery County at the time of the accrual of the causes of action. IV. NATURE OF CASE AND FACTS 9. Kerr was, until his termination in March of 2024, a high-volume producing salesperson and Whitener’s foremost salesperson by customer retention. Despite Kerr’s spectacular performance, Whitener’s officers engaged in inside-dealing and nepotism designed to siphon away gross profits owed to Kerr and to redirect those profits to the ever-increasing number of Whitener’s related employees. 10. Moreover, Whitener wholly failed to provide Kerr with independent consideration at the time of the Employment Agreement, and therefore the non-solicitation restrictions are not enforceable under existing Texas law. Whitener never presented Kerr with additional access to confidential or proprietary information sufficient to serve as consideration for the non-compete covenants in the Employment Agreement. Whitener’s proscriptions against Kerr are overly broad and impose greater restraints than are necessary to protect Whitener’s goodwill because, inter alia, Texas recognizes that non-solicitation agreements are only enforceable against employees such as Kerr to the extent, that they concern customers with whom Kerr had actual or potential business dealings. 11. The Employment Agreement includes: PLAINTIFF’S ORIGINAL PETITION Page 4 of 16 a) Offer of Employment – Commission: General Commission: After fifteen thousand dollars ($15,000.00) of gross profit has been sold (less standard freight), a commission of twenty percent (20%) shall be paid on each gross profit dollar thereafter. The Commission shall be paid in good faith so that customers considered in the sales representative’s book of business shall pay for goods and services invoiced and received. If after sixty (60) days the invoices remain outstanding, any commission earned for said invoices may be subtracted from future commissions earned. b) Employment Agreement, ⁋ 12. Other Agreements. Employee and Employer may, by separate written agreement, establish or modify Employee’s compensation, duties, and other terms of employment. No such change in compensation or duties shall amend, waive, or alter the terms of this Agreement. c) Employment Agreement, ⁋ 18. Entire Agreement. … This Agreement may not be modified in any way except by a single written agreement signed by both parties and which specifically refers to this paragraph 18. 12. Whitener has, since March 2018, failed to pay commission wages due to Kerr according to the binding, written Employment Agreement and Offer of Employment. Specifically, Whitener: a) unilaterally interfered in Kerr’s contractual right to keep and maintain a “book of business” for earnings, including by removing accounts originated by Kerr; b) Whitener breached the terms of the Employment Agreement and Texas law by reducing certain commission amounts on Kerr’s “book of business” (originated or managed accounts) below 20%; c) breached the Employment Agreement and Texas law by refusing to recognize commissions as earned at the time of sale and instead accounted for sales commissions as earned 60 days or more after the event of sale; d) breached the Employment Agreement and Texas law by accounting for commissions without separate and itemized “deductions from wages”; e) breached the terms of the Employment Agreement and Texas law by failing to pay all commissions within one calendar month of the date earned; including by withholding PLAINTIFF’S ORIGINAL PETITION Page 5 of 16 commissions earned for 60 days or longer to determine account delinquency before making payments; and f) breached the terms of the Employment Agreement and Texas law by refusing to pay Kerr on certain accounts with delinquencies – and despite that Kerr was not granted access to customer credit information. 13. Whitener has failed and refused to provide any accounting of Whitener’s “gross profit” for the purposes of computing commissions on sales, and upon information and belief because Whitener and its owners wish to conceal Whitener’s fabrication of freight costs and false reporting of fuel depot pricing, so as to fraudulently conceal commission wages due and owing to Whitener employees. 14. Whitener keeps, maintains, and utilizes its books as to Kerr’s book of business, and Kerr receives only a statement of his total commissions earned, without supporting calculations. Kerr is not granted access to invoices, account statements, or profit/loss accounting of his own sales activities. Kerr previously demanded, in writing and by an attorney, that Whitener present a full accounting of all commissions paid to Kerr during the years 2020, 2021, 2022, & 2023. This Accounting was categorically refused. 15. Whitener induced Kerr into a partnership by joint venture regarding Kerr’s customer, Star Concrete Pumping, by explaining that Kerr was required to work for free on Star Concrete Pumping until Whitener recovered a certain amount of costs, but that after recovery, Kerr would receive a share of the profits. However, when Whitener consummated its relationship with Star Concrete Pumping, in 2024, Whitener executives refused to explain to Kerr when and in what amounts Kerr would be receiving compensation, but they did confirm that he had not been paid for any of his labor performed in favor of the partnership. Kerr was terminated as a result of PLAINTIFF’S ORIGINAL PETITION Page 6 of 16 inquiring with Whitener when and how he would be compensated for his work on Star Concrete Pumping. 16. Kerr previously remitted a demand for the relief requested herein to Whitener, in writing, and by attorney, and Whitener has refused and is refusing to grant any such relief. 17. On a date after Kerr remitted his first demand letter to Whitener, Whitener removed Kerr’s access to his email account entirely for a short time. Whitener shortly reactivated Kerr’s email account for business work but with certain emails removed from Kerr’s access, including spreadsheets for profit computations of commission. 18. On a date after Kerr remitted his first demand letter to Whitener, Whitener provided 2 different statements of gross profits relating to Kerr’s commissions, one officer sent numbers concerning gross profits on one date, and then another officer sent Kerr different numbers a few days later. The difference for December of 2023 alone was more than $5,000.00. 19. Kerr has not yet discovered the full extent of his injuries. 20. Kerr’s causes of action for each breach of contract (each payment due) do not accrue until Kerr possesses the accounting necessary to determine underpayments. Fagan v. Aaron & Quirk, LLP, No. 04-21-00302-CV, 2022 Tex. App. LEXIS 5182, at *12 (Tex. App.—San Antonio July 27, 2022, no pet. h.) (“But here, Defendants presented no evidence that before Fagan received the bi-weekly commission payments and the accompanying explanatory accounting summaries showing the payment details, he could have reasonably discovered any underpayment of commissions.”). V. CAUSES OF ACTION & DAMAGES ALTERNATIVE COUNT ONE: BREACH OF CONTRACT - AGAINST WHITENER. 21. Plaintiff incorporates paragraphs 1-20 above as if set forth expressly herein. PLAINTIFF’S ORIGINAL PETITION Page 7 of 16 22. Plaintiff seeks actual damages for breach of contract by refusal to timely pay, compute, and account for Kerr’s wages due, and deductions therefrom. 23. Plaintiff and Whitener formed a valid Employment Agreement, Plaintiff performed under the Agreement, Defendant breached the Agreement, and Plaintiff sustained damages as a result. 24. Pursuant to Tex. Civ. Prac. & Rem. Code § 38.001, Plaintiff seeks an award of reasonable and necessary attorneys’ fees from Defendant. 25. The Employment Agreement is governed by the Texas Payday Act. In 1915, the Legislature enacted the first Texas Payday Law, requiring certain types of employers to promptly and regularly pay employees the full amount of wages due. At present, it requires private employers of all types and sizes to pay wages owed to employees in full, on time, and on regularly scheduled paydays. TEX. LAB. CODE § 61.011. Originally, employees pursued unpaid wage claims in court, if at all. In 1989, the Legislature authorized the Texas Employment Commission (now part of TWC) to receive and adjudicate complaints for failure to pay wages owed. Act of May 31, 1989, 71st Leg., R.S., ch. 1039, § 3.01, 1989 Tex. Gen. Laws 4172, 4213-16 (current version at TEX. LAB. CODE §§ 61.051-.067). This amendment gives employees the option of filing in court or with TWC to recover unpaid wages. TEX. LAB. CODE § 61.051(a) ("An employee who is not paid wages as prescribed by this chapter may file a wage claim with the commission.") (emphasis added). Although there are no statutory limitations on the amount a wage claimant may pursue at TWC, typically the claims are too small to justify a lawsuit. Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 81-82 (Tex. 2008). Under the Payday Act, an employee may seek wages from an employer by pursuing either judicial action against the employer or seeking an administrative remedy as prescribed by the Act. TEX. LAB. CODE ANN. § 61.051(a) (Vernon 2006) ("An employee who is not paid wages as prescribed by this chapter may file a wage claim with the commission.") (emphasis added); Igal v. Brightstar Information Tech. Group, Inc., 250 S.W.3d 78, 82 (Tex. 2008) (providing that Act gives employee option of filing in court or with Texas Workforce Commission); Hull v. Davis, 211 S.W.3d 461, 464 (Tex. App.--Houston [14th Dist.] 2006, no pet.). The objective of the Payday Act is to discourage employers from withholding wages from employees by providing employees an avenue to enforce wage claims. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 561 (Tex. App.--Houston [14th Dist.] 2002, no pet.). Section 61.001(7) of the Texas Payday Law defines "wages" as including PLAINTIFF’S ORIGINAL PETITION Page 8 of 16 "compensation owed by an employer for . . . services rendered by an employee, whether computed on a time, task, piece, commission, or other basis." TEX. LABOR CODE ANN. § 61.001(7) (Vernon 2006). Cent. Tex. Orthopedic Prods. v. Espinoza, No. 04-09-00148-CV, 2009 Tex. App. LEXIS 9355, at *10-11 (Tex. App.—San Antonio Dec. 9, 2009, pet. denied) (citing Igal v. Brightstar Information Tech. Group, Inc., 250 S.W.3d 78, 82 (Tex. 2008). 26. Without cause or justification, Whitener believes it is not required to comply with the Texas Payday Act in the context of contractual performance. However, with regard to the Texas Payday Act, the statutory restrictions are, expressly, public policy and this Court must enforce all statutory requirements during the construction and enforcement of the Employment Agreement. “All that the cautionary remarks may be interpreted to mean is that in determining whether a contract is against public policy there must be kept in view the rule that, where there is no statutory prohibition, the courts do not readily pronounce an agreement invalid on the ground of policy or convenience …” Sherrill v. Union Lumber Co., 207 S.W. 149, 153 (Tex. Civ. App.—Beaumont 1918, no writ). 27. Whitener’s intentional contractual omissions violate the following statutory requirements found in the Texas Payday Act: a) (7) “Wages” means compensation owed by an employer for: (A) labor or services rendered by an employee, whether computed on a time, task, piece, commission, or other basis; and (B) vacation pay, holiday pay, sick leave pay, parental leave pay, or severance pay owed to an employee under a written agreement with the employer or under a written policy of the employer. Tex. Lab. Code § 61.001. Definitions. Whitener treated Kerr’s commission payments as contractual consideration, but not as “wages”. PLAINTIFF’S ORIGINAL PETITION Page 9 of 16 b) (a) An employer shall pay wages to each employee who is exempt from the overtime pay provisions of the Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) at least once a month. (b) An employer shall pay wages to an employee other than an employee covered by Subsection (a) at least twice a month. (c) If wages are paid twice a month, each pay period must consist as nearly as possible of an equal number of days. Tex. Lab. Code § 61.011. Paydays. Whitener failed to pay all wages earned at least once a month. c) (a) An employer shall pay in full an employee who is discharged from employment not later than the sixth day after the date the employee is discharged. (b) An employer shall pay in full an employee who leaves employment other than by discharge not later than the next regularly scheduled payday. Tex. Lab. Code § 61.014. Payment After Termination of Employment. Whitener treated Kerr’s post-termination commission payments as contractual consideration, but not as “wages” due within six days of termination. d) (a) Wages paid on commission and bonuses are due according to the terms of: (1) an agreement between the employee and employer; or (2) an applicable collective bargaining agreement. (b) An employer shall pay wages paid on commission and bonuses to an employee in a timely manner as required for the payment of other wages under this chapter. Tex. Lab. Code § 61.015. Payment of Commissions and Bonuses. Whitener failed to pay all wages due to Kerr according to the terms of the entire, binding Employment Agreement. e) An employer may not withhold or divert any part of an employee’s wages unless the employer: (1) is ordered to do so by a court of competent jurisdiction. (2) is authorized to do so by state or federal law; or PLAINTIFF’S ORIGINAL PETITION Page 10 of 16 (3) has written authorization from the employee to deduct part of the wages for a lawful purpose. Tex. Lab. Code § 61.018. Deduction from Wages. Whitener computed commissions and deductions into a single wage and failed to account for total amounts due to Kerr as a gross amount with itemized deductions therefrom, and Whitener otherwise failed to compute deductions and terms of deductions according to the Employment Agreement. f) (a) An employer commits an offense if: (1) at the time of hiring an employee, the employer intends to avoid payment of wages owed to the employee; and (2) the employer fails after demand to pay those wages. (b) An employer commits an offense if the employer: (1) intends to avoid payment of wages owed to an employee. (2) intends to continue to employ the employee; and (3) fails after demand to pay those wages. (c) An employer commits a separate offense under Subsection (b) for each pay period during which the employee earns wages that the employer fails to pay. (d) An offense under this section is a felony of the third degree. Tex. Lab. Code § 61.018. Failure to Pay Wages, Criminal Penalty. Whitener’s conduct is offensive to public policy. Whitener’s failure to pay Kerr all wages due was intentional based on the conduct of the Defendant. 28. “For contracts involving commissions, all the usual ‘rules of construction’ apply, like the familiar presumptions favoring consistent usage, disfavoring surplusage, and using the plain meaning of undefined terms.” Perthuis v. Baylor Miraca Genetics Labs., LLC, 645 S.W.3d 228, 236 (Tex. 2022). The event “earning” the commission is governed by the rule of procuring-cause, which by default analyzes whether the broker’s action produced the purchaser and whether the sale was consummated. Id., at 236. PLAINTIFF’S ORIGINAL PETITION Page 11 of 16 29. In sum, Kerr earns his 20% commissions when he is the solicitor invoking the purchase and at the time a sales event occurs beyond $15,000.00 gross profit, and all amounts earned are due to Kerr within one calendar month. COUNT TWO: PARTIAL PERFORMANCE EQUITABLE EXCEPTION; EQUITABLE ESTOPPEL; PROMISSORY ESTOPPEL; AND DECLARATORY JUDGMENT AS TO PARTNERSHIP. 30. Plaintiff incorporates paragraphs 1-20 above as if set forth expressly herein. 31. Whitener is estopped from denying the existence of the joint venture and partnership agreement by and between Whitener and Kerr because Kerr already performed and was already the procuring cause of Whitener’s solidifying relationship with Star Concrete Pumping, and to deny Kerr the benefits of the bargain would enact a fraud upon Kerr. 32. Specifically, Whitener’s officers continued to insist, without Kerr’s written permission, that Kerr provide services and labor for Whitener’s attempts to conduct business with Star Concrete Pumping outside the terms of all written agreements and without any defined or guaranteed compensation. Whitener’s officers further confirmed the existence of a joint venture or partnership with Kerr by their insistence that Kerr would be compensated “at some time” and “in some form.” However, they continued to insist upon Kerr’s performance under the risk that he would never be paid (sharing of losses) until Whitener recovered its costs by gross profits (sharing of profits). All parties agreed that Kerr would have rights of control over the Star Concrete Pumping account. Whitener refused to commit Kerr’s compensation terms to writing throughout all of Kerr’s performances in securing the Star Concrete Pumping account, which implies an intention to share in losses & profits. Because Kerr shared in the risk of loss by contributing unpaid labor to Star Concrete Pumping, Kerr is now due and entitled to declare and enforce his PLAINTIFF’S ORIGINAL PETITION Page 12 of 16 presumptive 1/2 interest in the joint venture or partnership between Whitener and Kerr. Tex. Business Organizations Code § 152.052. 33. Because Whitener refuses to agree to the amount of profit sharing as a result of the joint venture and partnership concerning Star Concrete Pumping, Kerr requests a declaration of partnership, and alternatively profit sharing, by and between Whitener and Kerr as to all future revenue from Star Concrete Pumping, pursuant to the Uniform Declaratory Judgments Act, together with attorneys’ fees. 34. Kerr demands an accounting from Whitener as to the joint venture and partnership. COUNT THREE: COMMON FRAUD BY INDUCMENT INTO WRITTEN AGREEMENT. 35. Plaintiff incorporates paragraphs 1-20 above as if set forth expressly herein. 36. Kerr was induced to enter into the Employment Agreement and to continuously accept employment with Whitener in reliance on Whitener’s false representations that it would comply with all compensation terms of the written Employment Agreement, and any written amendments thereto. “[F]raud in the inducement of the employment…is not precluded by the parol evidence rule…” Zoeller v. Howard Gardiner, Inc., 585 S.W.2d 920, 923 (Tex. Civ. App.—Amarillo 1979, writ ref'd n.r.e.). 37. In Isenhower v. Bell, 365 S.W.2d 354, 359 (Tex.1963) the court construed the parol evidence rule in a non-promissory note matter. The court stated: When the issue of fraud is raised, competent evidence that has a reasonable bearing on the issue is admissible and may be considered by the jury. All the facts and circumstances leading up to and connected with the transaction are, ordinarily, admissible. . .. Zoeller v. Howard Gardiner, Inc., 585 S.W.2d 920, 922-23 (Tex. Civ. App.—Amarillo 1979, writ ref'd n.r.e.). PLAINTIFF’S ORIGINAL PETITION Page 13 of 16 The elements for actionable fraud under Texas law are: (1) a material representation was made; (2) it was false when made; (3) the speaker knew it was false, or made it recklessly without knowledge of its truth and as a positive assertion; (4) the speaker made it with the intent that it should be acted upon; and (5) the party acted in reliance and suffered injury as a result. Cocke v. Meridian Sav. Ass'n., 778 S.W.2d 516, 520 (Tex. App.-Corpus Christi 1989, no writ). Of critical importance here is that a promise to do an act in the future is not fraud unless it is made with the intent not to perform. M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 624 (Tex. App.-Houston 1987, no writ). Beijing Metals & Minerals Imp. /Export Corp. v. Am. Bus. Ctr., Inc., 993 F.2d 1178, 1185 (5th Cir. 1993). 38. Defendants are jointly liable for fraud as the controlling principals, agents, and officers of Whitener, with a conspiracy and common mind of unlawfully diverting funds due to salespersons away from these employees and for their enrichment; and because each aided and abetted the others. 39. Kerr demands an accounting from Whitener as to all commissions earned from 2018 to the present. Kerr’s damages are in the hundreds of thousands of dollars. COUNT FOUR: COMMON FRAUD BY MISREPRESENTATION. 40. Plaintiff incorporates paragraphs 1-20 above as if set forth expressly herein. 41. Kerr was injured when Whitener conspired to falsely represent to Kerr, after the Employment Agreement, that he was being compensated according to the written terms of the Employment Agreement, and falsely represented to Kerr the amounts and computations of his wages earned, and falsely represented to Kerr and others the basis of its computations of gross profits, costs, net profits, expenses, and deductions. 42. Kerr was induced not to question his compensation and to continue laboring under the terms of the written Employment Agreement and was injured as a result. PLAINTIFF’S ORIGINAL PETITION Page 14 of 16 43. Kerr demands an accounting from Whitener as to all commissions earned from 2018 to the present. Kerr’s damages are in the hundreds of thousands of dollars. 44. Whitener through its controlling principals, agents, and officers, conspired with a common purpose to unlawfully divert funds due to salespersons away from these employees and for their enrichment; and because each aided and abetted the others. VI. JURY DEMAND 45. Plaintiff demands a trial by jury to resolve all fact issues in this case and has paid the appropriate fee. VII. PRAYER WHEREFORE, Plaintiff, Kerr, requests that he have a judgment against Defendants for: Equitable Accounting with an award for costs. Declaratory Judgment as to partnership or joint venture, with attorneys’ fees. If Fraud: liquidated damages; and equitable disgorgement of profits. If Breach: damages and attorney’s fees. Exemplary damages. Pre-judgment interest at the highest rate allowed by law. Post-judgment interest at the highest rate allowed by law. Costs of Court; and Such other and further equitable relief as Kerr may show himself justly entitled. PLAINTIFF’S ORIGINAL PETITION Page 15 of 16 Respectfully submitted, WARD LAW FIRM By: /s/ David A. Ward, Jr. David A. Ward, Jr. SBN 00785177 Camden B. Chancellor SBN 24082800 Parkwood One 10077 Grogan’s Mill Road, Suite 540 The Woodlands, Texas 77380 Telephone: (281) 362-7728 Facsimile: (281) 362-7743 ward@dwardlaw.com chancellor@dwardlaw.com ATTORNEYS FOR PLAINTIFF HARRISON O’NEAL KERR PLAINTIFF’S ORIGINAL PETITION Page 16 of 16