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CAUSE NO. DC-17-11360
SCRAPSOURCE, LLC, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
JASON WOLFF, MITCHELL WOLFF §
AND FORTIS METAL §
MANAGEMENT, LLC, §
§ 192nd JUDICIAL DISTRICT
Defendants.
ORDER AND FINAL JUDGMENT
On September 4, 2018, came to be heard the above-styled cause for trial. All
parties, each by and through counsel, appeared for trial. No jury having been requested, at
the conclusion of the trial, all matters of fact were tried to the Court without a jury.
Having heard the evidence and arguments of counsel, the Court finds that Plaintiff
ScrapSource, LLC (“ScrapSource”) is entitled to specific performance, and hereby
ORDERS, ADJUDGES, and DECREES the following:
A. Defendants Jason Wolff, Mitchell Wolff, and Fortis Metal Management, LLC
(“Defendants”) execute the Amended Confidential Compromise Settlement
Agreement and Mutual Release (“Agreement”) in the form attached to
Plaintiff’s Trial Exhibit 15, as modified by the agreed revisions set forth in
Plaintiff’s Trial Exhibits 16 through 27, and return it to counsel for Plaintiff
ScrapSource, LLC (“Plaintiff”) no later than (7) days after the date of this
Order.
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ORDER AND FINAL JUDGMENT PAGE 1
B. Plaintiff counter-sign the executed Agreement and return it to counsel for
Defendants no later than (7) days after the date of receipt by Plaintiff’s counsel
of the executed Agreement.
C. The Parties thereafter abide by their respective contractual obligations under
the executed Agreement, which for purposes of clarity the Court quotes
verbatim and at length:
1. “Non-Solicitation by the Wolff Parties.1 The Parties agree that for
four months (“Non-Compete Period”), beginning on the Effective Date
(also, the “Termination Date”), the Wolff Parties shall not, either on
their own or for any other person or entity, directly or indirectly, solicit,
call upon, do business, or communicate with, for the purposes of doing
business relating to scrap metal sales or recycling, any of the entities
listed on Exhibit “1” attached hereto and incorporated herein.2 The
identity of the entities listed on Exhibit “1” shall be treated as
confidential and not disclosed to third parties, except in the event of the
enforcement of this Agreement, in which case, such shall be filed under
seal consistent with the procedure identified in Paragraph 1 of the
Original Agreement. If, during the Non-Compete Period, the Wolff
Parties are contacted by any entity listed on Exhibit “1” (or any person
or persons acting on behalf of any such entity) for the purpose of having
1
The Court has not quoted the preliminary portions of the Agreement including the various “whereas” clauses, some
of which establish defined terms such as “the Wolff Parties,” i.e., Defendants, and “Original Agreement.” To the
extent those defined terms are used herein, they have the same meaning as used in the Agreement.
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ORDER AND FINAL JUDGMENT PAGE 2
any such entity do business with them during such period as prohibited
by this Agreement, the Wolff Parties shall decline to do business with
any such entity, but may advise any such entity that the Wolff Parties
are unable to do business with it until the expiration of the Non-
Compete Period. Such statement by the Wolff Parties shall not
constitute a violation of the confidentiality obligation in Section 1 of
this Agreement. The prohibition in this Section 1 includes the Wolff
Parties and any persons, representatives, agents, or entities acting either
directly or indirectly, in concert with, or for the benefit of the Wolff
Parties or on their behalf, or on behalf of any other person or entity. At
the end of the Termination Date, the Wolff Parties shall provide
ScrapSource with a sworn affidavit confirming their compliance with
the terms and obligations set forth in this Section 1, which
representations ScrapSource is relying upon as a material inducement to
its provision of the releases of the Wolff Parties as set forth in Section 3,
below, and but for which ScrapSource would not otherwise provide
such releases to the Wolff Parties.
2. “Payment to ScrapSource. Upon completion of the process described
herein, the Wolff Parties shall, within seven (7) business days of the
Termination Date, pay to ScrapSource the total sum of SEVENTEEN
THOUSAND DOLLARS ($17,000.00) (“Settlement Amount”). Prior to
2
A copy of which is attached to Plaintiff’s Trial Exhibit 27.
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ORDER AND FINAL JUDGMENT PAGE 3
ScrapSource’s receipt of the Settlement Amount, ScrapSource shall
provide counsel for the Wolff Parties a sworn statement stating that as
of the date of such statement, either that (a) ScrapSource is unaware of
any non-compliance or violations by the Wolff Parties of their
obligations and prohibitions in Section 1, above; or (b) ScrapSource
contends that the Wolff Parties have violated or breached Section 1, in
which case ScrapSource shall state in such declaration the basis for such
belief or contention. If ScrapSource has provided a statement
contending that the Wolff Parties have violated Section 1 as of the
Termination Date, the Wolff Parties must then respond to such
allegations within five (5) business days of receipt of the same, and
provide ScrapSource with reasonable proof of its full compliance with
its obligations under Section 1. Should the Parties fail to reach an
agreement regarding the Wolff Parties’ compliance with Section 1, then
the releases provided in Section 3 of this Amended Agreement shall be
of no force and effect, and ScrapSource may continue to pursue its
claims against the Wolff Parties in full, including any alleged breaches
of the Original Agreement, the obligations in Section 1, and the non-
payment to ScrapSource of the Settlement Amount. Within seven (7)
business days of ScrapSource’s sworn statement stating that as of the
date of such statement ScrapSource is unaware of any non-compliance
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ORDER AND FINAL JUDGMENT PAGE 4
by the Wolff Parties of their obligations and prohibitions in Section 1,
the Wolff entities shall pay the Settlement Amount described above.
3. “Mutual Releases. Provided that the Wolff Parties have delivered the
signed, sworn statements specified in Section 1, and that ScrapSource
has not provided a sworn statement contending that the Wolff Parties
have breached their obligations under Section 1, the Parties reaffirm the
mutual releases of each other set forth in Section 5 of the Original
Agreement through the Termination Date. However, nothing in this
Amended Agreement shall be deemed as a waiver of any of
ScrapSource’s rights or claims to enforce this agreement, including for
any claims it may have against the Wolff Parties that the Wolff Parties’
sworn representation as provided in Section 1 are false. ScrapSource
may pursue any remedies it has or may have for such false
representations that it learns of after receipt of the Settlement Amount.
4. “Reaffirmation. The Parties reaffirm the statements, agreements, and
obligations set forth in Section(s) 3 (regarding the Wolff Parties’
continued non-use and non-disclosure of ScrapSource’s Confidential
Information), and 5-17 of the Original Agreement, except as expressly
modified by this Amended Agreement.”
D. Plaintiff have and recover from Defendants, jointly and severally, Plaintiff’s
past attorney’s fees in the amount of Eighty Eight Thousand Twenty One and
No/100 Dollars ($88,021.00).
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ORDER AND FINAL JUDGMENT PAGE 5
E. Plaintiff have and recover from Defendants, jointly and severally, and
cumulatively, the following future attorney’s fees, contingent on the following
events:
1. Thirty Thousand and No/100 Dollars ($30,000) in the event Defendants
file an Appeal in the Court of Appeals which does not result in a
reversal of the judgment rendered herein;
2. Fifteen Thousand and No/100 Dollars ($15,000) in the event Defendants
seek review before the Texas Supreme Court, requiring a Response
from Plaintiff, and the Texas Supreme Court declines to address the
case on the merits;
3. Twenty Five Thousand and No/100 Dollars ($25,000) in the event
Defendants seek review before the Texas Supreme Court, which
requires briefing on the merits and/or oral argument, and which does not
result in a reversal of the judgment rendered herein.
F. Plaintiff have and recover from Defendants, jointly and severally, all taxable
Court costs.
G. Plaintiff have and recover from Defendants, jointly and severally, post-
judgment (compound) interest on the amounts listed in Section D, above, at the
rate of 5.00% per annum, accruing from the date of this Judgment until this
Judgment is satisfied in full.
H. Plaintiff have and recover from Defendants, jointly and severally, post-
judgment (compound) interest on the amounts listed in Section E, above, if
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ORDER AND FINAL JUDGMENT PAGE 6
such amounts be awarded, at the rate of 5.00% per annum, accruing from the
following dates, and until this judgment is satisfied in full:
1. From the date the Notice of Appeal is filed;
2. From the date the Petition for Review is filed;
3. From the date the Supreme Court indicates that briefing on the merits
and/or oral argument is required.
All writs and processes for enforcement and collection of this judgment may issue
as necessary.
All relief not granted herein is hereby DENIED. This is a final judgment that
disposes of all parties and claims.
SIGNED this ________ day of __________ 2018 at ___:____ __.m.
______________________________________
JUDGE PRESIDING
35517058.1
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ORDER AND FINAL JUDGMENT PAGE 7
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CAUSE NO. DC-17-11360 SCRAPSOURCE, LLC, § IN THE DISTRICT COURT § Plaintiff, § § v. § DALLAS COUNTY, TEXAS § JASON WOLFF, MITCHELL WOLFF § AND FORTIS METAL § MANAGEMENT, LLC, § § 192nd JUDICIAL DISTRICT Defendants. ORDER AND FINAL JUDGMENT On September 4, 2018, came to be heard the above-styled cause for trial. All parties, each by and through counsel, appeared for trial. No jury having been requested, at the conclusion of the trial, all matters of fact were tried to the Court without a jury. Having heard the evidence and arguments of counsel, the Court finds that Plaintiff ScrapSource, LLC (“ScrapSource”) is entitled to specific performance, and hereby ORDERS, ADJUDGES, and DECREES the following: A. Defendants Jason Wolff, Mitchell Wolff, and Fortis Metal Management, LLC (“Defendants”) execute the Amended Confidential Compromise Settlement Agreement and Mutual Release (“Agreement”) in the form attached to Plaintiff’s Trial Exhibit 15, as modified by the agreed revisions set forth in Plaintiff’s Trial Exhibits 16 through 27, and return it to counsel for Plaintiff ScrapSource, LLC (“Plaintiff”) no later than (7) days after the date of this Order. _____________________________________________________________________________________________ ORDER AND FINAL JUDGMENT PAGE 1 B. Plaintiff counter-sign the executed Agreement and return it to counsel for Defendants no later than (7) days after the date of receipt by Plaintiff’s counsel of the executed Agreement. C. The Parties thereafter abide by their respective contractual obligations under the executed Agreement, which for purposes of clarity the Court quotes verbatim and at length: 1. “Non-Solicitation by the Wolff Parties.1 The Parties agree that for four months (“Non-Compete Period”), beginning on the Effective Date (also, the “Termination Date”), the Wolff Parties shall not, either on their own or for any other person or entity, directly or indirectly, solicit, call upon, do business, or communicate with, for the purposes of doing business relating to scrap metal sales or recycling, any of the entities listed on Exhibit “1” attached hereto and incorporated herein.2 The identity of the entities listed on Exhibit “1” shall be treated as confidential and not disclosed to third parties, except in the event of the enforcement of this Agreement, in which case, such shall be filed under seal consistent with the procedure identified in Paragraph 1 of the Original Agreement. If, during the Non-Compete Period, the Wolff Parties are contacted by any entity listed on Exhibit “1” (or any person or persons acting on behalf of any such entity) for the purpose of having 1 The Court has not quoted the preliminary portions of the Agreement including the various “whereas” clauses, some of which establish defined terms such as “the Wolff Parties,” i.e., Defendants, and “Original Agreement.” To the extent those defined terms are used herein, they have the same meaning as used in the Agreement. _____________________________________________________________________________________________ ORDER AND FINAL JUDGMENT PAGE 2 any such entity do business with them during such period as prohibited by this Agreement, the Wolff Parties shall decline to do business with any such entity, but may advise any such entity that the Wolff Parties are unable to do business with it until the expiration of the Non- Compete Period. Such statement by the Wolff Parties shall not constitute a violation of the confidentiality obligation in Section 1 of this Agreement. The prohibition in this Section 1 includes the Wolff Parties and any persons, representatives, agents, or entities acting either directly or indirectly, in concert with, or for the benefit of the Wolff Parties or on their behalf, or on behalf of any other person or entity. At the end of the Termination Date, the Wolff Parties shall provide ScrapSource with a sworn affidavit confirming their compliance with the terms and obligations set forth in this Section 1, which representations ScrapSource is relying upon as a material inducement to its provision of the releases of the Wolff Parties as set forth in Section 3, below, and but for which ScrapSource would not otherwise provide such releases to the Wolff Parties. 2. “Payment to ScrapSource. Upon completion of the process described herein, the Wolff Parties shall, within seven (7) business days of the Termination Date, pay to ScrapSource the total sum of SEVENTEEN THOUSAND DOLLARS ($17,000.00) (“Settlement Amount”). Prior to 2 A copy of which is attached to Plaintiff’s Trial Exhibit 27. _____________________________________________________________________________________________ ORDER AND FINAL JUDGMENT PAGE 3 ScrapSource’s receipt of the Settlement Amount, ScrapSource shall provide counsel for the Wolff Parties a sworn statement stating that as of the date of such statement, either that (a) ScrapSource is unaware of any non-compliance or violations by the Wolff Parties of their obligations and prohibitions in Section 1, above; or (b) ScrapSource contends that the Wolff Parties have violated or breached Section 1, in which case ScrapSource shall state in such declaration the basis for such belief or contention. If ScrapSource has provided a statement contending that the Wolff Parties have violated Section 1 as of the Termination Date, the Wolff Parties must then respond to such allegations within five (5) business days of receipt of the same, and provide ScrapSource with reasonable proof of its full compliance with its obligations under Section 1. Should the Parties fail to reach an agreement regarding the Wolff Parties’ compliance with Section 1, then the releases provided in Section 3 of this Amended Agreement shall be of no force and effect, and ScrapSource may continue to pursue its claims against the Wolff Parties in full, including any alleged breaches of the Original Agreement, the obligations in Section 1, and the non- payment to ScrapSource of the Settlement Amount. Within seven (7) business days of ScrapSource’s sworn statement stating that as of the date of such statement ScrapSource is unaware of any non-compliance _____________________________________________________________________________________________ ORDER AND FINAL JUDGMENT PAGE 4 by the Wolff Parties of their obligations and prohibitions in Section 1, the Wolff entities shall pay the Settlement Amount described above. 3. “Mutual Releases. Provided that the Wolff Parties have delivered the signed, sworn statements specified in Section 1, and that ScrapSource has not provided a sworn statement contending that the Wolff Parties have breached their obligations under Section 1, the Parties reaffirm the mutual releases of each other set forth in Section 5 of the Original Agreement through the Termination Date. However, nothing in this Amended Agreement shall be deemed as a waiver of any of ScrapSource’s rights or claims to enforce this agreement, including for any claims it may have against the Wolff Parties that the Wolff Parties’ sworn representation as provided in Section 1 are false. ScrapSource may pursue any remedies it has or may have for such false representations that it learns of after receipt of the Settlement Amount. 4. “Reaffirmation. The Parties reaffirm the statements, agreements, and obligations set forth in Section(s) 3 (regarding the Wolff Parties’ continued non-use and non-disclosure of ScrapSource’s Confidential Information), and 5-17 of the Original Agreement, except as expressly modified by this Amended Agreement.” D. Plaintiff have and recover from Defendants, jointly and severally, Plaintiff’s past attorney’s fees in the amount of Eighty Eight Thousand Twenty One and No/100 Dollars ($88,021.00). _____________________________________________________________________________________________ ORDER AND FINAL JUDGMENT PAGE 5 E. Plaintiff have and recover from Defendants, jointly and severally, and cumulatively, the following future attorney’s fees, contingent on the following events: 1. Thirty Thousand and No/100 Dollars ($30,000) in the event Defendants file an Appeal in the Court of Appeals which does not result in a reversal of the judgment rendered herein; 2. Fifteen Thousand and No/100 Dollars ($15,000) in the event Defendants seek review before the Texas Supreme Court, requiring a Response from Plaintiff, and the Texas Supreme Court declines to address the case on the merits; 3. Twenty Five Thousand and No/100 Dollars ($25,000) in the event Defendants seek review before the Texas Supreme Court, which requires briefing on the merits and/or oral argument, and which does not result in a reversal of the judgment rendered herein. F. Plaintiff have and recover from Defendants, jointly and severally, all taxable Court costs. G. Plaintiff have and recover from Defendants, jointly and severally, post- judgment (compound) interest on the amounts listed in Section D, above, at the rate of 5.00% per annum, accruing from the date of this Judgment until this Judgment is satisfied in full. H. Plaintiff have and recover from Defendants, jointly and severally, post- judgment (compound) interest on the amounts listed in Section E, above, if _____________________________________________________________________________________________ ORDER AND FINAL JUDGMENT PAGE 6 such amounts be awarded, at the rate of 5.00% per annum, accruing from the following dates, and until this judgment is satisfied in full: 1. From the date the Notice of Appeal is filed; 2. From the date the Petition for Review is filed; 3. From the date the Supreme Court indicates that briefing on the merits and/or oral argument is required. All writs and processes for enforcement and collection of this judgment may issue as necessary. All relief not granted herein is hereby DENIED. This is a final judgment that disposes of all parties and claims. SIGNED this ________ day of __________ 2018 at ___:____ __.m. ______________________________________ JUDGE PRESIDING 35517058.1 _____________________________________________________________________________________________ ORDER AND FINAL JUDGMENT PAGE 7