Preview
FILED
2 CIT ES 7/28/2020 9:41AM
FELICIA PITRE
DISTRICT CLERK
DALLAS 00., TEXAS
CO.,
Kayla Buckley DEPUTY
D C -2 0 -1 00214
DC-20-1 21 4
CAUSE NO.
Steven Webster, Aaron Webster, and §
Dennis Woods, §
§
Plaintifi’s,
Plaintifls, §
§ DALLAS COUNTY, TEXAS
V. §
§
Dennis J. Rogers, II and OMTC, Inc., §
Defendants.
§
§
PLAINTIFFS’ ORIGINAL PETITION AND FIRST SET OF DISCOVERY REQUESTS
_
J-191ST JUDICIAL DISTRICT
Plaintiffs Steven Webster, Aaron Webster, and Dennis Woods (collectively, “Plaintiffs”)
file this petition against Defendants Dennis J. Rogers, II (“Rogers”) and OMTC, Inc. (“OMTC”)
(Rogers and OMTC are together referred to t0 as “Defendants”), and show in support as follows:
I. DISCOVERY CONTROL PLAN
1. Plaintiffs intend to conduct discovery under Level 2 of Rule 190.3 of the
0f Texas
Rules of0f Civil Procedure.
II. PARTIES
2. Plaintiffs Steven Webster, Aaron Webster, and Dennis Woods are individuals
who are residents of Texas.
3. Defendant Rogers is an individual Who
who resides in Dallas County, Texas. Mr.
Rogers can be served with
With process at 6520 Del Norte Lane, Dallas, Texas 75225 or Wherever he
0r
may be found.
4. Defendant OMTC is a Texas corporation with a principal place of business
located at 1920 McKinney Avenue, Floor 7, Dallas, Texas 75201. OMTC can be served through
its registered agent, United States Corporation Agents, Inc., 9900 Spectrum Drive, Austin, Texas
78717.
III. JURISDICTION AND VENUE
5. The Court has jurisdiction over the subject matter of this lawsuit because it is a
civil suit for relief, and the amount in controversy, at least $6,552,000, exceeds the minimum
jurisdictional limits of the Court.
6. Venue is proper in Dallas County, Texas under Texas Civil Practice and
Remedies Code § 15.002 because one or more of the Defendants is a resident of Dallas County
and a substantial part of the events or omissions giving rise to the claims in this lawsuit occurred
in Dallas County.
7. Furthermore, the parties to this action agreed in contracts that are partly the
subject of this dispute that any action taken to enforce the terms of the contracts shall be
undertaken in Dallas County, Texas.
IV. FACTUAL BACKGROUND
8. Plaintiffs bring this action to recover funds that OMTC, Inc. and Rogers,
individually, have wrongfully refused to return to them, in violation of contractual and other
legal obligations, in the total amount of $6,552,000.
9. Steven Webster, Aaron Webster, and Dennis Woods are investors who invest in
the energy sector, including in fuel.
10. In 2020, an energy and commodities company called Vitol decided to exit a large
fuel position that it held at a storage facility located in the Port of Brownsville, Texas. To do so,
Vitol hosted an auction through which potential buyers would bid for portions of its fuel position
(also called allocations). The Vitol auction was not open to the public; it was by invitation only.
11. Vitol invited OMTC and/or Rogers to participate in the auction on behalf of
prospective buyers. Rogers in turn approached Aaron Webster about participating in the Vitol
auction through OMTC, acting as intermediary and agent. Aaron Webster then approached
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Steven Webster and Dennis Woods about purchasing portions of Vitol’s fuel position through
the auction, and each of them agreed to post funds to reserve an allocation of various refined
fuels offered through the auction. In order to participate in the auction, an upfront cash deposit
was required and, since the final awards had not yet been made, the dollar amounts posted were
estimated based on the anticipated volumes awarded and the current market prices for those
products.
12. On June 18, 2020, Steven Webster and Dennis Woods each executed a Fuel
Purchase Order with OMTC. See Exhibit A, Webster-OMTC Fuel Purchase Order and Exhibit
B, Woods-OMTC Fuel Purchase Order (collectively, the “Purchase Orders”). During the
“Option Period,” the Purchase Orders could be terminated without cause by either party. If
Steven Webster and Dennis Woods, each as a “Buyer,” provided notice of their election to
terminate the Purchase Orders, then OMTC, as “Seller,” was obligated to “immediately request
the return of funds from Vitol” and to “provide evidence of such to Buyer.” Further, once
OMTC, as Seller, received the funds, it was obligated to “remit funds to Buyer within one
banking day.” See Exhibits A & B, Purchase Orders ¶ 3 (emphasis added).
13. Per Vitol’s protocol, as relayed to Aaron Webster by Rogers, Steven Webster and
Dennis Woods deposited $4,410,000 and $2,142,000, respectively, for a total of $6,552,000, into
OMTC’s Chase bank account ending in xxx7879 in order to participate in the Vitol auction.
14. On information and belief, through the Vitol auction, Steven Webster received an
allocation for 100,000 barrels of diesel fuel and Dennis Woods received an allocation for 50,000
barrels of jet fuel.
15. After supposedly receiving the final contracts from Vitol and learning that Vitol
would charge additional, unexpected fees as part of the contracts to consummate the sales of the
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allocations, Rogers recommended terminating the Purchase Orders on June 29, 2020. Relying on
this advice, Plaintiffs agreed. Acting on behalf of Steven Webster and Dennis Woods, Rogers
notified Vitol of such decision and, on information and belief, Vitol initiated the process of
returning Plaintiffs’ $6,552,000 to OMTC.
16. On June 30, 2020, Rogers provided a screenshot t0 Aaron Webster, Which reflects
a Wire transfer credit of $6,552,000 into OMTC’s Chase bank account ending in xxx7879 from
Wells Fargo—the exact amount due Steven Webster and Dennis Woods:
’
omitc,‘mc.'
r
owc man
1.
$1,785,122.23
Available balance
Transfer
Account details
Available Dalante $1,785,122.23
Present balance $1,785,122.23
Show v
details
Recemt transactions
FEDWIRE CH EDIT VIA WELLS FARGO TRAN SACTI
Pendin g
,_ $6,552,000.00
ONLINE TRANSFER FROM CHK TRANSAC.“
1503
Pending
17. This screenshot, attached as Exhibit C, shows that OMTC received from Vitol
the $6,552,000 in fimds belonging to Steven Webster and Dennis Woods on or about June 30,
2020.
18. Despite this, OMTC and Rogers have failed to remit the funds t0 Plaintiffs within
one banking day. In fact, to date—more than three weeks after receiving the fimds from Vitol—
OMTC and Rogers stillhave not returned Steven Webster and Dennis Woods’s funds, forcing
them to retain counsel and file this lawsuit.
19. Plaintiffs, individually and through their counsel, have repeatedly contacted
Rogers to inquire about why their funds have not been timely returned, including by sending a
formal demand letter on July 13, 2020. In response, while repeatedly and fully admitting that he
owes Steven Webster and Dennis Woods the full $6,552,000 due, Rogers communicated to
Plaintiffs, verbally and in writing, a wide array of excuses and misrepresentations.
20. First, Rogers claimed there was a delay on Chase bank’s end, and that the funds
that had been wired back into OMTC’s account from Vitol were on a hold until at least July 16,
2020. See Exhibit D, Rogers 7/13/20 Email. To address this issue, Rogers promised that he
would repay the $4,410,000 due to Steven Webster and the $2,124,000 due to Dennis Woods
using funds from his personal Goldman Sachs account ending in xxx708-8. On July 7, 2020,
Rogers forwarded to Aaron Webster two purported Goldman Sachs confirmations, showing wire
transfers “in process” in the amount of $4,410,000 to Steven Webster and $2,124,000 to Dennis
Woods. See Exhibits E & F, Goldman Sachs Wire Transfer Confirmations. When those wire
transfers never came through to Steven Webster’s or Dennis Woods’s bank accounts, Rogers
claimed he had mistakenly provided the wrong account information. See Exhibit G, Rogers
7/10/20 Email. Most recently, Rogers assured Plaintiffs that wire transfers had been initiated and
would arrive by July 17, 2020. See Exhibit H, Rogers 7/17/20 4:24pm Email. He even agreed
to pay for Plaintiffs’ legal fees to that point. See Exhibit I, Rogers 7/17/20 12:05pm Email.
Despite this parade of manufactured excuses and empty promises, Rogers and OMTC still have
not returned Plaintiffs’ funds. Plaintiffs fear that Rogers has unlawfully spent the funds himself
or transferred them elsewhere.
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21. Plaintiffs therefore bring this action to recover the amounts owed and to pursue all
other damages and remedies available to them at law and in equity as a result of Defendants’
conduct.
V. CAUSES OF ACTION
Count One — Breach of Contract (Steven Webster)
22. Plaintiffs incorporate by reference paragraphs 1-21.
23. The Webster-OMTC Purchase Order is a valid, enforceable contract.
24. The Webster-OMTC Purchase Order required OMTC, through Rogers, to remit
Steven Webster’s funds within one banking day if the agreement was terminated within the
Option Period.
25. The Webster-OMTC Purchase Order was terminated on June 29, 2020 but, to
date, OMTC and Rogers have refused to remit Steven Webster’s funds, thereby breaching the
Webster-OMTC Purchase Order.
26. Steven Webster has suffered damages of at least $4,410,000 as a proximate result
of this breach and has been deprived of the funds to which he is rightfully entitled.
27. Steven Webster has fully satisfied and performed all conditions precedent and
obligations under the Webster-OMTC Purchase Order.
Count Two — Breach of Contract (Dennis Woods)
28. Plaintiffs incorporate by reference paragraphs 1-27.
29. The Woods-OMTC Purchase Order is a valid, enforceable contract.
30. The Woods-OMTC Purchase Order required OMTC, through Rogers, to remit
Dennis Woods’s funds within one banking day if the purchase order was terminated within the
Option Period.
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31. The Woods-OMTC Purchase Order was terminated on June 29, 2020 but, to date,
OMTC and Rogers have refused to remit Dennis Woods’s funds, thereby breaching the Woods-
OMTC Purchase Order.
32. Dennis Woods has suffered damages of at least $2,142,000 as a proximate result
of this breach and has been deprived of the funds to which he is rightfully entitled.
33. Dennis Woods has fully satisfied and performed all conditions precedent and
obligations under the Woods-OMTC Purchase Order.
Count Three — Breach of Fiduciary Duties (Steven Webster)
34. Plaintiffs incorporate by reference paragraphs 1-33.
35. Steven Webster had a fiduciary relationship with Defendants. Defendants acted
as Steven Webster’s agent and intermediary in respect of the Vitol auction and timely securing
the return of funds that Steven Webster entrusted to Defendants’ possession and care. Steven
Webster relied on Defendants for financial and business guidance in respect of the Vitol auction.
36. As such, Rogers and OMTC owed to Steven Webster: (1) the duty of loyalty and
utmost good faith; (2) the duty of candor; (3) the duty to refrain from self-dealing; (4) the duty to
act with integrity of the strictest kind; (5) the duty of fair, honest dealing; and (6) the duty to
make full disclosure.
37. Defendants breached these duties through their deceitful actions including:
refusing to return Steven Webster’s funds, repeatedly misleading Plaintiffs about their intentions
to promptly return Steven Webster’s funds, keeping Steven Webster’s funds after they were due
to be remitted; failing to disclose the true status of Steven Webster’s funds and payments, among
other unlawful, misleading, and deceitful conduct.
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38. Steven Webster has suffered damages as a proximate result of Defendants’ breach
of fiduciary duties, including by being deprived of funds in the amount of $4,410,000 and other
damages.
39. Steven Webster further seeks disgorgement of any ill-gotten profits or gains
Defendants obtained as a result of misuse and/or misappropriation of Steven Webster’s funds
and breach of the aforementioned fiduciary duties.
Count Four — Breach of Fiduciary Duties (Dennis Woods)
40. Plaintiffs incorporate by reference paragraphs 1-39.
41. Dennis Woods had a fiduciary relationship with Defendants. Defendants acted as
Dennis Woods’s agent and intermediary in respect of the Vitol auction and timely securing the
return of funds that Dennis Woods entrusted to Defendants’ possession and care. Dennis Woods
relied on Defendants for financial and business guidance in respect of the Vitol auction.
42. As such, Rogers and OMTC owed to Dennis Woods: (1) the duty of loyalty and
utmost good faith; (2) the duty of candor; (3) the duty to refrain from self-dealing; (4) the duty to
act with integrity of the strictest kind; (5) the duty of fair, honest dealing; and (6) the duty to
make full disclosure.
43. Defendants breached these duties through their deceitful actions including:
refusing to return Dennis Woods’s funds, repeatedly misleading Plaintiffs about their intentions
to promptly return Dennis Woods’s funds, keeping Dennis Woods’s funds after they were due to
be remitted; failing to disclose the true status of Dennis Woods’s funds and payments, among
other unlawful, misleading, and deceitful conduct.
44. Dennis Woods has suffered damages as a proximate result of Defendants’ breach
of fiduciary duties, including by being deprived of funds in the amount of $2,142,000 and other
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damages.
45. Dennis Woods further seeks disgorgement of any ill-gotten profits or gains
Defendants obtained as a result of misuse of Dennis Woods’s funds and breach of the
aforementioned fiduciary duties.
Count Five — Conversion
46. Plaintiffs incorporate by reference paragraphs 1-45.
47. OMTC and Rogers are also liable for conversion, as Steven Webster and Dennis
Woods are the owners, respectively, of $4,410,000 and $2,142,000, are entitled to immediate
possession of such amounts, and have made proper demand for the return of their property,
which OMTC and Rogers have refused to honor.
48. By failing to return Plaintiffs’ money, OMTC and Rogers have unlawfully and
without authorization assumed and exercised control over the property to the exclusion of and
inconsistent with the Steven Webster and Dennis Woods’s rights as owners.
49. This conversion is the proximate cause of financial harm to Steven Webster and
Dennis Woods, and they are entitled to recover from OMTC and Rogers all damages caused by
this conversion and their unlawful actions.
Count Six — Fraud
50. Plaintiffs incorporate by reference paragraphs 1-49.
51. Rogers, by and through OMTC, represented to Plaintiffs that he would act as a
trustworthy agent and intermediary on their behalf in respect of the Vitol action, and that if no
agreement with Vitol was consummated for the purchase of the allocations, he would promptly,
and within one business day, remit Plaintiffs’ funds to them.
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52. These representations were material and made with the intent that Plaintiffs act on
them to participate in the Vitol auction.
53. Plaintiffs in fact relied on these representations and deposited, or caused to be
deposited, $6,552,000 into OMTC’S account. Plaintiffs would not have agreed to the Purchase
Orders or deposited Steven Webster and Dennis Woods’s funds into OMTC’s account had
Rogers’s material, false representations not been made.
54. These representations were false because Rogers at all times had no intention 0f
timely remitting Plaintiffs’ funds. That Rogers” representations were false at the time he made
them is shown through his pattern of misleading and deceptive conduct as soon as the Purchase
Orders at issue in this lawsuit were terminated (e.g., manufacturing bank delays and multiple
promised Wire transfers that never came through), and through several other lawsuits currently
and previously pending against Rogers, which reveal highly similar fact patterns of Rogers
wrongfully refusing t0 return millions of dollars of his clients’ funds in connection with fuel
trading and other types of agreements.1
55. As a proximate result of Rogers’s material, false representations, Plaintiffs have
suffered damages. As a result 0f this fraud, Plaintiffs are entitled to damages, including
1
See Cause No. 19LBCV00725, ACMC Finance and Trade LLC v.Dennis Rogers Jr., the Superior
et al.; in
Court of the State 0f California, County 0f Los Angeles (alleging that Rogers, in connection with Oil venture,acted
as intermediary between borrower and lender, improperly retained loan proceeds, and committed money had and
received, unjust enrichment, promissory fraud (fraud in the inducement), fraud (intentional misrepresentation),
negligent misrepresentation, conversion, intentional interference With contractual relations,intentional fraudulent
transfers,constructive fraudulent transfers,and civil conspiracy); Cause N0. DC-20-01897, Funderznet LLC v.
OMTC, Ina, Dennis James Rogers, II,et al.;in the19lst Judicial DistrictCourt of Dallas County, Texas (alleging
that Rogers and/or OMTC (as applicable), entered into three separate promissory notes, security, collateral
assignment, and guarantee agreements for the purchase of ultra-low sulfur diesel,and thereafter defaulted on the
notes by failing to timely pay amounts due and then fraudulently used the funds for other purposes); Cause No. DC-
19-12251, Anthony J. Capano and Joanne Capano v.Push Start Indus. LLC and Dennis Rogers; in the 192nd
Judicial District Court 0f Dallas County, Texas (suitfor breach of promissory notes and guarantees in connection
With funding 0f water rights deals); Cause N0. DC-19-01434; Luxemborg Trading LLC v. Organ Mountain Energy
LLC and Dennis J. Rogers, II;In the 162nd Judicial District Court 0f Dallas County, Texas (now-settled and
dismissed suit t0 recover $1 million payment for ultra-low sulfur diesel that defendants never delivered t0
plaintiff).
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$6,552,000, plus additional losses proximately resulting from Defendants’ conduct, including
exemplary damages.
56. Any cap on exemplary damages under Texas Civil Practices and Remedies Code
Section 41.008 does not apply to this cause of action because Plaintiffs seek recovery of
exemplary damages based on Defendants’ conduct described as a felony in Texas Penal Code
Section 32.45 (Misapplication of Fiduciary Property or Property of Financial Institution), and the
conduct was committed knowingly or intentionally.
Count Seven — Violations of the Texas Deceptive Trade Practices Act
57. Plaintiffs incorporate by reference paragraphs 1-56.
58. Dennis Woods is a consumer as defined by the Texas Deceptive Trade Practices
Act (“DTPA”).
59. Defendants Rogers and OMTC, as alleged above and detailed below, have in the
course of business with Dennis Woods engaged in false, misleading, and deceptive acts and
practices declared unlawful in Section 17.46 of the DTPA. Such acts include:
a. False, misleading, or deceptive acts or practices in the conduct of any
trade or commerce, in violation of DTPA Section 17.46(a);
b. Representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities which they do not
have or that a person has a sponsorship, approval, status, affiliation, or
connection which the person does not, in violation of DTPA Section
17.46(b)(5);
c. Representing that goods or services are of a particular standard, quality, or
grade, or that goods are of a particular style or model, if they are of
another, in violation of DTPA Section 17.46(b)(7);
d. Failing to disclose information concerning goods or services which was
known at the time of the transaction with the intent to induce the consumer
into a transaction into which the consumer would not have entered had the
information been disclosed, in violation of DTPA Section 17.46(b)(24).
60. Defendants’ misconduct was committed intentionally.
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61. Dennis Woods relied on Defendants’ misrepresentations, false, misleading, or
deceptive acts, and failures to disclose information, and has suffered damages as a result of
Defendants’ violations of the DTPA.
62. Dennis Woods is entitled to recover its economic damages plus treble damages as
permitted by DTPA Section 17.50(b)(3).
Count Eight — Texas Theft Liability Act
63. Plaintiffs incorporate by reference paragraphs 1-62.
64. Plaintiffs Steven Webster and Dennis Woods have a possessory right to the
$6,552,000 in funds and bring this claim under the Texas Theft Liability Act for an unlawful
appropriation of property under Texas Penal Code Section 31.03. See Tex. Civ. Prac. & Rem.
Code §§ 134.001 et seq.
65. Defendants Rogers and OMTC unlawfully appropriated Plaintiffs’ funds without
their consent and with the intent to deprive Plaintiffs of their property in violation of Texas Penal
Code Sections 31.01(5)(C) and 31.03.
66. The appropriation of such funds by Defendants was induced by deception in
violation of Texas Penal Code Section 31.01, based on, but not limited to, the following
deceptive acts: (1) Rogers, by and through OMTC, created a false impression that he would act
as a trustworthy agent and intermediary on Plaintiffs’ behalf in respect to the Vitol action, on
which Plaintiffs’ relied in their transaction with Defendants; (2) Rogers, by and through OMTC,
promised to Plaintiffs that if no agreement with Vitol was consummated for the purchase of the
allocations, he would promptly, and within one business day, remit Plaintiffs’ funds to them, on
which promise of performance Plaintiffs’ relied judgment in the transaction with Defendants.
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67. Plaintiffs sustained damages of at least $6,552,000 as a result of Defendants’
unlawful appropriation, which is equivalent to a first-degree felony under Texas Penal Code
Section 31.03(e)(7).
68. Because Plaintiffs’ injuries resulted from Defendants’ gross negligence, fraud or
malice, Plaintiffs are entitled to an award of exemplary damages. See Tex. Civ. Prac. & Rem.
Code § 41.003(a). This remedy is in addition to, or alternatively to, other remedies sought in this
petition.
69. Plaintiffs are also entitled to an award of their reasonable attorneys’ fees pursuant
to Tex. Civ. Prac. & Rem. Code § 134.005(b).
Count Nine — Money Had and Received (Unjust Enrichment)
70. Plaintiffs incorporate by reference paragraphs 1-69.
71. Defendants hold money, which in equity and good conscience, belongs to the
Plaintiffs. However, Defendants have failed and refused to turn over the funds to Plaintiff.
Count Ten — Constructive Trust as to OMTC’s Chase Bank Account
72. Plaintiffs incorporate by reference paragraphs 1-71.
73. Rogers and OMTC are in possession of $6,552,000 of Plaintiffs’ funds, procured
through fraud, and should not be permitted to retain such funds.
74. By virtue of Defendants’ fraud, Plaintiffs are entitled to appropriate equitable
relief, including imposition of a constructive trust over OMTC’s Chase bank account with
account number ending in xxx7879 to prevent OMTC and Rogers from either spending or
transferring Plaintiffs’ money elsewhere, potentially forever precluding Plaintiffs from obtaining
recovery.
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75. Accordingly, Plaintiffs request that the Court institute a constructive trust against
Rogers and OMTC regarding the funds in Rogers’ and OMTC’s possession which belong to
Plaintiffs. Specifically, Plaintiffs request that the Court institute a constructive trust over
OMTC’s Chase bank account ending in xxx7879, because there is evidence that Vitol deposited
Plaintiffs’ funds in such account and that Rogers, acting through OMTC, has wrongfully refused
to return those funds to Plaintiffs. A constructive trust over this account is appropriate because
Plaintiffs’ property can be directly traced to such account, as demonstrated by Rogers’
screenshot of the account showing that the funds from Vitol were held in such account, Rogers’
repeated admission of liability to Plaintiffs, and Rogers’ repeated false assurances to Plaintiffs.
Count Eleven — Constructive Trust as to Dennis Rogers’ Goldman Sachs Account
76. Plaintiffs incorporate by reference paragraphs 1-75.
77. Rogers and OMTC are in possession of $6,552,000 of Plaintiffs’ funds, procured
through fraud, and should not be permitted to retain such funds.
78. By virtue of Defendants’ fraud, Plaintiffs are entitled to appropriate equitable
relief, including imposition of a constructive trust over Dennis Rogers’s Goldman Sachs account
ending in xxx708-8 to prevent Rogers from either spending or transferring Plaintiffs’ money
elsewhere, potentially forever precluding Plaintiffs from obtaining recovery.
79. Accordingly, Plaintiffs request that the Court institute a constructive trust against
Rogers and OMTC regarding the funds in Rogers’ and OMTC’s possession which belong to
Plaintiffs. Specifically, Plaintiffs request that the Court institute a constructive trust over Dennis
Rogers’s Goldman Sachs account ending in xxx708-8, because there is evidence that funds in
such account were to be used to repay Plaintiffs the amounts they are owed and because Dennis
Rogers represented to Plaintiffs that he would repay Plaintiffs the amounts they are owed using
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such account and the funds held therein. A constructive trust over this account is appropriate
because Plaintiffs’ property can be directly traced to such account, as demonstrated by Rogers’
emails representing that Plaintiffs’ funds were being transferred to them from his Goldman Sachs
account, Rogers’ repeated admission of liability to Plaintiffs, and Rogers’ repeated false
assurances to Plaintiffs.
VI. ALTER EGO
80. Plaintiffs incorporate by reference paragraphs 1-79.
81. The corporate form should be disregarded as between OMTC and Rogers for the
following reasons, among others:
a. Defendant OMTC’s corporate form was used as a sham by Defendant
Rogers to perpetuate fraud against Plaintiffs;
b. such unity exists between OMTC and Rogers that they have ceased to be
separate and holding only one liable would promote injustice, as
demonstrated in part by Rogers’ stated intention to repay the funds owed
to Plaintiffs from his personal Goldman Sachs account;
c. On information and belief, Defendants failed to observe corporate
formalities.
VII. ATTORNEYS’ FEES
82. Plaintiffs incorporate by reference paragraphs 1-81.
83. Plaintiffs request an award of attorneys’ fees and costs incurred in prosecuting
these claims. Plaintiffs are entitled to recover its reasonable and necessary attorneys’ fees
pursuant to Section 38.001(8) of the Texas Civil Practices and Remedies Code.
VIII. PRE- AND POST-JUDGMENT INTEREST
84. Plaintiffs incorporate by reference paragraphs 1-83.
85. Plaintiffs sue for pre-judgment and post-judgment interest at the maximum rates
allowed by law on any judgment awarded in their favor.
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IX. DISCOVERY
Plaintiffs demand that OMTC and Dennis Rogers provide responses to their
Requests for Disclosure, First Set of Requests for Production, First Set of Interrogatories, and
First Set of Requests for Admission, attached to and served with this Petition, within 50 days of
the date of service of this Petition.
X. PRAYER
For the reasons stated, Plaintiffs pray for judgment against OMTC and Dennis Rogers,
including the following relief:
a. compensatory damages in the amount of $6,552,000, plus interest, resulting from
OMTC’s breaches of contract;
b. damages for additional losses proximately resulting from Defendants’ other
unlawful conduct, including breach of fiduciary duties, conversion, fraud, and
money had and received (unjust enrichment);
c. disgorgement of any ill-gotten gains or profits through the improper use of Steven
Webster and Dennis Woods’s funds in breach of the fiduciary duties that
Defendants owed to Steven Webster and Dennis Woods;
d. exemplary damages for Defendants’ unlawful conduct, including breach of
fiduciary duties and fraud;
e. statutory, treble and other damages under the Texas Deceptive Trade Practices
Act;
f. damages under the Texas Theft Liability Act, including actual damages,
exemplary damages, and attorneys’ fees and court costs;
g. equitable relief in the form of a constructive trust over OMTC’s Chase bank
account ending in xxx7879 and Dennis Rogers’ Goldman Sachs account ending in
xxx708-8;
h. attorneys’ fees, costs, and expenses, including expert fees;
i. prejudgment and post-judgment interest as provided by law; and
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j. all other and further relief, at law 0r in equity, t0 which Plaintiffs may be justly
entitled.
Dated July 27, 2020.
Respectfully submitted,
BAKER BOTTS L.L.P.
By: /s/Meghan Dawson McElvV
Meghan Dawson McElvy
State Bar No. 24065 1 27
meghan.mcelvy@bakerbotts.com
Margaret L. Wittenmyer
State Bar No. 24 1 06593
margaret.wittenmyer@bakerbotts.com
One Shell Plaza
9 1 0 Louisiana
Houston, Texas 77002
Telephone: (713) 229-1234
Facsimile: (713) 229-1522
ATTORNEYS FOR PLAINTIFFS STEVEN WEBSTER,
AARON WEBSTER, AND DENNIS WOODS
CERTIFICATE 0F SERVICE
I hereby certify that a copy of the foregoing instrument was served upon counsel
for Defendants OMTC, Inc. and Dennis Rogers by electronic mail as follows:
Brett Chisum
MCCATHERN
3710 Rawlins Street
Dallas, Texas 752 1 9
/s/ Margaret L. Wittenmyer_
Margaret L. Wittenmyer
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EXHIBIT A
1
FUEL PURCHASE ORDER D R
This purchase
This order ("Purchase
purchase order Order"),
(“Purchase Order”), effective as
is effective
is
Preview
FILED 2 CIT ES 7/28/2020 9:41AM FELICIA PITRE DISTRICT CLERK DALLAS 00., TEXAS CO., Kayla Buckley DEPUTY D C -2 0 -1 00214 DC-20-1 21 4 CAUSE NO. Steven Webster, Aaron Webster, and § Dennis Woods, § § Plaintifi’s, Plaintifls, § § DALLAS COUNTY, TEXAS V. § § Dennis J. Rogers, II and OMTC, Inc., § Defendants. § § PLAINTIFFS’ ORIGINAL PETITION AND FIRST SET OF DISCOVERY REQUESTS _ J-191ST JUDICIAL DISTRICT Plaintiffs Steven Webster, Aaron Webster, and Dennis Woods (collectively, “Plaintiffs”) file this petition against Defendants Dennis J. Rogers, II (“Rogers”) and OMTC, Inc. (“OMTC”) (Rogers and OMTC are together referred to t0 as “Defendants”), and show in support as follows: I. DISCOVERY CONTROL PLAN 1. Plaintiffs intend to conduct discovery under Level 2 of Rule 190.3 of the 0f Texas Rules of0f Civil Procedure. II. PARTIES 2. Plaintiffs Steven Webster, Aaron Webster, and Dennis Woods are individuals who are residents of Texas. 3. Defendant Rogers is an individual Who who resides in Dallas County, Texas. Mr. Rogers can be served with With process at 6520 Del Norte Lane, Dallas, Texas 75225 or Wherever he 0r may be found. 4. Defendant OMTC is a Texas corporation with a principal place of business located at 1920 McKinney Avenue, Floor 7, Dallas, Texas 75201. OMTC can be served through its registered agent, United States Corporation Agents, Inc., 9900 Spectrum Drive, Austin, Texas 78717. III. JURISDICTION AND VENUE 5. The Court has jurisdiction over the subject matter of this lawsuit because it is a civil suit for relief, and the amount in controversy, at least $6,552,000, exceeds the minimum jurisdictional limits of the Court. 6. Venue is proper in Dallas County, Texas under Texas Civil Practice and Remedies Code § 15.002 because one or more of the Defendants is a resident of Dallas County and a substantial part of the events or omissions giving rise to the claims in this lawsuit occurred in Dallas County. 7. Furthermore, the parties to this action agreed in contracts that are partly the subject of this dispute that any action taken to enforce the terms of the contracts shall be undertaken in Dallas County, Texas. IV. FACTUAL BACKGROUND 8. Plaintiffs bring this action to recover funds that OMTC, Inc. and Rogers, individually, have wrongfully refused to return to them, in violation of contractual and other legal obligations, in the total amount of $6,552,000. 9. Steven Webster, Aaron Webster, and Dennis Woods are investors who invest in the energy sector, including in fuel. 10. In 2020, an energy and commodities company called Vitol decided to exit a large fuel position that it held at a storage facility located in the Port of Brownsville, Texas. To do so, Vitol hosted an auction through which potential buyers would bid for portions of its fuel position (also called allocations). The Vitol auction was not open to the public; it was by invitation only. 11. Vitol invited OMTC and/or Rogers to participate in the auction on behalf of prospective buyers. Rogers in turn approached Aaron Webster about participating in the Vitol auction through OMTC, acting as intermediary and agent. Aaron Webster then approached 2 Steven Webster and Dennis Woods about purchasing portions of Vitol’s fuel position through the auction, and each of them agreed to post funds to reserve an allocation of various refined fuels offered through the auction. In order to participate in the auction, an upfront cash deposit was required and, since the final awards had not yet been made, the dollar amounts posted were estimated based on the anticipated volumes awarded and the current market prices for those products. 12. On June 18, 2020, Steven Webster and Dennis Woods each executed a Fuel Purchase Order with OMTC. See Exhibit A, Webster-OMTC Fuel Purchase Order and Exhibit B, Woods-OMTC Fuel Purchase Order (collectively, the “Purchase Orders”). During the “Option Period,” the Purchase Orders could be terminated without cause by either party. If Steven Webster and Dennis Woods, each as a “Buyer,” provided notice of their election to terminate the Purchase Orders, then OMTC, as “Seller,” was obligated to “immediately request the return of funds from Vitol” and to “provide evidence of such to Buyer.” Further, once OMTC, as Seller, received the funds, it was obligated to “remit funds to Buyer within one banking day.” See Exhibits A & B, Purchase Orders ¶ 3 (emphasis added). 13. Per Vitol’s protocol, as relayed to Aaron Webster by Rogers, Steven Webster and Dennis Woods deposited $4,410,000 and $2,142,000, respectively, for a total of $6,552,000, into OMTC’s Chase bank account ending in xxx7879 in order to participate in the Vitol auction. 14. On information and belief, through the Vitol auction, Steven Webster received an allocation for 100,000 barrels of diesel fuel and Dennis Woods received an allocation for 50,000 barrels of jet fuel. 15. After supposedly receiving the final contracts from Vitol and learning that Vitol would charge additional, unexpected fees as part of the contracts to consummate the sales of the 3 allocations, Rogers recommended terminating the Purchase Orders on June 29, 2020. Relying on this advice, Plaintiffs agreed. Acting on behalf of Steven Webster and Dennis Woods, Rogers notified Vitol of such decision and, on information and belief, Vitol initiated the process of returning Plaintiffs’ $6,552,000 to OMTC. 16. On June 30, 2020, Rogers provided a screenshot t0 Aaron Webster, Which reflects a Wire transfer credit of $6,552,000 into OMTC’s Chase bank account ending in xxx7879 from Wells Fargo—the exact amount due Steven Webster and Dennis Woods: ’ omitc,‘mc.' r owc man 1. $1,785,122.23 Available balance Transfer Account details Available Dalante $1,785,122.23 Present balance $1,785,122.23 Show v details Recemt transactions FEDWIRE CH EDIT VIA WELLS FARGO TRAN SACTI Pendin g ,_ $6,552,000.00 ONLINE TRANSFER FROM CHK TRANSAC.“ 1503 Pending 17. This screenshot, attached as Exhibit C, shows that OMTC received from Vitol the $6,552,000 in fimds belonging to Steven Webster and Dennis Woods on or about June 30, 2020. 18. Despite this, OMTC and Rogers have failed to remit the funds t0 Plaintiffs within one banking day. In fact, to date—more than three weeks after receiving the fimds from Vitol— OMTC and Rogers stillhave not returned Steven Webster and Dennis Woods’s funds, forcing them to retain counsel and file this lawsuit. 19. Plaintiffs, individually and through their counsel, have repeatedly contacted Rogers to inquire about why their funds have not been timely returned, including by sending a formal demand letter on July 13, 2020. In response, while repeatedly and fully admitting that he owes Steven Webster and Dennis Woods the full $6,552,000 due, Rogers communicated to Plaintiffs, verbally and in writing, a wide array of excuses and misrepresentations. 20. First, Rogers claimed there was a delay on Chase bank’s end, and that the funds that had been wired back into OMTC’s account from Vitol were on a hold until at least July 16, 2020. See Exhibit D, Rogers 7/13/20 Email. To address this issue, Rogers promised that he would repay the $4,410,000 due to Steven Webster and the $2,124,000 due to Dennis Woods using funds from his personal Goldman Sachs account ending in xxx708-8. On July 7, 2020, Rogers forwarded to Aaron Webster two purported Goldman Sachs confirmations, showing wire transfers “in process” in the amount of $4,410,000 to Steven Webster and $2,124,000 to Dennis Woods. See Exhibits E & F, Goldman Sachs Wire Transfer Confirmations. When those wire transfers never came through to Steven Webster’s or Dennis Woods’s bank accounts, Rogers claimed he had mistakenly provided the wrong account information. See Exhibit G, Rogers 7/10/20 Email. Most recently, Rogers assured Plaintiffs that wire transfers had been initiated and would arrive by July 17, 2020. See Exhibit H, Rogers 7/17/20 4:24pm Email. He even agreed to pay for Plaintiffs’ legal fees to that point. See Exhibit I, Rogers 7/17/20 12:05pm Email. Despite this parade of manufactured excuses and empty promises, Rogers and OMTC still have not returned Plaintiffs’ funds. Plaintiffs fear that Rogers has unlawfully spent the funds himself or transferred them elsewhere. 5 21. Plaintiffs therefore bring this action to recover the amounts owed and to pursue all other damages and remedies available to them at law and in equity as a result of Defendants’ conduct. V. CAUSES OF ACTION Count One — Breach of Contract (Steven Webster) 22. Plaintiffs incorporate by reference paragraphs 1-21. 23. The Webster-OMTC Purchase Order is a valid, enforceable contract. 24. The Webster-OMTC Purchase Order required OMTC, through Rogers, to remit Steven Webster’s funds within one banking day if the agreement was terminated within the Option Period. 25. The Webster-OMTC Purchase Order was terminated on June 29, 2020 but, to date, OMTC and Rogers have refused to remit Steven Webster’s funds, thereby breaching the Webster-OMTC Purchase Order. 26. Steven Webster has suffered damages of at least $4,410,000 as a proximate result of this breach and has been deprived of the funds to which he is rightfully entitled. 27. Steven Webster has fully satisfied and performed all conditions precedent and obligations under the Webster-OMTC Purchase Order. Count Two — Breach of Contract (Dennis Woods) 28. Plaintiffs incorporate by reference paragraphs 1-27. 29. The Woods-OMTC Purchase Order is a valid, enforceable contract. 30. The Woods-OMTC Purchase Order required OMTC, through Rogers, to remit Dennis Woods’s funds within one banking day if the purchase order was terminated within the Option Period. 6 31. The Woods-OMTC Purchase Order was terminated on June 29, 2020 but, to date, OMTC and Rogers have refused to remit Dennis Woods’s funds, thereby breaching the Woods- OMTC Purchase Order. 32. Dennis Woods has suffered damages of at least $2,142,000 as a proximate result of this breach and has been deprived of the funds to which he is rightfully entitled. 33. Dennis Woods has fully satisfied and performed all conditions precedent and obligations under the Woods-OMTC Purchase Order. Count Three — Breach of Fiduciary Duties (Steven Webster) 34. Plaintiffs incorporate by reference paragraphs 1-33. 35. Steven Webster had a fiduciary relationship with Defendants. Defendants acted as Steven Webster’s agent and intermediary in respect of the Vitol auction and timely securing the return of funds that Steven Webster entrusted to Defendants’ possession and care. Steven Webster relied on Defendants for financial and business guidance in respect of the Vitol auction. 36. As such, Rogers and OMTC owed to Steven Webster: (1) the duty of loyalty and utmost good faith; (2) the duty of candor; (3) the duty to refrain from self-dealing; (4) the duty to act with integrity of the strictest kind; (5) the duty of fair, honest dealing; and (6) the duty to make full disclosure. 37. Defendants breached these duties through their deceitful actions including: refusing to return Steven Webster’s funds, repeatedly misleading Plaintiffs about their intentions to promptly return Steven Webster’s funds, keeping Steven Webster’s funds after they were due to be remitted; failing to disclose the true status of Steven Webster’s funds and payments, among other unlawful, misleading, and deceitful conduct. 7 38. Steven Webster has suffered damages as a proximate result of Defendants’ breach of fiduciary duties, including by being deprived of funds in the amount of $4,410,000 and other damages. 39. Steven Webster further seeks disgorgement of any ill-gotten profits or gains Defendants obtained as a result of misuse and/or misappropriation of Steven Webster’s funds and breach of the aforementioned fiduciary duties. Count Four — Breach of Fiduciary Duties (Dennis Woods) 40. Plaintiffs incorporate by reference paragraphs 1-39. 41. Dennis Woods had a fiduciary relationship with Defendants. Defendants acted as Dennis Woods’s agent and intermediary in respect of the Vitol auction and timely securing the return of funds that Dennis Woods entrusted to Defendants’ possession and care. Dennis Woods relied on Defendants for financial and business guidance in respect of the Vitol auction. 42. As such, Rogers and OMTC owed to Dennis Woods: (1) the duty of loyalty and utmost good faith; (2) the duty of candor; (3) the duty to refrain from self-dealing; (4) the duty to act with integrity of the strictest kind; (5) the duty of fair, honest dealing; and (6) the duty to make full disclosure. 43. Defendants breached these duties through their deceitful actions including: refusing to return Dennis Woods’s funds, repeatedly misleading Plaintiffs about their intentions to promptly return Dennis Woods’s funds, keeping Dennis Woods’s funds after they were due to be remitted; failing to disclose the true status of Dennis Woods’s funds and payments, among other unlawful, misleading, and deceitful conduct. 44. Dennis Woods has suffered damages as a proximate result of Defendants’ breach of fiduciary duties, including by being deprived of funds in the amount of $2,142,000 and other 8 damages. 45. Dennis Woods further seeks disgorgement of any ill-gotten profits or gains Defendants obtained as a result of misuse of Dennis Woods’s funds and breach of the aforementioned fiduciary duties. Count Five — Conversion 46. Plaintiffs incorporate by reference paragraphs 1-45. 47. OMTC and Rogers are also liable for conversion, as Steven Webster and Dennis Woods are the owners, respectively, of $4,410,000 and $2,142,000, are entitled to immediate possession of such amounts, and have made proper demand for the return of their property, which OMTC and Rogers have refused to honor. 48. By failing to return Plaintiffs’ money, OMTC and Rogers have unlawfully and without authorization assumed and exercised control over the property to the exclusion of and inconsistent with the Steven Webster and Dennis Woods’s rights as owners. 49. This conversion is the proximate cause of financial harm to Steven Webster and Dennis Woods, and they are entitled to recover from OMTC and Rogers all damages caused by this conversion and their unlawful actions. Count Six — Fraud 50. Plaintiffs incorporate by reference paragraphs 1-49. 51. Rogers, by and through OMTC, represented to Plaintiffs that he would act as a trustworthy agent and intermediary on their behalf in respect of the Vitol action, and that if no agreement with Vitol was consummated for the purchase of the allocations, he would promptly, and within one business day, remit Plaintiffs’ funds to them. 9 52. These representations were material and made with the intent that Plaintiffs act on them to participate in the Vitol auction. 53. Plaintiffs in fact relied on these representations and deposited, or caused to be deposited, $6,552,000 into OMTC’S account. Plaintiffs would not have agreed to the Purchase Orders or deposited Steven Webster and Dennis Woods’s funds into OMTC’s account had Rogers’s material, false representations not been made. 54. These representations were false because Rogers at all times had no intention 0f timely remitting Plaintiffs’ funds. That Rogers” representations were false at the time he made them is shown through his pattern of misleading and deceptive conduct as soon as the Purchase Orders at issue in this lawsuit were terminated (e.g., manufacturing bank delays and multiple promised Wire transfers that never came through), and through several other lawsuits currently and previously pending against Rogers, which reveal highly similar fact patterns of Rogers wrongfully refusing t0 return millions of dollars of his clients’ funds in connection with fuel trading and other types of agreements.1 55. As a proximate result of Rogers’s material, false representations, Plaintiffs have suffered damages. As a result 0f this fraud, Plaintiffs are entitled to damages, including 1 See Cause No. 19LBCV00725, ACMC Finance and Trade LLC v.Dennis Rogers Jr., the Superior et al.; in Court of the State 0f California, County 0f Los Angeles (alleging that Rogers, in connection with Oil venture,acted as intermediary between borrower and lender, improperly retained loan proceeds, and committed money had and received, unjust enrichment, promissory fraud (fraud in the inducement), fraud (intentional misrepresentation), negligent misrepresentation, conversion, intentional interference With contractual relations,intentional fraudulent transfers,constructive fraudulent transfers,and civil conspiracy); Cause N0. DC-20-01897, Funderznet LLC v. OMTC, Ina, Dennis James Rogers, II,et al.;in the19lst Judicial DistrictCourt of Dallas County, Texas (alleging that Rogers and/or OMTC (as applicable), entered into three separate promissory notes, security, collateral assignment, and guarantee agreements for the purchase of ultra-low sulfur diesel,and thereafter defaulted on the notes by failing to timely pay amounts due and then fraudulently used the funds for other purposes); Cause No. DC- 19-12251, Anthony J. Capano and Joanne Capano v.Push Start Indus. LLC and Dennis Rogers; in the 192nd Judicial District Court 0f Dallas County, Texas (suitfor breach of promissory notes and guarantees in connection With funding 0f water rights deals); Cause N0. DC-19-01434; Luxemborg Trading LLC v. Organ Mountain Energy LLC and Dennis J. Rogers, II;In the 162nd Judicial District Court 0f Dallas County, Texas (now-settled and dismissed suit t0 recover $1 million payment for ultra-low sulfur diesel that defendants never delivered t0 plaintiff). 10 $6,552,000, plus additional losses proximately resulting from Defendants’ conduct, including exemplary damages. 56. Any cap on exemplary damages under Texas Civil Practices and Remedies Code Section 41.008 does not apply to this cause of action because Plaintiffs seek recovery of exemplary damages based on Defendants’ conduct described as a felony in Texas Penal Code Section 32.45 (Misapplication of Fiduciary Property or Property of Financial Institution), and the conduct was committed knowingly or intentionally. Count Seven — Violations of the Texas Deceptive Trade Practices Act 57. Plaintiffs incorporate by reference paragraphs 1-56. 58. Dennis Woods is a consumer as defined by the Texas Deceptive Trade Practices Act (“DTPA”). 59. Defendants Rogers and OMTC, as alleged above and detailed below, have in the course of business with Dennis Woods engaged in false, misleading, and deceptive acts and practices declared unlawful in Section 17.46 of the DTPA. Such acts include: a. False, misleading, or deceptive acts or practices in the conduct of any trade or commerce, in violation of DTPA Section 17.46(a); b. Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does not, in violation of DTPA Section 17.46(b)(5); c. Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another, in violation of DTPA Section 17.46(b)(7); d. Failing to disclose information concerning goods or services which was known at the time of the transaction with the intent to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed, in violation of DTPA Section 17.46(b)(24). 60. Defendants’ misconduct was committed intentionally. 11 61. Dennis Woods relied on Defendants’ misrepresentations, false, misleading, or deceptive acts, and failures to disclose information, and has suffered damages as a result of Defendants’ violations of the DTPA. 62. Dennis Woods is entitled to recover its economic damages plus treble damages as permitted by DTPA Section 17.50(b)(3). Count Eight — Texas Theft Liability Act 63. Plaintiffs incorporate by reference paragraphs 1-62. 64. Plaintiffs Steven Webster and Dennis Woods have a possessory right to the $6,552,000 in funds and bring this claim under the Texas Theft Liability Act for an unlawful appropriation of property under Texas Penal Code Section 31.03. See Tex. Civ. Prac. & Rem. Code §§ 134.001 et seq. 65. Defendants Rogers and OMTC unlawfully appropriated Plaintiffs’ funds without their consent and with the intent to deprive Plaintiffs of their property in violation of Texas Penal Code Sections 31.01(5)(C) and 31.03. 66. The appropriation of such funds by Defendants was induced by deception in violation of Texas Penal Code Section 31.01, based on, but not limited to, the following deceptive acts: (1) Rogers, by and through OMTC, created a false impression that he would act as a trustworthy agent and intermediary on Plaintiffs’ behalf in respect to the Vitol action, on which Plaintiffs’ relied in their transaction with Defendants; (2) Rogers, by and through OMTC, promised to Plaintiffs that if no agreement with Vitol was consummated for the purchase of the allocations, he would promptly, and within one business day, remit Plaintiffs’ funds to them, on which promise of performance Plaintiffs’ relied judgment in the transaction with Defendants. 12 67. Plaintiffs sustained damages of at least $6,552,000 as a result of Defendants’ unlawful appropriation, which is equivalent to a first-degree felony under Texas Penal Code Section 31.03(e)(7). 68. Because Plaintiffs’ injuries resulted from Defendants’ gross negligence, fraud or malice, Plaintiffs are entitled to an award of exemplary damages. See Tex. Civ. Prac. & Rem. Code § 41.003(a). This remedy is in addition to, or alternatively to, other remedies sought in this petition. 69. Plaintiffs are also entitled to an award of their reasonable attorneys’ fees pursuant to Tex. Civ. Prac. & Rem. Code § 134.005(b). Count Nine — Money Had and Received (Unjust Enrichment) 70. Plaintiffs incorporate by reference paragraphs 1-69. 71. Defendants hold money, which in equity and good conscience, belongs to the Plaintiffs. However, Defendants have failed and refused to turn over the funds to Plaintiff. Count Ten — Constructive Trust as to OMTC’s Chase Bank Account 72. Plaintiffs incorporate by reference paragraphs 1-71. 73. Rogers and OMTC are in possession of $6,552,000 of Plaintiffs’ funds, procured through fraud, and should not be permitted to retain such funds. 74. By virtue of Defendants’ fraud, Plaintiffs are entitled to appropriate equitable relief, including imposition of a constructive trust over OMTC’s Chase bank account with account number ending in xxx7879 to prevent OMTC and Rogers from either spending or transferring Plaintiffs’ money elsewhere, potentially forever precluding Plaintiffs from obtaining recovery. 13 75. Accordingly, Plaintiffs request that the Court institute a constructive trust against Rogers and OMTC regarding the funds in Rogers’ and OMTC’s possession which belong to Plaintiffs. Specifically, Plaintiffs request that the Court institute a constructive trust over OMTC’s Chase bank account ending in xxx7879, because there is evidence that Vitol deposited Plaintiffs’ funds in such account and that Rogers, acting through OMTC, has wrongfully refused to return those funds to Plaintiffs. A constructive trust over this account is appropriate because Plaintiffs’ property can be directly traced to such account, as demonstrated by Rogers’ screenshot of the account showing that the funds from Vitol were held in such account, Rogers’ repeated admission of liability to Plaintiffs, and Rogers’ repeated false assurances to Plaintiffs. Count Eleven — Constructive Trust as to Dennis Rogers’ Goldman Sachs Account 76. Plaintiffs incorporate by reference paragraphs 1-75. 77. Rogers and OMTC are in possession of $6,552,000 of Plaintiffs’ funds, procured through fraud, and should not be permitted to retain such funds. 78. By virtue of Defendants’ fraud, Plaintiffs are entitled to appropriate equitable relief, including imposition of a constructive trust over Dennis Rogers’s Goldman Sachs account ending in xxx708-8 to prevent Rogers from either spending or transferring Plaintiffs’ money elsewhere, potentially forever precluding Plaintiffs from obtaining recovery. 79. Accordingly, Plaintiffs request that the Court institute a constructive trust against Rogers and OMTC regarding the funds in Rogers’ and OMTC’s possession which belong to Plaintiffs. Specifically, Plaintiffs request that the Court institute a constructive trust over Dennis Rogers’s Goldman Sachs account ending in xxx708-8, because there is evidence that funds in such account were to be used to repay Plaintiffs the amounts they are owed and because Dennis Rogers represented to Plaintiffs that he would repay Plaintiffs the amounts they are owed using 14 such account and the funds held therein. A constructive trust over this account is appropriate because Plaintiffs’ property can be directly traced to such account, as demonstrated by Rogers’ emails representing that Plaintiffs’ funds were being transferred to them from his Goldman Sachs account, Rogers’ repeated admission of liability to Plaintiffs, and Rogers’ repeated false assurances to Plaintiffs. VI. ALTER EGO 80. Plaintiffs incorporate by reference paragraphs 1-79. 81. The corporate form should be disregarded as between OMTC and Rogers for the following reasons, among others: a. Defendant OMTC’s corporate form was used as a sham by Defendant Rogers to perpetuate fraud against Plaintiffs; b. such unity exists between OMTC and Rogers that they have ceased to be separate and holding only one liable would promote injustice, as demonstrated in part by Rogers’ stated intention to repay the funds owed to Plaintiffs from his personal Goldman Sachs account; c. On information and belief, Defendants failed to observe corporate formalities. VII. ATTORNEYS’ FEES 82. Plaintiffs incorporate by reference paragraphs 1-81. 83. Plaintiffs request an award of attorneys’ fees and costs incurred in prosecuting these claims. Plaintiffs are entitled to recover its reasonable and necessary attorneys’ fees pursuant to Section 38.001(8) of the Texas Civil Practices and Remedies Code. VIII. PRE- AND POST-JUDGMENT INTEREST 84. Plaintiffs incorporate by reference paragraphs 1-83. 85. Plaintiffs sue for pre-judgment and post-judgment interest at the maximum rates allowed by law on any judgment awarded in their favor. 15 IX. DISCOVERY Plaintiffs demand that OMTC and Dennis Rogers provide responses to their Requests for Disclosure, First Set of Requests for Production, First Set of Interrogatories, and First Set of Requests for Admission, attached to and served with this Petition, within 50 days of the date of service of this Petition. X. PRAYER For the reasons stated, Plaintiffs pray for judgment against OMTC and Dennis Rogers, including the following relief: a. compensatory damages in the amount of $6,552,000, plus interest, resulting from OMTC’s breaches of contract; b. damages for additional losses proximately resulting from Defendants’ other unlawful conduct, including breach of fiduciary duties, conversion, fraud, and money had and received (unjust enrichment); c. disgorgement of any ill-gotten gains or profits through the improper use of Steven Webster and Dennis Woods’s funds in breach of the fiduciary duties that Defendants owed to Steven Webster and Dennis Woods; d. exemplary damages for Defendants’ unlawful conduct, including breach of fiduciary duties and fraud; e. statutory, treble and other damages under the Texas Deceptive Trade Practices Act; f. damages under the Texas Theft Liability Act, including actual damages, exemplary damages, and attorneys’ fees and court costs; g. equitable relief in the form of a constructive trust over OMTC’s Chase bank account ending in xxx7879 and Dennis Rogers’ Goldman Sachs account ending in xxx708-8; h. attorneys’ fees, costs, and expenses, including expert fees; i. prejudgment and post-judgment interest as provided by law; and 16 j. all other and further relief, at law 0r in equity, t0 which Plaintiffs may be justly entitled. Dated July 27, 2020. Respectfully submitted, BAKER BOTTS L.L.P. By: /s/Meghan Dawson McElvV Meghan Dawson McElvy State Bar No. 24065 1 27 meghan.mcelvy@bakerbotts.com Margaret L. Wittenmyer State Bar No. 24 1 06593 margaret.wittenmyer@bakerbotts.com One Shell Plaza 9 1 0 Louisiana Houston, Texas 77002 Telephone: (713) 229-1234 Facsimile: (713) 229-1522 ATTORNEYS FOR PLAINTIFFS STEVEN WEBSTER, AARON WEBSTER, AND DENNIS WOODS CERTIFICATE 0F SERVICE I hereby certify that a copy of the foregoing instrument was served upon counsel for Defendants OMTC, Inc. and Dennis Rogers by electronic mail as follows: Brett Chisum MCCATHERN 3710 Rawlins Street Dallas, Texas 752 1 9 /s/ Margaret L. Wittenmyer_ Margaret L. Wittenmyer 17 EXHIBIT A 1 FUEL PURCHASE ORDER D R This purchase This order ("Purchase purchase order Order"), (“Purchase Order”), effective as is effective is