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Cause Number 2017-66216
Kelly Coleman § In the District Court
Plaintiff,
§
versus
Emile Nassar, Robert Cummings, and §
The Board of Trustees of the Pines §
Condominium Association, Inc. §
Defendants, §
§ of Harris County, Texas
Action Premier Hauling, LLC
Intervenor. §
ersus
Robert Wolfe, Creative Management §
Company, Kelly Coleman and §
Omega Contractors
ird Party Defendants § 157 Judicial District
Action Premier Hauling, Inc.’sFifth Amended Petition in Intervention
To the Honorable District Judge:
Action Premier Hauling, LLC, Intervenor, files this ifthAmended Petition in
Intervention:
Parties
Intervenor is a Texas limited liability company registered to do business in the
state of Texas.
Kelly Coleman, is an individual residing in Harris County, Texas, and can be
served at Memor ial Drive #8, Unit 70, Building H, Houston Texas 77024.
FifthAmended Petition in Intervention - Page
Defendants Emile Nassar, Robert Cummings, and the Board of Trustees of the
Pines Condominium Association, Inc. ( “Defendant”), and have appeared herein
Emile Nassar and Robert Cummings have settled and are no longer a part of this
case.
Robert Wolfe, is an individual residing in Harris County, Texas and can be served
his office at 7001 Corporate Drive, Suite 216, Houston, Texas 77036.
Creative Management Company is a Texas corporationthat can be served through
its registered agent Jeff Duglas at 8323 Southwest Freeway, Suite 330, Houston,
Texas 77074.
Omega Contractorsis an unknown entity with an unknown address. A ter the
Pines Condominium A sociation, Inc. (the sociation ) participates in
meaningful discovery, the identity of thisThird P arty Defendant will become
more clear.
Unknown Foundation Repair Cmpany is an unknown entity with and unknown
address. ter thePines Condominium A sociation, Inc. (the sociation
participates in meaningful discovery, the identity of thisThird P arty Defendant
will become more clear.
Intervenorintends to conduct discovery under Level 2 of Rule 190. Intervenor
seeks monetary relief of over $200,000.000, but not more than $1,000,000.00.
The Underlying Lawsuit
On October 5, 2017, Plaintiff sued Defendants for alleged violations of the Open
Meetings Act, fraud, breach of fiduciary duty, conversion, and sought injunctive
FifthAmended Petition in Intervention Page
relief.Plaintiff did not sue Intervenor.
On October 5, 2017, Plaintiff obtained a Temporary Restraining Orderin this
Court. The order specifically prohibits any Defendant from paying Intervenor,
even though Intervenor is not a party to this lawsuit.
On September 10, 2017, the Pines Condominium Association, Inc. (the
“Association”), through its president, Emile Nassar, entered into a contract with
Intervenor to provide containers and cleanup of the entire condominium complex
after the devastation of Hurricane Harvey. Intervenor was one of many
companies to bid on the services for this work.
Intervenor provided all work at the agreed upon prices, but the Association was
unable to pay its final payment due to this lawsuit.
This job was a large scale cleanup for more than 250 units, for which Intervenor
provided many hours, laborand equipment. Intervenor was very efficient and
timely and had no complaints regarding Intervenor’s job performance.
On or about September 13, 2017, the A sociationthrough its President,
Intervenor and Creative Management Company ( CreativeManagement ) met at
the offices of Creative Management. At that meeting, Creative Managementand
the A sociation stated to Itervenor that the September 10, 2017, Contract had
been approved and ratified bythe A sociation s board.
On October 3, 2017, the Association, through an executive session, ratified the
contract and approved full payment to Intervenor The A sociation made
payments to Intervenor for the first invoices sent to the A sociatio
FifthAmended Petition in Intervention Page
Prior to this lawsuit, the A sociation,through Cr eative Management, approved
payment to Intervenor. Hwever, Kelly Coleman, Robert Wolfe, and other yet to
be identified persons interfered withthe payment and threated litigation again st
Creative Management if the payment was sent to Intervenor. Those threats led
Creative Management to call Intervenor and inform Intervenor that they put a stop
payment on the last check
After the temporary injunction hearing, in good faith, Intervenor finishedthe
cleanup of the condominium complex, and sent a final bill.
Despite repeated demands, and the fact that the Association had previously
approved payment to Intervenor, the Association has refused to pay Intervenor.
Shortly after the temporary injunction hearing, the board of the Association was
voted out andnew board members were voted in. The Association has refused to
make any payments.
Breach of Contract
Associationand Intervenor had a valid, enforceable contract. Intervenor
performed its contractual obligations, but Associationbreach the contract by
refusing to pay $327,575.00.
The Association’sbreach caused Intervenor’s injury.
Intervenor seeks actual damages, damage for loss of business reputation,pre
judgment and post judgment interest, court costs, and attorney fees for trial,
preparation and appellate.
All conditions precedents have been performed.
FifthAmended Petition in Intervention Page
Quantum Meruit
In the alternative, Intervenor provided valuable services to the Association. The
Association accepted the services. The Association had reasonable notice that
Intervenor expected compensation for the services or materials
Intervenor seeks actual damages, pre judgment and post judgment interest, court
costs and attorney fees for trial, preparation and appellate.
Actual/Apparent Authority
Emile Nassar, as president of the A sociation, had actual and/or apparent
authority. The Association’s admissions that they have breachedtheir own rules,
the Texas Property Code, and committed felonies pursuant to the Texas Open
Meetings Act does not relinquish their duty to abide by their contracts.The
Association’s argument is nonsensical.
The Association held Nassar out as having authority to act on the Association’s
behalf, knowingly permitted Nassar to hold himself out as having authority, or
acted with such a lack of ordinary care as to clothe the agentwith the indicia of
authority.
The Association’s conduct caused Intervenor to reasonably believe Nassar had the
authority to act on the Association’s behalf. Intervenor justifiably relied on the
agent’s authority.
The Association made payments to Intervenor which also led Intervenor believe
that Nassar had authority to sign the contract, act on behalf of the Association,
and pay Intervenor.
FifthAmended Petition in Intervention Page
Ratification
Further, the Association ratified the contract by paying the invoices from
Intervenor. The Association ratified the contract by all board members agreeing
in writing to pay the invoices pursuant to the contract. The Association also
ratified the contract through an executive session, and have created minutes to
reflect the ratification.
Once the Association ratified the contract it can not later withdraw the ratification
and seek to avoid the contract.
Tortious Interference with Existing Contract
The Association and Intervenor had a valid contract. Kelly Coleman, Robert
Wolfe, and other yet to be determined unit owners willfully and intentionally
interfered with the contract, which proximately caused Intervenor’s injury.
Intervenor seeks actual damages, exemplary damages, interest, and court cost, and
attorney fees
Fraud
On orabout September 13, 201, the A sociation and Creative Management
mpany represented that the Contract had been approved by the A sociation.
Creative Management convinced Intervenor to fill out paperwork as an approved
vendor so that Intervenor could be paid for the job. The sociationnow claims
that the representation was false and the Contract had not been approved
Based upon the representation, Intervenor continued to work hard for the
sociationThe A sociation and Creative Management knew their statement
FifthAmended Petition in Intervention Page
was false Intervenor justifiably relied on the false representation which directly
and proximately caused injuryto Intervenor, which resulted indamages within the
jurisdictional limits of this Court.
Intervenor s injury resulted from the Association and Creative Management
actual fraud, gross negligence, or malice, which entitles Intervenor to exemplary
damages under section 41.003 of the Texas Civil Practice Remedies Code.
quest for Disclosure
To: All parties
Pursuant to Rule 194, you are requested to disclose, within 30 days of service of this
request, the information or material described in Rule 194.2.
rayer
Action Premier Hauling, LLC, Intervenor, prays that, upon final hearing, the Court grant
the relief set forth above, award actual damages far in excess of this Court’s minimum
jurisdictional amount, award court costs, interest, exemplary damages, and attorney fees as set
forth above, and grant such other relief to which Action Premier Hauling, LLCmay show itself
entitled.
Respectfully submitted,
________/s Travis Owens
Travis Owens
Texas Bar Number 24065859
Owens Law Group, P.L.L.C.
P.O. Box 8605
The Woodlands, TX 77387
Tel. (936) 828
Fax. (832) 327
travis@owens lawgroup.com
FifthAmended Petition in Intervention Page
Attorney for Intervenor
CERTIFICATE OF SERVICE
I certify that on Decembera true and correct copy of the foregoing was served
to each person listed below, via e file, pursuant to Texas Rules of Civil Procedure 21 and 21a.
Mitchel Katine
mkatine@lawkn.com
________/s Travis Owens
Travis Owens
FifthAmended Petition in Intervention Page
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Cause Number 2017-66216 Kelly Coleman § In the District Court Plaintiff, § versus Emile Nassar, Robert Cummings, and § The Board of Trustees of the Pines § Condominium Association, Inc. § Defendants, § § of Harris County, Texas Action Premier Hauling, LLC Intervenor. § ersus Robert Wolfe, Creative Management § Company, Kelly Coleman and § Omega Contractors ird Party Defendants § 157 Judicial District Action Premier Hauling, Inc.’sFifth Amended Petition in Intervention To the Honorable District Judge: Action Premier Hauling, LLC, Intervenor, files this ifthAmended Petition in Intervention: Parties Intervenor is a Texas limited liability company registered to do business in the state of Texas. Kelly Coleman, is an individual residing in Harris County, Texas, and can be served at Memor ial Drive #8, Unit 70, Building H, Houston Texas 77024. FifthAmended Petition in Intervention - Page Defendants Emile Nassar, Robert Cummings, and the Board of Trustees of the Pines Condominium Association, Inc. ( “Defendant”), and have appeared herein Emile Nassar and Robert Cummings have settled and are no longer a part of this case. Robert Wolfe, is an individual residing in Harris County, Texas and can be served his office at 7001 Corporate Drive, Suite 216, Houston, Texas 77036. Creative Management Company is a Texas corporationthat can be served through its registered agent Jeff Duglas at 8323 Southwest Freeway, Suite 330, Houston, Texas 77074. Omega Contractorsis an unknown entity with an unknown address. A ter the Pines Condominium A sociation, Inc. (the sociation ) participates in meaningful discovery, the identity of thisThird P arty Defendant will become more clear. Unknown Foundation Repair Cmpany is an unknown entity with and unknown address. ter thePines Condominium A sociation, Inc. (the sociation participates in meaningful discovery, the identity of thisThird P arty Defendant will become more clear. Intervenorintends to conduct discovery under Level 2 of Rule 190. Intervenor seeks monetary relief of over $200,000.000, but not more than $1,000,000.00. The Underlying Lawsuit On October 5, 2017, Plaintiff sued Defendants for alleged violations of the Open Meetings Act, fraud, breach of fiduciary duty, conversion, and sought injunctive FifthAmended Petition in Intervention Page relief.Plaintiff did not sue Intervenor. On October 5, 2017, Plaintiff obtained a Temporary Restraining Orderin this Court. The order specifically prohibits any Defendant from paying Intervenor, even though Intervenor is not a party to this lawsuit. On September 10, 2017, the Pines Condominium Association, Inc. (the “Association”), through its president, Emile Nassar, entered into a contract with Intervenor to provide containers and cleanup of the entire condominium complex after the devastation of Hurricane Harvey. Intervenor was one of many companies to bid on the services for this work. Intervenor provided all work at the agreed upon prices, but the Association was unable to pay its final payment due to this lawsuit. This job was a large scale cleanup for more than 250 units, for which Intervenor provided many hours, laborand equipment. Intervenor was very efficient and timely and had no complaints regarding Intervenor’s job performance. On or about September 13, 2017, the A sociationthrough its President, Intervenor and Creative Management Company ( CreativeManagement ) met at the offices of Creative Management. At that meeting, Creative Managementand the A sociation stated to Itervenor that the September 10, 2017, Contract had been approved and ratified bythe A sociation s board. On October 3, 2017, the Association, through an executive session, ratified the contract and approved full payment to Intervenor The A sociation made payments to Intervenor for the first invoices sent to the A sociatio FifthAmended Petition in Intervention Page Prior to this lawsuit, the A sociation,through Cr eative Management, approved payment to Intervenor. Hwever, Kelly Coleman, Robert Wolfe, and other yet to be identified persons interfered withthe payment and threated litigation again st Creative Management if the payment was sent to Intervenor. Those threats led Creative Management to call Intervenor and inform Intervenor that they put a stop payment on the last check After the temporary injunction hearing, in good faith, Intervenor finishedthe cleanup of the condominium complex, and sent a final bill. Despite repeated demands, and the fact that the Association had previously approved payment to Intervenor, the Association has refused to pay Intervenor. Shortly after the temporary injunction hearing, the board of the Association was voted out andnew board members were voted in. The Association has refused to make any payments. Breach of Contract Associationand Intervenor had a valid, enforceable contract. Intervenor performed its contractual obligations, but Associationbreach the contract by refusing to pay $327,575.00. The Association’sbreach caused Intervenor’s injury. Intervenor seeks actual damages, damage for loss of business reputation,pre judgment and post judgment interest, court costs, and attorney fees for trial, preparation and appellate. All conditions precedents have been performed. FifthAmended Petition in Intervention Page Quantum Meruit In the alternative, Intervenor provided valuable services to the Association. The Association accepted the services. The Association had reasonable notice that Intervenor expected compensation for the services or materials Intervenor seeks actual damages, pre judgment and post judgment interest, court costs and attorney fees for trial, preparation and appellate. Actual/Apparent Authority Emile Nassar, as president of the A sociation, had actual and/or apparent authority. The Association’s admissions that they have breachedtheir own rules, the Texas Property Code, and committed felonies pursuant to the Texas Open Meetings Act does not relinquish their duty to abide by their contracts.The Association’s argument is nonsensical. The Association held Nassar out as having authority to act on the Association’s behalf, knowingly permitted Nassar to hold himself out as having authority, or acted with such a lack of ordinary care as to clothe the agentwith the indicia of authority. The Association’s conduct caused Intervenor to reasonably believe Nassar had the authority to act on the Association’s behalf. Intervenor justifiably relied on the agent’s authority. The Association made payments to Intervenor which also led Intervenor believe that Nassar had authority to sign the contract, act on behalf of the Association, and pay Intervenor. FifthAmended Petition in Intervention Page Ratification Further, the Association ratified the contract by paying the invoices from Intervenor. The Association ratified the contract by all board members agreeing in writing to pay the invoices pursuant to the contract. The Association also ratified the contract through an executive session, and have created minutes to reflect the ratification. Once the Association ratified the contract it can not later withdraw the ratification and seek to avoid the contract. Tortious Interference with Existing Contract The Association and Intervenor had a valid contract. Kelly Coleman, Robert Wolfe, and other yet to be determined unit owners willfully and intentionally interfered with the contract, which proximately caused Intervenor’s injury. Intervenor seeks actual damages, exemplary damages, interest, and court cost, and attorney fees Fraud On orabout September 13, 201, the A sociation and Creative Management mpany represented that the Contract had been approved by the A sociation. Creative Management convinced Intervenor to fill out paperwork as an approved vendor so that Intervenor could be paid for the job. The sociationnow claims that the representation was false and the Contract had not been approved Based upon the representation, Intervenor continued to work hard for the sociationThe A sociation and Creative Management knew their statement FifthAmended Petition in Intervention Page was false Intervenor justifiably relied on the false representation which directly and proximately caused injuryto Intervenor, which resulted indamages within the jurisdictional limits of this Court. Intervenor s injury resulted from the Association and Creative Management actual fraud, gross negligence, or malice, which entitles Intervenor to exemplary damages under section 41.003 of the Texas Civil Practice Remedies Code. quest for Disclosure To: All parties Pursuant to Rule 194, you are requested to disclose, within 30 days of service of this request, the information or material described in Rule 194.2. rayer Action Premier Hauling, LLC, Intervenor, prays that, upon final hearing, the Court grant the relief set forth above, award actual damages far in excess of this Court’s minimum jurisdictional amount, award court costs, interest, exemplary damages, and attorney fees as set forth above, and grant such other relief to which Action Premier Hauling, LLCmay show itself entitled. Respectfully submitted, ________/s Travis Owens Travis Owens Texas Bar Number 24065859 Owens Law Group, P.L.L.C. P.O. Box 8605 The Woodlands, TX 77387 Tel. (936) 828 Fax. (832) 327 travis@owens lawgroup.com FifthAmended Petition in Intervention Page Attorney for Intervenor CERTIFICATE OF SERVICE I certify that on Decembera true and correct copy of the foregoing was served to each person listed below, via e file, pursuant to Texas Rules of Civil Procedure 21 and 21a. Mitchel Katine mkatine@lawkn.com ________/s Travis Owens Travis Owens FifthAmended Petition in Intervention Page