Motion to Dismiss in STEVEN WEBSTER, et al vs. OMTC, INC., et al| Trellis.Law

On July 28, 2020 a Motion,Ex Parte was filed involving a dispute between Webster, Aaron, Webster, Steven, Woods, Dennis, and Omtc, Inc., Rogers, Ii, Dennis J., for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
9/18/2020 7:29PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Kevin Molden DEPUTY

CAUSE NO. DC-20-10214

STEVEN WEBSTER, AARON WEBSTER, § IN THE DISTRICT COURT OF
and DENNIS WOODS, §
§
Plaintifﬁ, §
§ DALLAS COUNTY, TEXAS
V. §
§
DENNIS J.ROGERS, II and OMTC, INC, §
§
Defendants. § 19 1 ST JUDICIAL DISTRICT

DEFENDANTS’ RULE 91a MOTION TO DISMISS PLAINTIFFS’ FIDUCIARY DUTY
AND TEXAS DECEPTIVE TRADE PRACTICES ACT CLAIMS

Pursuant t0 Rule 91a of the Texas Rules 0f Civil Procedure, Defendants OMTC, Inc.

(“OMTC”) and Dennis J. Rogers, II (“Rogers”) (collectively “Defendants”) move to dismiss

Plaintiffs Steven Webster (“Webster”) and Dennis Woods” (“Woods”) (collectively “Plaintiffs”)

claims for breach 0f ﬁduciary duty and Plaintiff Woods’ Texas Deceptive Trade Practices Act

(“DTPA”) claim because they have no basis in law and/or in fact, as follows:

I. SUMMARY OF THE ARGUMENT
In Plaintiffs’ First Veriﬁed Amended Petition (and Original Petition), Plaintiffs judicially

admit that there is no ﬁduciary relationship between Defendants and Plaintiffs by incorporating into

their pleading two Fuel Purchase Orders that plainly designate Defendant OMTC as a “Seller” and
respectively designate Woods and Webster as a “Buyer.” The Fuel Purchase Orders are

quintessential arms—length agreements that establish the opposite of a ﬁduciary relationship. With

respect to Woods’ DTPA claim, it too fails on the pleadings, as the transaction made the basis 0f

Woods’ claim is $2,142,000.00.1 TEX. BUS. & COM CODE § 17.496) expressly exempts claims in

1
On 0r about August 6, 2020, OMTC paid Woods $2,142,000.00, Which subject allof Woods’ claims t0 summary
judgment.

Defendants' Rule 9 1 a Motion-l
excess of $500,000.00 from the DTPA. Therefore, pursuant t0 Rule 91a the Court is required t0

dismiss the ﬁduciary duty and DTPA claims.

II. RULE 91a
A. Rule 91a.1 requires dismissal 0f a cause 0f action that has n0 basis in law 01'fact.

Rule 91a.1 states that unless excepted by the Family Code 0r Chapter 14 0f CPRC, “a party

may move to dismiss a cause 0f action on the grounds that it has n0 basis in law or fact.” With

respect to a ‘no basis in law’ claim, Rule 9121.1 states “[A] cause of action has no basis in law if the

allegations, taken as true, together With the inference reasonably drawn from them, do not entitle a

claimant t0 the relief sought.” With respect to a ‘no basis in fact’ claim, Rule 91a.1 states “[A]

cause 0f action has no basis in fact if n0 reasonable person could believe the facts pleaded.”

B. Rule 91a.6 requires the court t0 consider the Fuel Purchase Orders attached as
Exhibits A and B t0 Plaintiffs’ Petition.

Rule 91a.6 states: “Except as provided by Rule 91a.7 (Award 0f Costs and Attorney Fees),

the court may not consider evidence in ruling 0n the motion and must decide the motion based

solely on the pleading of the cause 0f action, together With any pleading exhibits permitted by

Rule 59. (Emphasis added). Rule 59 provides in relevant part: “Notes, accounts, bonds, mortgages,

and all other written instruments constituting, in whole 0r in part, the claim sued on . ..may be

made a part of the pleadings by copies thereof . .
.” In this case, the Fuel Purchase Orders

incorporated into Plaintiffs’ Petition are written instruments permitted under Rule 59 and are

therefore required to be considered in the Court’s Rule 91a analysis.

III. INTRODUCTION & BACKGROUND
On July 28, 2020, Plaintiffs ﬁled their Original Petition, and included in their causes 0f

action ﬁduciary duty claims for both Plaintiffs and DTPA claim for Plaintiff Woods? On July 3 1 ,

2
A and B only) is attached as EX. A.
Plaintiff‘s Original Petition (including Exhibits

Defendants' Rule 9 1 a Motion-Z
2020, Plaintiff ﬁled their First Veriﬁed Amended Petition wherein they added claims for injunctive

reliefbut left the facts and causes of action largely unchanged.3 Both Petitions incorporate the Fuel

Purchase Orders as Exhibits A and B.4 Both Petitions allege that the amount of the transaction with

respect to Woods is$2.142 millions

Speciﬁcally, With respect to the Fuel Purchase Orders, Plaintiffs allege the following facts:

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 t0 terminate the Purchase Orders, then
OMTC, as “Seller,” was obligated to “immediately request the return of funds from
Vitol” and t0 “provide evidence 0f such to Buyer.” Further, once OMTC, as Seller,
received the funds, it was obligated t0 “remit funds t0 Buyer within one banking
day.” See Exhibits A & B, Purchase Orders.
EX. B, ﬂ 12. With respect t0 Plaintiff’s breach of ﬁduciary duty claims, Plaintiffs make

conclusory statements that “Steven Webster had a ﬁduciary relationship with Defendants” and that

“Dennis Woods had a ﬁduciary relationship with Defendants.” 1d,, W 36, 42.
Speciﬁcally, with respect to the size of the transactions at issue in the lawsuit,

Plaintiffs allege:

13. Per Vitol’s protocol, as relayed t0 Aaron Webster by Rogers, Steven
Webster and Dennis Woods deposited $4,410,000 and $2,142,000,
respectively, for a total 0f $6,552,000, into OMTC’s Chase bank account
ending in XXX7879 in order t0 participate in the Vitol auction. See Exhibits
C& D, Deposit Conﬁrmations.

***

20. ...Soon thereafter, Rogers also promised that he would repay the
$4,410,000 due to Steven Webster and the $2, 142,000 due t0 Dennis Woods
using funds from his personal Goldman Sachs account ending in XXX708—8.

3
Veriﬁed Amended Petition (including Exhibits
Plaintiff s First A and B only)is attached as Ex. B and is referred t0
herein as “Plaintiffs’ Petition.”
4
Ex. A; Ex; B. Additionally, the Fuel Purchase Orders are attached hereto as EX. C.
5
EX. A, 1]12, EX. B,1]
13.

Defendants' Rule 9 1 a Motion-3
21. On July 7, 2020, Rogers forwarded t0 Aaron Webster two purported
Goldman Sachs conﬁrmations, showing Wire transfers “in process” in the
amount of $4,410,000 t0 Steven Webster and $2,142,000 t0 Dennis Woods.

Id., 111113,20, 21. Plaintiff Woods also speciﬁcally incorporates these factual allegations into his

DTPA claim. Id., 1]
58.

IV. ARGUMENT AND AUTHORITIES
A. Plaintiffs concede that there is n0 ﬁduciary relationship between Plaintiffs and
Defendants by incorporating the Fuel Purchase Orders into their pleading.

For a breach of ﬁduciary duty claim t0 proceed, there must ﬁrst be a ﬁduciary relationship.

Jones v.Blume, 196 S.W.3d 440, 447 (TeX. App.-Da11as 2006, pet. denied) (an element of a breach

0f ﬁduciary duty is “the existence 0f a ﬁduciary relationship between the plaintiff and defendant”)

For there t0 be a ﬁduciary relationship in a business transaction, the ﬁduciary relationship must

exist before and apart from the agreement that is the basis 0f the suit. Willis v. Donnelly, 199

S.W.3d 262, 276-277 (Tex. 2006); Meyer v. Cathey, 167 S.W.3d 327, 331 (TeX. 2005);

Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex. 1997).6 Moreover, even if a

pre-existing trust relationship existed between the parties (Which it did not in this instance), “it is

well settled that not every relationship involving a high degree of trust and conﬁdence rises to the

stature of a ﬁduciary relationship” Cathey, 167 S.W.3d at 330.7 Subjective trust between parties t0

an arm’s—length transaction does not transform the business relationship into a ﬁduciary

6
See also, Plotkz'nv. Joekel, 304 S.W.3d 455, 479 (Tex. App.—Houston [lst Dist] 2009, pet.denied); Envtl.
Procedures, Inc. v. Guidry, 282 S.W.3d 602, 628 (Tex. App.—Houston [14th Dist] 2009, pet. denied) (“Courts do not
create ﬁduciary duties lightly.”) Associated Indem. Corp. v. CAT Contracting, Ina, 964 S.W.2d 276, 288 (Tex.1998).
[When a business transactionisinvolved, the special relationship 0f trust and conﬁdence must exist priort0,and apart
from, the agreement made the basis 0f the suit.”
7
See also Schlumberger, 959 S.W.2d at 176—177 (TeX.1997) (citing Crim Truck & Tractor C0. v. Navistar Int’l Transp.
Corp, 823 S.W.2d 591, 594 (Tex.1992), superseded by statute on other grounds as noted in Subaru 0fAm., Inc. v.

David McDavid Nissan, Ina, 84 S.W.3d 212, 225—26 (Tex.2002)).
4

Defendants' Rule 9 1 a Motion-4
relationship. Schlumberger, 959 S.W.2d at 177 (“Mere subjective trust does not, as a matter of law,

transform arm’s-length dealing into a ﬁduciary relationship”)

The 2009 Fourteenth Court 0f Appeals Plotkin v. Joekel opinion is instructive.8 In that

case, the plaintiff argued that there was an informal ﬁduciary duty separate and apart from a

commission agreement at the heart of the underlying lawsuit. The plaintiff alleged that the

defendant breached the commission agreement by not paying the commission allegedly owed.

Apart from the commission agreement, the plaintiff also alleged that a separate verbal agreement

required the defendant to hold the commission in trust, and that the defendant breached that verbal

agreement, and the attendant ﬁduciary duty created by that verbal agreement, when the defendant

improperly converted the commission. The Fourteenth Court of Appeals rejected the Plotikin

plaintiff’s ﬁduciary duty claim and afﬁrmed the trial court’s summary judgment in favor 0f the

defendant as follows:

The only basis that [plaintiff] asserted for a ﬁduciary duty was the oral agreement
to hold his commissions in trust. The commissions were part 0f an arms—length,
express contract between [plaintiff] and [defendants]. This agreement issimply not
the type that will give rise to a ﬁduciary duty.

Plotken, 304 S.W.3d at 479.

In this case, the Plaintiffs do not allege that an “informal ﬁduciary duty” exists or even that

another agreement exists apart from the Fuel Purchase Orders (because one does not). Plaintiffs

base their lawsuit 0n the two Fuel Purchase Orders that establish a Buyer/Seller relationship and

incorporate the Fuel Purchase Orders into Plaintiffs’ Petition.9 Separately, Plaintiffs also allege

that Defendant Rogers acted as Plaintiffs’ “agent and intermediary” and thus Rogers breached his

ﬁduciary duties t0 Plaintiffs by not immediately returning the funds at issue in the Fuel Purchase

8
304 S.W.3d 455, 479 (Tex. App.—Houston [lstDist] 2009, pet. denied).
9
Exhibits B and C.
5

Defendants' Rule 9 1 a Motion-S
Orders.” Even if for the sake 0f argument Rogers was acting as an “agent and intermediary” 0n

behalf ofPlaintiffs, Which isdenied, the law is clear that this alone would not give rise t0 a ﬁduciary

duty claim. Plaintiffs would have t0 allege long-standing, prior existing relationship that gave rise

t0 a ﬁduciary duty (Which they cannot d0 because Plaintiffs and Defendants had never

11
communicated prior t0 June 1,2020).

Plaintiffs’ pleadings and exhibits conﬁrm an arm’s—length transaction between “Buyers”

and “Sellers” under the Fuel Purchase Orders. 12 Accordingly, Under Rule 91a.1 Plaintiffs ﬁduciary

3“
duty claims must be dismissed because Plaintiffs allegations, taken as true, together with the

inference reasonably drawn from them, do not entitle a claimant(s) t0 the relief sought” and

therefore have n0 basis in law. Similarly, under Rule 9121.1, Plaintiffs’ ﬁduciary duty claims have

n0 basis in fact because “no reasonable person could believe the facts pleaded” i.e.that a ﬁduciary

relationship existed between the Plaintiff Buyers and the Defendant Sellers.

B. Plaintiffs’ claim for Violation 0f the Texas Deceptive Trade Practices Act has n0
basis in law because the transaction at issue is greater than $500,000.

TEX. CIV. PRAC. & REM CODE § 49.17(g) also known as the “large transactions exception”

exempts from the DTPA all causes of action arising from a transaction Where the total consideration

amounts to more than $500,000:

(g) Nothing in this subchapter shall apply t0 a cause 0f action arising from a transaction, a
proj ect, 0r a set 0f transactions relating t0 the same proj ect, involving total consideration by
the consumer of more than $500,000, other than a cause of action involving a consumer's
residence.

This exception has been universally applied in state and federal courts in Texas. See e.g. Texas

Motor Coach, LC. v. Blue Bird Body C0., 2005 WL 3132482, *5 (E.D.Tex.2005) (ﬁnding that

plaintiff had n0 avenue for relief pursuant to Section 17.49(g), because the contract between the

10
Exhibit B, 1m 11, 36 and 42.
11
Supra 5.
12
Exhibits A-C.

Defendants' Rule 9 1 a Motion-6
parties assumed delivery of three motor coaches, each With total consideration in excess of

$200,000); Aluchem, Inc. v. Sherwin Alumina, L.P., CIV.A. C-O6-183, 2007 WL 1100473, at *7

(S.D. Tex. Apr. 11, 2007) (dismissing a DTPA claim on a motion for summary judgment because

the annual total consideration of the Supply Agreement, even at the lowest end of production

exceeded $500,000); Greenlee Enterprises, Inc. v. Compass Bank, N.A., 05-10-00490-CV, 2011

WL 6209192, at *8 (Tex. App.—Da11as Dec. 5, 201 1, n0 pet.) (afﬁrming summary judgment of a

DTPA claim as the total amount 0f consideration was in excess 0f $500,000); SPRAJ Properties

LLC v. Regions Bank, 3:13-CV-3472-N, 2015 WL 11120528, at *7 (N.D. Tex. May 12, 2015)

(dismissing on summary judgment a DTPA claim involving a loan over $500,000); Geodominion

Petroleum, Inc. v. Boone Expl., Ina, 13-06-00430-CV, 2008 WL 3521966, at *6 (Tex. App.—

Corpus Christi Aug. 14, 2008, no pet.) (holding that the trial court was justiﬁed in granting

summary judgment on DTPA claims as such claims were barred under the large transactions

exemption of the DTPA); AES Valves, LLC v. Kobi Int’l, Ina, 01-18-00081-CV, 2020 WL
1880781, at *5 (Tex. App.—H0uston [1st Dist] Apr. 16, 2020, no pet. h.) (ﬁnding a DTPA claim

invalid under Tex. Bus. & Com. Code § 17.49(g) Whose purpose was t0 “maintain the DTPA as a

Viable source 0f relief for consumers in small transactions and t0 remove litigation between

businesses over large transactions from the scope 0f the DTPA”)

As shown herein, Plaintiffs pleaded that the fuel sales transaction was for $2,142,000, and

pleaded that Defendants owe Woods $2,142,000.13 Additionally, Plaintiff Woods’ DTPA claim

expressly incorporates allprevious paragraphs, including all 0f the factual paragraphs of Plaintiff’ s

Petition, into his DTPA claim.” Accordingly, because Plaintiff Woods’ DTPA claim is in excess

0f $500,000, it isprecluded as a matter of law, and should be dismissed under Rule 91a.

13
Ex. B, 1m 13, 20, 21.
14
Id.,1]
59. See also EX. C.

Defendants' Rule 9 1 a Motion-7
V. ATTORNEYS’ FEES

TRCP 91a.7 permits a court t0 “award the prevailing party on the motion all costs and

reasonable and necessary attorney fees incurred with respect to the challenged cause[s] of action.”

Accordingly, Defendants request the court to award fees reserve the right to put 0n evidence 0ftheir

reasonable and necessary attorney’s fees and costs after the Court’s ruling.

VI. CONCLUSION & PRAYER
WHEREFORE, PREMISES CONSIDERED, based on the foregoing, and pursuant to Rule

91a, Defendants respectfully submit that Plaintiffs’ claims for breach of ﬁduciary duties (Steven

Webster), breach of ﬁduciary duties (Dennis Woods), and Violations of the Texas Deceptive Trade

Practices Act, be dismissed as a matter 0f law, and Defendants should be awarded their reasonable

and necessary attorneys’ fees and costs.

Respectfully submitted,

HENNEMAN RAU LLP
By: /S/ Bradley M. Kirklin
Bradley M. Kirklin
State Bar N0. 24046222
George H. Rau III
State Bar N0. 24037335
815 Walker Street, Suite 1440
Houston, Texas 77002
Telephone: 713-955-6030
Facsimile: 713-955-6141
Email: bkirklin@hennemanrau.com
Email: grau@hennemanrau.com

ATTORNEYS FOR DEFENDANTS
OMTC, INC. & DENNIS J. ROGERS

Defendants' Rule 9 1 a Motion-8
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above document was served pursuant to
the Texas Rules of Civil Procedure, 0n September 18, 2020, upon the following:

Meghan Dawson McElvy Via E—Service
Margaret L. Wittenmyer
Baker Botts L.L.P.
One Shell Plaza
9 1 0 Louisiana
Houston, Texas 77002
Email: meghan.mcelvv@bakerbotts.com
Email: margaret.Wittenmyer@bakerbotts.com

Corey Wehmeyer
Santoyo Wehmeyer P.C.
IBC Highway 281 North Centre Building
12400 San Pedro Avenue, Suite 300
San Antonio, TX 78216
Email: cwehmever@swenergvlaw.com

Attorneys for Plaintiffs

/s/ Bradley M Kirklin

Defendants' Rule 9 1 a Motion-9
FILED
2 CIT ES 7/28/2020 9:41AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Kayla Buckley DEPUTY

D C -2 0 -1 0 21 4
CAUSE NO.

Steven Webster, Aaron Webster, and §
Dennis Woods, §
§
Plaintiﬁ’s, §
§ DALLAS COUNTY, TEXAS
V. §
§
Dennis J. Rogers, II and OMTC, Inc., §

Defendants.
§
§

PLAINTIFFS’ ORIGINAL PETITION AND FIRST SET OF DISCOVERY REQUESTS
_ 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 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 Texas

Rules 0f 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 resides in Dallas County, Texas. Mr.

Rogers can be served With process at 6520 Del Norte Lane, Dallas, Texas 75225 or Wherever he

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.

EXHIBIT
Defendants' Rule 9 1 a Motion- 1 0
A
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
Defendants' Rule 91a Motion-11
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
Defendants' Rule 91a Motion-12
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—

Defendants' Rule 9 1 a Motion- 1 3
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
Defendants' Rule 91a Motion-14
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
Defendants' Rule 91a Motion-15
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 Steve

Case Info

Judge

SLAUGHTER, GENA Track Judge’s New Case

Case No.

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Document Filed Date

September 18, 2020

Case Filing Date

July 28, 2020

County

Parties

KIRKLIN, BRADLEY M. Attorney for the Defendant
MCELVY, MEGHAN DAWSON Attorney for the Plaintiff
OMTC, INC. Defendant
ROGERS, II, DENNIS J. Defendant
UNDERWOOD, WILLIAM B Attorney for the Defendant
WEBSTER, AARON Plaintiff
WEBSTER, STEVEN Plaintiff
WOODS, DENNIS Plaintiff
Corey Wehmeyer Attorney
Margaret Wittenmyer Attorneys for Plaintiffs
George Rau Attorneys for Defendants
Tina Nguyen Attorneys for Plaintiffs

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Motion,Ex Parte: STEVEN WEBSTER, et al vs. OMTC, INC., et al

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