2015-73882 / Court: 113 12/9/2015 2:58:43 PM Chris Daniel - District Clerk Harris County Envelope No. 8161034 By: Nelson Cuero Filed: 12/9/2015 2:58:43 PM CAUSE NO. ________________ Plaintiffs, v. CHARLIE THOMAS FORD, LTD. D/B/A AUTONATION FORD GULF FREEWAY IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS _______ JUDICIAL DISTRICT l D Defendant. § § § § § § § § § § § § ist ric t C ler k MARK OBERHOLTZER AND MARK-1 PLUMBING, INC. nie PLAINTIFFS’ ORIGINAL PETITION Da TO THE HONORABLE JUDGE OF SAID COURT: hr is COME NOW, MARK OBERHOLTZER and MARK-1 PLUMBING, INC., Plaintiffs C in the above-styled cause, hereby complaining of CHARLIE THOMAS FORD, LTD. e of D/B/A AUTONATION FORD GULF FREEWAY, Defendant, and for this cause of action ffic would respectfully show the Court as follows: Plaintiffs intend to conduct this cause under a Level Two (2) discovery C 1. op y O I. DISCOVERY CONTROL PLAN 2. Un of fic ial control plan, pursuant to Rule 190.3 of the Texas Rules of Civil Procedure. II. PARTIES AND SERVICE Plaintiff, MARK OBERHOLTZER (hereinafter referred to as “Plaintiff” or “Mark”), is an individual residing in Galveston County, Texas and may be contacted through his undersigned attorneys at 2211 Strand, Suite 201, Galveston, Texas 77550. 3. Plaintiff, MARK-1 PLUMBING, INC. (hereinafter referred to as “Plaintiff” or “Corporation”), is a for-profit corporation incorporated under the laws of the State of PLAINTIFFS’ ORIGINAL PETITION PAGE 1 Texas and may be contacted through its undersigned attorneys at 2211 Strand, Suite 201, Galveston, Texas 77550. 4. Defendant, CHARLIE THOMAS FORD, LTD. D/B/A/ AUTONATION FORD GULF FREEWAY (hereinafter referred to as “Defendant”), is a Texas limited ist ric t C ler k partnership with its principal office address as 12227 Gulf Freeway, Houston, Texas, 77034 and may be served with process by serving its registered agent Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company at 211 E. 7th St. Ste. 620, l D Austin, Texas 78701-3218. The exercise of this Court’s jurisdiction over the Defendant is proper. This is 5. Da nie III. JURISDICTION AND VENUE hr Court has personal jurisdiction over Defendant because it avails itself of the privilege of of C doing business in the State of Texas, and the subject matter of this action arises under the ffic e common law and statutes of the State of Texas. The amount in controversy exceeds the Venue is proper in Harris County, Texas because all or a substantial part of op y 6. O minimum jurisdictional limits of this Court. C the events or omissions giving rise to the claim occurred in Harris County, Texas. TEX. 7. Un of fic ial CIV. PRAC. & REM. CODE § 15.002(a)(1) IV. BACKGROUND On October 23, 2013. Plaintiff, Mark-1 Plumbing, Inc. (“Mark-1”) entered into a transaction with Defendant involving the trade-in of a 2005 Ford F-250 pickup truck, VIN 1FTSX21P15EC91985, in exchange for a 2012 Ford F-250 pickup truck, VIN 1FT7W2BT2CEA10391, plus an installment sales contract. This was Plaintiff’s first and only transaction with Defendant. PLAINTIFFS’ ORIGINAL PETITION PAGE 2 8. The transactional documents between Mark-1 and the Defendant included a “Retail Purchase Agreement,” on its face applicable to a “‘Seller’ or ‘Dealer’ Retail Purchase Agreement for a Motor Vehicle,” which contained an “Arbitration Agreement,” and a “Conditional Delivery Agreement.” While such written documents admittedly ist ric t C ler k applied to the sale of the new vehicle Mark-1 purchased, they do not apply to the tradedin vehicle and/or they are wholly and completely silent as to subsequent, intervening, superseding torts committed by the Defendant which breached common law duties owed l D to Plaintiffs, such breaches causing severe permanent injury to Plaintiffs and nie consequential and punitive damages. Moreover, the Arbitration Clause in particular and Da the total documents generally give no indication, nor do they evidence the exchange of hr is consideration which would reasonably support any contention that such Clause would C limit claims assertable for the Defendant’s subsequent sale, lease, loan or transfer of the e of traded-in vehicle with clearly identifiable markings of Plaintiffs upon it to criminals, While waiting for the paperwork to be processed, Plaintiff began peeling off O 9. ffic terrorists, jihadists or others of obviously ill-motive. op y the “Mark-1 Plumbing, Inc.” decal located on the truck’s doors when Defendant’s ial C salesman, Edgar Velasquez, instructed Plaintiff to stop. Mr. Velasquez told Plaintiff not fic to worry about the decal and that peeling the decal off would blemish the vehicle paint. Un of Consistent with Defendant’s advertising to potential customers to “let them handle it” (see Exhibit A), Mr. Velasquez further stated that the dealership had something that works better for removal and they would use it to remove the decal. In relying on Mr. Velasquez’s statements, Plaintiff ceased peeling off the decal and trusted that the decals would be removed prior to resale. At no time did Velasquez or any other agent, servant or employee of the Defendant tell Plaintiff that Defendant would leave the decals on the PLAINTIFFS’ ORIGINAL PETITION PAGE 3 truck, which would be transferred in some fashion to international jihadists conducting warfare upon innocents in Syria; and, Plaintiff was not in any conceivable way told, informed or placed on notice that precisely such an incomprehensible and horrific eventuality would actually occur. Over the years, Plaintiffs have sold as many as five to ten trucks to different ist ric t C ler k 10. dealers in Texas. Through these transactions, Plaintiffs found it to be common practice for dealerships to remove the decals on vehicles prior to reselling them. On none of those l D occasions have any of those dealers transferred to international jihadists the traded-in nie vehicle with Plaintiffs’ identifying markings still upon them. According to a CARFAX Vehicle History Report (see Exhibit B), the vehicle Da 11. hr is was listed as a dealer vehicle sold at a Texas auto auction on November 11, 2013. On C December 18, 2013 the vehicle was exported from Houston, Texas and imported to e of Mersin, Turkey. On December 15, 2014, ffic 12. O Caleb Weiss, a member of Ansar al- Syria, tweeted C in the ial Aleppo op y Deen, a jihadist group operating near fic following propaganda photograph of Un of Plaintiffs’ Ford F-250 with an antiaircraft gun mounted on it fighting on the front lines in Syria. Plaintiffs’ logo and phone number were still on the vehicle door. PLAINTIFFS’ ORIGINAL PETITION PAGE 4 Within 48 hours, the photograph had gone viral via the Internet and multiple news outlets. 13. On December 17, 2014, while travelling to Corpus Christi, Mark received a phone call from his secretary, Juli Hammonds. Ms. Hammonds explained to him the 14. ist ric t C ler k breaking news stories. His initial reactions were of utter shock and sheer disbelief. By the end of the day, Mark-1’s office, Mark-1’s business phone, and Mark’s personal cell phone had received over 1,000 phone calls from around the nation. These l D phone calls were in large part harassing and contained countless threats of violence, nie property harm, injury and even death. These phone calls included, but were not limited Da to, individuals who were: hr is (a) irate and yelling expletives at whomever answered the C phone; ffic their stupidity; e of (b) degrading to whomever answered the phone regarding O (c) singing in Arabic for the duration of the phone call or voice op y message recording; ial C (d) making threats of injury or death against Mark-1’s fic employees, family, children, and grandchildren in violent, Un of lurid and grossly specific terms; and, (e) directing expletive-laced death threats to whomever answered the phone. Only a precious few of the calls contained support for the Plaintiffs knowing that Plaintiffs did not support terrorists. However, that scant number of positive calls in no way mitigated or eliminated the shock, fear, anxiety, mental anguish, humiliation and PLAINTIFFS’ ORIGINAL PETITION PAGE 5 degradation Plaintiffs and their employees, family members and relatives experienced and continue to experience. 15. Plaintiffs’ secretary, Juli Hammonds, refused to return to the office as she feared for her life and well-being. Mark himself was fearful. Mark’s entire family was ist ric t C ler k terrified. As a result, Mark was forced to shut Mark-1’s office and all business operations down for seven days, costing substantial lost revenues and business good will. 16. During this forced shutdown, Mark left Texas City, Texas and travelled to l D McAllen, Texas as to avoid having to deal with this uncontrollable and terrifying situation. nie He had initially planned to be out of town for only two days. However, due to the Da magnitude and growing hostility of the situation, he remained out of town for nine days. hr is All this while, Mark-1’s revenues were lost and the company’s reputation and standing in of While in McAllen, Texas, Mark called the Defendant to discuss the situation. e 17. C the business and local community was irretrievably damaged. ffic Defendant stated that they “never touched the truck,” but instead sent it to Dallas, Texas. O Defendant stated that it was not their responsibility to remove the decal prior to sending op y it to Dallas, Texas and it expressed not the slightest regret, concern or even compassion ial C with Mark’s horrific situation. Then, the employee of Defendant with whom Mark was fic talking hung up on Mark. Callously putting its own profit and convenience entirely over Un of the needs of its customer, Defendant has made no effort whatever to contact Mark, attempt in any way to mitigate or resolve his threatening situation of take any responsibility whatever in causing this appalling situation and no additional contact has occurred between Plaintiffs and Defendant. 18. On or about December 17, 2015, four agents from the United States Department of Homeland Security arrived at Plaintiff’s office in Texas City, Texas. The PLAINTIFFS’ ORIGINAL PETITION PAGE 6 Homeland Security Agents met with Vice President of Mark-1 for approximately one to two hours. During this time period, he was not allowed to leave the premises. After concluding their investigation, the Homeland Security Agents left him with the sinister admonition that “there are crazy people out there” and to “protect himself at all times.” In early January 2015, Mark was met by FBI agents at his office. The FBI ist ric t C ler k 19. Agents conducted a very brief and cordial investigation. After concluding their investigation, the FBI Agents once again reiterated that Mark must “protect himself.” In relying on the advice from both the Homeland Security and FBI Agents, l D 20. nie Mark began carrying around a handgun for personal protection. Additionally, local police Da made it routine to include his home and office on its routes. But, these steps in no way of Throughout the duration of this situation, TV stations and news agencies, e 21. C his family or that of his family members. hr is diminish or mitigate the fear, anxiety, mental anguish, and apprehension Mark feels for ffic both local and national, have constantly contacted Plaintiffs for an interview. Camera O crews were found videotaping Mark-1’s and its employee’s personal automobiles. Camera op y crews went to Mark’s house in an attempt to cover the story. One news crew even went as Demonstrating the breadth and depth of the dissemination, Mark has been Un of 22. fic an interview. ial C far as arriving at Mark-1’s secretary, Juli Hammond’s, daughter’s apartment requesting contacted by a vast number of news agencies regarding this situation, including, but not limited to USA Today, CBS, NBC, and Inside Edition. 23. On December 18, 2014, the final episode of the late-night comedy television series, The Colbert Report, began with the segment “Texan’s Truck in Syria” which was a news story about a Mark-1 Plumbing truck now being used as an anti-aircraft gun in Syria. PLAINTIFFS’ ORIGINAL PETITION PAGE 7 This episode was watched by 2.481 million viewers, making it the most watched episode ever in the show’s history. As of December 7, 2015, the segment “Texan’s Truck in Syria” has an additional 67,557 views on Comedy Central’s website. The widespread viewing of the segment increased the volume of the harassing and threatening phone calls and has 24. ist ric t C ler k immeasurably added to the suffering of Mark, his family, his employees and their families. The harassing and threatening phone calls continued for at least three weeks from when the news story was officially reported. Plaintiffs experienced at least l D 100-200 phone calls per day over this span of time. Since that time, Plaintiffs continue to nie receive one or two phone calls per week. However, whenever ISIS commits an atrocity On September 20, 2015, the 67th Primetime Emmy Awards were held. The C 25. hr is more phone calls than normal all over again. Da that is reported nationally, which occurs with distressing frequency, Plaintiffs receive e of Colbert Report was nominated for “Outstanding Directing for a Variety Series.” As part of ffic its show time nomination, The Colbert Report included a bit of “Texan’s Truck in Syria.” O The 67th Primetime Emmy Awards was watched by 11.9 million viewers. As a result, op y Plaintiffs suffered yet another period of non-stop phone calls, averaging 100-200 phone ial C calls per day. Plaintiff continues to receive threatening and harassing phone calls fic practically each day. Nearly one year has passed since the initial news story broke and Un of Plaintiffs still receive harassing phone calls and threats to this day. 26. Through absolutely no fault of their own, Plaintiffs have suffered and continue to suffer damages directly resulting from Defendant’s failure to remove the decal prior to resale as promised. Plaintiffs’ plumbing repair work and all other sources of its revenues have been substantially impacted and its reputation damaged beyond PLAINTIFFS’ ORIGINAL PETITION PAGE 8 rehabilitation. As a direct result of the damage to Plaintiffs’ reputation, Plaintiffs have lost an excess of $1,000,000.00. V. CAUSES OF ACTION RESPONDEAT SUPERIOR 27. ist ric t C ler k A. Plaintiffs incorporate, as if set forth verbatim, the preceding paragraphs of this Petition. At all times material to this Petition, Defendant’s salesman was an employee or agent of Defendant. The acts of the employee were performed while in the employment nie l D of Defendant and were within the course and scope of that employment or within the Da authority delegated to the employee. Employee was acting in furtherance of Defendant’s Defendant is liable for the negligent acts and omissions of its employees hr 28. is business, the accomplishment for which the employee was hired. e As a result of Defendant’s negligent acts and omissions, Plaintiffs have ffic 29. of C under the doctrine of vicarious liability, or respondeat superior. 30. C JOINT AND SEVERAL LIABILITY Additionally, Defendant is directly liable for the acts and omissions of its ial B. op y to be determined at trial. O suffered pecuniary harm and request compensatory and punitive damages in an amount Un of fic agents, servants and employees in allowing a traded-in vehicle with clearly identifiable marking of its previous business owner to be placed into the stream of commerce without first removing said identifying markings, such that the truck could fall into the hands of criminals, terrorists or jihadists and be photographed in circumstances which could and did bring about Plaintiff’s severe injury and their incurring of consequent damages. PLAINTIFFS’ ORIGINAL PETITION PAGE 9 C. LIABILITY FOR NEGLIGENCE, GROSS NEGLIGENCE AND COMMON LAW TORTS 31. As hereinafter set out in detail, Defendant is liable to Plaintiffs for its negligence and common law torts and for all economic and/or compensatory damages ist ric t C ler k which have been suffered in the past and which, in reasonable probability will be suffered in the future. Moreover, Defendant’s conduct has been so outrageous, malicious and consciously indifferent to the overwhelmingly likely severe harm of the Plaintiffs as to constitute gross negligence as that term is understood in Texas law, for which Plaintiffs nie l D herein seek punitive damages, as permitted by common law and/or Texas Civil Practice 32. is COMMON-LAW FRAUD Plaintiffs incorporate, as set forth verbatim, the preceding paragraphs of hr D. Da & Remedies Code § 41.002. of C this Petition. Defendant made a material representation regarding removal of the decals ffic e to Plaintiff to induce him into the transaction. Defendant either knew its material O representation regarding removal of the decals was false when stated or Defendant op y recklessly stated its material representations as positive assertions without knowledge of C their truth. Defendant made these representations with the intent that Plaintiff rely on fic Defendant’s false representations directly and proximately caused Plaintiffs Un of 33. ial them. Plaintiff did rely on the representations to his detriment. to suffer substantial past damages and in reasonable probability will cause Plaintiffs to continue to suffer damages into the future. 34. Defendant’s actions were fraudulent, malicious, and/or grossly negligent and subject it to exemplary damages in an amount to be determined by the jury. PLAINTIFFS’ ORIGINAL PETITION PAGE 10 E. NEGLIGENT MISREPRESENTATION 35. In the alternative, or in supplement thereto, Defendant committed negligent misrepresentation. In the course of Defendant’s business and in transactions involving its own pecuniary interest, Defendants made representations to Plaintiffs that ist ric t C ler k the Defendants would remove Plaintiffs’ decals from Plaintiffs’ truck prior to resale. Defendants had an interest in Plaintiffs selling their truck to Defendant. Plaintiffs released their truck to Defendant under the pretense that the decals would be removed l D prior to resale. Defendant negligently supplied false, misleading and deceptive nie information to Plaintiffs regarding the transaction, to induce that very transaction. Da Defendant wholly failed to exercise that reasonable care and competence of a vehicle hr is dealership in same or similar circumstances in ensuring the decals were removed prior to C resale. Plaintiffs justifiably relied on the representations made by Defendant during the Defendant’s misrepresentations proximately caused Plaintiffs to suffer ffic 36. e of transaction, to their enormous and continuing injury and damage. O substantial damages in the past and will, in reasonable probability, continue to do so into C Defendant’s actions were negligent, malicious, and/or grossly negligent and ial 37. op y the future. LIBEL PER SE Un of F. fic subject it to exemplary damages in an amount to be determined by the jury. 38. Plaintiffs incorporate, as if set forth verbatim, the preceding paragraphs of this Petition. Defendant’s failure to remove the decals from Plaintiff’s truck amounted to Defendant implicitly accepting Mark-1 Plumbing, Inc.’s decals as its own statement which was subsequently published nationally. Defendant’s failure the remove the decal makes the statement defamatory per se under the common law because, when taken as a whole PLAINTIFFS’ ORIGINAL PETITION PAGE 11 and as would have been perceived by a reasonable viewer, Defendant imputed terroristic and/or jihadist ties and support to the Plaintiffs. As a result, Plaintiffs were injured in their profession and occupation and, in reasonable probability, will continue to be so Plaintiff under Texas law because it is libelous per se. 39. ist ric t C ler k injured into the future. Such tortious conduct makes the Defendant strictly liable to Defendant’s statement severely and irretrievably injured Plaintiffs’ reputation and exposed Plaintiffs to national public hatred, contempt, ridicule, and Plaintiffs have suffered substantial injury as a result of Defendant’s nie 40. l D financial injury and, in reasonable probability, will continue to do so into the future. Da defamatory statements, including but not limited to injury to character and reputation, hr is mental anguish, loss of past and future income and loss of earning capacity and, in 41. e of INVASION OF PRIVACY BY APPROPRIATION OF NAME Plaintiffs incorporate, as set forth verbatim, the preceding paragraphs of ffic G. C reasonable probability, will continue to do so into the future. O this Petition. Defendant appropriated Plaintiffs’ name when it failed to remove the op y traded-in truck’s decals prior to resale. Plaintiff can be identified from the publication ial C through the plethora of news articles that include the propaganda photograph. Defendant As a result of Defendant’s appropriation, Plaintiff suffered injury to its Un of 42. fic received advantage in cutting costs by not removing the decals prior to resale. reputation, prestige, social or commercial standing, and public interest and, in reasonable probability, will continue to do so into the future. 43. Plaintiff has suffered substantial injury as a result of Defendant’s invasion of privacy by appropriation of Plaintiff’s name, including but not limited to injury to PLAINTIFFS’ ORIGINAL PETITION PAGE 12 character and reputation, mental anguish, loss of past and future income and loss of earning capacity. VIOLATIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES ACT, BUSINESS & COMMERCE CODE § 17.46 44. Plaintiffs incorporate, as set forth verbatim, the preceding paragraphs of ist ric t C ler k H. this Petition. Defendant violated Texas Business & Commerce Code § 17.46, in the following particulars: (2) causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods: (3) causing confusion or nie l D misunderstanding as to the affiliation, connection, or association with, or certification by Da another; (4) using deceptive representations or designations of geographic origin in is connection with goods; (5) representing that goods have sponsorship, approval, which C Regarding such violations Plaintiffs herein seek damages for past and future of 45. hr they do not have, for all of which violations, Defendant is liable per se. ffic e mental anguish, all past and future proximately caused economic damages, taxable costs O of court and reasonable attorney’s fees, together with interest as provided by law, all in Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiffs request fic 46. VI. REQUEST FOR DISCLOSURE ial C op y conformity with Texas Business & Commerce Code § 17.50. Un of that Defendant disclose, within the time provided by the Rules, the information or material described in Rule 194.2. VII. STATEMENT OF RELIEF 47. Pursuant to Rule 47(c) of the Texas Rules of Civil Procedure, Plaintiffs seek monetary relief over $1,000,000.00. PLAINTIFFS’ ORIGINAL PETITION PAGE 13 48. Plaintiffs seek damages that are within the jurisdictional limits of this Court. VIII. JURY DEMAND 49. Plaintiffs demand a jury trial and tender the appropriate fee with this ist ric t C ler k Petition. IX. RESERVATION OF RIGHTS 50. Plaintiffs reserve the right to amend their complaint to assert such nie Da X. PRAYER l D additional causes of action as may be revealed during discovery. is WHEREFORE, PREMISES CONSIDERED, Plaintiffs, MARK OBERHOLTZER hr and MARK-1 PLUMBING, INC., pray that Defendant be cited to appear and answer ffic e herein against Defendant as follows: of C herein and, upon final hearing, that Plaintiffs be awarded a judgment and all relief sought all economic and compensatory damages proved by a O a. op y preponderance of evidence; punitive damages as proved by clear and convincing evidence; c. reasonable and necessary attorneys’ fees; ial pre-judgment and post-judgment interest as provided by law; Un of fic d. C b. e. court costs; and, f. all other relief, at law or in equity, to which Plaintiff is justly entitled. PLAINTIFFS’ ORIGINAL PETITION PAGE 14 Respectfully submitted, LAW OFFICES OF A. CRAIG EILAND nie l D ist ric t C ler k By: ________________________ A. Craig Eiland State Bar No. 06502380 Austin Martin State Bar No. 24090245 Old Galveston Square 2211 The Strand, Suite 201 Galveston, Texas 77550 Telephone: (409) 763-3260 Facsimile: (409) 763-8154 ceiland@eilandlaw.com amartin@eilandlaw.com Un of fic ial C op y O ffic e of C hr is Da ATTORNEYS FOR PLAINTIFFS PLAINTIFFS’ ORIGINAL PETITION PAGE 15