Original Petition confirmed360 (04341151).DOC - Courthouse News ...

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Jan 31, 2017 ... Plaintiff's Original Petition. 17.044, Tex. Civ. Prac. & Rem. Code, at Service of Process, Texas Secretary of State, P.O. Box. 12079, Austin, Texas ...
FILED TARRANT COUNTY 1/31/2017 11:33:07 AM THOMAS A. WILDER DISTRICT CLERK

CAUSE NO. 141-290217-17 ___________

CHARLES EVANS

§ § § VS. § § § CONFIRMED, LLC DBA CONFIRMED360 §

IN THE DISTRICT COURT OF

TARRANT COUNTY, TEXAS

_____ JUDICIAL DISTRICT

PLAINTIFF’S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, CHARLES A. EVANS, hereinafter called Evans, and files this Plaintiff’s Original Petition complaining of CONFIRMED, LLC, hereinafter called Confirmed, and for cause of action would respectfully show unto this Honorable Court the following: I. DISCOVERY CONTROL PLAN 1.01

Pursuant to the provisions of Rule 190.1, Texas Rules of Civil Procedure, Plaintiff

intends for discovery in this case to be conducted under Level 2, as set forth in Rule 190.3, Texas Rules of Civil Procedure. II. PARTIES 2.01

Plaintiff CHARLES A. EVANS is resident of the State of Texas.

2.02

Defendant, CONFIRMED, LLC is a California Limited Liability Company. Defendant

Confirmed is a nonresident business, which has and continues to conduct business in the State of Texas and in Tarrant County, which contacts give rise to this suit. Defendant does not maintain a proper registered agent in Texas for service of process. Therefore, the Texas Secretary of State may be served, by certified mail, return receipt requested, as substitute agent for service under §

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Plaintiff’s Original Petition

17.044, Tex. Civ. Prac. & Rem. Code, at Service of Process, Texas Secretary of State, P.O. Box 12079, Austin, Texas 78711-2079. The Secretary of State is requested to forward the petition and citation to the Registered Agent for service of process for Confirmed, LLC which is designated to be: Matthew Amplosky, 2216 Main Street, Suite #201, Santa Monica, California, 90405. III. VENUE 3.01

Venue is proper in Tarrant County, Texas, because all or a substantial part of the events

or omissions giving rise to Plaintiff’s claims and causes of action occurred in Tarrant County, Texas. Specifically, Defendant solicited the business by making calls and sending emails to Plaintiff who is located in Tarrant County. IV. FACTUAL BASIS 4.01

Plaintiff CHARLIE EVANS is an individual who lives in the Tarrant County, Texas.

Defendant CONFIRMED DBA CONFIRMED360 is a company that holds itself out as an “Experience Agency.” In November of 2016, Defendant contacted Evans to solicit Evans to book some experiences directly through Defendant. Evans was in the process of planning a trip to New York to celebrate his 25th wedding anniversary. After some discussion with Defendant it was determined that Defendant would provide Evans with an experience that included tickets and experiences for Jimmy Fallon, SNL, and the musical Hamilton (collectively referred to herein as “the New York Experience”). 4.02

On November 17, 2016, Defendant invoiced Evans for the New York Experience.

Defendant charged Evans $32,400 for the New York Experience and confirmed throughout the process that all of the events were confirmed. 4.03

Based upon the assurances that the New York Experience was in place, Evans made

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Plaintiff’s Original Petition

arrangements for travel and lodging for the New York Experience that were commensurate with the planned New York Experience for this once-in-a-lifetime experience. Evans arranged for a plane ride that cost $35,000, a hotel for $12,000, and a car service of $3,000. All of these other services were all built around this New York Experience that was promised by Defendant. 4.04

While on the flight to New York, Evans presented to his wife a flyer that was prepared

by Defendant, which outlined the New York Experience that Defendant promised to Evans. Upon seeing the planned events Mrs. Evans was overjoyed and moved to tears. 4.05

After spending a great deal of money and time planning for the New York Experience

traveling across the country upon arrival in New York, Evans was informed for the first time that there were issues with the New York Experience. The confirmed reserved tickets to Jimmy Fallon and SNL were no where to be found and the backstage experience promised for the Hamilton play was not provided as represented. V. BREACH OF CONTRACT 5.01

The above described actions of Defendant constitute a breach of the Contract which

existed and which Evans fully performed. Defendant failed and refused to honor the obligations, responsibilities and duties of the Defendant under said Contract as more fully described above. The above described actions also establish that, at a minimum, Defendant is indebted to Evans for the amount that Evans spent with Defendant and the costs spent by Evans on travel and lodging for the New York Experience. Evans has been, and continues to be, damaged as a result of this cause of action in an amount in excess of the minimum jurisdiction of this Court for which Evans sues.

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Plaintiff’s Original Petition

VI. BREACH OF WARRANTY 6.01

The above described actions of Defendant constitutes a breach of the warranty that

Defendant made with Evans to provide the New York Experience as promised. Defendant has failed and refused to honor the warranties it made as more fully described above. The above described actions also establish that, at a minimum, Defendant is indebted to Evans for the amount that Evans spent on the New York Experience as well as the travel and lodging expenses. Evans has been, and continues to be, damaged as a result of this cause of action in an amount in excess of the minimum jurisdiction of this Court for which Evans sues. VII. NEGLIGENT MISREPRESENTATION 7.01

Defendant made false and misleading representations to Evans and/or concealed and

failed to disclose material facts to Evans as to whether the tickets and experience promised was actually confirmed. Such false and misleading representations and concealment of material facts by Defendant were made negligently. Such negligent misrepresentations were relied upon by Evans to his detriment, and Defendant knew or should have known that such negligent misrepresentations and concealment of material facts would be relied upon by Evans. Such negligent misrepresentations and concealment of material facts have caused Evans to incur and suffer damages which greatly exceed the minimum jurisdictional limits of this Court. VIII. DTPA VIOLATIONS 8.01

Defendant violated the DTPA in a number of ways, including but not limited to: a) failing to disclose information about goods or services that was known at the time of the transaction the lack of disclosure was intended to induce Evans to enter into the Agreement and Evans would not have done so if the information had been disclosed; b) 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; and c) representing that the tickets were reserved when they in fact were not.

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Plaintiff’s Original Petition

Evans would show that the acts, practices and/or omissions complained of were the producing cause of the following damages: a) b) c) d)

amount spent on the New York Experience with travel and lodging; prejudgment and post judgment interest; attorneys’ fees; court costs.

Evans seeks unliquidated damages within the jurisdictional limits of this Court. Additional damages. Defendant acted knowingly, which entitles Evans to recover treble damages. IX. DAMAGES 9.01

Evans incorporates by reference all of the paragraphs above as if fully set forth at length

here. Based on information and belief, Evans further alleges as follows: Evans has been, and continues to be, damaged as a result of Defendant’s actions in an amount in excess of the minimum jurisdiction of this Court for which Evans sues. Evans seeks his actual damages which at a minimum are $82,400.00 for the amount the was spent on the New York Experience along with travel and lodging, pre-judgment and post-judgment interest, costs, and attorneys’ fees. X. ATTORNEY’S FEES 10.01 Evans is entitled to recover reasonable and necessary attorney fees under Texas Civil Practice & Remedies Code chapter 38 because this is a suit on a contract, which is listed in Section 38.001(8) and pursuant to the DTPA. XI. CONDITIONS PRECEDENT 11.01 All conditions precedent to Evans’ claim for relief has been performed or have occurred.

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XII . REQUEST FOR DISCLOSURE 12.01 Under Texas Rule of Civil Procedure 194, Evans requests that Defendants disclose, within 50 days of the service of this request, the information or material described in Rule 194.2 (a)-(l). XIII. PRAYER 13.01 WHEREFORE, PREMISES CONSIDERED, Evans requests that Defendants be cited to appear and answer, and that upon final trial, Evans recover actual damages, treble damages, reasonable and necessary attorney’s fees incurred by Evans, Court costs, pre-judgment and post-judgment interest at the maximum rates allowed by law, and such other and further relief to which Evans may be entitled. Respectfully submitted, NAMAN, HOWELL, SMITH & LEE, PLLC 400 Austin Avenue, 8th Floor P. O. Box 1470 Waco, Texas 76703-1470 254.755.4100 / Facsimile 254.754.6331

BY: JORDAN A. MAYFIELD State Bar No. 24037051 [email protected] ROBERT LITTLE State Bar No. 24050940 [email protected] ATTORNEYS FOR PLAINTIFF

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Plaintiff’s Original Petition

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