2 CIT/ ATTY CAUSE NO. DC-14-01581 TERRY GLENN Plaintiff, v. MARK SAMUELS, INC.

D/B/A MARK SAMUELS JEWLERS and MARK SAMUELS Defendants. IN THE DISTRICT COURT

FILED DALLAS COUNTY 2/19/2014 12:13:55 PM GARY FITZSIMMONS DISTRICT CLERK

Smith Gay

134th JUDICIAL DISTRICT

OF DALLAS COUNTY, TEXAS

PLAINTIFF'S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE NOW COMES Terry Glenn, Plaintiff, complaining of Mark Samuels, Inc. d/b/a Mark Samuels Jewelers and Mark Samuels, Defendants, and for the cause of action would show as follows: I. PARTIES 1. Terry Glenn ("Glenn" or "Plaintiff") is a citizen of the United States and

resides in the Dallas, Texas. 2. Defendant, Marc Samuels, Inc. d/b/a Marc Samuels Jewelers (Marc

Samuels or Defendant), is a Texas corporation with its principal place of business located at 3502 Washington Dr., Frisco, Texas 75034 and may be served with citation by serving its President, Marc Samuel at 3502 Washington Dr., Frisco, Texas 75034 or wherever he may be found. 3. Defendant, Marc Samuels (Samuels or Defendant), is an individual

who works and/or resides at 3502 Washington Dr., Frisco, Texas 75034. Samuels may be served with citation at this address or wherever he may be found.

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II. JURISDICTION AND VENUE 4. Jurisdiction is proper in this Court as the matters in controversy occurred

in Dallas County, Texas, and because the damages sought, exclusive of interest and cost, are within the jurisdictional limits of this Court. 5. $1,000,000. 6. Venue is proper in Dallas County, Texas because all or a substantial part Plaintiff seeks monetary relief over $200,000 but not more than

of the events giving rise to Plaintiff's claims occurred and arose in Dallas County. III. DISCOVERY LEVEL 7. Plaintiff intends to conduct discovery in this matter pursuant to the Level

Two Discovery Plan. IV. FACTS 8. In or about 2012, Glenn took his diamond bracelet, three Jacob watches, a Don & Co. watch and a diamond cross (collectively referred herein as the Jewelry) to Marc Samuels for repairs. Glenn was assisted by a sales representative of Marc Samuels identified only by the first name, Jerry (referred herein as Sales Rep). Glen explained the sentimental and monetary value of the Jewelry to the Sales Rep and made him fully aware of the Jewelrys importance to him. 9. While at the store, Glen also advised the Sales Rep that he would be traveling to Ohio for a reunion and wanted to know if the Jewelry would be repaired by the time he left for his trip. Glenn was advised by the Sales Rep that the Jewelry could not be repaired by the time he left for his trip but as an inducement for Glenn to do business with Marc

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Samuels, the Sales Rep offered Glenn the use of a used bracelet, diamond cross earrings, a gold chain and a watch (the Loaned Jewelry) while the Jewelry was being repaired. The Loaned Jewelry was of lesser quality and value than the Jewelry. Glen was not given a pick-up date for his Jewelry but because Marc Samuels offered him use of the Loaned Jewelry, he was not worried or in a rush because his major concern was for the Jewelry to be properly repaired. 10. Glenn was contacted by the Sales Rep and asked to stop by Marc Samuels

to see new items that were available for purchase. Glenn advised the Sales Rep of his travel schedule and assured him he would visit Marc Samuels upon his return to Dallas. There was no mention of the Jewelry being ready for pick-up. 11. Because of Glenns travel schedule, he was unable to visit Marc Samuels

but inquired about the Jewelry and the estimated repair date. He was not given a repair date but was not overly concerned because of the representations made by the Sales Rep and his desire for the Jewelry to be properly repaired. The Sales Rep did not provide Glenn with any updates and would only respond when Glenn checked on the status of the Jewelry. 12. After months of not hearing from the Sales Rep, on or about June 23, 2012,

Glenn sent a text to the Sales Rep advising him that he was back in Dallas and wanted to get the Jewelry. The Sales Rep responded back by asking if Glenn could stop by the store in a few days. Because of Glenns travel schedule, he was unable to meet with the Sales Rep and made him aware of this. Glenns assistant had attempted to reach the Sales Rep the prior week but he never responded back to her. 13. On or about July 19, 2012, Glenn advised the Sales Rep that his assistant

was going to stop by the store to check on the Jewelry. Glenn also advised the Sales Rep

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that he was out of town but would stop by when he returned to Dallas. Later that same day Glenns assistant went to Marc Samuels to pay for the repair of the Jewelry. The only items ready for pick-up were the three Jacob Watches and the Don & Co. watch. The total cost to repair those items was $1,500, which was fully paid for by Glenns assistant. 14. On or about November 9, 2013, Glenns assistant sent the Sales Rep a text

message inquiring about the status of the Jewelry but did not receive a reply so she made Glenn aware of this. On or about November 12, 2012, Glenn contacted the Sales Rep to advise him that he would stop by Marc Samuels to check on the remainder of his items. The Sales Rep failed to mention anything about the jewelry in his response to Glenn and simply wished him Happy Thanksgiving. Additionally, Glenn sent the Sales Rep another text message advising him of his divorce and told him he needed to get the remainder of his items by December 10, 2012 because his ex-wifes attorney needed to inspect all of his assets. The Sales Rep only response was Ill let you know Monday. 15. It was at this point that the Sales Rep began to ignore Glenns calls which

made Glenn extremely suspicious. On or about March 7, 2013, Glenn sent the Sales Rep a text message and advised him that he needed to get his jewelry at once so that he could show all of his assets in connection with his divorce and at the same time would return the Loaned Jewelry. 16. The Sales Rep advised Glenn that Ali, a Manager for Marc Samuels, was

out of town and would need to discuss the return of his jewelry with him once he returned. At this point, Glen felt something strange was happening because all he wanted to do was pick up the remainder of the Jewelry but the Sales Rep would not allow him to do so.

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17.

On or about March 20, 2013, Glenns assistant was contacted by an agent of

Marc Samuels who advised her that Glenns diamond bracelet and cross had been melted for scrap value without Glenns permission or authorization. Glenn contacted Ali and asked him if he was being robbed. Even after being told his jewelry had been melted, Glenns assistant continued to contact Marc Samuels about Glenns Jewelry but was always given an excuse. Glenn made it very clear to Marc Samuels that he wanted his Jewelry but Defendants refused to comply. Glenn spent several months attempting to get his jewelry and even reported this to the local police department. 18. Despite proper demand for Defendants to return the remaining Jewelry

valued at over $100,000, Defendants have failed and refused, and continue to fail and refuse, to comply with such demand. Accordingly, Plaintiff has no choice but to hire counsel and pursue this claim. 19. Additionally, Defendant Samuels committed the foregoing acts in his

individual capacity, as well as in his role as an officer of Marc Samuels and in the event Marc Samuels corporate charter has been forfeited, he should be held individually liable to Glenn. 20. All conditions precedent have been performed or have occurred as required.

V. CAUSES OF ACTION FIRST COUNT - Breach of Contract 21. Glenn incorporates by reference paragraphs 8-20, the same as if each such

paragraph was set forth herein.

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22.

Plaintiff brings this action against Defendants, because of the Defendants

failure to comply with the terms and conditions of the Agreement, thereby causing monetary damages. 23. Despite proper demand for the return of the Jewelry that was left in the

possession of the Defendants to be repaired, Defendants have failed and refused, and continue to fail and refuse, to comply with said demand. As a result, Plaintiff has

suffered damages, plus interest at the highest rate allowed by law in Texas. SECOND COUNT - Fraud 24. Glenn incorporates by reference paragraphs 8-23, the same as if each such

paragraph was set forth herein. 25. The representations and failures to disclose material information by

Defendants constitute fraud and fraud by non-disclosure. Defendants: (a) made material representations that the Jewelry would be repaired with knowledge of its falsity or made recklessly without any knowledge of the truth and a positive assertion; (b) with the intention that they should be acted upon by Glenn; and (c) Glenn acted in reasonable reliance on the misrepresentations and thereby suffered injury. 26. In addition to misrepresentations concerning the repair of the Jewelry,

Defendants represented that they melted the jewelry after Glenn abandoned it, which was not the case. The Defendants were well aware that Glenn did not abandon the Jewelry nor did he trade any of it for the Loaned Jewelry. These representations were factual,

material, false and were relied upon by Glenn in the decision to entrust the Jewelry with the Defendants.

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27.

These misrepresentations include:

(a) false statements of facts; (b)

promises of future performance made with an intent, at the time the promises were made, not to perform these promises; (c) statements of opinion based on false statements of facts; (d) statements of opinion that the maker knows to be false; and (e) expressions of opinion that were false made by Defendants claiming or implying to have special knowledge that is, knowledge or information superior to that possessed by Glenn and to which Glenn did not have equal access of the subject matter of the opinion. 28. Defendants also committed fraud by failure to disclose to Glenn (a)

material facts within their knowledge; (b) when they knew that Glenn was ignorant of such facts, and that it did not have an equal opportunity to discover the truth; and (c) intending to induce Glenn to take certain actions by failing to disclose such facts. Glenn suffered injury as the result of acting without knowledge of the undisclosed facts. THIRD COUNT - Violation of the Texas Theft Liability Act 29. Glenn incorporates by reference paragraphs 8-28, the same as if each such

paragraph was set forth herein. 30. The conduct described in the preceding paragraphs constitutes an unlawful

appropriation of property belonging to Glenn. The Texas Theft Liability Act (TTLA) (Chapter 134 of the Texas Civil Practice & Remedies Code (the Code)) provides civil liability for one who commits theft as that term is defined in 134.002 of the Code. Theft includes unlawfully appropriating property as described by various sections of the Texas Penal Code, including 31.03 (Theft). The conduct of Defendants in unlawfully appropriating the property subjects them to liability under the TTLA. Consequently, Glenn is entitled to all available remedies and relief under the TTLA,

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including statutory penalties and attorneys fees and damages in excess of the minimum jurisdictional limits of the Court. FOURTH COUNT - Unjust Enrichment 31. Glenn incorporates by reference paragraphs 8-30, the same as if each such

paragraph was set forth herein. 32. Defendants hold money or have received the benefit of money, which

Glenn has a right to recover. These parties have wrongfully retained the full amount or benefits of these funds and continue to wrongfully retain these funds. 33. Defendants would be unjustly enriched if they were allowed to reap the

benefits they received from Glenn. Glenn hereby sues for restitution in an amount which exceeds the minimum jurisdictional limits of this Court. FIFTH COUNT - Fraudulent Inducement 34. Glenn incorporates by reference paragraphs 8-33, the same as if each such

paragraph was set forth herein. 35. Defendants made false and material representations to Glenn, including

but not limited to, when they represented that Glenns Jewelry would be repaired and returned to him. This representation was factual, material, false and was relied upon by Glenn to his detriment in the decision to entrust his Jewelry to Defendants to be repaired. 36. Defendants made these false and material representations to Glenn to

induce him to leave the Jewelry, all the while knowing the representations were false, were made as positive assertions without knowledge of their truth or falsity, or were made recklessly. Glenn relied on the false and material representations in entering into the Agreement with Defendants. As a direct result of Defendants fraudulent conduct,

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Glenn has suffered damages. But for Defendants fraudulent conduct, Glenn would have not made the Agreement and would not have entrusted his Jewelry to Defendants. Baisden seeks compensatory and punitive damages against Defendants. Attorneys Fees. 37. Plaintiff incorporates by reference paragraphs 8-36, the same as if each

such paragraph was set forth herein. 38. As a result of Defendants' breach of contract, fraud, and violation of the

Texas Theft Liability Act, Plaintiff has been forced to retain the undersigned attorneys and pay them a reasonable fee. Under Section 38.001 of the Civil Practice and Remedies Code, Plaintiff is entitled to recover reasonable attorneys fees and court costs incurred in the prosecution of this case. VI. EXEMPLARY DAMAGES 39. Defendants' acts or omissions described above, when viewed from the

standpoint of Defendants at the time of the act or omission, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to Plaintiff and others. Defendants had actual, subjective awareness of the risk involved in the above described acts or omissions, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of Plaintiff and others. 40. Based on the facts stated herein, Plaintiff requests exemplary damages are

awarded to him from Defendants.

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VII. REQUEST FOR DISCLOSURE 41. Under Texas Rules of Civil Procedure 194, Plaintiff requests that

Defendants disclose within 50 days of service of this request, the information or material described in Rule 194.2. VIII. JURY DEMAND
Plaintiff hereby requests a trial by jury on all claims and issues so triable.

WHEREFORE, PREMISES CONSIDERED, Plaintiff Terry Glenn requests that Defendants be cited to appear and answer, and that on final trial, Plaintiff Terry Glenn have the following: 1. 2. 3. 4. 5. 6. 7. Plaintiff is granted the requested relief against Defendants; Judgment against Defendants for actual damages; Judgment against Defendants for Compensatory and punitive damages; Pre-judgment interest at the highest rates permitted by law; Post-judgment interest at the highest rates permitted by law; Reasonable attorneys fees and costs of court; and Such other and further relief to which Terry Glenn may be justly entitled.

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Respectfully submitted,

By: /s/ Daryl K. Washington DARYL K. WASHINGTON State Bar No. 24013714
LAW OFFICES OF DARYL K. WASHINGTON, P.C.

325 N. St. Paul St., Suite 1975 Dallas, Texas 75201 214 880-4883 214-751-6685 - fax dwashington@dwashlawfirm.com ATTORNEY FOR PLAINTIFF

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