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cause no. __-______-_
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__________________________________ __________________________________ __________________________________
Plaintiffs,
v.
__________________________________ __________________________________ __________________________________
Defendants. |
§ § § § § § § § § § § § § § § |
IN THE DISTRICT COURT OF
________________, texas
___st judicial district
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Plaintiffs' Second Amended Petition
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW _____________, _____________, and ______________ (hereafter identified as Plaintiffs), complaining of _________________, _______________, and ______________, (hereafter identified as Defendants), and for causes of action Plaintiffs respectfully show the Court and Jury as follows:
I. Discovery Control Plan
1. Plaintiffs request discovery be completed in accordance with the Agreed Level 3 Discovery Order entered by the Court on __________________ and Tex. R. Civ. P. 190.4.
II. parties
2. Plaintiff ____________ is an individual residing in ______ County, Texas.
3. Plaintiff __________________, Ltd. is a _____ limited partnership.
4. Plaintiff __________________, Ltd. is a _____ limited partnership.
5. Defendant ________________ is a ___________corporation with its principal place of business in, ___________________ has been served with process and appeared in this lawsuit.
6. Defendant ________________ is a ___________corporation with its principal place of business in ____________________ has been served with process and appeared in this lawsuit.
7. Defendant ________________ is a ___________corporation with its principal place of business in ____________________ has been served with process and appeared in this lawsuit.
III. Jurisdiction
8. This Court has jurisdiction over Defendants because Defendants are either residents of Texas or have done business in Texas and have continuing systematic contacts with Texas. This Court has jurisdiction over this controversy because the damages are within the jurisdictional limits of the Court.
IV. Venue
9. Venue is proper in ______ County, Texas, because: (a) a substantial part of the events and omissions giving rise to Plaintiffs' claims occurred in ______ County, Texas; and/or (b) the principal offices of Defendants _______________, _____________, and ______________ in this state are in ______ County, Texas.
V. Facts
10. [Summary of factual background]
11. [Statements of Contentions]
VI. Causes of Action
12. Defendants’ conduct, acts and failures individually, collectively, jointly and severally were the cause and proximate cause of very substantial expenses, losses, and damages to Plaintiffs. The acts, conduct and failures of Defendants, individually, collectively, jointly and severally, constituted violations of legal duties giving rise to at least the following causes of action:
Negligence/Negligent Misrepresentation
13. Plaintiffs reassert and incorporate herein by reference all facts and allegations set forth above.
14. [Contention]
15. Plaintiffs suffered substantial pecuniary losses which were the result of its justifiable and reasonable reliance on Defendants' misrepresentations. Such losses were proximately caused by Defendants' negligence and negligent misrepresentations.
Breach of Fiduciary Duty;
16. Plaintiffs reassert and incorporate herein by reference all facts and allegations set forth above.
17. Defendants had a fiduciary relationship with Plaintiffs. As a result, Defendants owed Plaintiffs fiduciary duties requiring undivided loyalty, absolute and perfect candor, honesty, the utmost good faith and fidelity, the absence of any concealment, and the placement of Plaintiffs' interests ahead of Defendants' interests.
18. Defendants breached their fiduciary duties to Plaintiffs by: (i) inducing and facilitating ______________; and (ii) failing to disclose to Plaintiffs that _____________________.
19. Because of Defendants’ conduct, Plaintiffs have been damaged in an amount exceeding the jurisdictional limits of this Court, for which Plaintiffs now sue.
Breach of Contract
20. Plaintiffs reassert and incorporate herein by reference all facts and allegations set forth above.
21. As stated above, _______________[Contentions]
22. Because of Defendants' conduct, Plaintiffs have been damaged in an amount exceeding the jurisdictional limits of this Court, for which Plaintiffs now sue.
VII. Damages
23. As a result of Defendants’ acts and conduct, Plaintiffs have sustained damages far exceeding the minimum jurisdictional limits of this court.
24. Plaintiffs are entitled to recover exemplary damages from Defendants, because Plaintiffs' damages result from malice. Under the standards for recovery of exemplary damages described in Texas Civil Practice and Remedies Code § 41.003, Plaintiffs are entitled to recover exemplary damages.
VIII. Fee Forfeiture
25. Because of Defendants' breaches of their fiduciary duty to Plaintiffs, the Court should order that in addition to, or as an alternative to, all other remedies, Defendants must disgorge, forfeit, and/or return to Plaintiffs any and all fees and expenses, or any other financial or economic benefits, that Defendants obtained as a result of their actions.
IX. The Statue of Limitations Does Not Bar Plaintiffs' Claims
26. Plaintiffs did not discover, nor should they in the exercise of reasonable diligence have discovered, the negligent and wrongful conduct of Defendants and the causes of action against these Defendants described above until less than two years before filing this lawsuit. Plaintiffs invoke the "discovery rule" doctrine in response to Defendants' alleged affirmative defense that the Plaintiffs' causes of action are barred by any applicable statute of limitations.
27. Defendants also fraudulently concealed from Plaintiffs their negligence and breaches of fiduciary duty. Plaintiffs therefore invoke the doctrine of fraudulent concealment as a defense to the Defendants' alleged affirmative defense that the Plaintiffs' causes of action are barred by any applicable statute of limitations.
Jury Demand
28. Plaintiffs renew their request and demand for a jury trial on the issues in this case, have previously tendered the required Jury Fee, and renew their request that this case be placed on the Court's Jury Docket.
Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, Plaintiffs prays that upon final hearing in this cause, Plaintiffs have and recover a judgment against the Defendants, jointly and severally for Plaintiffs' damages, in amounts to be determined by the jury; penalties and interest provided by law; equitable forfeiture; reasonable and necessary attorneys' fees, costs of court; pre-judgment and post-judgment interest as provided by law at the legal rate; and such other and further relief to which Plaintiffs may show themselves to be entitled, at law or in equity.
Respectfully submitted,
___________________
___________________
___________________
___________________
___________________
___________________
___________________
___________________
___________________
___________________
___________________
___________________
BY:
_______________
State Bar No. __________
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has been served upon the following counsel by overnight mail on this _th day of ________, 200_:
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__________________ __________________ __________________ __________________ |
__________________ __________________ __________________ __________________ |
BY:
_________________