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KRYSTAL ZUFELT, Plaintiff, v. ASHLEY OLLES, a/k/a ASHLEY C. BUSTER, AMANDA O’BRIEN, a/k/a AMANDA C. BUSTER and AMANDA BUSTER O’BRIEN, dba VALLEY VIEW RANCH, Defendants.

No. 92627-CC2

District Court Kaufman County

PLAINTIFF’S SECOND AMENDED PETITION
KRYSTAL ZUFELT (“Zufelt” or “Plaintiff”), Plaintiff in the above-styled and number cause files this Second Amended Petition, complaining of the above named Defendants, and would respectfully show the Court as follows:
I.

DISCOVERY
Plaintiff requests that Discovery be conducted under Level 2.
II.

PARTIES
A. Zufelt is an individual and a resident of the State of Texas.

B. Ashley Olles has answered and is before the Court for all purposes.

C. Amanda O’Brien has answered and is before the Court for all purposes.

D. Valley View Ranch has answered and is before the Court for all purposes. However, Valley View Ranch was at one time a limited liability corporation but has forfeited its corporate existence and now is simply a name under which the individual Defendants do their business.
III.

FACTS
A. Defendants acquired for Plaintiff two horses – Rosies Last Ich and Ms Smart Tipster. In connection with these transactions, Defendants acted as Plaintiff’s agents and made representations regarding not only the horses, but also their attempts to negotiate “good deals” for the Plaintiff.
B. In reliance on Defendants’ representations regarding the value and cost of each horse, Plaintiff acquired the horses. Defendants represented to the Plaintiff that both horses were registered with the American Quarter Horse Association (“AQHA”). Defendants agreed to and told Plaintiff they had done all of the paperwork necessary to transfer the AQHA registrations into Plaintiffs name.

C. In late September 2014, Plaintiff contracted with Defendants to sell the two horses. Defendants agreed to handle the sales transactions and sales proceeds. On information and belief, Defendants have sold Plaintiff’s horses, but have failed and refused to honor their agreements, converting Plaintiff’s horses and funds. Plaintiff has learned that despite their agreements and promises, Defendants did not transfer the AQHA registrations into her name. Plaintiff has also learned that the Defendants misrepresented to her the original sales prices and sellers of the horses, all to her detriment.

D. Despite demand, Defendants refuse to account, pay over or turn over Plaintiff’s property.
IV.
BREACH OF CONTRACT
A. Plaintiff incorporates by reference all factual allegations set forth above.
B. Defendants agreed to act on Plaintiff’s behalf in her acquisition of the two horses. Defendants agreed to affect the transfer of registrations with AQHA. Defendants alone controlled the identity of the sellers of the horses. Defendants also agreed to sell Plaintiffs two horses, for which they were to be paid a fee. Defendants took possession of Plaintiff’s horses, knowing they had not transferred the AQHA registrations, and had possession of the registration papers of at last one of the horses that Plaintiff had acquired from Defendants who claimed to be the then owners of the horse.

C. Defendants have reported that the horses are sold, but have refused to tender to Plaintiff the sales proceeds in breach of their agreements and in violation of Texas law. Plaintiff has performed all conditions precedent to recovery.
V.
CONVERSION
A. Plaintiff incorporates by reference all factual allegations set forth above.
B. Plaintiff owned, possessed, or had the right of immediate possession of two (2) horses. Plaintiff consented to Defendants’ possession of her horses solely to sell same.
C. Defendants wrongfully exercised dominion or control over Plaintiff’s registration papers, horses and the sales proceeds from the sale of those horses, to the exclusion of and inconsistent with Plaintiff’s rights.
D. Plaintiff demanded return of the property, and Defendants have failed to return the horses or the sales proceeds.
E. Plaintiff has been damaged in the amount of the fair market value of the property converted by Defendants. The fair market value of the property converted at the time and place of the conversion exceeds the minimum jurisdiction of the Court.

F. As a result of Defendants’ conduct, Plaintiff is entitled to recover exemplary damages intended to be punitive in nature to punish Defendants’ wrongful conduct.
VI.
DTPA
A. Plaintiff incorporates by reference all factual allegations set forth above. B. Plaintiff is a consumer. Tex. Bus. & Comm. Code § 17.45(4). False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful. Id., at § 17.46(a). Among other things, Defendants have
(1) passed off goods as those of another;
(2) caused confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods and services;
(3) caused confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;
(4) represented that goods or services have sponsorship, approval, characteristics, uses, or benefits, which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;
(5) represented that goods or services are of a particular standard, quality, or grade, when they are of another;
(6) advertised goods or services with intent not to sell them as advertised;

(7) made false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions;
(8) represented that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law; and
(9) used the term “corporation,” “incorporated,” or an abbreviation of either of those terms in the name of a business entity that is not incorporated under the laws of this state or another jurisdiction;

All in violation of Texas law. See, id., at § 17.46(b).

C. Defendants conduct in violation of the Texas Deceptive Trade – Consumer Protection law (“DTPA”) has been a producing cause of damages to the Plaintiff. Plaintiff detrimentally relied on Defendants in her equine consumer transactions. All conditions necessary to recovery have or will be met and Plaintiff agrees to abate this claim as and if required by law. Plaintiff requires discovery to determine the amount of economic damages caused by Defendants wrongful conduct in the sale to Plaintiff of the two horses.
D. Pursuant to the DTPA, Plaintiff is entitled to recover her damages produced by the wrongful conduct, expenses including attorney fees, in bringing this claim, and additional and exemplary damages as provided by the law.[irp]

VII.
FRAUD

A. Plaintiff incorporates by reference the foregoing factual allegations.

B. Defendants knowingly made false representations of material fact and omitted to disclose material facts in both selling the horses to Plaintiff, and in inducing Plaintiff to agree to allow Defendants to sell the two horses. Defendants intended that Plaintiff rely to her detriment on their knowingly false statements and silence. Plaintiff did detrimentally rely and was thereby harmed.
C. Plaintiff is entitled to recover, in addition to her actual damages, exemplary damages intended to punish the wrongful conduct of these Defendants.
VIII.
BREACH OF FIDUCIARY DUTY
A. Plaintiff incorporates by reference all factual allegations set forth above.
B. Defendants, as Plaintiff’s agents, owe Plaintiff fiduciary duties, not limited to loyalty, utmost good faith, accountability and truthfulness. Fiduciaries may not profit from their relationship with their principals without the principal’s express informed consent. They also have a duty to avoid any conflicts of interest between themselves and their principals or between their principals and the fiduciaries’ other clients. A fiduciary duty is the strictest duty of care recognized by the US legal system. C. By refusing to account, fabricating false stories, converting monies belonging to Plaintiff, among other things, Defendants have breached their fiduciary duties to the Plaintiff. As a result of their breaches, Plaintiff has been harmed. D. Plaintiff is entitled to recover her actual damages resulting from Defendants’ breaches of fiduciary duties and is entitled to the equitable remedy of forfeiture and disgorgement, for which she prays.
IX.
ATTORNEY FEES
A. Plaintiff incorporates by reference all factual allegations set forth above.
B. Pursuant to TCPRC Section 38.001, et seq., Plaintiff seeks recovery of her reasonable attorney fees and costs in pursuing the breach of contract claim against Defendants. Pursuant to the DTPA, Plaintiff is entitled to recover her attorney fees for pursuing those claims.
C. All conditions precedent to recovery have occurred.
X.
DAMAGES STATEMENT/EXEMPLARY DAMAGES
Plaintiff seeks monetary relief of $100,000.00 or less, and a judgment for all other relief to which she deems herself entitled.
Plaintiff is entitled to recover exemplary damages without regard to any statutory limits because Defendants’ conduct can be described as a felony theft under Texas Penal Code Chapter 31.

WHEREFORE, PREMISES CONSIDERED, KRYSTAL ZUFELT respectfully requests judgment of the Court that she recover damages, including presumed damages, actual and exemplary damages, pre and post judgment interest as allowed by law, attorney fees and costs of Court, and such other and further relief to which she may show herself justly entitled.
Respectfully submitted,
/s/ Amy B. Ganci
AMY B. GANCI
Texas Bar No. 07611600
aganci@gancilaw.com
KEVIN A. GANCI
Texas Bar No. 07611650
kganci@gancilaw.com
GANCI, LLP
825 Market Street
Suite 220
Allen, Texas 75013
214-443-6001 – Main
214-644-2966 – Facsimile
ATTORNEYS FOR KRYSTAL ZUFELT

 

June 7, 2017

Confidential settlement agreement