Virginia Cook Lawsuit

Plaintiff’s First Amended Petition | Page 1 of 22

NO. DC-14-05936

I-BEAM HOLDINGS LLC, § IN THE DISTRICT COURT § PLAINTIFF, § § v. § § DALLAS COUNTY, TEXAS BARBARA MATTHEWS, § VIRGINIA COOK REALTORS, § LLC, & MARGARITA SALAZAR, § § DEFENDANTS. § JURY DEMANDED

PLAINTIFF’S FIRST AMENDED PETITION

Plaintiff I-Beam Holdings LLC files its First Amended Petition

against Virginia Cook Realtors, LLC (“Virginia Cook Realtors”) Barbara

Matthews (“Matthews” or “Seller’s Agent”), Shelia Rice (“Rice”), Sherri

Baer Wilson (“Wilson”) (collectively, “VC Defendants”), and Margarita

Salazar (“Salazar”), and in support shows the following:

I. CASE SUMMARY

You don’t have to go to law school to understand the basics of

contract law because its principles revolve around elementary concepts of

morality we learn during childhood: (1) Don’t break promises; (2) Don’t lie;

and (3) Don’t cheat others. Virginia Cook Realtors and the individual

defendants all defied these basic moral obligations by engaging in a


campaign of fraud to steal Plaintiff’s residence to sell to a higher bidder.

Defendants had only one justification for their actions: MAKING MONEY

AT ANY COST.

Defendants all played a significant role in cheating Plaintiff out of the

property. Margarita Salazar broke her promise to sell the residence and

shadily entered into a second illegal contract to sell it to a higher bidder.

Her broken promises and shady behavior, however, pale in comparison to

the reprehensible actions of Barbara Matthews and her cohorts over at

Virginia Cook Realtors. Matthews—determined to sell to the highest bidder

to boost her commission—circumvented Plaintiff’s real estate agent and

continually lied to Plaintiff’s face to effectively steal Property rights.

The leaders of Virginia Cook Realtors leadership also took their own

stabs to induce Plaintiff to walk away from the residence. When confronted

by Plaintiff regarding Matthews’ acts, Virginia Cook Realtors leaders

Virginia Cook and Shelia Rice failed to inform Plaintiff about the existence

of the second illegal contract or that Virginia Cook Realtors had unilaterally

and ineffectively filed a termination of sale. Shelia Rice instead attempted

to trick Plaintiff into walking away so her company could collect its profits,

deceptively telling Plaintiff: “I hope that you will soon have a successful

transaction and pleasure in a new home.”


While these shady tactics may have worked with past customers,

Virginia Cook Realtors didn’t count on Plaintiff’s determination. Despite

Virginia Cook Realtors’ repeated failures to tell Plaintiff about the second

illegal contract or the unilateral termination, Plaintiff’s President, Steve

Tortolani, uncovered the extent of the company’s deception after days of

diligent search.

Defendants forced Plaintiff into filing the instant lawsuit to protect his

interests and let the world know about Virginia Cook Realtors’ reprehensible

actions. Contract law exists to protect unsuspecting consumers from

predatory businesses that lie, cheat, and steal to profit off others’

misfortunes. Plaintiff files the instant suit to send a message to Virginia

Cook Realtors: You will never again victimize Dallas citizens to make a

quick buck.

II. DISCOVERY LEVEL

Plaintiff intends to conduct discovery under Level 2 of the Texas

Rules of Civil Procedure.

III. PARTIES, JURISDICTION AND VENUE

Plaintiff I-Beam Holdings LLC is a limited liability company

headquartered in Dallas, Texas.

Individual Defendant Margarita Salazar entered into the contract at

entitling Plaintiff to buy the real estate located at 2218 Moser Lane, Dallas,


TX 75225, (“Property”) that serves as the basis of this suit. On information

and belief, Salazar resides in Prosper, TX and may be served at 5701

Colchester Drive, Prosper, TX 75078, or wherever she may be found.

On information and belief, Defendant Barbara Matthews is an

individual residing in Dallas, Texas, who may be served at her place of

business, 5950 Sherry Lane, Suite 110, Dallas, TX 75225.

On information and belief, Defendant Shelia Rice is an individual

residing in Dallas, Texas, who may be served at her place of business, 5950

Sherry Lane, Suite 110, Dallas, TX 75225.

On information and belief, Defendant Sherri Baer Wilson is an

individual residing in Dallas, Texas, who may be served at her place of

business, 5950 Sherry Lane, Suite 110, Dallas, TX 75225.

Defendant Virginia Cook Realtors, LLC (“Virginia Cook”) is a

limited liability company headquartered in Texas. Virginia Cook Realtors,

LLC may be served with process through its registered agent Virginia Cook

at 5950 Sherry Lane, Suite 110, Dallas, TX 75225.

Subject matter jurisdiction and venue exists in this Court because

Plaintiff seeks damages that exceed this Court’s jurisdictional limits and the

incident in question occurred in this County.

IV. FACTS


A. Plaintiff and Salazar Form Original Contract

On Friday April 18, 2014, Plaintiff’s real estate agent Debra Ford

(“Plaintiff’s Agent”) submitted an offer to Seller’s Agent to buy Salazar’s

Property using Texas Real Estate Commission contract form #20-11. The

tentative contract included a May 9, 2014 closing date and a buyer-side

termination option period of 8 days from the Contract’s effective date.

On Monday April 21, 2014, Seller’s Agent sent Plaintiff’s Agent an

executed copy of the contract. (“Contract”) At the same time, Matthews

asked Plaintiff’s Agent whether Plaintiff intended to close on the property

because other parties had submitted offers following Contract execution.

Plaintiff’s Agent reassured Matthews that Plaintiff intended to close on May

9, 2014.

B. Relevant Contractual Terms The Contract contains two provisions at issue. Seller’s Agent heavily

on these two provisions in her attempts to induce Plaintiff to break the

Contract. The first provision, entitled “Termination Option,” states the

following:

23. TERMINATION OPTION: For nominal consideration, the receipt of which is hereby acknowledged by Seller, the Buyer’s agreement to pay seller $80.00 (Option Fee) within two days after the effective date of this contract, seller grants the buyer the unrestricted right to terminate this contract by giving notice of termination within 8 days after the effective date of this


contract (Option Period). If no dollar amount is stated as the Option Fee or if buyer fails to pay the Option Fee to Seller within the time prescribed, this paragraph will not be a part of this contract and Buyer shall not have the unrestricted right to terminate this contract. . . .

(emphasis added). The second provision, entitled “Earnest Money,” states as follows:

5. EARNEST MONEY. Upon execution of the contract by all the parties, Buyer shall deposit $2,000 as earnest money with HexterFair, as escrow agent, at 11661 Preston 200 214 987-3328 (address). . . .

C. Plaintiff Remits Earnest Money and Termination Option Fee

On April 23, 2014 at 8:30 a.m., Plaintiff paid the contractually

required $2,000 in earnest money (“Earnest Money”) to Hexter-Fair First

American Title (“Title Company”), and in return received a receipted, fully

executed copy of the contract from Title Company.

Shortly thereafter, Plaintiff drove to the offices of Virginia Cook

Realtors to remit the discretionary, buyer-side $80 option fee. (“Option

Fee”) Plaintiff presented the Option Fee, but Matthews refused to accept

Plaintiff’s payment. Matthews instead surprised Plaintiff by indicating that

seller had decided to “terminate the contract” because Plaintiff option fee

and earnest money payments had arrived “too late.”

D. Matthews’ Specific Fabrications and Misrepresentations When She Denied the Allegedly Tardy Option Fee Payment


Matthews made the following fabrications and misrepresentations

when she denied the allegedly tardy Option Fee payment on April 23, 2014

to induce Plaintiff to break or walk away from the contract:

• Matthews indicated that her client had decided to terminate the Contract because Plaintiff failed to pay the Termination Option Fee within two days of Contract effective date

• Matthews claims that the Contract effective date is April 19, 2014 and that Plaintiff’s payment of the termination option fee was more than two days late and therefore grounds for Seller to terminate the Contract

• Matthews informs Plaintiff that the earnest money payment is

also unacceptably late, and therefore grounds for Seller to terminate the Contract.

• Tortolani argues with Matthews’ assertions, but Matthews

responds by stating Tortolani is mistaken. She indicates reiterates that the Seller has the right to terminate the contract and she is refusing the option fee payment.

Tortolani, respecting the real estate expert’s analysis, eventually stopped

refuting her claims and ultimately responded with silence. Tortolani then

advised his agent of the developments. Plaintiff’s Agent indicated that she

had no idea about the termination because Seller’s Agent had not contacted

her since receiving the executed Contract only two days earlier.

E. Seller’s Agent Files Termination Notice Despite Plaintiff’s Payment of the Earnest Money

Despite prompt payment of both the Option Fee and Earnest Money


on the morning of April 23, 2014, Seller’s Broker filed a “Notice of Seller’s

Termination of Contract” later the same day.1 The Notice suspiciously

indicates, “Buyer has not submitted Earnest Money in accordance with the

contract,” despite payment of the same before normal business hours.

Seller’s Agent, at no time whatsoever, advised Plaintiff or Plaintiff’s Agent

about this Notice. She instead left Plaintiff to discover the document’s

existence after Seller had sold off Plaintiff’s property through the second

illegal contract.

F. Plaintiff Takes Action Following His Conversation with Seller’s Agent to Protect His Property Interests

In response to Matthews’ claims and in an effort to protect Plaintiff’s

interests, Tortolani took the following actions on April 23, 2014:

• He emailed the Title Company to advise it of the recent developments, express his belief that Matthews inappropriately interfered with the Contract, and inquire about whether the Title Company had already received a second contract on Plaintiff’s purchased Property.

• He emailed Matthews to inform her of his position: (1) the Property remains under contract, and (2) he did not deliver the Option Fee or Earnest Money too late. He indicates his frustration over her attempts to force him out of contractual compliance.

• He emailed Matthews’ bosses at Virginia Cook realtors,

including Virginia Cook and Shelia Rice, to inform them 1 Plaintiff has suspicions that VC Defendants fraudulently entered the execution date of April 23, 2014 indicated on this Notice of Termination.


of the developments and indicates that he would pursue legal action if necessary

• Later that evening, he attempted to drop off the

Termination Option Fee to the Seller at the Property. A neighbor advises that Salazar no longer lives at the Property and phone her. Tortolani speaks with Salazar, advising that he was attempting to deliver the termination option fee; Salazar indicated that she would inform Ms. Matthews about his desire to make the payment.

• Around 9 o’clock that night, Matthews contacted

Tortolani by phone and reiterates that Tortolani had delivered the Termination Option Fee and Earnest Money too late, that this constituted lack of performance, and that Seller had a right to terminate the Contract. Matthews expresses that her client has received other offers.

Tortolani concluded the phone call believing that Matthews—a real estate

professional with many years of experience—had conveyed the truth about

Plaintiff’s rights under the contract, including that: (1) Seller had the right to

terminate the contract; and (2) Plaintiff’s Contract no longer had any lawful

effect. The real reason behind Matthews’ deceptive statements soon became

clear: She needed to induce Plaintiff to break the Contract after selling the

Property to another party in a second illegal contract.

G. Tortolani Uncovers Matthew’s Lies

On April 25, 2014, Tortolani called a knowledgeable friend to inquire

about his rights and whether Seller’s Agent had again attempted to

wrongfully induce him out of the deal. The friend indicated that Seller’s


agent had in fact given him legally false information and had taken

advantage of his limited TREC contract knowledge. Armed with new

information, Tortolani spoke with the Title Company who concurred with

his friend’s assessment: the Contract still had legal force because the parties

could not terminate the agreement without mutual consent.

Tortolani proceeded to email Matthews to relay the information.

Matthews—likely deciding to keep the conversation off the “record”—

phoned Tortolani to discuss the issue. Matthews’ conveyed that she had

received an offer significantly higher than the Plaintiff’s Contract price and

claimed: “I thought we had resolved this issue and agreed this contract was

terminated.” Tortolani—fed up with Matthews’ antics—finally accuses

Matthews of lies. Matthews never—at any time—indicated that she had

actually sold the property to another party or formally filed a unilateral

Notice of Termination. She instead, left Plaintiff in the dark: Tortolani only

later found out that she had already entered the property into the second

illegal contract at the time of the conversation.

H. VC Defendants Band Together To Induce Plaintiff to Break the Contract

As previously mentioned, Steve Tortolani contacted the leaders of

Virginia Cook Realtors, Virginia Cook and Shelia Rice, on April 23, 2014 to

inform them about the developments. In response to Plaintiff’s plea for help,


Shelia Rice simply and covertly Contract’s validity, concluding her email

response by indicating: “I hope that you will soon have a successful

transaction and pleasure in a new home.” Wilson took a different approach

by informing Plaintiff that she would work with a mutual friend to

ameliorate the situation. Wilson, however, took no action and instead stood

by Matthews’ actions. On information and belief, she made the false

indication that she would provide help as a ploy to distract Plaintiff and

cause it to breach the Contract through non-performance.

Plaintiff communicated with at least four individuals at Virginia Cook

Realtors who knew about the second illegal contract and the unilateral

termination notice. These individuals—including individuals who compose

the supposed leadership of the company—never divulged the existence of

either document. They instead stood by Matthews, left plaintiff in the dark,

and provided Plaintiff with misleading information in a concerted effort to

induce Plaintiff to break his contract.

I. Tortolani Fulfills his Obligations

On April 28, 2014, the Title Company advises Plaintiff that it received

Sellers’ Notice of Termination dated April 23, 2014. It, however, also

informed Plaintiff that it would not honor the termination because it lacked

mutual consent of the parties. Based on the Title Company’s assessment,


Tortolani continued to prepare for the May 9, 2014 closing date. In order to

preserve Plaintiff’s legal rights, Tortolani filed a tender of performance on

May 5, 2014 and on May 6, 2014 informed the title company working on the

second illegal contract about the his Contract’s existence.

Despite always playing by the book, Plaintiff continues to bear the

harsh ramifications of Defendants’ deceptive actions. Defendants have left

Plaintiff without the Property, caused Plaintiff to lose a valuable investor

due to the failed deal, and have caused the second buyer to threaten Plaintiff

with lawsuits.

V. CAUSES OF ACTION A. Breach of Contract: Salazar

Plaintiff incorporates by reference the factual allegations contained in

the preceding paragraphs. Plaintiff alleges that: (1) Plaintiff and Salazar

entered into the Contract; (2) the parties never terminated the Contract

through conduct or language, and (3) Salazar breached the Contract by not

fulfilling her contractual obligations.

Defendants’ breach caused injury to plaintiff, resulting in damages,

including lost profits and damage to the Plaintiff’s business

reputation/goodwill damages.


Based on the foregoing, Plaintiff seeks a judgment for specific

performance of the Contract and a Court Order requiring Seller to execute

and deliver the Property to Plaintiff pursuant to the Contract.

Plaintiff will make his elect between the remedy of specific

performance and damages following a verdict on the merits of this case.

Plaintiff has performed all conditions precedent applicable to his claims for

relief.

B. Tortious Interference with Existing Contract: Matthews and Virginia Cook Realtors


the preceding paragraphs.

Plaintiff alleges that Matthews acted in her individual capacity. In the

alternative, Plaintiff alleges that Matthews served as the agent, servant and

employee of Virginia Cook Realtors. Further, she took the actions

complained of in this Petition within the scope of their employment in

furtherance of Virginia Cook Realtors’ business interests.

Pleading further, and in the alternative if necessary, Plaintiff alleges

that Matthews had full awareness of the contractual relationship between

Plaintiff and Salazar, (“Relationship”) including that the contract obliged

Salazar to sell the Property to Plaintiff.


Despite her awareness of the Relationship, Matthews willfully and

intentionally interfered with the Relationship by inducing Plaintiff to breach

the Contract and hindering Plaintiff’s ability to fulfill its contractual

obligations. Matthews had no legitimate right, justification, or excuse for her

interference. Matthews’ actions proximately injured Plaintiff and caused

damages, including lost profits, loss of goodwill, and loss of reputation

damages.

Moreover, Matthews committed the above actions intentionally,

knowingly and with callous disregard for Plaintiff’s legitimate rights. Her

principal, Virginia Cook Realtors, ratified and/or approved these actions,

entitling Plaintiff to exemplary damages against Matthews and Virginia

Cook Realtors.

C. Aiding and Abetting Matthews’ Tortious Interference with Existing Contract: Wilson, Rice, and Virginia Cook Realtors



Plaintiff alleges that Wilson and Rice acted in their individual

capacities. In the alternative, Plaintiff alleges that they served as the agents,

servants and/or employees of Virginia Cook Realtors. Further, Wilson and

Rice took the actions complained of in this Petition within the scope of their

employment in furtherance of Virginia Cook Realtors’ business interests.


Further, and in the alternative if necessary, Wilson and Rice (1) knew

that Matthews’ tortious interference with the Relationship constituted a tort;

(2) intended to assist Matthews in committing the tort; (3) gave Matthews

assistance and/or encouragement in committing the tort; and (4) the

assistance and/or encouragement constituted a substantial factor in causing

the tort.

Wilson and Rice’s actions proximately injured Plaintiff and caused

damages, including lost profits, loss of goodwill, and loss of reputation

damages.

Moreover, Wilson and Rice committed the above actions

intentionally, knowingly and with callous disregard to Plaintiff’s legitimate

rights. Their principal, Virginia Cook Realtors, ratified and/or approved

these actions, entitling Plaintiff to exemplary damages against Rice, Wilson

and Virginia Cook Realtors.

D. Tortious Interference with Prospective Contract: Matthews and Virginia Cook Realtors




that a reasonable probability existed that it would have entered into a fully

enforceable contractual relationship with Salazar for the Property, but for


Matthews’ intentional interference with the Relationship, which

independently constitutes tortious and/or unlawful conduct. Matthews’

interference proximately caused Plaintiff’s injuries and damages, including

damages for lost profits, loss of goodwill, and loss of reputation.

Matthews interfered intentionally, knowingly and with callous

disregard for Plaintiff’s legitimate rights. Her principal, Virginia Cook

Realtors, ratified and/or approved these actions, entitling Plaintiff to

exemplary damages against Matthews and Virginia Cook Realtors.

E. Aiding and Abetting Matthews’ Tortious Interference with Prospective Contact: Wilson and Rice



In the alternative if necessary, Wilson and Rice (1) knew that

Matthews’ tortious interference with the prospective contract constituted a

tort; (2) intended to assist Matthews in committing the tort; (3) gave

Matthews assistance and/or encouragement in committing the tort; and (4)

the assistance and encouragement constituted a substantial factor in causing

the tort.

Wilson and Rice’s actions proximately injured Plaintiff and caused

damages, including damages for lost profits, loss of goodwill, and loss of

reputation. Wilson and Rice committed the above actions intentionally,


knowingly and with callous disregard for Plaintiff’s legitimate rights. Their

principal, Virginia Cook Realtors, ratified and/or approved these actions,

entitling Plaintiff to exemplary damages against Wilson, Rice and Virginia

Cook Realtors.

F. Negligent Misrepresentation: Matthews and Virginia Cook

Realtors




that Matthews: (1) provided Plaintiff with information in a transaction in

which she held a pecuniary interest; (2) the information supplied was false;

(3) Matthews failed to exercise reasonable care or competence in obtaining

or communicating the information; (4) the Plaintiff justifiably relied on the

information; and (5) the Plaintiff suffered damages caused by the false

information provided by Matthews.

Moreover, Matthews made the representations intentionally,

knowingly and with callous disregard for Plaintiff’s legitimate rights. Her

principal, Virginia Cook Realtors, ratified and/or approved these

representations, entitling Plaintiff to exemplary damages against both


Matthews and Virginia Cook Realtors.

G. Fraud: Matthews, Salazar and Virginia Cook Realtors




that Matthews (1) made material false misrepresentations; (2) knowingly or

with reckless disregard for their truth; (3) with the intent to induce the

Plaintiff to act on those representations; and (4) Plaintiff justifiably relied on

those representations, causing injury.

Defendants acts and omissions leading to Plaintiff’s damages, include:

(1) misrepresenting the Contract execution date and/or date of Seller’s

Contract execution; (2) repeatedly misrepresenting that Seller had grounds to

terminate the contract; (3) representing that Seller had power to unilaterally

terminate the Contract; (4) informing and taking advantage of Plaintiff’s

limited knowledge by informing Plaintiff that he it no legal rights under the

Contract; and (5) omitting that Seller had resold the Property to a third party.

As a proximate result of Matthews’ fraud, plaintiff sustained damages

including damages for lost profits, loss of goodwill, and loss of reputation.

Moreover, Matthews committed the above actions intentionally,

knowingly and with callous disregard to Plaintiff’s legitimate rights.


Alternatively, Plaintiff is entitled to exemplary damages on the grounds that

Matthews’ conduct constituted actual fraud. Her principal, Virginia Cook

Realty, ratified and/or approved these actions, entitling Plaintiff to

exemplary damages against both Matthews and Virginia Cook Realtors.

On information and belief, and in the alternative if necessary, Salazar

is also liable for Matthews’ actions because she benefited from the

fraudulent transaction and had knowledge of the fraudulent actions described

above.

F. Negligence Per Se: VC Defendants



Pleading further, and in the alternative if necessary, the VC

Defendants’ above described actions violated Tex. Occ. Code Ann. §

1101.652 (“Real Estate License Act” or “RELA”)) (b) (2), (5), (6), (15),

(21), and (27). Most glaringly, all VC Defendants violated Section (b)(21),

which disallows real estate brokers and agents from “induc[ing] or

attempt[ing] to induce a party to a contract of sale . . . to break the contract

for the purpose of substituting a new contract.”

RELA is intended to protect to protect the public and specifically

residential real estate purchasers from the types of actions taken by the VC


Defendants. Plaintiff, as a residential real estate purchaser, belongs to the

class of persons the RELA statute seeks to protect. VC Defendants’

violations of RELA constitute negligence per se, which proximately caused

Plaintiff’s injuries and damages, including damages for lost profits, loss of

goodwill, and loss of reputation.

Moreover, all individual VC Defendants made took the above

referenced actions intentionally, knowingly and with callous disregard for

Plaintiff’s legitimate rights. Their principal, Virginia Cook Realtors, ratified

and/or approved these actions, entitling Plaintiff to exemplary damages

against all the VC Defendants.

VI. ATTORNEY’S FEES

Plaintiff is entitled to recover reasonable and necessary attorneys’ fees

under the provisions of the Contract as set out in section 17, which provides:

The Buyer, Seller, Listing Broker, Other Broker, or escrow agent who prevails in any legal proceeding related to the contract is entitled to recover reasonable attorneys’ fees and all costs of such proceedings.

Moreover, Plaintiff is entitled to attorney’s fees pursuant to § 38.0001(8) of

the Texas Civil Practice and Remedies Code in regards to its breach of

contract claims against Salazar.

VII. REQUEST FOR DISCLOSURE

Under Texas Rule of Civil Procedure 194, Plaintiff requests that


Defendants disclose, within 50 days of the service of this request, the

information or material described in Rule 194.2.

VIII. REQUEST FOR JURY TRIAL

Plaintiff demands a jury trial and will tender the applicable jury fee

following the filing of this Petition.

IX. PRAYER

Plaintiff respectfully requests that the Court cite Defendants to appear

and award Plaintiff judgment against the Defendants for the following:

a) Specific Performance;

b) Monetary Relief of over $200,000, but no more than $1,000,000 for

the cumulative damages and other monetary relief provided for below;

c) Actual damages, including lost profits, damage to good will, costs of

delay in performance, and loss of business opportunity;

d) Exemplary damages not less than the maximum amount permitted by

applicable law based on the allegations state above;

e) Attorneys fees;

f) Pre-judgment interest at the maximum rate of interest permitted by

law;

g) Court costs; and

h) All other relief to which Plaintiff is entitled.


Respectfully submitted,

THE SIEGEL LAW GROUP

By: /s/ Jack L. Siegel Jack Siegel Texas Bar No. 24070621 [email protected] Kavish Wazirali Texas Bar No. 24088613 [email protected] 10440 N. Central Expy

Suite 1040 Dallas, Texas 75231

Tel. 214.706.0834 Fax. 469.339.0204 www.siegellawgroup.biz

ATTORNEYS FOR PLAINTIFF

Virginia Cook Lawsuit

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