Complaint Review: Mac Haik Chevrolet - Houston Texas

 NO. CV51COO48680

JEFFREY M. BURNS JUSTICE OF THE PEACE

V.

PRECINCT NO. 5, PLACE 1

MAC HAIK CHEVROLET Ltd,

MAC HAIK CHEVROLET,

G.P. LLC., GM PROTECTION

PLAN, TONY MCPHAIL

a/k/a/ ANTHONY JOHN

MCPHAIL AND DAVID CRANTZ

a/k/a/ EVAN DAVID CRANTZ HARRIS COUNTY, TEXAS

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Jeffrey M. Burns, hereinafter called Plaintiff, complaining of and about Mac

Haik Chevrolet Ltd, Mac Haik Chevrolet G.P., LLC, GM Protection Plan, Tony McPhail a/k/a/

Anthony John Mcphail and David Crantz a/k/a/ Evan David Crantz, hereinafter called Defendants,

and for cause of action shows unto the Court the following:

DISCOVERY CONTROL PLAN LEVEL

1. Plaintiff intends that discovery be conducted under Discovery Level 2.

PARTIES AND SERVICE

2. Plaintiff, Jeffrey M. Burns, is an Individual whose address is 5915 W. 43rd ,Houston, Texas 77092.

3. Defendant Mac Haik Chevrolet Ltd., a limited partnership based in Texas, may be served with process pursuant to Section 17.022 of the Texas Civil Practice and Remedies Code by serving Bill Lawton, its registered agent, at 11757 Katy Freeway, Suite 1500, Houston, Texas. Service of said Defendant as described above can be effected by personal delivery.

4. Defendant Mac Haik Chevrolet, G.P. LLC, a general partnership and a limited liability company based in Texas, may be served with process pursuant to Section 17.022 of the Texas Civil Practice and Remedies Code by serving Bill Lawton, its registered agent, at 11757 Katy Freeway, Suite 1500, Houston, Texas. Service of said Defendant as described above can be effected by personal delivery.

5. Defendant GM Protection Plan is a foreign corporation . Said Defendant may be served with process pursuant to Section 17.022 of the Texas Civil Practice and Remedies Code by serving Scott Sheridan at 900 Arlington Heights. Road, Itasca, Ill 60143. Service of said Defendant as described above can be effected by certified mail return Receipt requested.

6. Defendant Tony McPhail a/k/a/ Anthony John McPhail, an individual, is a resident of the State of Texas. Said Defendant may be served with process at his place of employment at the following address: 11711 Katy Freeway, Houston, Texas. Service of said Defendant as described above can be effected by personal delivery.

7. Defendant David Crantz a/k/a/ Evan David Crantz, an individual, is a resident of the State of Texas. Said Defendant may be served with process at his place of employment at the following address: 11711 Katy Freeway, Houston, Texas. Service of said Defendant as described above can be effected by personal delivery.

JURISDICTION AND VENUE

8. The subject matter in controversy is within the jurisdictional limits of this court.

9. This court has personal jurisdiction herein because Defendants are Texas residents.

10. Venue in Harris County is proper in this cause pursuant to Section 17.56 of the Texas

Business and Commerce Code.

FACTS

11. On November 28, 2003, I spoke to Tony McPhail a/k/a/ Anthony John McPhail a service adviser for Mac Haik Chevrolet concerning my 2002 Chevrolet S-10 overheating. During

the first of many conversations I had with Tony, I requested a rental car while Mac Haik Chevrolet was repairing my truck. Tony stated that I did not meet the required two or more labor time guide hours. Tony also advised me to rent my vehicle across the street from Enterprise Rental Car because of a cheaper rate and because of availability . Later, on that afternoon Tony called me to say that they found the problem and it was the thermostat housing that was cracked. During this conversation Tony stated: Mac Haik Chevrolet does not have the part in stock and it would not be until Monday the 1st of December until Mac Haik Chevrolet could complete the repairs.

12. On December 1, 2003, Tony called me around 10:00 am and stated that my truck was ready to be picked up. At that time I asked Tony will Mac Haik Chevrolet pay for my rental car and Tony responded by saying no it did not meet the two hours or more by the labor time guide hours.

13. On December 1, 2003, around 11:00 am when I arrived at Mac Haik Chevrolet I spoke to a service advisor by the name of David Crantz a/k/a/ Evan David Crantz and he stated that Tony was at lunch and that he could help me. I again asked David Crantz a/k/a/ Evan David Crantz will Mac Haik Chevrolet pay for my rental car and David stated in front of Ms. Angel Randolph the cashier for Mac Haik Chevrolet that I again did not meet the two hour or more by the labor time guide. After which time I paid $123.01 to Mac Haik Chevrolet for a radiator flush and paid $196.58 to Enterprise for the rental car

14. On December 1, 2003, I requested a copy of my benefits under the General Motors Protection Plan, in a brochure provided by a gentleman in the financing department clearly states under the heading of Alternate Transportation: Major Guard will pay for the cost to rent a

replacement vehicle or for public transportation... whenever two or more labor time guide hours are required for the repair, or your vehicle is not drivable and must be kept overnight.

15. On December 1, 2003, after the above information was presented to Tony, he stated that this is what Mac Haik Chevrolet told us to do in this situation.

DECEPTIVE TRADE PRACTICES

16. Plaintiff would show that Defendants engaged in certain false, misleading and

deceptive acts, practices and/or omissions actionable under the Texas Deceptive Trade Practices -

Consumer Protection Act (Texas Business and Commerce Code, Chapter 17.41, et seq.), as alleged

hereinbelow.

(a) 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;

(b) disparaging the goods, services, or business of another by false or misleading

representation of facts;

(c) failing to disclose information concerning goods or services which was known

at the time of the transaction if such failure to disclose such information was intended

to induce the consumer into a transaction into which the consumer would not have

entered had the information been disclosed;

17. In the context of a seller and buyer, this principle requires that a seller be held

responsible for an affirmative representation that is the "producing cause" of damages to the party

purchasing the goods. Tex.Bus. & Com.Code Ann. 17.50(a); Weitzel v. Barnes, 691 S.W.2d 598,

600 (Tex.1985).

18. A seller is liable under the DTPA for affirmative misrepresentations, notwithstanding

the lack of notice or falsity. Henry S. Miller Co. v. Bynum, 797 S.W.2d 51, 55 (Tex.App.--Houston

[1st Dist.] 1990), aff'd, 836 S.W.2d 160 (Tex.1992)); see also Cameron v. Terrell & Garrett, Inc.,

599 S.W.2d 680, 682-83 (Tex.Civ.App.--Fort Worth 1980), rev'd, 618 S.W.2d 535 (Tex.1981)

19. Written Notice Given. Plaintiff has timely notified Defendants of such complaint

pursuant to by letter dated December 1, 2003, please find attached as exhibit A and incorporated

herein as if fully stated a signed return receipt (Green Card)from Mac Haik Chevrolet signed by S.

Silva on December 3, 2003 for the attention of Bill Lawton its registered agent by showing

compliance with all conditions precedent to the filing of this suit and recovery of additional damages

and attorney's fees.

COMMON LAW FRAUD

20. Plaintiff further shows that Defendants made material false representations to Plaintiff

with the knowledge of their falsity or with reckless disregard of the truth with the intention that such

representations be acted upon by Plaintiff, and that Plaintiff relied on these representations to his

detriment.

21. Plaintiff would further show that Defendants concealed or failed to disclose material

facts within the knowledge of Defendants, that Defendants knew that Plaintiff did not have

knowledge of the same and did not have equal opportunity to discover the truth, and that Defendants

intended to induce Plaintiff to enter into the transaction made the basis of this suit by such

concealment or failure to disclose.

22. When a seller makes an affirmative representation, the law imposes a duty to know

whether that statement is true. Id. (citing First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 76

(Tex.1993)).

23. As a proximate result of such fraud, Plaintiff sustained the damages described more

fully herein below.

NEGLIGENT HIRING, SUPERVISION, AND/OR MANAGEMENT

24. Plaintiff would show that Defendant Mac Haik Chevrolet Chevrolet owed a duty to

clients and customers, including Plaintiff, to exercise ordinary care in the hiring of competent

employees, and in the supervision and management of said Defendant's employees.

25. Mac Haik Chevrolet has a duty to be certain that its agent's or employee's affirmative

statements are true. Camden Mach. & Tool, Inc. v. Cascade, 870 S.W.2d 304, 311 (Tex.App.--Fort

Worth 1993, no writ).

26. Plaintiff would further show that Defendant Mac Haik Chevrolet failed to use

ordinary care in these respects, including but not limited to failing to properly investigate potential

job applicants, failing to properly supervise said Defendant's personnel, failing to implement

adequate safeguards to prevent the situation that resulted in Plaintiff's damages, and failing to

provide adequate oversight for such employees. These conditions created an environment in which

misrepresentations to clients and customers were likely and reasonably foreseeable to occur, and

which in fact did occur in the course of the transactions involving Plaintiff described herein above,

which proximately caused the damages sustained by Plaintiff herein, and for which Plaintiff hereby

sues.

BREACH OF FIDUCIARY DUTY

27. Defendants Tony McPhail and David Crantz breached their fiduciary duty to

Plaintiff. Tony McPhail and David Crantz (1). had a duty of absolute perfect candor, openness

and honesty, and the absence of any concealment or deception (2). a duty of full disclosure.

Defendant Mac Haik Chevrolet a supervisor for Tony McPhail and David Crantz are also liable

for knowingly aiding and assisting in its breach.

ECONOMIC AND ACTUAL DAMAGES

28. Plaintiff sustained the following economic and actual damages as a result of the

actions and/or omissions of Defendants described hereinabove:

(a) Out-of-pocket expenses, including but not limited to the cost of the Protection

Plan;

(b) The cost of the rental car;

(c) The expenses that were incurred as a consequence of the defendant's

misrepresentation;

(d) Loss of use;

(e) Interest and/or finance charges assessed against and paid by Plaintiff;

MULTIPLE DAMAGES

29. Plaintiff would show that the false, misleading and deceptive acts, practices

and/or omissions complained of herein were committed "knowingly" in that Defendants had

actual awareness of the falsity, deception, or unfairness of such acts, practices, and/or omissions.

30. Therefore, Plaintiff is entitled to recover multiple damages as provided by

17.50(b)(1) of the Texas Business and Commerce Code.

EXEMPLARY DAMAGES

31. Plaintiff would further show that the acts and omissions of Defendants

complained of herein were committed knowingly, willfully, intentionally, with actual awareness,

and with the specific and predetermined intention of enriching said Defendants at the expense of

Plaintiff. In order to punish said Defendants for such unconscionable overreaching and to deter

such actions and/or omissions in the future, Plaintiff also seeks recovery from Defendants for

exemplary damages as provided by Section 41.003(1) of the Texas Civil Practice and Remedies

Code.

ATTORNEY'S FEES

32. Request is made for all costs and reasonable and necessary attorney's fees incurred

by or on behalf of Plaintiff herein, including all fees necessary in the event of an appeal of this

cause to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and

just, as provided by: ; and, (a) common law.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff, Jeffrey M. Burns, respectfully

prays that the Defendants be cited to appear and answer herein, and that upon a final hearing of

the cause, judgment be entered for the Plaintiff against Defendants, jointly and severally, for the

economic and actual damages requested hereinabove in an amount in excess of the minimum

jurisdictional limits of the Court, together with prejudgment and postjudgment interest at the

maximum rate allowed by law, attorney's fees, costs of court, and such other and further relief to

which the Plaintiff may be entitled at law or in equity, whether pled or unpled.

Respectfully submitted,

Jeffrey

Houston, Texas
U.S.A.