MICHAEL V. PETRAS, Plaintiff, v. GARY MOLE; JULIE CANNON; CHARLES KAPLAN; KAPLAN & ASSOCTATES, LLP; JUSTIN KAPLAN; GLACIAL ENERGY HOLDINGS, INC.; GLACIAL ENERGY HOLDINGS I, LLC; GLACIAL ENERGY HOLDINGS II, LLC; GLACIAL ENERGY OF CALIFORNIA, INC.; GLACIAL ENERGY OF ILLINOIS, INC.; GLACIAL ENERGY OF MARYLAND, INC.; GLACIAL ENERGY OF MICHIGAN, INC.; GLACIAL ENERGY OF NEW ENGLAND, INC.; GLACIAL ENERGY OF NEW JERSEY, INC., GLACIAL ENERGY OF NEW YORK, INC, GLACIAL ENERGY OF OHIO, INC.; GLACIAL ENERGY OF PENNSYLVANIA, INC.; GLACIAL ENERGY OF TEXAS, INC; GLACIAL ENERGY OF WASHINGTON DC, INC, and GLACIAL ENERGY, INC., 298th dMiuiciaL pistRICT 0 ta een ea Le Ln LD DL Lt cD nh ean oe Defendants. DALLAS COUNTY, TEXAS PLAINTIFF’S ORIGINAL PETITION Plaintiff Michael V. Petras (“Petras”) files this Original Petition. This suit seeks damages, exemplary damages, attorneys’ fees and other relief this Court deems appropriate for defendants Kaplan & Associates, LLP and Charles Kaplan’s breach of fiduciary duty of an attomey, and defendants’ conspiracy and fraud against Plaintiff in connection with their formation and operation of Gary Mole’s alter egos — Glacial Energy business entities. I DISCOVERY, 1. Petras intends to conduct discovery under Level 3 of Texas Rule of Civil Procedure 190.3 because of the complex nature of the lawsuit, PLAINTIFE’S ORIGINAL PETITION - Page 1 of 18PARTIES 2. Michael V. Petras (“Petras” or “Plaintiff") is an individual residing in Santa Clara County, California. 3. Defendant Gary Mole (“Mole”) is an individual residing in Dallas, Texas, 4. Defendant Julie Cannon is an individual residing in Dallas, Texas. Defendant Mole and Julie Cannon are husband and wife, 5. Defendant KAPLAN & ASSOCIATES, LLP, a Texas limited liability partnership owned by Charles Kaplan. Its principal place of business is located in Dallas, Texas, 6. Defendant Charles Kaplan is an attorney admitted to practice in and an individual residing in the State of Texas. (Defendants KAPLAN & ASSOCIATES, LLP and Charles Kaplan are hereinafter collectively referred to as “Kaplan.”) 7. Defendant Justin Kaplan is Charles Kaplan’s son and an individual residing in the State of Texas. 8. Defendant GLACIAL ENERGY HOLDINGS, INC. is a Nevada corporation owned by Mole, who is also its sole director, president, treasurer and secretary. Its principal place of business and its registered agent for service of process are located in Dallas, Texas 9. Defendant GLACIAL ENERGY HOLDINGS I, LLC, is a Nevada limited liability company owned by Mole, who is also its managing member. Its principal place of business is located in Dallas, Texas. 10. Defendant GLACIAL ENERGY HOLDINGS II, LLC, is a Nevada limited liability company owned by Mole, who is also its managing member. Its principal place of business is located in Dallas, Texas, PLAINTIFF'S ORIGINAL PETITION ~ Page 2 of 18Vi Defendant GLACIAL ENERGY OF CALIFORNIA, INC., is Nevada corporation ‘owned by Mole, who is also its sole director, president, treasurer and secretary. Its principal place of business is located in Los Angeles, California. 12. Defendant GLACIAL ENERGY OF ILLINOIS, INC., is a Nevada corporation. owned by Mole, who is also its sole director, president, treasurer and secretary. Its principal place of business is located in Elmhurst, is. 13, Defendant GLACIAL ENERGY OF MARYLAND, INC., is a Nevada corporation owned by Mole, who is also its sole director, president, treasurer and secretary. Its principal place of business is located in Baltimore, Maryland. 14, Defendant GLACIAL ENERGY OF MICHIGAN, INC., is a Nevada corporation owned by Mole, who is also its sole director, president, treasurer and secretary. Its principal place of business is located in St. Clair Shores, Michigan. 15. ‘Defendant GLACIAL ENERGY OF NEW ENGLAND, INC., is a Nevada corporation owned by Mole, who is also its sole director, president, treasurer and secretary. 16. Defendant GLACIAL ENERGY OF NEW JERSEY, INC., is a Nevada corporation owned by Mole, who is also its sole director, president, treasurer and secretary. Its principal place of business is located in Lafayette, New Jersey. 17, Defendant GLACIAL ENERGY OF NEW YORK, INC,, is a Nevada corporation owned by Mole, who is also its sole director, president, treasurer and secretary. Its principal place of business is located in New York, New York. 18. Defendant GLACIAL ENERGY OF OHIO, INC., is a Nevada corporation owned by Mole, who is also its sole director, president, treasurer and secretary. Its principal place of business is located in Independence, Ohio, PLAINTIFF'S ORIGINAL PETITION ~ Page 3 of 1819, GLACIAL ENERGY OF PENNSYLVANIA, INC., is a Nevada corporation owned by Mole, who is also its sole ditector, president, treasurer and secretary. Its principal place of business is located in Newton, Pennsylvania, 20. Defendant GLACIAL ENERGY OF TEXAS, INC., is a Nevada corporation owned by Mole, who is also its sole director, president, treasurer and secretary. Its principal place of business is located in Dallas, Texas. 21. Defendant GLACIAL ENERGY OF WASHINGTON DC, INC. is a Nevada corporation owned by Mole, who is also its sole director, president, treasurer and secretary. Its principal place of business is located in Baltimore, Maryland, 22, Defendant GLACIAL ENERGY, INC, is a Nevada corporation owned by Mole, who is also its sole director, president, treasurer and secretary. Its principal place of business is located in Dallas, ‘exas. (Defendants identified and described in Paragraphs 8 through 22 are hereinafter collectively referred to as “Glacial Entities.” 23. Mole was and is the alter ego of each of the Glacial Entities in that Mole controlled, dominated, managed and used the Glacial Entities for his personal business. 24. Petras is informed and believes and thereupon alleges that all relevant times hereinafter mentioned, there existed and continues to exists such a unity of interest and. ownership that any individuality and separateness of each of the Glacial Entities and Mole must be disregarded. 25, Petras alleges that Mole and the Glacial Entities were and are identical entities with identical duties and obligations to Petras with respect to the acts and omissions hereinafter alleged, and that the recognition of the separate legal identity of Mole and the Glacial Entities would operate as a fraud and injustice upon Petras. PLAINTIFF'S ORIGINAL PETITION ~ Page 4 of 1826. Petras is informed and believes and thereon alleges that at all times herein mentioned each of the defendants was the agent and employee of the remaining defendants. 1m. JURISDICTION & VENUE 27. This Court has jurisdiction over this action because the amount in controversy exceeds the Court’s minimum jurisdictional requirements. 28. Venue for this case is proper in Dallas County, Texas, pursuant to Texas Civil Practice and Remedies Code § 15.002(a)(1), because all or a substantial part of the events or omissions giving rise to the claims occurred in Dallas County. IV. BACKGROUND FACTS 29. This case arises from a conspiracy of Charles Kaplan, an attorney licensed to practice in the state of Texas, his son Justin Kaplan, Gary Mole and his alter egos, Glacial Entities, and his wife, Julie Cannon, to defraud Michael Petras, consumers, and the Public Utilities Commissions of numerous states, including, without limitation, Texas, New York, California, Washington, Ohio, Ilinois and Connecticut 30. Petras first met Mole in approximately June of 2003. Mole at that time was the sole proprietor of Essential Utilities Corporation (“EUC”). Petras provided consulting services to BUC in order to help BUC select retail energy providers in deregulated markets in the United States. MOLE requested Petras to provide him access to his business contacts and promised to pay Petras a referral fee for each contract Petras brought to Mole. 31. Petras reviewed UC’s business model for Mole. Petras recommended to Mole that Petras and Mole establish an Retail Electric Provider (“REP”) in New York, Texas, California, New Jersey, Pennsylvania, Maryland and potentially more markets. Petras selected the name Franklin Power Company (“FPC”), reserved an internet domain name, wrote a draft business plan, designed, marketed and generally readied to start FPC. Initially, FPC equity was to be split equally between Petras and Mole, PLAINTIFF'S ORIGINAL PETITION ~ Page 5 of 18,32. Mole was to invest $10,000,000 and repeatedly assured orally and in writing Petras he was capable of doing so. Mole subsequently made numerous oral and written guarantees to FPC and FPC’s creditors, including a written guarantee in 2004 increasing his, investment commitment to $50,000,000. Kaplan reviewed some of the said written documents on Mole’s behalf. Kaplan would later say this it was “obvious” to him that Mole did not have the ability to fulfill the commitments he was making during that period of time. 33. During this time period, Petras introduced Mole to Petras's lawyer, Charles Kaplan, Mole subsequently retained Kaplan to resolve an unrelated legal matter and Kaplan began representing Mole and his business matters, including the formation and operation of each Glacial entity to present time. 34, In approximately August 2003, Petras concluded that FPC would need additional ‘management personnel to launch the business and thus commenced recruitment, Prior to the formation of business Petras recruited Roger McAulay (“MeAulay”) to be CEO of the company. McAulay was to receive an equity stake in the company. Mole again represented he would fund FPC personally with $10,000,000 and, based thereon, insisted that he receive a 60% share of the company. Petras and McAulay agreed to Mole’s proposed equity structure based on his financing commitments. 35. Petras worked quickly to ready FPC to enter initially in the New York and Texas electricity markets. McAulay supervised the incorporation of the company and retained Kaplan as an attomey for FPC’s affairs in Texas. On or about November 21, 2003, Franklin Power Corporation was incorporated in Delaware, and San Francisco, California was established as its headquarters. The company’s Texas operations were conducted through its wholly owned subsidiary Energy West Resources d/b/a Franklin Power Company, or FPC. 36. From the beginning of their business relationship, prior to the formation of FPC, Defendants, each of them, mali founded. wusly conspired to oust Petras from the company Petras had co- PLAINTIFF'S ORIGINAL PETITION ~ Page 6 of 1837. Following the launch of FPC, Petras and McAulay drafted a universal customer contract which could accommodate various pricing and payment models, could be modified slightly for each state and allowed energy brokers to sign up multiple meters of customers in one contract. The contract was innovative for several reasons, including the fact that previously all contracts approved for use in Texas required that each meter be under a separate contract. The form of the contract was an innovation of Petras and McAulay. 38. Further, Petras obtained from various sources, lists of brokers for the Texas market. Petras quickly established a network of brokers which would be crucial to FPC’s growth, 39. Petras assisted in developing a Market Clearing Price of Energy (MCPE) product and contract, which were also innovations in the market at that time... 40, Despite Petras’s diligent efforts to grow FPC and Mole’s repeated assurances that he would invest millions of dollars in FPC, Mole intentionally dragged his feet and delayed his promised investment in FPC. Mole’s delay was a part of his fraudulent scheme to cause FPC to fail and misappropriate the assets of Petras, FPC and other FPC employees for his own use. 41, Because Mole refused to fulfill his commitment to invest in FPC, FPC was starved for capital. Its day-to-day operations were significantly impaired and FPC was delayed in entering the New York electricity market while it sought alternatives to fund the company. Mole continued to fail to deliver the promised funds, thereby preventing FPC’s growth. 42. In addition, it became apparent that Mole was in the habit of drinking alcohol in excess on almost a daily basis, Mole’s erratic and offensive conduct surfaced at the EPC. workplace as well as off-site functions with FPC employees. Petras personally witnessed some of Mole’s behaviors, including arrests and fights related to his excessive drinking, Also worrisome was the fact that Mole made numerous and repeated racial slurs, some of which were made in front of FPC employees, several of whom were minorities. Mole’s conduct lowered the ‘morale at FPC and represented a huge risk for the company internally and externally. PLAINTIFF'S ORIGINAL PETITION - Page 7 of 1843. When Petras confronted Mole about his (i) refusal to fulfill his promise to invest in FPC, (i) drinking binges that were detrimentally affecting FPC, and (iii) using racial slurs in the presence of FPC employees negatively affecting employee morale, Mole insisted that Petras withdraw ftom FPC, Additionally, Mole threatened that he could and would grind FPC to a halt if Petras did not agree to sell his stake in FPC. 44, Defendants, through Kaplan, Mole and Glacial Entities, knowing that Mole intended to cause FPC to fail and had no intention of making the $10 million investment in FPC, furthered their conspiracy by inducing Petras to enter into a worthless Settlement Agreement with FPC in June of 2004. Kaplan insisted on brokering a settlement between Petras on one hand and Mole and FPC on the other while representing to Petras that he could help bring a fair settlement between them. Kaplan nevertheless inserted numerous terms in the separation agreement to benefit only Mole and FPC to Petras’s detriment. 45, In November of 2004, Mole executed a Guarantee Agreement under which he committed to providing $50,000,000 in credit facilities to FPC. ‘That Agreement was reviewed by Kaplan on Mole’s behalf. 46. Ultimately, pursuant to the June 2004 Settlement Agreement, Petras and EPC entered into a Stock Repurchase Agreement in January 2005 , which provided that FPC would buy back Petras’s shares for $2.2 million. Petras was induced to enter into the Stock Repurchase Agreement by Mole’s $50,000,000 credit guarantee, 47. Kaplan's representation of Petras, Mole and FPC in connection with the Settlement Agreement violated his duty of loyalty and fiduciary duty to Petras by withholding material facts from Petras, including, without limitation, the fact that Mole had hired Kaplan to incorporate new business entities, e.g., Glacial Energy Holdings, Inc. 48. Kaplan violated his duty of loyalty and fiduciary duty to Petras by concealing the fact that FPC’s failure was imminent and that Mole intended to misappropriate the assets of Petras, FPC and other FPC employees. PLAINTIFF'S ORIGINAL PETITION ~ Page 8 of 18,49. Kaplan violated his duty of loyalty and fiduciary duty to Petras by concealing the fact that Mole insisted that FPC be the obligated party in the Settlement Agreement because he knew that PPC would not have the assets to fulfill any promise it made to Petras for settlement payment, Kaplan further violated his duties to Petras by omitting Mole as a party to the Settlement Agreement. 50. Between April and May 2005, FPC was unable to meet its obligations to TXU Blectric Delivery Company due to Mole’s ongoing refusal to make the promised investment. Consequently, The Energy Reliability Council of Texas (ERCOT) forced the migration of FPC’s clients to other service providers, including the Provider of Last Resort, a back-up electric. service provider, on or about June 2005. Many of FPC’s clients were forced to enter into contracts up to three times FPC’s contracted market rates. As a result, the Texas Utilities Commission revoked FPC’s Retail Electric Provider certificate in or about July 2006. 51. In July 2005, Mole walked away from the operations of FPC, leaving to McAulay the responsibility of winding down FPC’s Texas operations, which McAulay did into 2006. During this period Mole stated to multiple parties that he was leaving the USA to return home because his wife, Defendant Julie Cannon, had a terminal brain tumor. 52. However, Mole did not leave the United States for any extended period and Defendant Julie Cannon is still alive and, in fact, was working for the Glacial Entities during that same period. Mole fabricated the story about his wife's imminent death and his departure from the United States to divert attention from Mole’s fraudulent creation of Glacial Entities and transfer of FPC’s assets to Glacial Entities. In fact, as FPC was failing in the Texas market, Mole and Kaplan were forming Glacial Energy Holdings, Ine, Glacial Energy of New Jersey, Glacial Energy of New York, and other Glacial Entities, 53. Unbeknownst to Petras and McAulay, Defendants, through Mole and Kaplan, were involved in a conspiracy to defraud the sharcholders, debtors of FPC, employees of FPC, and customers of FPC. Mole intended to destroy FPC so as to wipe out FPC’s obligations, including its Settlement Agreement with Petras. The other goal of Defendants, through Mole PLAINTIFF'S ORIGINAL PETITION ~ Page 9 of 18through Kaplan, was to gain access to the assets of Petras, FPC and other FPC employees with ‘no compensation whatsoever. 54, To perpetuate this scheme, Mole created several entities, including Glacial Energy Holdings, inc. and Glacial Energy, Inc., with Kaplan’s assistance from May 2005 through ‘November 2009. Mole is the sole shareholder, director, president, treasurer and secretary to Glacial Energy Holdings, Inc, and each one of the Glacial Entities. Mole acted in a secret conspiracy with Defendant Julie Cannon, Kaplan, and Justin Kaplan to transfer the business model, customer lists, broker lists, contracts and intellectual properties of FPC to Glacial Entities that Mole alone would own and control. 55. Defendant Julie Cannon became a sharcholder of and holds ownership interest in cach and every Glacial Entities as community property with Mole. Moreover, she began working for Glacial Energy of New York as its administrative officer ~ a role similar to a job she at one time held with FPC 56. Soon after FPC’s failure in the Texas market, Defendant Justin Kaplan was hired as a vice president of sales at Glacial Entities, the same title and position filled by Petras at FPC and a position that Kaplan had interviewed for and been rejected for by FPC. 57. Defendant Charles Kaplan and the remaining Defendants were complicit in Mole’s fraudulent acts to further their personal gains, for example, Mole’s hiring of Justin Kaplan to replace Petras, 58. Asan attomey for Petras, McAulay, Mole and FPC, Kaplan possessed confidential attorney-client information about each of them and used them to defraud Petras. Kaplan used that information to conspire with Mole to design and execute a fraud against Petras and FPC. Kaplan assisted Mole with formation and operation of each of the Glacial Entities as FPC was failing in the Texas market, Said acts and concealments occurred exactly in the same time period during which Mole claimed he was leaving the country to be with his terminally-ill wife. PLAINTIFF'S ORIGINAL PETITION ~ Page 10 of 1859. Mole and Kaplan misappropriated the assets of Petras, FPC and other FPC employees, including, without limitation, the unique contracts and broker lists developed in part by Petras. To this day, the contracts used by Glacial Entities in New York and Texas are 99%+ identical to those used by FPC in those same markets, including identical fonts and contract numbering systems. 60. Defendants, each of them, concealed their relationship to FPC to various Public Utility Commissions and to FPC brokers and agents, including, without limitation, perjuring themselves in sworn applications and documentation submitted to Public Utility Commissions. 61. Defendants, each of them, have materially benefited from Mole and Kaplan’s fraud and conspiracy. 62. Defendants, each of them, intentionally concealed true facts about FPC and Mole’s relationship to FPC to the Public Utility Commissions of Texas, New York, California, ‘Washington, Ohio, Illinois and Connecticut in their applications to become electric service company in those states between May 2005 to the present, 63. Defendants, each of them, purposefully concealed each of the material facts stated above from Petras. 64. Since 2007, Glacial Energy has been working with First National Bank of Central Texas and since 2009 with Centurion Credit Management LLC (‘“Lenders”). Given the extensive dealings and amount of money that the Lenders loaned Glacial and the close personal relationship of senior managers of Glacial and Lender officials, the Lenders knew or had reason to know about Mole’s involvement in FPC and the deficienci of the Public Utility Commission applications. Given the allegations made by the victims of the Scott Rothstein - Banyon Investments Ponzi Scheme against Centurion Credit Management LLC, Centurion Credit Management LLC’s possibly knew about Mole and Glacial Entites’ fraud and chose to look the other way. PLAINTIFF'S ORIGINAL PETITION - Page 11 of 1865. Glacial Entities, according to their website is now one of the fastest growing energy marketer in the United States. Based upon representations made by Glacial Entities’ largest creditor Centurion Capital, Glacial Entities have revenues in excess of $400 million, COUNT ONE PROFESSIONAL MALPRACTICE AGAINST KAPLAN 66. All of the allegations contained in the previous paragraphs are realleged herein, 67. Defendants Kaplan, as attomeys representing Petras, had a duty to act in accordance with the standards of care ordinarily provided by professionals providing legal representation, 68. Defendants Kaplan breached their duty of loyalty and fiduciary duty to Petras by (@ failing to disclose actual conflicts of interest, insisting on brokering a settlement between Petras, Mole and FPC, (i) failing to add Mole as a party to the Settlement Agreement, (ii) concealing material facts about FPC and Mole relevant to the Settlement Agreement, and (iv) ongoing concealment of the true facts pertaining to FPC, winding down of FPC, fraudulent transfer of FPC assets to Glacial Entities, and Glacial Entities relationship to Mole and FPC. 69. Asaresult of Defendants’ professional malpractice, Petras has suffered substantial damages. COUNT TWO NEGLIGENCE 70. All of the allegations contained in the previous paragraphs are realleged herein. 71. Kaplan, as attomeys representing Petras in the settlement negotiations with FPC and Mole, Kaplan owed Petras a duty to act in accordance with the standards of care ordinarily provided by professionals providing legal representation. 72, Defendants Kaplan breached their duty of loyalty and fiduciary duty to Petras by () failing to disclose actual conflicts of interest, insisting on brokering a settlement between Petras, Mole and FPC, (ii) failing to add Mole as a party to the Settlement Agreement, (iii) concealing material facts about FPC and Mole relevant to the Settlement Agreement, and (iv) PLAINTIEE’S ORIGINAL PETITION - Page 12 of 18‘ongoing concealment of the true facts pertaining to FPC, winding down of FPC, fraudulent transfer of FPC assets to Glacial Entit s, and Glacial Entities relationship to Mole and FPC. 73. Asaresult of Defendants Kaplan Firm and Kaplan’s actions, Petras has suffered substantial damages. COUNT THREE BI FIDUCIARY DUT Y 74. All of the allegations contained in the previous paragraphs are realleged herein. 75. Mole, as a Director of FPC and a majority shareholder of FPC, had a fiduciary uty to FPC and its shareholders, including Petras. Additionally, Mole was required to act with the highest good faith in connection with Mole’s dealings with FPC and its shareholders, including, without limitation, making good faith efforts to grow and continue FPC’s business rather than winding down FPC for Mole’s personal gain. 76. Kaplan, as FPC and Petras’s attorneys, had a fiduciary duty to act in the highest good faith towards FPC and Petras. 77. Mole and Kaplan breached their fiduciary duties to FPC and Petras, by, among others, fraudulently winding down FPC to transfer its assets to form Mole’s alter egos -- Glacial Entities, 78. As aresult of Defendants Mole, Kaplan Firm and Kaplan’s breach of their fiduciary duties, Petras has suffered substantial damages. COUNT FOUR FRAUD 79, All of the allegations contained in the previous paragraphs are realleged herein. 80. Mole and Kaplan made intentional misrepresentations to Petras about Mole, FPC, | and Settlement Agreement as though they were true. | 81. Mole and Kaplan knew the falsity of each of their misrepresentations when they ‘were made to Petras, or in the altemative, they made these representations without any regard for PLAINTIFF'S ORIGINAL PETITION - Page 13 of 18,their truth. Mole and Kaplan intended that Petras rely on their misrepresentations and/or omissions. The conduct of Mole and Kaplan was such as to rise to the level of fraud. 82, Petras did rely on the misrepresentations made by Mole and Kaplan and was damaged as a result. Had Petras known the truth about Mole and Kaplan’s true intent to dissolve FPC, wipe-out its obligations, and transfer FPC assets to form Glacial Entities, Petras would not have continued his attorney-client relationship with Kaplan, or enter into the Settlement Agreement recommended by Kaplan, 83. Defendants, and each of them, in furtherance of Mole and Kaplan's fraud, concealed true facts about Mole, FPC, and Glacial Entities from Petras. 84, Petras reasonably and justifiably relied upon Defendants’ representations, omissions, and concealment. 85. Petras has been damaged as a direct and proximate result of the foregoing fraud in an amount to be prove at trial. Additionally, these acts were committed willfully, wantonly, and accordingly Petras is entitle to recover punitive damages in an amount to be determined by a trier of fact. Petras secks recovery of those damages from Defendants jointly and severally, and from the Glacial Entities as Mole’s alter egos and having constructive trust of fraudulently transferred assets of FPC. COUNT FIVE MISREPRESENATION 86. All of the allegations contained in the previous paragraphs are realleged herein. 87. Mole and Kaplan represented to Petras that important facts about Mole and FPC ‘were true in connection with the Settlement Agreement. 88. Mole and Kaplan had no reasonable grounds for believing the representations ‘were true when made. PLAINTIFI’S ORIGINAL PETITION ~ Page 14 of 1889. Petras did rely on the representations made by Mole and Kaplan and was harmed as a result 90. Petras has been damaged as a direct and proximate result of the foregoing misrepresentations in an amount to be prove at trial. COUNT SIX CONSPIRACY 91. All of the allegations contained in the previous paragraphs are realleged herein 92. Defendants, and each of them, were aware that Mole planned to force Petras out of FPC and that Mole further intended to improperly appropriate FPC’s assets into another entity controlled only by Mole. 93. Kaplan agreed with Mole and assisted him in forcing Petras out of FPC, in winding down FPC and transferring its assets to Glacial, 94. Defendants, in particular, Julie Cannon and Justin Kaplan, agreed to act and in fact acted in concert with Mole and Kaplan in furtherance of their fraud perpetuated on Petras, FPC’s debtors and customers, and various Public Utility Commissions for their personal gain. 95. Petras was and continue'to be damaged as a direct and proximate result of the conspiracy between and among the Defendants, and seeks recovery of these damages from Defendants jointly and severally. | COUNT SEVEN UNJUST ENRICHMENT | 96. All ofthe allegations contained in the previous paragraphs are realleged herei 97. Asaresult of Defendants’ acts described above, Defendants have been enriched | at the expense of Petras, BLAINTIFE’S ORIGINAL PETITION ~ Page 15 of 1898. Asaresult of Defendants’ acts described above, Petras has been deprived of a valuable benefit. 99. Defendants can not establish any justification for their unjust enrichment at the expense of Petras, 100. Defendants’ acts described above have at all times relevant to this action been willful and/or knowing 101. _As’a direct and proximate result of the Defendants’ acts alleged above, Petras has no adequate legal remedy, has been irreparably injured, and has suffered monetary damages, 102. All of Defendants’ assets are subject to equitable remedy of disgorgement of their benefits, including ill-gotten gains, benefits, and profits that result from Defendants’ legal malpractice, breach of fiduciary duty, negligence, misrepresentation, fraud, conspiracy, and deceptive trade practices. Defendants should be ordered to disgorge all proceeds, profits, income and interest resulting from Glacial Entities. COUNT EIGHT INTENTIONAL INTERFERENCE WITH PROSPECTIVE CONTRACTUAL AND ECONOMIC ADVANTAGE 103. All of the allegations contained in the previous paragraphs are realleged herein. 104, Mole and Kaplan purposefully and wrongfully excluded Petras from participating in, and profiting from, the business model Petras developed and built. 10S. Mole’s and Kaplan’s actions described above have at all times relevant to this action been willful and/or knowing, 106. Asa direct and proximate result of Mole’s and Kaplan’s actions alleged above, Petras has no adequate legal remedy, has been irreparably injured, and has suffered monetary damages. PLAINTIFF'S ORIGINAL PETITION ~ Page 16 of 18COUNT NINE ALTER EGO 107. All of the allegations contained in the previous paragraphs are realleged herein. 108. Mole, individually is an alter ego of each of the Glacial Entities, and all protections afforded to a separate corporate entity should be denied. COUNT TEN FRAUDULENT CONCEALMENT. 109. All of the allegations contained in the previous paragraphs are realleged herein, 110. Defendants had actual knowledge of a wrong and concealed the wrong by making | ‘a misrepresentation or by remaining silent when they had a duty to speak. 111, Defendants had a fixed purpose to conceal the wrong. 112. Plaintiff reasonably relied on the misrepresentation or silence. ve DAMAGES 111, As aresult of Defendants? ac s and omissions described and alleged in this, Original petition, Petras has suffered monetary damages. 112. Plaintiffs further entitled to exemplary damages pursuant to Texas Civil Practice & Remedies Code § 41.003(a), as the harm with respect to which he seeks recovery results from the fraud, malice, and/or gross negligence of Defendants. Vi SURY DEMAND 113, Petras demands a jury trial and tenders the appropriate fee with this Petition, VIL. | PRAYER For the foregoing reasons, Petras requests that upon final trial and other disposition of this lawsuit, Petras recover judgment against Defendants jointly and severally for the following: PLAINTIFE’S ORIGINAL PETITION ~ Page 17 of 181, All damages requested; 2. Reasonable attorneys’ fees and costs; 3. Pre-judgment and post-judgment interest as provided by law: 4, Exemplary damages; and 5. Such other and further relief, at law or in equity, to which Petras is justly entitled. Respectfully submitted, MILLER, EGAN, MOLTER & NELSON LLP UZ Kerry C. Peterson Texas State Bar No. 24012195 kerry.peterson@milleregan.com Matthew D. Rinaldi Texas State Bar No. 24033122 matt.rinaldi@milleregan.com 4514 Cole Avenue, Suite 1250 Dallas, Texas 75205 Telephone: (214) 628-9500 Facsimile: (214) 628-9507 ATTORNEYS FOR PLAINTIFF PLAINTIFF'S ORIGINAL PETITION - Page 18 of 18