Black Dragon's Answer to Law Suit. I can not find a date, put apparently it was filed after the Summary Judgment...
No. 2005-2020
DEFENDANTS JOE LANZA, MONTE ANDERSON, 007 TRUST, DAVID TAYLOR, AND MORGAN WILBUR, III’S AMENDED ANSWER TO PLAINTIFF’S FOURTH AMENDED PETITION, OPPOSITION TO REQUEST FOR DECLARATORY JUDGMENT, OPPOSITION TO PLAINTIFF’S REQUEST FOR INJUNCTIVE RELIEF, DEFENDANTS’ AFFIRMATIVE DEFENSES AND COUNTERCLAIMS, and JOINDER OF ADAM BARNETT AND ROBERT PETERSEN AS NECESSARY PARTIES DEFENDANT, AND JOHN AND JANE DOE DEFENDANTS 1-30, and OMDA OIL & GAS, INC. AS COUNTERCLAIM DEFENDANTS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW defendants Joe Lanza (“Lanza”), Monte Anderson (“Anderson”), David Taylor (“Taylor”), 007 Trust ("Trust"), and Morgan Wilbur, III (“Wilbur”) in the above-styled case (also referred to herein jointly as “defendants”), by substitute counsel Hartke & Hartke subject to the approval of Wayne Hartke, Esq.’s Motion for Entry of Appearance Pro Hac Vice, and through local counsel Edwin Nelson, Esq., submitting the following Amended Answer to plaintiff’s Fourth Amended Petition, defendants’ opposition to Request for Declaratory Judgment, Opposition to plaintiff’s Request for Injunctive Relief, and filing defendants’ affirmative defenses and counterclaims, as follows:
DEFENDANT LANZA, ANDERSON, TAYLOR, 007 TRUST,AND WILBUR’S
AMENDED ANSWER
Defendants/Counterclaim plaintiffs Lanza, Anderson, Talyor, 007 Trust, and Wilbur submit a general denial of the allegations of plaintiff's Fourth Amended Petition. Responses stated hereinafter by paragraph respond to the plaintiff's paragraph numbers..
References to “defendants” herein refer to defendants Lanza, Anderson, Taylor, 007 Trust, and Wilbur jointly and severally. References to “the Texas companies,” or the “three Texas companies” refer to OMDA Oil & Gas Management, Inc. (a Texas company), OMDA Oil & Gas Services, Inc. (a Texas company), and SHWJ Oil & Gas, Inc. (a Texas company), all being private, non-pubic companies. When responses refer to “defendants” and when an individual defendant of Lanza, Anderson, Taylor, 07 Trust, or Wilbur are not recited in the paragraph’s allegation, the reference to “defendants” shall be construed as to refer to such defendants as are required to respond to that specific paragraph.
With regard to paragraphs not referring to specific defendants filing this Amended Answer, Affirmative Defenses, and Counterclaims, such unnamed defendants submit a general denial.
References herein to “OMDA (Delaware)” refer to OMDA Oil & Gas, Inc. (a public Delaware corporation).
References to John and Jane Doe defendants are those individuals who received stock of OMDA Oil & Gas, Inc. from defendants Adam Barnett and/or Richard Petersen after September 9, 2003, and to be identified through discovery.
1. Discovery is currently being conducted under Level 2 of the Discovery Control Plan, pursuant to Rule 190 of the Texas Rules of Civil Procedure, however, based on the entry of new counsel for the above named defendants, defendants reserve the right to re-visit the determination that the Level 2 Discovery Control Plan is appropriate and to request further relief in that regard as discovery in this matter may require.
2. Defendant Lanza denies that the three Texas corporations formed were wholly owned subsidiaries of OMDA (Delaware). Defendants deny that plaintiff is entitled to possession of the stock and records of the Texas companies. Defendants deny that OMDA (Delaware) is entitled to temporary or permanent injunctions to prevent defendants from selling and/or encumbering the assets of its subsidiaries or from claiming authority to act for the subsidiaries.
3. Defendants admit that they paid consideration for Series D stock, and that this Court has ruled that the Series D stock was not validly issued. Defendants claim that either the defects in the Series D stock must be cured and then issued, or the defendants are entitled to the return of the consideration they paid for the Series D stock, now ruled invalid by this Court. At this time, with the ruling by this Court that the Series D stock is invalid, defendants deny that the Series D preferred shares has an impact on the marketability of OMDA’s common stock. Defendants deny that plaintiff is entitled to a declaratory judgment that all Series D shares are void ab initio.
4. Defendants deny that they have participated in the creation of two controversies, deny that they have breached their fiduciary duties to OMDA (Delaware), and deny that plaintiff is entitled to actual, special or punitive damages and deny that OMDA (Delaware) is entitled to disgorgement of profits or fees.
5. Defendants deny that OMDA (Delaware) has its principal place of business at 4550 Post Oak Place, Suite 175 in Houston, Harris County, Texas 77027. Defendants deny that OMDA Oil and Gas Management, Inc., a Texas company, and deny that OMDA Oil and Gas Services, Inc., a Texas corporation, have their principal place of business at 4550 Post Oak Place, Suite 175, Houston, Texas 77027. Defendants admit that SHWJ Oil and Gas Co., Inc. is a Texas company with its registered office in Tyler, Texas. Defendants further deny that the identification of the corporate entities are as defined in this paragraph.
6. Defendant Lanza denies that he was convicted of multiple federal crimes, but admits that he was convicted of one single count of tax evasion. Defendant Lanza moves to strike as irrelevant and prejudicial the allegation relating to his prior tax case and the terms of his sentence. Defendant Lanza admits that he executed a consent agreement in the U.S. District Court for the District of Columbia.
Defendant Lanza denies the allegations of paragraph 6 alleging a scheme, and denies that the Series D shares were void, with the Board of the company properly issuing the required Resolution authorizing such Series D shares. Defendant Lanza admits that he is a non-resident of Texas, and denies that there were any injuries to plaintiff in Texas.
7. Defendants are not required to respond to the allegations of paragraph 7 of the Fourth Amended Petition, with the exception of defendant Wilbur who admits his name was misspelled and is filing this Amended Answer herein.
8. Defendants are not required to file a response to the allegations of paragraph 8.
9. Defendant Anderson admits his residential address, denies that he was a co-conspirator or breached his fiduciary duties to OMDA (Delaware), and is filing his amended answer herewith.
10. Defendant Taylor admits his residential address, denies that he was a co-conspirator or breached his fiduciary duties to OMDA (Delaware), and is filing his amended answer herewith.
11. Defendants are not required to file a response to the allegations of paragraph 11.
12. Defendants admit the allegations of paragraph 12, but defendants deny the implication of said paragraph that the three Texas companies are part of OMDA (Delaware), and denies that interpleader Varnadore was an attorney for OMDA (Delaware).
13. Defendants are not required to file a response to the allegations of paragraph 13.
14. Defendants are not required to file a response to the allegations of paragraph 14.
15. Defendants deny the allegations of paragraph 15.
16. Defendants deny the allegations of paragraph 16.
17. Defendants deny the allegations of paragraph 17, with the exception of Wilbur who admits that he claims rights under an agreement with OMDA for shares of stock for which he paid valuable consideration, but denies that OMDA’s corporate offices are in Harris County, Texas.
18. Defendants deny the allegations of paragraph 18.
19. Defendants admit that the documents referred to in paragraph 19 were interplead into the registry of the Harris County, Texas court, but deny the allegations of this paragraph if the plaintiff is alleging that the Texas companies are OMDA (Delaware) companies.
20. Defendants admit the formation of a Trust, but deny that plaintiff paid any consideration related to benefits from said Trust, such beneficiary having failed to perform the condition precedent to be entitled to any beneficial interest, and further that the Trust was validly terminated, and therefore denies the allegations of paragraph 20.
21. Defendants deny that plaintiff OMDA (Delaware) is headquarted in Houston, Texas, and denies that OMDA (Delaware) has any subsidiaries. Defendant Lanza denies the allegations of paragraph 21. Defendant Lanza denies that he has a history of fraud.
22. Defendants deny the allegations of paragraph 22.
(ii). Defendants deny the allegations of paragraph (ii) and demand strict proof thereof.
23. Defendants admit the allegations of paragraph 23.
24. Defendants admit the allegations of paragraph 24, subject to the caveat that the instructions and discussions were received from the company and the members thereof.
25. Defendants admit the allegations of paragraph 25, but denies that the sole instructions came from defendant Lanza.
26. Defendants admit the allegations of paragraph 26, but denies that the sole instructions came from defendant Lanza.
27. Defendants admit the allegations of paragraph 27, but denies that the sole instructions came from defendant Lanza.
28. Defendants admit the allegations of paragraph 28, except defendant Taylor denies that he was a director of SHWJ.
29. Defendants deny that the three Texas companies were subsidiaries of OMDA (Delaware) and to the extent that paragraph 29 makes that allegation, defendants deny that allegation. Defendants understand that the Fourth Amended Petition is using a short hand reference as recited in the paragraph.
(iii). Defendants deny that OMDA has any Subsidiaries, and deny that any of the stock referred to or implied therein were ever vested in OMDA (Delaware).
30. Defendants deny the allegations of paragraph 31, and assert that the there is a factual dispute with regard to the issuance of the shares of stock and therefore denies the allegations of paragraph 30.
31. Defendants admit that Exhibit A speaks for itself, and defendants further assert that there was no consideration paid or given by OMDA (Delaware) for such Trust instrument.
32. Defendants admit that the Declaration of Trust speaks for itself.
33. Defendants admit the Declaration of Trust speaks for itself.
34. Defendants deny the allegations of paragraph 34. Plaintiff in this case alleges that defendant Taylor is not a director of OMDA (Delaware), although defendant Taylor has never been informed of the meeting of the Board at which he was allegedly removed.
35. Defendants admit documents that are filed with the state authorities provided they are properly authenticated.
36. Defendants admit the allegations of paragraph 36.
(iv). Defendants deny the allegations of paragraph (iv).
37. Defendants deny the allegations of paragraph 37.
38. Defendants are uncertain of the unidentified “unanimous Written Consent” referred to in this paragraph, and with the plaintiff reciting a scrivener’s error creating factual conclusions, defendants therefore deny these allegations.
39. Defendant admits the allegation of paragraph 39, however the statement made in the letter was based on the condition precedent of performance by Adam Barnett of infusing $350,000 into OMDA (Delaware) which never occurred, and therefore OMDA (Delaware) was not the parent company of OMDA Oil & Gas Management, Inc. (Texas), in part on a failure of consideration, and with additional defenses, all resulting in a denial of the allegations of this paragraph.
40. Defendant Lanza denies the allegation of paragraph 40.
41. Defendant Lanza admits that a Joinder document was signed, but that the referenced OMDA-Management, and OMDA-Services were Delaware companies, not the companies that were formed separately in Texas.
42. Defendants deny the allegations of paragraph 42.
43. Defendants deny the allegations of paragraph 43.
(v). Defendants deny the allegations of paragraph (v).
44. Defendants deny the allegations of paragraph 44, the defendants allege that Adam Barnett and Mark Barnes had no proper authority to act on behalf of OMDA (Delaware), there having been no proper notice of a meeting of the Board of Directors, nor a notice to the Shareholders of the meeting, nor a notice of a meeting to change control or of proxy statements, nor a statement of the purposes of such purported meeting, all rendering the purported September 9, 2003 meeting to be invalid as a Board of Directors’ meeting or a Shareholders’ meeting, all as governed by applicable laws of the State of Delaware. The defendants deny that the plaintiff was entitled to the documents from the three Texas companies.
45. Defendant Lanza denies the allegations of paragraph 45.
46. Defendant Lanza denies the allegations of paragraph 46.
47. Defendants Lanza and Taylor deny the allegations of paragraph 47, and reassert that the Texas companies were not subsidiaries of OMDA (Delaware).
48. Defendant Lanza denies that he was dodging OMDA’s (Delaware) demands for the turn over of records of the alleged OMDA (Delaware) Subsidiaries. The Texas companies were not subsidiaries of OMDA (Delaware), and therefore defendants deny the allegations of this paragraph. Defendant Lanza admits that documents relating to the Texas companies were delivered to Richard Michael.
49. Defendants admit that Mr. Varnadore signed the “Revocation of Trust," but denies that it was mistakenly signed as being an improper characterization of the circumstance, and therefore defendants deny the allegations of this paragraph as alleged.
50. Defendant Lanza denies the allegations of paragraph 50.
51. Defendants deny the allegations of paragraph 51, and further assert the failure of a condition precedent with regard to the Trust.
52. Defendants deny the allegations of paragraph 52, and deny the allegation that OMDA (Delaware) is entitled to documents from the three Texas companies.
(vi). Defendants deny that the Texas companies are subsidiaries of OMDA (Delaware), and therefore deny the allegations of this paragraph.
53. Defendant Lanza denies the allegations of paragraph 53 as alleged. While defendant Lanza admits OMDA Oil & Gas Management, Inc., the Texas company conveyed 50% of the working interests in the Concord Dome properties pursuant to agreements with Barnabas Capital Corporation, there were two separate conveyances, one of 38% of the working interests, and a second for 18% of the working interest with additional terms and conditions involved in the 18% of the working interest, and further asserts that the coneyance was not performed by OMDA Oil & Gas Management (Texas) as a subsidiary of OMDA (Delaware).
54. Defendant Lanza denies the allegations of paragraph 54.
55. Defendants deny the allegations of paragraph 55.
56. Defendants deny the allegations of paragraph 56.
(vii). Defendants deny the allegations of paragraph (vii).
57. Defendants deny the allegations of paragraph 57.
58. Defendants deny the allegations of paragraph 58, and states that there was no tax fraud engaged in by defendants or defendant Lanza.
59. Defendants admit that Indian Wells Investments was registered in the office of the Secretary of State of Texas having assumed the name in replacement of OMDA Oil and Gas Services, Inc., and further state that OMDA Oil and Gas Services, Inc. (a Texas company) had been dormant for approximately three years, and that OMDA (Delaware) paid no consideration for OMDA Oil and Gas Services, Inc. at any time, nor did OMDA (Delaware) pay any of the state fees or taxes at any time, and OMDA (Delaware) had and has no claim of any kind with regard to OMDA Oil and Gas Services, Inc. (a Texas company), now doing business as Indian Wells Investment Company (“IWIC”). Defendants deny the balance of the allegations of paragraph 59.
60. Defendants rely on the documents as they exist of record, but defendants dispute the validity of the ownership of shares being held as claimed by plaintiff. Defendants are without sufficient information to admit or deny the exact values on dates of stock, and therefore deny the allegations of this paragraph. Defendants deny the allegations of this paragraph.
61. Defendants are without sufficient information to admit or deny the specific dollar value alleged, and therefore deny those allegations, stating that they rely on official records for same. Further, defendants deny the allegations of attempted conversion of OMDA (Delaware) subsidiaries, since the three Texas companies were not subsidiaries of OMDA (Delaware).
62. Defendants deny the allegations of paragraph 62, and specifically deny the alleged attempted conversion and misappropriation of OMDA’s (Delaware) assets. Defendants deny any damage to OMDA (Delaware), and deny the dollar value of alleged damages.
63. Defendants deny the allegations of paragraph 63.
(viii). Defendants deny the allegations of paragraph (viii). Defendants further respond that counterclaim defendant Mr. Adam Barnett, who fraudulently claims to be the Director of OMDA (Delaware), had specifically received personal notice on June 17, 2003 of the Series D shares issued by OMDA (Delaware) authorized by Board Resolution and recited in the Audited Financial Statements of OMDA (Delaware) which were delivered personally to counterclaim defendant Adam Barnett on June 17, 2003, approximately three (3) months prior to his unilateral and illegal purported Board of Directors’ meeting by which counterclaim defendant Adam Barnett illegally and clandestinely claimed Chairmanship of OMDA (Delaware) without notice of the action to anyone but himself and his sole associate. Since the Series D shares were recited in the Audited Financial Statements of OMDA (Delaware) delivered to counterclaim defendant Adam Barnett, defendants assert that this allegation is a knowing and intentional misrepresentation to the Court, since he specifically knew of these Series D shares three months before he unilaterally and illegally claimed control over OMDA (Delaware) as its Chairman of the Board.
64. a., b., and c. Defendants admit that Series D stock was issued to several entities and individuals, but demand strict proof of when such shares of Series D stock were “submitted” to OMDA (Delaware) by the transfer agent, and the par value thereof. Defendants further assert that the subject Series D shares were validly issued by the company including appropriate Board Resolutions, and that valid consideration had been paid by the holders of such Series D securities when they were issued. Defendants further assert that it appears there was not a proper filing of the Series D shares with the State of Delaware, and that this Court has ruled that the shares are not valid at this time, but defendants make no assertion regarding whether there may be a “cure” to such deficiency, but contend that a “cure” may be available.
Defendants further assert that since the Series D share holders actually provided valuable and valid consideration for the Series D shares, the holders are either entitled to “cure” the technical defects with the State of Delaware to authorize the Series D shares as valid, or in the alternative, to return to the holders of the Series D shares the consideration paid to OMDA (Delaware) for those shares. Defendants assert that the holders of the Series D shares are a matter of record and defendants rely on those issued shares as authorized by the Board Resolutions.
65. Defendants demand strict proof of the actions taken by Mr. Wilbur and the specific certificates presented by him, and further deny that OMDA’s (Delaware) principal office is in Houston Texas. Defendant Wilbur admits that he holds Series D Stock and expected it to be valid, and demands strict proof of the date as alleged. All defendants deny that OMDA’s (Delaware) principal office is in Houston, Texas.
66. Defendants admit the allegations of paragraph 66.
67. Defendants and defendant Lanza specifically deny the allegations of paragraph 67, and move to strike the false and scandalous allegation that defendant Lanza is a “con man,” based on a “simple reading of the indictment,” particularly in light of the fact that all of the allegations of the Indictment in Indiana against defendant Lanza were dismissed, with the sole exception of the single tax violation. Further defendant Lanza asserts that the context of the reference to “a simple reading of the Indictment” is an intentional attempt to misrepresent to the Court that defendant Lanza was convicted of all of the allegations in the Indictment, when the fact is that 44 out of 45 Counts in that referenced Indictment were in fact DISMISSED.
68. Defendants admit that this Court has ruled that the Series D certificates had not completely complied with the proper technical documentation required by the State of Delaware, however defendants deny that the issuance of the shares of Series D certificates was void ab initio. The Board performed all acts necessary for the issuance of the Series D stock including passing the proper corporate resolutions, the stock was issued for actual consideration at the time of their issuance, and the failure of counsel for the company to provide the appropriate technical filings with the State of Delaware does not make the shares void ab initio. Further, if the Series D shares will never be issued to the holders thereof, then each holder of such Series D shares is entitled to a return from OMDA (Delaware) of the consideration paid by each Series D shareholder. On information and belief, defendants assert that the Series D shares’ deficiency may be “curable.” Defendants are entitled in the alternative either to the equity interest of the Series D shares, or the debt interest of the Convertible Promissory Notes.
69. Defendants deny the allegations of paragraph 69. Defendants further assert that the Corporate Resolutions authorizing the Series D issuance had been verified by Audited Financial Statements, and therefore the allegation that the corporate resolutions were “forgeries” is wholly baseless. Defendants will seek sanctions against plaintiff and his attorneys for this specious allegation. This allegation is defamatory per se in that it alleges a crime, and defendants (or the relevant defendants and parties) will assert such defamation based on this false allegation.
70. Defendants deny the allegations of paragraph 70. While counterclaim defendant Adam Barnett alleges the Series D shares were “void” despite the fact that he had personal knowledge of their issuance by OMDA (Delaware) three months before his unilateral and illegal naming himself as Chairman of the Board without any Notice of a Board of Directors hearing (and other legal deficiencies), the allegations of this paragraph are disingenuous, that is, he knows he is making up an argument out of thin air, having made no inquiry about the Audited confirmations that the Series D shares were issued for actual dollars expended, confirmable by bank and other records. The claim that the Series D shares were “bogus” is demonstrably false by the Audited Financial Statements provided to counterclaim defendant Adam Barnett three months before he engaged in his illegal naming of himself Chairman of the Board in a meeting without notice to anyone but himself and his associate.
The Series D shareholders are entitled to either their equity interest or their debt interest. To invalidate the Series D shares does not eliminate the debt incurred by all of those Series D shareholders, and that means that at worst, the debt converted for the equity would be re-instated and OMDA (Delaware) would then have the debt back on the company’s books.
(ix). Defendant Lanza denies the allegations of paragraph (ix). Defendants Anderson, Taylor, 007 Trust, and Wilbur are not required to respond to the allegations of this paragraph since no allegation is made against them.
71. Defendants deny the allegations of paragraph 71. Defendants deny that OMDA (Delaware) has subsidiaries consisting of the Texas companies as alleged.
(x). Defendants deny the allegation of paragraph (x).
72. Defendants deny the allegations of paragraph 72.
73. Defendants deny the allegations of paragraph 73.
74. Defendants deny the allegations of paragraph 74.
75. Defendants deny the allegations of paragraph 75.
76. Defendants Anderson and Taylor deny the allegations of paragraph 76, and deny the allegations of each subparagraph of this paragraph, a through e, inclusive.
Defendants Lanza and Wilbur deny the allegations of each sub-paragraph of paragraph 76 as it relates to each of them.
77. Defendants Anderson and Taylor deny the allegations of paragraph 77 and each of the subparagraphs thereof.
78. Defendants Anderson and Taylor deny the allegations of paragraph 78, including each subparagraph thereof.
Defendant Lanza denies the allegations of paragraph 78(b).
79. Defendants deny the allegations of paragraph 79.
80. Defendants deny the allegations of paragraph 80.
81. Defendants Anderson and Taylor deny the allegations of paragraph 81.
82. Defendants deny the allegations of paragraph 82.
83. Defendants Lanza and Anderson deny the allegations of paragraph 83. Defendants Trust, Taylor, and Wilbur are not required to respond to this paragraph as no allegation is made against them.
84. Defendants deny the allegations of paragraph 84.
85. Defendants deny the allegations of paragraph 85.
86. Defendants Anderson, Taylor, and Wilbur deny the allegations of paragraph 86.
Defendants Lanza and Trust are not required to respond to this allegation since no assertion is made concerning them.
87. Objection, the allegations of this paragraph are vague and without sufficient specificity to place defendants on adequate notice of the identification of the specific “personal property” alleged to have been stolen. Therefore defendants object to this allegation and state that unless there is greater specificity, defendants are unable to respond. Notwithstanding the foregoing objection, and without waiving same, defendants deny the allegations of paragraph 87. Further, defendants deny the balance of the allegations contained in this paragraph with regard to alleged consequential damages, asserting the vagueness and lack of specificity with regard to the damages as recited above regarding the underlying theft allegation.
88. Defendants Lanza, Trust, and Anderson deny the allegations of paragraph 88, deny that OMDA (Delaware) had wholly owned subsidiaries as alleged, deny that OMDA (Delaware) owns any of the leases owned by the three Texas companies, and deny receipt of stolen property, and deny that OMDA (Delaware) has suffered any damages.
Defendant Taylor recites that there is no allegation against him of participating in such stolen property.
89. Defendants deny the allegations of paragraph 89. Defendants Taylor and Wilbur deny the allegations of this paragraph, and further recite that since neither of them are alleged pursuant to paragraph 88 to have knowingly participated in the alleged acts of theft, defendants Taylor and Wilbur have no liability under Section 134.001 et seq. of the Texas Civil Practices and Remedies Code as alleged.
90. Defendants deny the allegations of paragraph 90.
91. Defendants deny the allegations of paragraph 91.
92. Defendants deny the allegations of paragraph 92.
93. Defendants object to and submit a general denial of this paragraph.
94. Defendants deny that plaintiff is entitled to the ownership or possession of the documents interplead as alleged in paragraph 94.
95. Defendants are without sufficient information to admit or deny, and therefore deny the allegations of paragraph 95.
96. Defendants are without sufficient information to admit or deny the allegations of paragraph 96, and therefore deny same. Defendant Lanza admits that he is one of the shareholders of OMDA Oil and Gas Management, Inc. (a Texas company).
97. Defendants are without sufficient information to admit or deny the allegations of Court as the Court records reflect, without admitting that the documents delivered constituted all of the records, since defendants have new, substituted counsel who has not had the time to review what was delivered.
98. Defendants are without sufficient information to admit or deny, and therefore deny, the allegations of paragraph 98.
99. Defendants are without sufficient information to admit or deny, and therefore deny, the allegations of paragraph 99.
100. Defendants object to the requests for relief recited in this paragraph, including each and every subparagraph thereof, a through k, inclusive.
101. Defendants rely on the court documents for the validity of the allegations of this paragraph.
102. Defendants deny that there is a genuine controversy, and affirmatively assert that plaintiff and counterclaim defendant Adam Barnett have absolutely no genuine claim of any kind as alleged, and deny all subparagraphs contained in this paragraph a through k, inclusive.
103. Defendants admit that the Series D shares are either subject to being “cured” of any technical filing deficiencies with the Secretary of State of Delaware so as to render the Series D certificates valid, or in the alternative to require of OMDA (Delaware) to return to the holders of the Series D certificates the consideration for which they were issued, resulting in debt to OMDA (Delaware) of the value of the Series D shares.
104. Defendants deny the allegations of paragraph 104.
105. Defendants deny the allegations of paragraph 105, and reserve the right to assert claims against the plaintiff’s attorneys for violations of the Rules of Court based on the issues raised supra., and reserving any such claims against the plaintiff’s attorneys for false allegations made in the Fourth Amended Petition and the false allegations made herein.
106. Defendants deny the allegations of paragraph 106.
Affirmative Defenses
Defendants assert the following affirmative defenses:
FIRST AFFIRMATIVE DEFENSE: FAILURE OF CONSIDERATION
1. There was no consideration provided by OMDA (Delaware) for any ownership interest in any of the three Texas companies.
2. There was no consideration paid to Mardyne, Inc. for the 200,000,000 shares of OMDA (Delaware) delivered to counterclaim defendant Adam Barnett.
SECOND AFFIRMATIVE DEFENSE: FAILURE TO CURE DEFECT OF SERIES D STOCK OR IN THE ALTERNATIVE RETURN CONSIDERATION PAID FOR
SERIES D STOCK
3. The Series D stock was issued for consideration with actual cash paid by Series D converted shareholders from their Convertible Promissory Notes, those Convertible Promissory Notes having been confirmed in Audited Financial Statements when the money was paid, and will be confirmed by actual cash deposits into bank accounts at the time those moneys were paid, and the consideration paid to OMDA (Delaware) by defendants and the other Series D shareholders has not been repaid, despite the ruling by this Court in a Summary Judgment Order that the Series D stock was not validly issued. Either the Series D stock invalidity must be cured, or in the alternative, defendants are entitled to the consideration they paid for the Series D stock. In the event the Court determines that the Series D shareholders are entitled to a return of the consideration they delivered to OMDA (Delaware) (e.g., the return of the Convertible Promissory Notes), defendants pray for an Order from the Court compelling OMDA (Delaware) to increase the number of authorized shares in OMDA (Delaware) to permit the issuance of the necessary number of shares needed to convert the Convertible Promissory Notes to stock in OMDA (Delaware) in accordance with the terms of the Convertible Promissory Notes. Public U.S. companies are required to do this: they must account for their equity and debt.
Either OMDA (Delaware) is obligated for equity or obligated for debt. Counterclaim defendant Adam Barnett cannot simply eliminate the corporate obligation. Either way, defendants are entitled to the avoidance of the plaintiff’s claim.
THIRD AFFIRMATIVE DEFENSE: ILLEGALITY OF CORPORATE ACTION
4. Improper and illegal corporate action in changing the Board members and Officers, and change of control. There was no Notice of a Meeting of the Board of Directors or of the Shareholders, nor were there proxies issued providing Notice of the September 9, 2003 purported action by OMDA (Delaware), at which Adam Barnett and Mark Barnes named themselves as the Directors and officers of the public Delaware company, OMDA.
FOURTH AFFIRMATIVE DEFENSE: ILLEGALITY OF PROCEDURES IN CONDUCTING CHANGE OF CONTROL OF CORPORATION
5. Adam Barnett and Mark Barnes failed to provide the required legal notice of a meeting of the Board of Directors to change control to Adam Barnett.
FIFTH AFFIRMATIVE DEFENSE: FAILURE OF CONSIDERATION
AND FRAUD IN SEIZING 200 MILLION SHARES OF STOCK
6. Adam Barnett took 200,000,000 shares of OMDA (Delaware) stock from Mardyne, Inc. (“Mardyne”) and never paid Mardyne any consideration for the delivery of those shares. Accordingly, Adam Barnett did not have the authority to vote those shares of OMDA (Delaware) even if there had been a properly noticed meeting. Fraud in voting shares illegally obtained or not paid for is fraud. There is no right to vote shares for which there has been no payment.
7. Further, those shares were delivered on the condition that Adam Barnett would raise $350,000 for OMDA (Delaware), which did not occur, so therefore there was a failure of consideration, and fraudulent inducement by counterclaim defendant Adam Barnett..
8. In either event, counterclaim defendant Barnett is obligated to provide consideration for his taking possession of, and voting (albeit illegal voting, since one cannot vote shares for which they have not paid) the 200,000,000 shares.
9. The illegal voting by counterclaim defendant Adam Barnett of the 200,000,000 Mardyne shares was essential for the “over 50% share ownership” claim by counterclaim defendant Adam Barnett to seize purported control over OMDA (Delaware). Without those shares, he had no such majority control.
10. Counterclaim defendant Adam Barnett relied on the 200,000,000 shares of stock he obtained from Mardyne, Inc. to claim over 50% stock ownership of OMDA (Delaware) on September 9, 2003.
11. Counterclaim defendant Mr. Adam Barnett did not have over 50% ownership of the shares of stock of OMDA (Delaware) on September 9, 2003.
SIXTH AFFIRMATIVE DEFENSE: ESTOPPEL
12. While Mr. Varnadore had already resigned as of December 18, 2002, there was no document of record presented to Richard Michael of the fact that Mr. Varnadore had executed the Revocation of the Trust instrument, and therefore, a signed document from Mr. Varnadore was necessary when Richard Michael took over the file and corrected the corporate documentation, improperly performed by Mr. Varnadore. Thus it was entirely proper to require the written resignation of Mr. Varnadore from the Trust Instrument. Plaintiff is estopped from asserting any misconduct based on the execution of the withdrawal from the Trust instrument.
13. There was no meeting of the Board of Directors of OMDA (Delaware) held for the approval of the acquisition of any of the three Texas companies as subsidiaries, nor was there any Board Resolution executed by OMDA (Delaware)’s directors approving any acquisition of the Texas companies as subsidiaries.
14. There are no records of any payment by OMDA (Delaware) of any money or the performance of any services by OMDA (Delaware) to acquire the Texas companies as subsidiaries. Therefore OMDA (Delaware) is estopped from asserting any claim that the Texas companies are subsidiaries of OMDA (Delaware).
SEVENTH AFFIRMATIVE DEFENSE: FRAUD
15 The plaintiff has falsely alleged that defendant Lanza is a “con man” based on a “simple reading of the Indictment” without reciting that all but one single Count of the Indictment (and that one Count was a tax form filing) were dismissed. Such allegation is scandalous, and improper, and constitutes a fraudulent misrepresentation to the Court. Moreover, the reference to reading the “simple language of the Indictment” either knowingly or in reckless disregard of the truth falsely alleged that all of the allegations of the Indictment were found to be true, when in fact, all but one failure to file tax return count were dismissed.
16. Counterclaim defendant Adam Barnett illegally and fraudulenttly claimed on September 9, 2003 that he was the Chairman of the Board of OMDA (Delaware), without the required legal notices to the directors or shareholders of the company, and in violation of the laws of the State of Delaware and the U.S. Securities and Exchange Commission, acted illegally and fraudulently in so doing.
17. Plaintiff OMDA (Delaware), on information and belief, is acting without authority to file this suit since it has not been legally authorized by the legal Directors of the company.
18. Counterclaim defendant Mr. Adam Barnett has committed fraud by the foregoing conduct.
19. OMDA (Delaware) is subject to an action of quo warranto based on the foregoing, and shareholders asserting such claim have a basis for such claim, as well as other shareholder claims contesting the illegal actions of counterclaim defendant Adam Barnett, and pursuant to the laws of the State of Delaware relating to such multiple claims.
EIGHTH AFFIRMATIVE DEFENSE: ESTOPPEL REGARDING EXCULPATORY CLAUSES OF THE AMENDED ARTICLES OF INCORPORATION
20. Defendants Anderson and Taylor are entitled to exculpatory clauses of Article VII of the Amended and Restated Articles of Incorporation of OMDA (Delaware).
NINTH AFFIRMATIVE DEFENSE: CONTRIBUTORY NEGLIGENCE
21. Plaintiff is guilty of contributory negligence, the details of which are to be more particularly detailed by evidence obtained through discovery, with the full expectation that this case will be conclusively resolved against plaintiff by Summary Judgment.
TENTH AFFIRMATIVE DEFENSE: STATUTE OF LIMITATIONS
22. Plaintiff’s claims are barred by the applicable Statute of Limitations.
ELEVENTH AFFIRMATIVE DEFENSE: FRAUD AND CONVERSION
23. Defendant OMDA (Delaware), counterclaim defendant Adam Barnett, and counterclaim defendant Mr. Robert Petersen, individually committed fraud by selling unregistered OMDA (Delaware) stock.
24. On information and belief, it appears that there was an approval of some sort for the increase in approximately 800,000,000 shares of stock that were issued, on information and belief, and that the shares of which were issued to the aforesaid individuals, without any known reasons for the issuance of said shares, without any known purpose, were issued to the “interested” Directors who voted in favor of the issuance of these new shares in a self-dealing manner without recusing themselves from the beneficial ownership of those shares, in breach of its fiduciary duties to OMDA (Delaware), and converting those shares to their own personal benefit, illegally.
25. The unilateral and illegal usurpation of OMDA (Delaware) by counterclaim defendants Mr. Adam Barnett and Mr. Richard Petersen, and the subsequent actions taken by them, specifically including the illegal September 9, 2003 purported “Board of Directors” meeting was illegal since none of the then-exisitng Directors were given notice of the purported Board meeting. The actions taken by counterclaim defendants, and plaintiff OMBD (Delaware) after are all invalid, constitutes a fraud, and a violation of the fiduciary duties of counterclaim defendants Mr. Adam Barnett and Mr. Richard Petersen.
TWELVETH AFFIRMATIVE DEFENSE: PAYMENT OF LEASEHOLD INTERESTS
26. Of all of the leasehold interests owned by the three Texas companies, all payments for all of the leasehold and ownership interests were paid by parties other than plaintiff OMDA (Delaware).
27. There has been no payment by plaintiff OMDA (Delaware) of any leasehold interest that is the subject of this litigation. All payments for leasehold interests of any kind, and ownership interests of any kind in the subject leases, all payments were made by other third parties, and none of those payments were made by plaintiff OMDA (Delaware).
THIRTEENTH AFFIRMATIVE DEFENSE: WAIVER
28. Plaintiff OMDA (Delaware), having been improperly taken over by the illegal acts of counterclaim defendants Barnett and Petersen, have waived all claims of interests in the subject leases by their failure to make any payment of any expenses, and having failed to participate in any function securing the leases.
29. Despite demand for payment of the agreement by counterclaim defendant Adam Barnett to infuse $350,000 into OMDA (Delaware) as consideration for his receipt of the 200,000,000 shares in OMDA (Delaware) from Mardyne, Inc., counterclaim defendant Adam Barnett and plaintiff OMDA (Delaware) have waived any right they may have claimed in any of the leasehold interests or ownership interests in such leases at issue.
30.. Upon the failure of counterclaim defendant Adam Barnett to pay the consideration of raising $350,000 for OMDA (Delaware) for business operations in consideration of the receipt of 200,000,000 shares from Mardyne, Inc., and having failed to provide any consideration of any kind to Mardyne for counterclaim defendant Adam Barnett for said shares, counterclaim defendant Adam Barnett has waived any claim he had for his ownership interest in the aforesaid 200,000,000 shares.
31. Counterclaim defendant Adam Barnett, by virtue of his failure of consideration as recited above, has waived any right he may claim he has to vote the aforesaid 200,000,000 shares. Accordingly, counterclaim defendant Barnett acted illegally in voting such unpaid for shares.
32. Based on the foregoing paragraphs, Adam Barnett has waived any claim he has to being a 50.1% owner of OMDA (Delaware), since without the aforesaid 200,000,000 shares of voting rights, counterclaim defendant Adam Barnett would not have been a majority owner of the shares of stock of OMDA (Delaware).
FOURTEENTH AFFIRMATIVE DEFENSE: LACHES
33. Plaintiff is barred by laches from asserting claims in this case when it has fully known all of the facts and circumstances from the beginning of the time that Adam Barnett first contacted management of plaintiff OMDA (Delaware) and prior to the time that counterclaim defendant took over control of plaintiff illegally. Counterclaim defendant Adam Barnett had specific knowledge of the Series D shares and the total amounts, having received the Audited Financial Statements of OMDA (Delaware) on June 17, 2003, about three (3) months before he unilaterally and illegally named himself Chairman of the Board of OMDA (Delaware) without notice to anyone else.
34. Despite such personal knowledge, plaintiff took no action until 2005, well after September 9, 2003 when counterclaim defendant Adam Barnett had been able to illegally secure and sell stock of plaintiff, and sell his stock based on his illegal takeover of OMDA (Delaware) for his own personal benefit.
FIFTEENTH AFFIRMATIVE DEFENSE: ASSUMPTION OF THE RISK
36. Defendants assert assumption of the risk as an affirmative defense.
37. The company, OMDA (Delaware) is acting at the sole direction of the illegal director, counterclaim defendant adam Barnett. Therefore, any conduct by OMDA (Delaware) at this time is attributable to counterclaim defendant Adam Barnett.
38. Counterclaim defendant Adam Barnett personally received the OMDA (Delaware) Audited Financial Statement on or about June 17, 2003.
39. The Audited Financial Statement delivered to counterclaim defendant Adam Barnett confirmed that the Series D shares had been issued, and were binding obligations on the company. Either the Series D shares (equity) or the Convertible Promissory Notes (debt) constituted a financial claim by the shareholders, or the debt holders, one way or the other.
40. Having had specific and detailed knowledge of the Series D shares of stock as recited in the Audited Financial Statements, counterclaim defendant Adam Barnett was fully aware of the Series D shareholder’s claims against OMDA (Delaware) approximately three (3) months before counterclaim defendant Mr. Adam Barnett unilaterally and illegally assumed the role of “Chairman of the Board of Directors” and illegally removing the validly existing members of the Board of Directors.
41. Having had prior knowledge of the existence, and the specific lists of the Series D shareholders and the amounts of their shares in the Series D issuance, counterclaim defendant Adam Barnett approximately three (3) months before he illegally took over OMDA (Delaware), he has assumed the risk of any loss he may now claim to suffer.
DEFENDANTS’ COUNTERCLAIMS
COMES NOW defendant/counterclaim plaintiffs Joseph Lanza (“Lanza”), Monte Anderson (“Anderson”), David Taylor (“Taylor”), 007 Trust ("Trust"), and Morgan Wilbur, III (“Wilbur”), also jointly and severally referred to herein as “counterclaim plaintiffs,” asserting the following counterclaims against counterclaim defendants OMDA Oil & Gas, Inc., a Delaware corporation (referred to herein as “OMDA (Delaware)”), Adam Barnett, individually (“Adam Barnett,” or “Barnett”), Richard Petersen (“Petersen”) (referred to herein as “counterclaim defendants”), and John and Jane Does 1 through 30, whose specific identity will be determined through discovery, and the allegations made herein to apply to them as discovery will reveal, particularly from the documentation of the Stock Transfer Agent’s records reciting all of the stock transfers from counterclaim defendants Adam Barnett and Richard Petersen.
Pursuant to the Rules of Court, counterclaim defendants demand specific responses to each of the following itemized counterclaim allegations, as recited by paragraph number.
Preliminary: Counterclaim plaintiffs incorporate all of the substantive issues recited in their Answers and Affirmative Denses addessing each issue as aforesaid as if there are fully recited herein as assertive Counterclaims. Counterclaim plaintiffs allege, in addition to the foregoing, as follows:
1. There was no Notice of a meeting of the Board of Directors provided to any of the then-existing members of the Board of Directors for any purported “Board meeting” or other corporate meeting of any nature, to be held on September 9, 2003.
2. There was no Notice to the shareholders of OMDA (Delaware) of any meeting of any kind to be held on September 9, 2003.
3. There were no proxy notices submitted to the then existing shareholders prior to the September 9, 2003 purported “Board of Directors” or otherwise described meeting of OMDA (Delaware).
4. No specific director holding his title as director of OMDA (Delaware) was given any Notice or information of any kind that there was to be a “director’s meeting of OMDA (Delaware)” on September 9, 2003.
5. No specific shareholder of OMDA (Delaware) was given any Notice of any purported “Meeting” of OMDA (Delaware), whether denominated as a Director’s meeting, Shareholder’s meeting, or any other meeting of any kind.
6. On or about September 9, 2003, counterclaim defendant Adam Barnett and Mr. Mark Barnes met together without any other OMDA (Delaware) Director or Shareholder, and unilaterally named counterclaim defendant Adam Barnett as the Chairman of the Board of OMDA (Delaware), and unilaterally removing all other previous Members of the Board of Directors.
7. On or about September 9, 2003, counterclaim defendant Adam Barnett claimed he held the voting rights of 200,000,000 shares of common stock which he had acquired from the interests in stock in the company held by Mardyne, Inc.
8. Counterclaim defendant Adam Barnett relied on the aforesaid 200,000,000 shares of stock as alleged in paragraph 7 to establish his claim that he held over 50% of the stock of OMDA (Delaware).
9. Without the aforesaid 200 million shares of Mardyne stock, counterclaim defendant would not have owned over 50% of the stock of OMDA (Delaware).
10. Counterclaim defendant Adam Barnett provided no cash nor any other financial payment to Mardyne, Inc. for its shares of stock.
11. To the date of this filing, counterclaim defendant Adam Barnett has never paid anything to Mardyne, Inc. for the 200,000,000 shares he received from them, nor from any entity derivatively related to the source of the aforesaid 200 million shares of stock.
12. The 200 million shares were delivered to counterdefendant Adam Barnett on his representation that he would raise $350,000 for OMDA (Delaware) to fund oil drilling activities.
13. Counterclaim defendant Adam Barnett, nor anyone affiliated with him, ever raised the $350,000 which was a condition precedent of the agreement, to wit: Barnett provided no money at all, in violation of his agreement to do so upon his receipt of the 200 million shares of OMDA (Delaware) stock.
14. In contrast to counterclaim defendant Adam Barnett’s failure to perform, he actually received the 200,000,000 shares of OMDA stock.
15. Mardyne, Inc. has received nothing from counterclaim defendant Adam Barnett, nor from OMDA (Delaware), despite having delivered 200,000,000 shares of its stock in OMDA (Delaware).
16. Mardyne, Inc. has been cheated out of its asset.
17. Counterclaim defendant Adam Barnett has not “paid for” the 200,000,000 shares of OMDA (Delaware) stock he acquired.
18. No one can vote, a stockholder’s shares of stock that he has not paid for.
19. Counterclaim defendant Adam Barnett did not pay for the 200,000,000 shares of stock he secured through Mardyne, Inc.
20. Counterclaim plaintiffs allege that no action taken by OMDA (Delaware) after September 9, 2003 taken by counterclaim defendants Barnett and Petersen are legally valid, since the basis for their claim of legal authority to act is void.
21. All actions taken by OMDA (Delaware) by the illegally constituted Board based on the September 9, 2003 un-noticed meeting are illegal and void.
22. On information and belief, and subject to the production of the stock transfer agent’s record production, counterclaim defendant Adam Barnett has sold stock held initially in his name to other parties since September 9, 2003.
23. The filing of this lawsuit under the authority of the illegally constituted Board of Directors of OMDA (Delaware) pursuant to the illegally noticed Board of Directors meeting, and subsequent conduct by those illegally named Board of Directors members, was not legally authorized.
24. On information and belief, there was no corporate action taken by the Board of Directors of OMDA (Delaware) to authorize the filing of this instant law suit.
25. . Once the September 9, 2003 illegal and non-noticed Board of Directors meeting is confirmed to be invalid, all conduct after that time must be reversed, and the parties restored to the status quo as it existed on September 8, 2003. The legal result is that the Directors on September 8, 2003 are the proper authority governing the conduct of OMDA (Delaware).
26. Counterclaim plaintiffs allege that Adam Barnett and Richard Petersen are necessary parties for the just adjudication of the claims in this matter, and move to add them as a parties defendant pursuant to the Texas Rules of Civil Procedure. The basis for such claims are contained in these counterclaims and in the defenses asserted in the answer and affirmative defenses as stated aforesaid, and hereafter as additional claims of misconduct are revealed, particularly with regard to sales of stock at high values after having acquired such stock at low values, incorporated by reference herein. It is asserted that counterclaim defendants engaged in a "pump and dump" illegal scheme.
27. On information and belief, counterclaim defendant Adam Barnett directed the issuance of news releases falsely stating, inter alia, that the Texas companies' wells were producing oil revenue up to $400,000 per month, at times when in fact the oil revenues were only about $20,000 per month. These false press reports constitute fraud, and that no defendant named herein had any role or participation in such false and misleading press releases.
28. Defendants/counterclaim plaintiffs allege and assert claims against John and Jane Doe counterclaim defendants 1-30 whose identities are to be determined by discovery in this case, those John and Jane Doe defendants being those who improperly received stock from counterclaim defendant Adam Barnett when he was a purported “control person” allegedly by him, claiming to own more than 50.1% of the stock of OMDA (Delaware), and yet then received stock from him from the sale of his personal stock which was improper, as discovery in this case may reveal, on information and belief, and subject to proof upon receiving the stock transfer records from the stock transfer agent of plaintiff OMDA (Delaware), Signature Stock Transfer Company.
29. Counterclaim plaintiffs provided legal consideration to OMDA (Delaware) for debts due to them, and in return were to be issued valid Series D shares of stock. Due to the finding at this time that such Series D stock was not properly registered with the State of Delaware, counterclaim plaintiffs assert that they are either entitled to a perfection of the validity of the Series D stock, or for the return of the collateral that the Series D shareholders delivered to OMDA (Delaware) as the consideration for the Series D shares.
30. In the event that the Court determines that OMDA (Delaware) must return the “Convertible Promissory Notes” to the now-invalid “Series D” shareholders, counter-plaintiffs pray for specific performance of their legally binding “Convertible Promissory Notes” that provide for the conversion of the debt (Convertible Promissory Notes) to equity (shares of stock pursuant to the clear language of the Promissory Notes) into shares of stock in OMDA (Delaware).
31. At the current time, if the existing Series D shares were to have their “consideration” of their Convertible Promissory Notes converted or legally honored, OMDA (Delaware) would not have sufficient numbers of shares of stock to meet the terms of the OMDA (Delaware) corporate legal obligations to deliver the necessary number of shares under the terms of the Convertible Promissory Notes.
32. All public companies are required to account for outstanding debt or equity.
33. OMDA (Delaware) must account for either the Series D equity or the underlying convertible promissory notes (debt) against OMDA (Delaware).
34. OMDA (Delaware) had only debt and lawsuits against it prior to January 1, 2003; it held no positive net worth financial position.
35. OMDA (Delaware) provided no cash, promissory note, or other payment of any kind to acquire any oil wells in Louisiana or Texas.
36. OMDA (Delaware) had no positive financial value unless it resolved its debts and lawsuits as existed on August 1, 2003.
37. Since September 9, 2003, OMDA (Delaware) has not paid any money for any of the leasehold interests previously owned by the three private Texas companies, now owned by purchase, as a bona fide purchaser for value, by Black Dragon Resource Companies, Inc.
38. OMDA (Delaware) has no documentary evidence of any payment of any kind related to the oil leasehold or ownership interests at issue in this case
39. Counterclaim defendant Adam Barnett has no check or other proof that he has ever paid anything for the subject oil and gas leases which he now claims to belong to OMDA (Delaware).
40. Counterclaim defendant Adam Barnett has engaged in a fraudulent business enterprise.
WHEREFORE, counterclaim plaintiffs, Mr. Morgan Wilbur, III, David Taylor, 007 Trust, Monte Anderson, and Joseph Lanza, jointly and severally pray for relief as follows:
1. For an Order that the September 9, 2003 purported “Meeting,” whether described as a “Board Meeting,” or a “shareholder’s meeting” be determined to be invalid for lack of duly required notice; and
2. For an Order ratifying that all actions taken by the illegal purported “Board Meeting” of the company after September 9, 2003 are invalid and must be reversed; and
3. That the Series D shareholders are entitled to their equity interest or debt interest compensation for the money or consideration they paid, as ratified by the accountant’s Audited Financial Statements, and
4. To enforce specific performance of the contractual agreements by issuing an order mandating OMDA (Delaware) to increase its authorized number of shares to be able to meet the legally required obligations of the company (OMBA (Delaware)) to fully satisfy the company’s obligations to the holders of the Convertible Promissory Note holders, and
5. In the alternative, counter-plaintiffs pray for an Order compelling OMDA (Delaware) to “cure” the technical filing defect with the State of Delaware so as to validate the Series D shareholder’s interests, and.
6. An Order finding Fraud by OMDA (Delaware), and counterclaim defendants Adam Barnett and Richard Petersen in alleging that they have any ownership rights in the three Texas companies, OMDA Oil and Gas Management, Inc., OMDA Oil and Gas Services, Inc., and SHWJ Oil & Gas Co., Inc., (all private Texas companies, and all privately funded), and
7. The Article 7.3 provision of OMDA’s Amended and Restated Certificate of Incorporation provide for exculpation of the defendant former directors, and
8. An Order reciting that OMDA (Delaware) provided no consideration of any kind for the payment of anything relating to the 3 Texas companies, and those 3 Texas companies are not subsidiaries of OMDA (Delaware), and
9. An Order that counterclaim defendant Adam Barnett did not pay consideration for the delivery of 200 million shares of OMDA (Delaware) stock received from Mardyne, Inc., and requiring the return of those shares to Mardyne, Inc., and
10. For an award of damages to counterplaintiffs in amounts as are established at trial, together with costs and attorney's fees, and
11. An Order finding that counterclaim defendant Adam Barnett’s conduct is shocking to the Court, justifying punitive damages, and.
12. An Order ruling that attorneys for OMDA (Delaware) filed claims in knowing disregard of the truth or having failed to adequately inquire into matters the attorneys alleged as facts in the Fourth Amended Petition, and awarding damages against said attorneys, and.
13. An award of damages against John and Jane Doe counterdefendants as the evidence reveals, and
14. An award of damages against OMDA (Delaware) and counterclaim defendant Adam Barnett for the false and defamatory statement that Lanza has a history of fraud, and
Such further relief as the Court deems appropriate in the premises.
Respectfully submitted,
JOSEPH LANZA, MONTE ANDERSON, AND
DAVID TALOR, 007 TRUST, AND MORGAN
WILBUR, III, DEFENDANTS BY COUNSEL
___________________________
Mr. Wayne Hartke, VSB #19941
HARTKE & HARTKE
Foreign counsel for defendants,
Subject to approval of Motion for
Entry of Appearance Pro Hac Vice
7637 Leesburg Pike
Falls Church, VA 22043
Telephone: 703-734-2810
Fax: 703-790-5435
Email: Hartkelaw@earthlink.net
__________________________
Mr. Edwin K. Nelson, IV
State Bar No 14890600
Local counsel for defendants
3814 Sun Valley Drive
Houston, Texas 77025
Telephone: 713-668-5100
Facsimile: 713-668-5110
Certificate of Service
I hereby certify that on this ___ day of June, a copy of the foregoing was mailed by first class mail, postage prepaid, to counsel for plaintiff, Rodney Drinnon, ZIMMERMAN, AXELRAD, MEYER, STERN & WISE, P.C., 3040 Post Oak Blvd., Suite 1300, Houston, TX 77056.
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