Amended complaint pursuant to the Daic et al stipulation. Kelly Stephens removed as a defendant and restraining order requests removed because Daic et al parties agreement to await resolution of the matters in State Court. Overall language has been changed somewhat also.
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Filed 10 April 5 P4:24 Loren Jackson - District Clerk Harris County ED101J015730977 By: Velina Brooks
CAUSE NO. 2010-02545
CALYPSO WIRELESS, INC. § IN THE DISTRICT COURT OF
§ Plaintiff § §
v. § HARRIS COUNTY TEXAS
§ DRAGO DAIC and § JIMMY WILLIAMSON, P.C. §
§ Defendants § 333RD JUDICIAL DISTRICT
PLAINTIFF’S FIRST AMENDED PETITION
Comes now Plaintiff Calypso Wireless, Inc. (?Calypso?), filing this First Amended Petition, and would show the Court the following:
I. Discovery Level
1. Calypso plans to conduct discovery under Level 2, as set out in Rule 190 of the Texas Rules of Civil Procedure.
II. Parties
Calypso is a Delaware corporation with its principal place of business in Montgomery County, Texas.
Defendant Drago Daic is an individual, who is a citizen of the State of Texas, residing in Harris County, Texas. Daic may be served at his principal place of business located at 14405 Walters Road, Suite 800, Houston, TX 77014.
Defendant Jimmy Williamson, P.C. is a professional corporation with its principal place of business at 4310 Yoakum Blvd., Houston, Texas 77006. Williamson may be served at this address.
III. Jurisdiction
5. This court has jurisdiction over the lawsuit because the amount in controversy
exceeds this court‘s minimum jurisdictional requirements.
IV. Facts
Calypso was founded in 1998, and has, from its inception, been a pioneer in the field of wireless communications. Calypso‘s ground-breaking innovations include the ASNAP technology for seamless roaming of voice, video, and data between Wide Area Network access points, such as cellular towers, and short-range Internet access points, such Wi-Fi routers. Calypso‘s ASNAP technology is protected by a portfolio of patents, which includes U.S. Patent No. 6,680,923 B1, entitled ?Communication System And Method? (?the =923 patent?).
Calypso is the owner of the Calypso IP, which comprises any and all patents and other intellectual property rights including and related to the ‘923 Patent, U.S. Pats. Nos. 6,385,306, 6,765,996, 6,839,412, and 7,031,439, PCT No. PCT/US01/07528, and U.S. Pat. App. No. 11/040,482, as set out in the 2008 Agreement, which is attached as Exhibit 1 (the ?2008 Agreement?) to this Petition, and incorporated herein by reference.
On January 20, 2004, the =923 Patent was duly and legally issued to inventor Robert Leon. Calypso is the owner by assignment of the =923 patent.
9. Defendants Drago Daic and Jimmy Williamson, P.C. are shareholders and
creditors of Calypso. Each is an owner by assignment of certain ownership rights in the =923
patent.
10. Calypso has, in the last couple of years, undergone significant changes in leadership, including the replacement of Calypso‘s president and CEO, and several members of Calypso‘s board of directors. Prior to April 2008, the company was run by an individual named
Carlos Mendoza. Mr. Mendoza is no longer with the company.
11. In 2002, the owner and principal of Calypso – Carlos Mendoza – allegedly entered into one or more agreements with Drago Daic, under which Mr. Daic would provide ?consulting? services in exchange for shares of Calypso stock. In 2004, Mr. Daic sued Calypso for non-delivery of the shares. Mr. Mendoza appeared in the suit, but did little more than that (Mr. Mendoza apparently explained that Daic had threatened him if he testified), and ultimately Mr. Daic and his attorney Jimmy Williamson were able to conduct a very brief trial without anyone from Calypso in the courtroom.
The trial lasted ?in the nature of an hour,? during which the only witnesses were Mr. Daic and Mr. Williamson. Although the ?consulting? that Mr. Daic performed never amounted to anything — the =923 Patent had already been applied for and Mr. Daic brought in no new investments — the trial court awarded damages in excess of $85 Million, plus attorney‘s fees of over $30 Million (reasoning, contrary to well-established precedent, that it should add a contingency award on top of the damages award). The damages award was based on a peak share price — on one day, two years before the suit was filed — of $6.05 (the stock actually closed at $4.70 that day). On the day the judgment was entered, the shares were actually only worth $.05, and the average share price for the entire period that Calypso has been a public company is only fifty-two cents ($.52).
In this way, Drago Daic and Jimmy Williamson secured well over $100 Million worth of leverage that they have used repeatedly in the intervening years to extract an ever-increasing number of shares and payments from Calypso. Under the threat of Daic‘s execution of the $100+ Million judgment, Calypso entered into the 2008 Agreement, pursuant to which, among other things, Daic and Williamson took a security interest in the =923 Patent in the form of a 25% ownership stake in the patent.
14. The 25% security interest granted in the 2008 Agreement covered two categories
of intellectual property: the ?ASNAP Patents? and the ?Baxter Patents.?
Drago Daic did not comply with his obligations under the 2008 Agreement. He made every effort, in violation of his obligations under the 2008 Agreement, to interfere with the day-to-day operations of Calypso, as well as various arrangements and agreements that Calypso attempted to enter into.
Daic further prevented Calypso from securing investments or licenses that would have enabled Calypso to obtain the funding necessary to pay him off, and vetoed any attempt by Calypso to issue the stock shares necessary to comply with the provisions in the 2008 Agreement
that required Calypso to deliver to him millions of new shares from among its ?authorized and unissued shares.? He accomplished this by, among other things, putting his wife, Kathy Daic, on the Calypso board of directors and threatening to use his (and Mr. Williamson‘s) substantial number of Calypso shares to veto any actions that Calypso might have taken at a shareholder meeting. Daic also insisted that Calypso sue T-Mobile, but then initially refused to join in as
plaintiff in the present suit for infringement of the =923 Patent. As part (25%) owner of the =923
Patent, Daic was a necessary party to the suit.
17. In early 2008, a group of Calypso shareholders bought out Mendoza. Mendoza is no longer associated with Calypso and has apparently returned to Latin America. All of
Calypso‘s previous officers and directors resigned, and Richard Pattin was named interim
President, CEO, and sole director. In April 2008, under new leadership, Calypso set about trying to clean up the mess created by Mendoza and Daic. (It was not until June 2009, however, after the return of Cristian Turrini and Dave William‘s appointment as President of the company, that Calypso was able to limit Daic‘s interference with the day-to-day affairs of the company.)
In the spring of 2009, Daic and Williamson complained that Calypso had breached the 2008 Agreement by, among other things, failing to consummate the deals or bring in investors – things he himself had prevented. Daic threatened to enforce his $100+ Million default judgment, to take the =923 Patent away from Calypso, along with the other patents in Calypso‘s ASNAP portfolio, and to refuse to cooperate in the suit against T-Mobile USA, Inc. for patent infringement.
Calypso seeks declaratory judgment, under Chapter 37 of the Texas Civil Practice and Remedies Code, that Calypso is the sole title holder of the Calypso IP
Calypso also seeks a preliminary and permanent injunction to prevent any further attempts by Daic and Stephens to exercise or act upon Daic‘s and Williamson‘s alleged rights with respect to or interests in the Calypso IP, and to prevent Daic from continuing to breach the terms of the 2008 Agreement.
Calypso also seeks damages and attorney‘s fees relating to Daic and Williamson‘s breaches of the 2008 Agreement.
Calypso also seeks damages for Daic and Williamson‘s tortuous interference with Calypso‘s business relationships and prospective contracts.
V. Request for Permanent Injunction
23. Calypso asks the court to set its application for permanent injunction for a full trial on the merits and, after the trial, issue a permanent injunction against defendant.
VI. Causes of Action
A. Declaratory Judgment as to Calypso’s Intellectual Property
Calypso repeats and re-alleges the allegations of paragraphs 1 through 23 above as if fully set forth herein.
Calypso seeks declaratory judgment, under Chapter 37 of the Texas Civil Practice and Remedies Code, that Calypso is the sole title holder of the Calypso IP.
As described above, an actual controversy exists as to Daic‘s and Williamson‘s, rights vis-à-vis the Calypso IP. This controversy is ripe for adjudication by this Court.
Because, as described above, Daic and Williamson breached the 2008 Agreement and are therefore not entitled to claim damages or relief for any alleged breaches thereof by Calypso, Daic and Williamson‘s claims to Calypso‘s intellectual property are baseless.
Unless and until enjoined by this Court, Daic and Williamson may continue to attempt to assert their alleged rights to the Calypso IP, causing Calypso irreparable harm.
Calypso is therefore entitled to a declaration that Calypso is the title holder of an undivided interest in the Calypso IP, and permanent injunctive relief to prevent Daic and Williamson from continuing to assert their alleged rights to the Calypso IP.
Calypso is also entitled to permanent injunctive relief against Daic and Williamson to prevent them from taking further steps to harm Calypso‘s rights and interests in the Calypso IP.
B. Breach of Contract of the 2008 Agreement
Calypso repeats and re-alleges the allegations of paragraphs 1 through 30 above as if fully set forth herein.
The 2008 Settlement Agreement constitutes a valid contract expressing the agreement of Daic and Calypso to be bound to perform under an agreement for consideration.
Daic and Williamson breached the terms of the 2008 Settlement Agreement by, among other things, interfering with and preventing Calypso from entering into arrangements
and agreements with other companies to exploit Calypso‘s intellectual property rights in the
ASNAP technology. Daic further breached the 2008 Agreement by refusing to take required steps or to cooperate with the prosecution of the T-Mobile Litigation.
Calypso suffered damages directly and proximately caused by Daic and Williamson‘s breach of the 2008 Settlement Agreement stemming from the cloud of title with respect to the Calypso IP, as well as other damages associated with Daic‘s breach.
Calypso has incurred significant attorney‘s fees in dealing with the consequences of Daic and Williamson‘s breaches, and in bringing these claims against Daic and Williamson.
Unless and until enjoined by this Court, Daic and Williamson will continue to breach the 2008 Agreement, causing Calypso irreparable harm.
37. Calypso is therefore entitled to damages and attorney‘s fees (under at least TEX.
CIV. PRAC. & REM. CODE § 38.001 et seq.) relating to Daic and Williamson‘s breach of the 2008 Agreement, as well as permanent injunctive relief to prevent Daic and Williamson from continuing to breach the 2008 Agreement.
C. Tortious Interference with Prospective Contracts
Calypso repeats and re-alleges the allegations of paragraphs 1 through 37 above as if fully set forth herein.
Daic and Williamson were strangers to third party negotiations between Calypso and other companies, including financial institutions and third-party companies such as Acacia Patent Acquisition Corporation (?APAC?). Daic and Williamson knew or learned that the formation of contracts with each of these entities was reasonably probable. Daic and Williamson
were also aware of Calypso‘s continuing business relationships with these entities.
Daic and Williamson intentionally interfered with these business relationships and incipient contracts, thereby preventing the continuation of such business relationships, the formation of such contracts, and proximately damaging Calypso.
Daic and Williamson‘s actions were tortious and illegal for a variety of reasons, including that they were fraudulent, deceptive, disparaging, and larcenous.
Calypso suffered damages as a result of Daic and Williamson‘s tortious interference.
43. Unless and until enjoined by this Court, Daic and Williamson will continue to
interfere tortiously with Calypso‘s business relationships, existing contracts, and prospective
contracts, causing Calypso irreparable harm.
44. Calypso is therefore entitled to damages relating to Daic and Williamson‘s tortious interference, as well as permanent injunctive relief to prevent Daic and Williamson from
continuing to interfere with Calypso‘s business relationships and prospective contracts.
VII. Conditions Precedent
45. All conditions precedent have been performed or have occurred.
VIII. Jury Demand
46. Calypso demands a trial by jury and tenders the appropriate fee with this petition.
IX. Attorney’s Fees
47. Calypso is entitled to an award of attorneys fees and costs under TEX. CIV. PRAC. & REM. CODE §§ 37.009 and 38.001 et. seq.
X. Request for Disclosure
48. Under Rule 194 of the Texas Rules of Civil Procedure, Calypso requests that defendant disclose, within 50 days of this service of this request, the information or material described in Rule 194.2.
XI. Prayer
49. Calypso respectfully prays for the following relief:
a. A declaration that Calypso is the title holder of an undivided interest in the Calypso IP;
b. Damages relating to Daic and Williamson‘s breach of the 2008 Agreement;
c. Damages relating to Daic and Williamson‘s tortious interference;
d. Permanent injunctive relief to prevent Daic and Williamson from continuing to breach the 2008 Agreement;
e. Permanent injunctive relief to prevent Daic and Williamson from continuing to assert their alleged rights to the Calypso IP;
f. Permanent injunctive relief against Daic and Williamson to prevent them from taking further steps to harm Calypso‘s rights and interests in the Calypso IP;
g. Permanent injunctive relief to prevent Daic and Williamson from continuing to interfere with Calypso‘s business relationships and prospective contracts;
h. Attorney‘s fees;
i. All costs of court; and
j. Any such other relief that this Court deems just and proper.
Dated: April 5, 2010
Respectfully submitted,
STORM LLP
/s/ Anthony Miller Paul V. Storm (lead counsel) paulstorm@stormllp.com State Bar No. 19325350 Anthony P. Miller amiller@stormllp.com State Bar No. 24041484 Michael Leach mleach@stormllp.com State Bar No. 24065598
901 Main Street, Suite 7100 Phone: 214-347-4700 Fax: 214-347-4799
-and
WYNNE & WYNNE LLP
David E. Wynne Texas Bar No. 24047150 711 Louisiana Street, Suite 2010 Pennzoil Place, South Tower Houston, Texas 77002 713-227-8835 (Telephone) 713-227-6205 (Facsimile) dwynne@wynne-law.com (e-mail)
CERTIFICATE OF SERVICE
I hereby certify that on April 5, 2010, I caused a true and correct copy of the foregoing to be served via facsimile on all counsel of record, pursuant to the Court‘s Local Rules.
Tim Johnson Matthews, Lawson, Johnson
& Payne, P.L.L.C. 2000 Bering Drive, Suite 700 Houston, Texas 77057
/s/ Anthony Miller Anthony Miller
