Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 03-15-2016

Case Style: Cesar A. Castro v. Mark E. Devos, Astrid Devis and Deck and Fence Pros of Oklahoma City

Case Number: CJ-2011-560

Judge: Ruger H. Stuart

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Don Nevard, Darren Derryberry and Rachel Shephard

Defendant's Attorney: Steve Harry and Chris Reser

Description: Oklahoma City, OK - Cesar A. Castro sued Mark E. Devos, Astrid Devis and Deck and Fence Pros of Oklahoma City on a breach of fiduciary duty, fraud and other theories claiming:

1. Plaintiff, Cesar A. Castro, is an individual residing at 10067 San Lorenzo Dr., Oklahoma City, Oklahoma County, Oklahoma.

2. Plaintiff, Liberty Customer Builders, L.L.C. is a limited liability company registered under the laws of the State of Oklahoma with its principal place of business in Oklahoma County, Oklahoma.

3. Upon information and belief at all relevant times herein, Defendants Mark E. DeVos and Astrid DeVos resided at 1020 NW 41st Street, Oklahoma City, Oklahoma County, Oklahoma.

4. Defendant Deck and Fence Pros is a business entity organized under the laws of the State of Oklahoma, with its principal place of business in Oklahoma County, Oklahoma.

5. Defendant Mark DeVos is the incorporator and/or organizer, one of the two owners, and principal officer of Deck and Fence Pros.

GENERAL STATEMENT OF FACTS

6. Plaintiff Castro is the minority member of Liberty Custom Builders with a forty- five percent (45%) interest therein. At all times alleged herein, Plaintiff was and is a current member of Liberty Custom Builders.

7. Defendant Mark DeVos is the majority member of the Liberty Customer Builders holding the remaining fifty-five percent (55%) interest therein.

8. Defendant Astrid DeVos is the wife of Defendant Mark DeVos and 1s the Treasurer of Liberty Custom Builders.

9. Plaintiff Castro and Defendant Mark DeVos decided on June 26, 2010 to form a company for the purpose of building decks and fences with Defendant Mark DeVos holding a fifty-five percent (55%) interest and Plaintiff Castro holding a forty-five percent (45%) interest therein.

10. On or about June 26, 2010, Plaintiff Castro and Defendant Mark DeVos began contracting with consumers to build decks and fences. At that time, Plaintiff Castro and Defendant operated such business as co-owners under the name of Deck and Fence Pros of Oklahoma City.

11. Deck and Fence Pros of Oklahoma City was formed on June 15, 2010.

12. Thereafter, roughly one month later, Plaintiff Castro and Defendant Mark DeVos formed Liberty Custom Builders, L.L.C., on July 20, 2010 to perform the same functions and to perform the same jobs as Deck and Fence Pros of Oklahoma City.

13. Deck and Fence Pros and Liberty Custom Builders are one in the same, in that they perform the exact same services and have the same division of ownership between Plaintiff Castro and Defendant Mark DeVos.

14. According to the Operating Agreement of Liberty, "[t]he management of the LLC shall be vested in the Members without an appointed manager. The members shall elect officers who shall manage the company. The President and Secretary may act for and on behalf of the LLC and the ["i]n the event the Members elect to manage the LLC, rather than appoint a manager, the Members shall appoint officers for the LLC and shall have the power and authority to bind the LLC in all transactions and business dealings of any kind except as otherwise provided in this Agreement." Article
III, Section 9.

15. Pursuant to the Operating Agreement, management of the Company is reserved to the members.

16. Shortly after the parties began contracting with consumers in the summer of 2010, Plaintiff became suspicious of Defendant Mark DeVos' intentions regarding their Company in that the Company had completed numerous successful jobs under the names of Deck and Fence Pros and Liberty Custom Builders, but Plaintiff had not received his forty-five percent (45%) of the profits.

17. Plaintiff made demand on Defendant Mark DeVos on October 6, 2010, requesting that he account for the Company's finances. Additionally, Plaintiff requested pursuant to 18 O.S.
§ 2021, to view the Company's books and financial records.

18. On October 15, 2010, Defendant Mark DeVos, through his counsel, transmitted
some of Liberty's company records, but did not provide any current tax information or any profit
and loss statements. In addition, Mark DeVos transmitted some. but not all, of the contracts executed on behalf of Deck and Fence Pros.
19. A review of the incomplete records evidence that Defendant Mark DeVos breached his fiduciary duties to the Company and to the Plaintiff and engaged in self-dealing by making purchases by and through Liberty or its related companies for activities or purchases clearly not consistent with that of the Company's purposes, specifically including, but not limited to, personal trips and jewelry purchases outside the normal course of business with Liberty's and/or Deck and Fence Pros' company funds.

20. Plaintiff has demanded that Defendant Mark DeVos, as the Majority Member and President of the Liberty, account for these improper purchases, to remit to him his forty-five percent (45%) interest in the Company's profits for each of Liberty's and Deck and Fence Pros' contracts and to return the Plaintiff s tools he contributed to the Company.

21. To date, Defendant Mark DeVos has failed to do so.

22. Upon review of the records available to the Plaintiff, it appears Defendant breached his fiduciary obligations and duty of loyalty as a member and officer of Liberty and as the majority owner of Deck and Fence Pros, which constitute violations of the Oklahoma Deceptive Trade Practices Act.

COUNT 1: FRAUD

For their first count, Plaintiffs re-allege Paragraphs 1 through 22 of the Petition and further allege:

23. To entice Plaintiff Castro to invest capital funds and equipment contribute and to gain Plaintiff Castro as a co-owner, Defendant Mark DeVos affirmatively agreed to share
partnership profits with Plaintiff Castro with Plaintiff Castro receiving a 45% interest in the Company profits and Defendant Mark DeVos receiving a 55% interest in the Company profits.

24. Defendant Mark DeVos and Plaintiff Castro began operating their deck and fence business as co-owners on June 26, 20 I 0, under the name of Deck and Fence Pros of Oklahoma City. At the time Defendant Mark DeVos entered into the partnership agreement with Plaintiff Castro he intended to convert all of the partnership assets and profits for his own personal use and had no intent to repay any debts incurred by Plaintiff Castro or to distribute any profits earned by Deck and Fence Pros of Oklahoma City to the Plaintiff.

25. When Defendant Mark DeVos and Plaintiff Castro began operating their deck and fence business under the name of Liberty Custom Builders, Defendant Mark DeVos intended to convert all of the L.L.C. 's assets and profits for his own personal use and had no intent to repay any debts incurred by Plaintiff Castro or to distribute any profits earned by Liberty to the Plaintiff.

26. Plaintiff Castro relied upon Defendant Mark DeVos' agreement, contributed his funds, time, and equipment throughout the Company's operation to his detriment, whether the Company operated as Deck and Fence Pros or as Liberty Custom Builders.

27. Defendant Mark DeVos' fraudulent acts were intentional and in reckless disregard to the rights of the Plaintiffs.

28. As a result of Defendant DeVos' fraudulent acts, Plaintiff Castro sustained losses in an amount not in excess of $75,000.00

WHEREFORE, the Plaintiffs pray for judgment against the Defendant, Mark DeVos, for monetary and punitive damages in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code and against all Defendants for an accounting of all transfers of property or assets, rescission of all transfers of property or assets from Defendant Mark DeVos, Deck and Fence Pros of Oklahoma City, Liberty, or any creditor thereof.
COUNT II: BREACH OF FIDUCIARY DUTY

In their second count, Plaintiffs re-allege Paragraphs 1 through 28 of the Petition and further allege:

29. As a partner of Deck and Fence Pros of Oklahoma City, Defendant Mark DeVos was a fiduciary of the partnership, and to his fellow partner Plaintiff Castro, owed a duty of utmost loyalty and care to act solely in furtherance of and in the best interest of the partnership.

30. Defendant Mark DeVos owed a duty of loyalty to the Plaintiffs to seek and obtain business opportunities on behalf of Deck and Fence Pros and to the exclusion of its competitors.

31. Defendant Mark DeVos owed a duty of loyalty and care to the Plaintiffs to maintain an accurate and fair accounting of assets and profits of the partnership to ensure the faithful distribution of profits according to the parties' agreement.

32. Defendant Mark DeVos owed a duty of loyalty and care to the Plaintiffs to use partnership funds, assets, and property for purposes strictly related to furthering the business interests of the partnership.

33. Defendant Mark DeVos owed a duty of loyalty to the Plaintiffs not to convert Deck and Fence Pros funds.

34. Defendant Mark DeVos intentionally, maliciously and in reckless disregard of the Plaintiffs' rights, breached his duty of care and loyalty.

35. As a member and officer of Liberty, Defendant Mark DeVos was a fiduciary of the L.L.C., and to his fellow member Plaintiff Castro, owed a duty of utmost loyalty and care to act solely in furtherance of and in the best interest of the limited liability company.

36. Defendant Mark DeVos owed a duty ofloyalty to the Plaintiffs to seek and obtain business opportunities on behalf of Liberty and to the exclusion of its competitors.

37. Defendant Mark DeVos owed a duty of loyalty and care to the Plaintiffs to maintain an accurate and fair accounting of assets and profits of the limited liability company and to ensure the faithful distribution of the profits according to the parties' agreement.

38. Defendant Mark DeVos owed a duty ofloyalty and care to the Plaintiffs to use the limited liability company's funds, assets, and property for purposes strictly related to furthering the business interests of the company.

39. Defendant Mark DeVos owed a duty of loyalty to the Plaintiffs not to convert Liberty's funds.

40. Defendant Mark DeVos intentionally, maliciously and in reckless disregard of the Plaintiffs' rights, breached
his duty of care and loyalty.

41. As a direct and intended result of the breach of Defendant Mark DeVos' fiduciary duty, the Plaintiffs have sustained losses in excess of $10,000.00.

42. As an officer of Liberty, Defendant Astrid DeVos was a fiduciary of the L.L.C., and owed a duty of utmost loyalty and care to act solely in furtherance of and in the best interest of the limited liability company.

43. Defendant Astrid DeVos owed a duty of loyalty and care to the Plaintiffs to maintain an accurate and fair accounting of assets and profits of the limited liability company and to ensure the faithful distribution of profits according to the parties' agreement.

44. Defendant Astrid DeVos owed a duty of loyalty and care to the Plaintiffs to use the limited liability company's funds, assets, and property for purposes strictly related to furthering the business interests of the company.

45. Defendant Astrid DeVos owed a duty of loyalty to the Plaintiffs to oversee the Company's funds and not to convert Liberty's funds and/or knowing allow the Company's funds to be converted.

46. Defendant Astrid DeVos intentionally, maliciously and in reckless disregard of the Plaintiffs' rights, breached her duty of care and loyalty to the Plaintiffs.

47. As a direct and intended result of the breach of Defendant Astrid DeVos' fiduciary duty, the Plaintiffs have sustained losses in excess of $I 0,000.00.

WHEREFORE, the Plaintiffs pray for judgment against the Defendant Mark DeVos for monetary damages in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code; against Defendant Astrid DeVos for monetary damages in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code; and against all Defendants and Liberty for an accounting of all transfers of property or assets, rescission of all transfers of property or assets from Defendants Mark and Astrid DeVos, Deck and Fence Pros, Liberty, or any creditor thereof.

COUNT III: VIOLATION OF THE OKLAHOMA DECEPTIVE TRADE PRACTICES ACT

Plaintiffs re-allege Paragraphs 1 through 47 of the Petition and further state:

48. The actions, as fully set forth above, constitute a violation of the Oklahoma Deceptive Trade Practices Act ("DTPA"), codified at 78 O.S. § 51, et seq.

49. Pursuant to the DTPA, any person damaged or likely to be damaged by the deceptive trade practices of another may maintain an action of equitable jurisdiction to prevent,
restrain, or enjoin such deceptive trade practice. Proof of actual monetary damages, loss of profits or intent shall not be required; but if in such action damages are alleged and proven, the plaintiff, in addition to such injunctive relief, shall be entitled to recover from the defendant the actual damages sustained by the plaintiff as a consequence of such actions.

50. Plaintiffs are entitled to injunctive relief against Defendants under the DTPA, as fully set forth below. Moreover, Plaintiffs have been damaged by virtue of the actions of the Defendants' trade practices and are entitled to damages and reasonable attorney's fees and costs herein.

51. Upon information and belief Defendant Mark DeVos operated and is currently operating Deck and Fence Pros as the
alleged I 00% owner therein, to the detriment of the Plaintiffs.

WHEREFORE, the Plaintiffs pray for injunctive relief as provided by the DTPA, including, but not limited to, an Order restraining the Defendants from operating any business or entity in competition wi th Liberty, freezing all accounts and assets held by, belonging to, or owned hy the Defendants, and providing an accounting of all partnership assets, as well as all transfers, expenditures, or activities undertaken during Defendant Mark DeVos' tenure as a partner of Deck and Fence Pros, his tenure as the majority member and President of Liberty; enjoining Defendants from transferring, selling, or otherwise disposing of property or assets derived from, traceable to, or available to satisfy a judgment by the Plaintiffs; an Order compelling Defendants to return all sums transferred from either Deck and Fence Pros or Liberty on behalf of or in furtherance of either Defendant's non-partnership activities; an Order voiding all transfers of partnership assets hy or for Defendants individually or joi ntly, and place the property in a constructive trust on behalf of Liberty, and an award of all monetary damages sustained by the Plaintiffs in excess of $75,000.00, interest, costs, and reasonable attorney's fees.

COUNT IV: CONVERSION

In their fourth cause of action, Plaintiffs re-allege Paragraphs I through 51 of the Petition and further allege:

52. Defendant Mark DeVos and Defendant Astrid DeVos transferred or caused to be transferred the personal property and assets of Deck and Fence Pros and/or Liberty without consent and/or without adequate consideration.

53. Defendants transferred the property and assets of the partnership and/or limited liability company with the intent and effect of permanently depriving it and its partners/members of its rightful possession and use.

54. Liberty is the rightful and proper owner of all property and assets transferred by Defendant Mark DeVos to himself, Defendant Deck and Fence Pros, or to any person on behalf of Defendants.
WHEREFORE, the Plaintiffs pray for judgment again the Defendants, Mark and Astrid DeVos and Deck and Fence Pros, for monetary damages in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code; and against Defendants and Liberty for an accounting of all transfers of property and assets; rescission of all transfers of property and assets from Defendants, or alternatively, an order placing all wrongfully transferred property and assets held by Defendants in trust for the benefit of the Plaintiffs; as well as interest, attorney's fees, and all other appropriate relief.

COUNT V: DECLARATORY JUDGMENT

In their fifth cause of action, Plaintiffs re-allege Paragraphs 1 through 54 of the Petition and further allege:

55. Plaintiff Castro and Defendant Mark DeVos began operating a deck and fence business as co-owners for a profit on or about June 26, 2010, under the name of Deck and Fence Pros with Defendant Mark DeVos holding a fifty-five percent (55%) interest and Plaintiff Castro holding a forty-five percent (45%) interest therein.

56. One month later, Plaintiff Castro and Defendant Mark DeVos formed Liberty Custom Builders, L.L.C., on July 20, 2010 to perform the same functions and to perform the same jobs as Deck and Fence Pros of Oklahoma City.

57. Despite the parties' agreement and contracts evidencing ownership therein, Defendant Mark DeVos has taken the position that he is the 100% owner of Deck and Fence Pros of Oklahoma City and that it is a separate and distinct business from Liberty.

58. Based on Oklahoma law, the Plaintiff seeks a declaratory judgment that he is a forty-five percent (45%) owner of Deck and Fence Pros and entitled to that percentage of the profits from June 26, 2010 to the present.

Outcome: Dismissed for failure to prosecute.

Plaintiff's Experts:

Defendant's Experts:

Comments:



Find a Lawyer

Subject:
City:
State:
 

Find a Case

Subject:
County:
State: