David Gray vs. North Texas Premier Soccer / Larry Hall / Robert Malphurs /Plaintiffs fourth amended original petition

Plaintiffs’ Fourth Amended Original Petition Page 1 of 10

CAUSE NO. DC-15-05418

DAVID and MARLITT GRAY, § IN THE DISTRICT COURT Pro se § § Plaintiffs, § § v. § 14th JUDICIAL DISTRICT § NORTH TEXAS PRIEMER, § SOCCER ASSOCIATION, INC., § and PREMIER PARK, INC. § § Defendants. § DALLAS COUNTY, TEXAS

PLAINTIFFS’ FOURTH AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Plaintiffs, DAVID and MARLITT GRAY (hereafter referred to

collectively as “Plaintiffs,” but, where context requires, referred to individually by name) and

file this their Fourth Amended Original Petition against NORTH TEXAS PREMIER SOCCER

ASSOCIATION, INC. and PREMIER PARK, INC. (hereinafter referred to collectively as

“Corporate Defendants,” but, where context requires, referred to as the “NTPSA” and

“Premier Park, Inc.” individually), Larry Hall, and Robert Malphurs (hereinafter referred to

collectively as the “Individual Defendants”, but where context requires, referred to as “Mr.

Hall” and “Mr. Malphurs” individually), and complaining of causes of action against

Defendants allege as follows:


RULE 47 STATEMENT

Plaintiffs’ claims concern injuries sustained by Mr. Gray that were caused by the grossly

negligent acts and omissions of the Defendants, for which Plaintiffs seek damages that are within

the jurisdictional limits of this Court. Plaintiffs seek monetary relief over $200,000 but not more

than $1,000,000, and all other relief to which they may be justly entitled.

DISCOVERY CONTROL PLAN

1. Discovery will be conducted under Level 2 pursuant to Rule 190 of the Texas

Rules of Civil Procedure.

PARTIES

2. Plaintiffs David and Marlitt Gray reside in Dallas County, Texas.

3. Defendant North Texas Premier Soccer Association, Inc. (“NTPSA”) is a Texas

non-profit corporation that may be served with citation by serving its registered agent, Larry D.

Hall, at 903 N. Bowser Rd., Suite 320, Richardson, Texas 75801.

4. Defendant Premier Park, Inc. (“Premier Park, Inc.”) is a Texas for-profit

corporation that may be served with citation by serving its registered agent, Larry D. Hall, at 903

N. Bowser Rd., St. 320, Richardson, Texas 75081.

5. Defendant Larry Hall is an individual who resides in Dallas County, and may be

served at 903 N. Bowser Rd., St. 320, Richardson, Texas 75081, or wherever he may be found.

6. Defendant Robert Malphurs is an individual who resides in Dallas County, and

may be served at 903 N. Bowser Rd., St. 320, Richardson, Texas 75081, or wherever he may be

found.

JURISDICTION & VENUE


7. Jurisdiction and venue in this Court are proper because this lawsuit arises from

the acts and omissions of Defendants who are doing business in the State of Texas, and all, or a

substantial part, of the events or omissions giving rise to this lawsuit occurred in Dallas County,

Texas.

SUMMARY

8. This lawsuit stems from an injury sustained by Mr. Gray during a soccer game at

the premises of the Corporate Defendants. Since sustaining his injury, Mr. Gray has learned that

the Defendants built and operated an athletic facility in direct violation of federal law governing

charitable organizations, mismanaged non-profits funds, negligently created a dangerous

condition, and knowingly exposed Mr. Gray to the dangerous condition, which ultimately caused

his injury. Moreover, they continue to negligently expose thousands of amateur soccer players to

the dangerous condition, all the while, blaming budget constraints for their inaction.

9. Plaintiffs will demonstrate that the Defendants have grossly mismanaged the

activities and funds of the NTPSA, and have prevented the repair of the dangerous condition that

caused Mr. Gray’s injury, which they themselves created, despite having raised millions of

dollars in membership dues for the exclusive purpose of constructing and maintaining the fields

where Mr. Gray was injured. Publicly, the NTPSA has stated that it lacks the necessary funds to

repair the dangerous condition. However, the overwhelming evidence suggests that the NTPSA

has raised ample funds to provide a safe playing surface.

FACTS

10. Mr. Gray was severely injured on May 19, 2013 while playing soccer on a field

owned and maintained by the Corporate Defendants known as Premier Park. Premier Park is


located at 3300 Cheyenne Rd., Balch Springs, Dallas County, Texas. When Mr. Gray was

injured, he was a dues paying member of the NTPSA.

11. The NTPSA is a non-profit, charitable organization comprised of male, amateur

soccer players.1 The NTPSA brings together these soccer enthusiasts from Dallas, and the

surrounding seven counties, by organizing leagues and games for its members. The NTPSA was

established in 1974. Today, the organization claims to have over five thousand (5,000) members

organized into four different age groupings.

12. In 2013, when he was injured, Mr. Gray had been a member of the NTPSA for six

and a half years. For the first six years Mr. Gray played soccer as a member of the NTPSA

without incident. During this time, most games were played at public parks. However, since the

opening of Premier Park, the NTPSA has scheduled playoff tournament games at Premier Park

despite knowledge of, and complaints related to, a dangerous condition that afflicted the fields

within months of their completion.

13. Mr. Gray first heard of Premier Park in the Summer of 2008, at the NTPSA’s

captain’s meeting for the Fall 2008 season, during which a dues increase was approved by vote

of the team captains, including Mr. Gray, under the auspice that the funds were to be used for the

construction of Premier Park. By information and belief, it was the second dues increase

approved by vote of the membership for the construction of Premier Park. Mr. Gray first played

at Premier Park when it opened in May of 2009. Mr. Gray next heard about Premier Park at the

Spring 2010 captain’s meeting, only months after the park opened, when league officials,

including Larry Hall, spoke about serious problems with the construction of the new fields at

1 The following information about the NTPSA is either available on its website, located at http://www.ntpsa.org/index.asp, or was obtained from testimony of current or former members of the NTPSA, including Mr. Gray.


Premier Park, and the steps the NTPSA intended to take to address the problems. Because he was

under the impression that something was being done to address the fields, Mr. Gray willingly

played at Premier Park. In a December 2012 game at Premier Park, Mr. Gray sustained a minor

injury, but nevertheless was able to play in the subsequent season in the Spring of 2013.

14. In May of 2013, Mr. Gray’s team was once more required to play a game at

Premier Park. While executing a routine maneuver that he had previously performed thousands

of times during his lifetime as a soccer player, Mr. Gray landed on a portion of the uneven

surface of field 5 at Premier Park, and immediately experienced a severe pain in his right knee

causing him to collapse to the ground. Mr. Gray did not finish the May 19, 2013 game. On the

sidelines after the next game, in which Mr. Gray did not play, he spoke with Roger McDermott,

a director of the NTPSA, and asked him why the defective field conditions had not yet been

repaired. Mr. McDermott apologized, and explained that the NTPSA lacked the necessary funds

to repair the fields, and that projects such as repaving their parking lot had taken priority.

15. Since May of 2013, Mr. Gray has not played soccer or participated in any athletic

activity. Mr. Gray’s right knee injury, which was caused by Defendants’ by malfeasance, has

subsequently caused him to injure his left knee. Mr. Gray’s injuries were severe, and he

underwent surgery to repair the damage to his right and left knee. In addition to surgery, Mr.

Gray has undergone significant rehabilitation to bring his knees back to health, and continues to

do so today.

16. Mr. Gray’s right knee injury was so severe that, despite the surgery, he will likely

never participate in sports again, or otherwise engage in any activity that places stress on his

knees. This injury has permanently, if only partially, disabled Mr. Gray for the rest of his life.

Mr. Gray’s life has been significantly altered since his injury.


17. Mr. Gray has lost the ability to earn income as a construction contractor and

mechanic, jobs that he maintained for many years earning significant portions of his yearly

income from manual labor—labor that he can no longer perform. Mr. Gray’s disability also

prevents him from performing household services he once performed. Mrs. Gray has and

continues to assist Mr. Gray with his rehabilitation. Mr. Gray’s injury has placed a heavy

emotional and financial burden on Plaintiffs.

18. For damages resulting from Mr. Gray’s injuries, Plaintiffs now sue Defendants for

premises liability, negligence, breach of fiduciary duty, and exemplary damages.

CAUSES OF ACTION

PREMISES LIABILITY

19. Plaintiffs re-allege each and every allegation set forth in the preceding paragraphs of

this Petition and incorporates them by reference herein.

20. The Corporate Defendants retain control, ownership, and possession over Premier

Park. Mr. Gray was an invitee at the time of his injuries; as such, the Corporate Defendants owed

Mr. Gray a duty to warn of dangerous conditions, especially those caused by the premises owner.

The Corporate Defendants failed to discharge that duty.

21. The Corporate Defendants retained an inexperienced contractor to construct

Premier Park. After construction was complete, the undulation and uneven surface of Premier

Park quickly became an issue. Rather than repair the fields, which they knew to be dangerous,

the Corporate Defendants invited Mr. Gray, and the other members of the NTPSA, to engage in

high levels of athletic competition on the dangerous playing surface. The Corporate Defendants’

actions, and subsequent inactions, negligently caused Mr. Gray’s injuries and the Plaintiffs

damages.


NEGLIGENCE



23. The NTPSA owed Plaintiffs a duty of care to schedule league games at locations

it believed to be reasonably safe. The NTPSA breached this duty when it scheduled games at a

location it knew to be dangerous. The NTPSA’s failure to fulfill their duty caused Plaintiffs to

suffer damages.

24. The NTPSA organizes the league. The NTPSA decides when, where, and whom

the members play during their season. The NTPSA was aware of the risk the fields at Premier

Park posed to its members, yet continued to schedule games there. The NTPSA vowed to repair

the fields, and the evidence suggests that ample funds to repair the fields were available, yet no

repairs were performed for three and a half years before Mr. Gray was injured. The NTPSA’s

inaction and continued scheduling of games was in breach of its duty of ordinary care to protect

the interests and safety of its members.

EXEMPLARY DAMAGES



26. Plaintiffs’ damages are the direct result of an injury that the Defendants should

have prevented. Evidence that the dangerous condition went unattended for years, despite

knowledge that the condition existed, is clear evidence of gross negligence. The NTPSA

continues to schedule games at Premier Park to this day, ignoring its duty of care, and subjecting

thousands of players to extreme risk. The Defendants willful inaction and failure to repair the


dangerous condition unmistakably demonstrates a conscious indifference to the safety of it’s

members, if not malicious intent.

BREACH OF FIDUCIARY DUTY – INDIVIDUAL DEFENDANTS



28. During the same time, the Individual Defendants created the for-profit corporate

defendant Premier Park, Inc., and conveyed the Premier Park property to Premier Park, Inc. The

existence of the for profit Premier Park, Inc. has never been disclosed to the State of Texas, to

other corporate officers of the NTPSA, or to its members, in direct violation of Texas law.

29. The NTPSA is a non-profit corporation organized under Chapter 501(c)(3) of the

Internal Revenue Code and Chapter 22 of the Texas Business Organizations Code. The

Individual Defendants are Fiduciaries, who owe the members, including Mr. Gray, a duty of

good faith, and loyalty in the performance of their obligations.

30. Federal law governing 501(c)(3) charitable organizations expressly prohibits the

provision of athletic facilities. In direct violation of federal and state law, the NTPSA disbursed

or misappropriated millions of dollars of charitable funds, which were donated to and raised by

the NTPSA from its members, to the clandestine for-profit corporation, Premier Park, Inc., to

support the operation of a prohibited athletic facility, specifically Premier Park.

31. The Individual Defendants, not only spent millions of dollars of non-profit funds

on prohibited activities in violation federal and state law, but in the execution of their scheme,

grossly mismanaged the funds in the construction and maintenance of Premier Park, hiring an

inexperienced contractor who negligently created a dangerous condition, and allowing the

dangerous condition to persist for years, even as the field conditions deteriorated further.


32. The Individual Defendants, as stewards of a public charity, are required to act in

good faith, with ordinary care, and with loyalty to the organization and its mission, which

obviously includes a duty to follow applicable laws, and exercise reasonable care to protect the

interests and safety of its members. The Individual Defendants elected to do otherwise.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to

appear and answer herein and, upon final hearing, that Plaintiffs be awarded a judgment and all

relief sought herein against Defendants as follows:

a. Past and future pain and suffering;

b. Past and future mental anguish;

c. Past and future physical impairment;

d. Past and future medical expenses;

e. Loss of past and future earning capacity;

f. Loss of past and future services;

g. Exemplary damages; and

h. All other and further relief to which Plaintiffs may be entitled.

Respectfully submitted, Edward Gray 4137 Prescott Avenue Dallas, Texas 75219 Telephone: (214)734-2524 [email protected] By: _____/s/ Edward Gray

Edward Gray State Bar No. 08316200 And


The Wright Law Firm P.L.L.C. C. Tony Wright State Bar No. 22025500 6440 N. Central Expy., Suite 820 Dallas, Texas 75206 Telephone: 214-855-5055 Email: [email protected] ATTORNEYS FOR PLAINTIFFS