Robbie Hargett Oct. 28, 2015, 2:22pm


A woman is suing an Austin company and its principal, alleging repeated breach of contract, fraud and misrepresentation.

Dana Smith filed a lawsuit Oct. 23 in Galveston County District Court against Erwin Enterprises and Kenneth Erwin of Austin, alleging breach of contract, fraud, fraudulent concealment, negligent misrepresentation and breach of fiduciary duty.

According to the complaint, Smith entered into two agreements with Erwin Enterprises and its manager and principal, Kenneth Erwin, the first dated Aug. 12, 2010, and the second dated July 16, 2013.

Under the agreement terms, the defendants would pay Smith a 10 percent return on the principal balance and hold $10,000 for Smith to withdraw at her discretion. Smith initially provided the defendants approximately $174,000 per the terms of the first agreement, the lawsuit states.

The suit alleges that under the agreement terms, Smith was permitted to withdraw $10,000 annually, totaling $50,000 over the 5-year life of the agreements, but to this day, she has received only $20,000 even after making repeated requests for her annual $10,000.

The suit says the plaintiff seldom received any money she requested, and never received it in a timely manner.

On July 16, the second agreement expired, the lawsuit states, and Smith made several requests prior to its expiration to have her money returned in full, with interest. The suit alleges the defendants have repeatedly made excuses and have no intention of honoring the terms of the agreements.

As a result, the suit says the plaintiff has suffered at least $254,558.09 in damages.

Smith seeks monetary relief between $200,000 and $1 million, plus attorney fees and court costs. Smith is represented by attorneys Christopher L. Johnson and Julie M. Berkshire of Lyons & Plackemeier in Texas City.

Galveston County District Court case number 15-cv-1137.

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