A Texas-based company is suing Vertex Rail Technologies in an attempt to get more than $430,000 back from a deposit on an order of at least 500 rail cars, a claim Vertex has denied in its own filing in New Hanover County Superior Court.

A counterclaim and answer filed in June by a lawyer for Vertex Rail Technologies says Solaris Oilfield Infrastructure isn’t entitled to a refund and should be the one to pay Vertex damages.

The dispute centers around a letter of intent, dated Nov. 14, the day after Vertex announced its plans to bring 1,300 jobs to a rail car manufacturing plant in Wilmington. The letter outlines a future purchase of rail cars in the amount of at least $43.75 million, according to court records.

“Solaris proposes to acquire a minimum of 500 and a maximum of 2,000 covered sand hopper cars to be manufactured by VRT at a facility in Wilmington, North Carolina . . .Current manufacturing availability will allow VRT to produce 100 rail cars per month beginning the first week of July 2015…with the final delivery and payment schedule to be defined in a purchase order,” the letter states.

The letter, addressed to Vertex Rail CEO Donald Croteau, was signed by Croteau and Mike Flinn, president of Solaris Oilfield Infrastructure, a firm that develops “strategic assets and services utilized by companies engaged in the drilling and completion of oil and gas wells,” according to court documents and Solaris’ website.

The Solaris claim says the company gave Vertex a deposit of $437,500 on Nov. 18, but was subsequently unable to secure financing by the due date of the purchase order Solaris was supposed to submit to Vertex.

Vertex did not give Solaris the due diligence items requested in the letter of intent, the Solaris claim says, including a product analysis and a Transportation Technology Center Inc. submittal. TTCI is a railroad testing and training facility in Colorado affiliated with the Association of American Railroads. The claim says, “The TTCI submittal was to occur on or before December 19, 2014, and evidence of submittal was to be provided ‘in a form acceptable to’ Solaris by that date, but no evidence was provided to Solaris by that date even as Vertex sought to persuade Solaris not to seek the return of the deposit.”

The letter of intent said Solaris was entitled to a refund of the deposit if a mutually acceptable purchase order was not agreed upon; Solaris was unable to secure financing; or any of the due diligence items listed in the letter were not satisfied in a form acceptable to Solaris.  

According to the Vertex answer to the Solaris claims, Solaris “never made a good faith attempt to secure financing for its purchase” and “made a couple of cursory inquiries regarding financing but never made any sincere effort to apply for financing.”

The Vertex answer also says, “If Solaris had asked, Vertex would have provided it with the opportunity to review and inspect documentation of three Due Diligence Items – a completed car model, a ‘Finite Element Analysis’ … and a TTCI Submittal. In fact, Vertex did complete each of these three Due Diligence Items in a timely manner.”

Another in a series of due diligence items listed in the letter was “Inspection of first VRT car produced (expected in May 2015)." Croteau has said production of cars by Vertex was delayed as the company awaited the May 1 release of new federal safety guidelines for rail cars. In an interview in late May, Croteau said Vertex Rail’s first two sample cars would be built in July and early August.

The Solaris lawsuit isn’t the only pending court case in which Vertex Rail Technologies is involved. In Massachusetts, Vertex Rail Technologies is suing Daniel Bigda, one of the company’s founding partners who still owns 35 percent of VRT. Also in Massachusetts, Croteau has filed for Chapter 7 bankruptcy on behalf of a company he owns called Vertex Fab & Design.

Croteau has said he doesn’t want to talk about issues related to Vertex Fab & Design or previous companies he’s led.

Reached via email on Tuesday in an effort to ask about the Solaris case, Croteau said in an automatic reply he is traveling through July 6 and returning to his office July 7.

“This suit is ongoing and we have no comment pending its resolution,” wrote Foster Sayers III in a separate email response to a request for comment. Sayers is general counsel, government liaison and public relations manager for Vertex Railcar Corp., a joint venture between Vertex Rail Technologies, China Southern Railway and private equity firm Majestic Legend Holdings Ltd.

Solaris Oilfield representatives did not immediately respond to a request for a comment on the lawsuit, which is still pending in New Hanover Superior Court and had not been scheduled for trial as of Tuesday.