Preview
FILED
10/18/2022 4:28 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS 00., TEXAS
Lafonda Sims DEPUTY
CAUSE N0. DC-21-11406
MILTON 635 GRAVOIS ROAD LLC, § IN THE DISTRICT COURT
635 GRAVOIS ROAD LEASING LLC, and §
635 GRAVOIS ROAD REAL ESTATE, §
LLC, §
§
Plaintiffs, §
§
V. § 44TH JUDICIAL DISTRICT
§
TRT HOLDINGS, INC., §
RBR REAL ESTATE HOLDINGS, LLC, §
BRIAN ZELMAN, and ADAM ZEITSIFF, §
§ DALLAS COUNTY, TEXAS
Defendants. §
DEFENDANTS’ RESPONSE T0 PLAINTIFFS’ MOTION FOR LEAVE
Defendants hereby respond to Plaintiffs’ Motion for Leave to Supplement Plaintiffs’
Response to Defendants’ Motion for Summary Judgment (“Motion for Leave”) as follows:
SUMMARY
Plaintiffs would have this Court believe they bought a $10 million property based on
generic, subjective representations (like the property was financially “solid” and “fiscally well-
managed”) and with a boilerplate agreement that they somehow couldn ’t negotiate. Well-settled
Texas law precludes this precise kind of fraud-based lawsuit Where, like here, the parties expressly
disclaimed reliance on such representations. Plaintiffs’ Motion for Leave is merely a sur-reply in
which they claim to offer a dispositive “clarification” that the disclaimer-of—reliance provision in
the parties’ PSA “could not possibly be applicable to exclude reliance on representations made by
Defendants after the Parties had executed the PSA.” Plaintiffs, however, also negotiated the
Amended PSA that followed and still agreed to leave the disclaimer-of—reliance as is. They attach
no evidence and offer no authority suggesting otherwise. Plaintiffs’ Motion for Leave is without
good cause, and it should be denied.
BACKGROUND
A. The PSA and APSA
Defendant RBR Real Estate Holdings, LLC entered into the PSA with nonparty Leeton
Real Estate Inc. on May 1, 2019, for a shopping center located in Fenton, Missouri (the “Shopping
Center”) for $10.5 million. See Mot. for Summ. J ., EX. 2. When Leeton failed to deliver the
required notice indicating its intent to move forward with the purchase, the PSA terminated
automatically, but the parties subsequently reinstated the PSA with amendments on September 27,
2019 in the First Amendment to Agreement of Purchase and Sale (“APSA”). See id., EX. 3. The
terms of the PSA and the APSA, which include a disclaimer-of—reliance provision, were negotiated
by Leeton and its counsel. See id., Ex. 1 11 6.
B. Relevant Procedural History
Plaintiffs filed this lawsuit in August 2021, contending that Defendants fraudulently
induced them into buying a shopping center because the parent company of its anchor tenant,
Gold’s Gym, filed for bankruptcy six months after the parties entered into the APSA (and at the
beginning of the pandemic no less).
Defendants filed their Motion for Summary Judgment on April 11, 2022 based primarily
on Texas law’s instruction to uphold “clear and unequivoca
” disclaimers that are: (i) negotiated
(ii) at arm’s length (iii) by knowledgeable, sophisticated business players (iv) who are represented
by legal counsel—all of which occurred here. Plaintiffs filed their Response brief on May 1 (the
“Initial Response”), Defendants filed their Reply brief on May l7, and, per the Court’s procedures,
the motion was heard by submission on May 20.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT
RESPONSE TO DEFENDANTS’ MOTION FO SUMMARY JUDGMENT Page 2
On September 27—more than four months after the May 20 hearing date—Plaintiffs filed
their Motion for Leave, attaching as an exhibit their proposed Supplemental Response. Plaintiffs
seek to “clarify” the following:
Defendants’ misrepresentations that form the basis of Plaintiffs’ claims were made
after the PSA had lapsed, and before the Parties had entered into the APSA. Thus,
the purported disclaimer provision at issue, which Defendants assert “disclaim”
prior representations and reliance, could not possibly be applicable to exclude
reliance on representations made by Defendants after the Parties had executed the
PSA.
P1.’s Supp. at 2-3.
ARGUMENT AND AUTHORITIES
I. Plaintiffs have no good cause to supplement their Response months late.
Plaintiffs are not responding to anything filed by Defendants, nor are they offering new
evidence—they seek only to “clarify” an argument. But the cases they cite to justify their late
supplement do not involve such “clarifying” responses, let alone supplemental responses filed four
months after the motion’s hearing.
First, Caro v. Sharp, No. 03-02-00108—CV, 2003 WL 21354602, at *4 (Tex. App—Austin
June 12, 2003, pet. denied), did not involve a supplemental response to a summary judgment but
supplemental motions for summary judgment. Additionally, the motion for leave there was filed
only because the nonmovants had asked for leave to file an amended petition adding causes of
action. Id. The supplemental motions were therefore needed to address these new causes and also
didn’t alter the hearing date that was some two weeks later. Id. The court allowed both the
amendments to the petition and the supplemental motions to be filed, with appellant’s response
due the day before the hearing. Id.
Similarly, in Mowbray v. Avery, 76 S.W.3d 663, 688 (Tex. App—Corpus Christi—
Edinburg 2002, pet. denied), leave for a supplemental motion for summary judgment was filed in
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT
RESPONSE TO DEFENDANTS’ MOTION F0 SUMMARY JUDGMENT Page 3
response to a second amended petition, and, again, was filed before the motion’s original
submission date. Under those circumstances, the court held, “appellees were required to file a
supplemental motion for summary judgment prior to the submission date in order to address the
new claims if they wished the court to be able to dispose of the entire case.” Id.
Here, unlike in Caro and Mowbray, Plaintiffs are not supplementing a summary judgment
motion to respond to new causes of action, nor are they doing so before the court has heard the
summary judgment motion. Plaintiffs cite no case in which a party was permitted leave to
supplement their summary judgment response months after the motion’s hearing date and merely
to “clarify” an argument already before the court. For this reason alone, Plaintiffs’ Supplement
does operate as a surprise to Defendants because Plaintiff is upending the finality of Defendants’
summary judgment motion, the briefing for which is closed and the submission hearing for which
has already occurred. What’s to stop Plaintiffs from continuing to offer “clarifying” briefing until
this Court issues a ruling on Defendants’ summary judgment motion? In the absence of good
cause, Plaintiffs’ Motion for Leave should be denied.
II. Plaintiffs’ argument doesn’t change that Defendants are entitled to summary
judgment.
Plaintiffs’ purported clarification that the disclaimer cannot be applicable since the alleged
representations were made after the parties entered into the PSA fails as a matter of fact and law.1
But even accepting Plaintiffs’ argument as true that the alleged statements were made after the
1
Neither their Initial Response nor their Supplement attaches actual evidence of when the alleged
misrepresentations were made, let alone any evidence they were made at all. Arguments such as this are
F
not summary judgment evidence. See Solano v. Landamerica Com. Title of ort Worth, Ina, N0. 2-07-
152—CV, 2008 WL 5115294, at *1 l (Tex. App—Fort Worth Dec. 4, 2008, no pet); Madeksho v. Abraham,
Watkins, Nichols & Friend, 57 S.W.3d 448, 455 (Tex. App—Houston [14th Dist] 2001, pet. denied)
(arguments contained in a response to a summary judgment motion are not evidence); Quanaim v. Frasco
Rest. & Catering, l7 S.W.3d 30, 42 (Tex. App—Houston [14th Dist] 2000, pet. denied) (explaining that
“neither the motion for summary judgment, nor the response, even if sworn is ever proper summary
judgment proof’).
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT
RESPONSE TO DEFENDANTS’ MOTION FO SUMMARY JUDGMENT Page 4
panics entered the PSA in May 2019 and before they entered the Amended PSA in September
2019, only further proves Defendants’ point. Specifically, the APSA, Exhibit 3 to Defendants’
Motion for Summary Judgment, provides:
A. Seller and Purchaser are parties to that certain Agreement of Purchase and
Sale having an Effective Date of May l, 20 l9 and relating to that certain property located
at 635 Gravois Rd in Patton, Missouri 63026 (as amended fi'om lime to time, the
“Agreement”).
***
C. The Agreement has been terminated as a result of Purchaser not delivering
a Go Forward Notice prior to the expiration of the Inspection Period.
D.The parties wish to reinstate the Agreement and amend the terms of the
Agreement as set forth below.
The parties thus expressly reinstated the PSA and intended to and did agree to its original terms
except Where expressly amended in the APSA. Plaintiffs offer no evidence in their Supplement
that they were somehow prevented from negotiating, amending, or deleting the disclaimer-of-
reliance provision in the APSA, nor do they argue as much because they indeed intended to
disclaim reliance. Plaintiffs twice agreed—once in the PSA and again in the APSA—to disclaim
reliance, and it’s undisputed that both the parties negotiated both the PSA and the APSA. Plaintiffs
concede the PSA and APSA were negotiated and attached to their Initial Response a declaration
from Mark S. Cohen, the attorney who “was the point person who discussed the legal terms of the
transaction with [Defendants’] counsel,”—i.e., negotiated—the PSA’s and APSA’s terms. Initial
Resp., Ex. A at 1. As Defendants previously argued, Plaintiffs’ choice to avoid the word
“negotiate” does not make it any less true.
Plaintiffs’ Supplement is just another attempt to minimize that they negotiated the APSA
and only reframes their previous argument that the disclaimer provision wasn’t negotiated. Their
argument still doesn’t comport with the reasoning for upholding disclaimer provisions. As
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT
RESPONSE TO DEFENDANTS’ MOTION FO SUMMARY JUDGMENT Page 5
Defendants explained in their summary judgment reply, and as a matter of law, even if there is no
evidence about whether the parties specifically negotiated a disclaimer-of-reliance provision,
where the parties indisputably discussed the “topic of the subsequent dispute” and addressed as
much in the subject contract, the party claiming fraud is precluded from arguing the contract is
mere boilerplate that wasn’t negotiated, which is What Plaintiffs argue. See Bever Properties, LLC
v. Jerry Huffman Custom Builder, L.L.C., No. 05-13-01519-CV, 2015 WL 4600347, at *10—11
(Tex. App—Dallas July 31, 2015, no pet). See also Mot. for Summ. J. at 13-14 and Reply at 7-
8. Here, the very purpose of the PSA and APSA was to achieve a final sale of the Property at a
price that reflected the agreed-upon value of the Shopping Center, including the leases, which is
the topic of the present dispute. For Plaintiffs to argue now that the disclaimer “could not possibly
be applicable to exclude reliance on representations made by Defendants after the Parties had
executed the PSA” is misguided and disingenuous.
RELIEF REQUESTED
Defendants respectfully request that the Court deny Plaintiffs’ Motion for Leave to
Supplement Response to Defendants’ Motion for Summary Judgment and request that the Court
grant such other relief, either in law or equity, to which Defendants may show themselves justly
entitled.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT
RESPONSE TO DEFENDANTS’ MOTION FO SUMMARY JUDGMENT Page 6
Date: October 18, 2022 Respectfully submitted,
/s/ Elliot Strader
Elliot Strader
Texas Bar No. 24063966
Xakema Henderson
Texas Bar No. 24107805
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
Tel: 214-720-4380
Fax: 214-981-9339
elliot.strader@akerman.com
Counsel for Defendants
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on all counsel of
record in accordance with the Texas Rules of CiVil Procedure on October 18, 2022.
/s/ Elliot Strader
Elliot Strader
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT
RESPONSE TO DEFENDANTS’ MOTION FO SUMMARY JUDGMENT Page 7
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Elliot Strader
Bar No. 24063966
elliot.strader@akerman.com
Envelope ID: 69343998
Status as of 10/19/2022 10:40 AM CST
Associated Case Party: MILTON 635 GRAVOIS ROAD LLC
Name BarNumber Email TimestampSubmitted Status
Robert LeMay rlemay@krcl.com 10/18/2022 4:28:28 PM SENT
Jaime DeWees jdewees@krcl.com 10/18/2022 4:28:28 PM SENT
Associated Case Party: TRT HOLDINGS, INC.
Name BarNumber Email TimestampSubmitted Status
Elliot Strader elliot.strader@akerman.com 10/18/2022 4:28:28 PM SENT
Xakema Henderson xakema.henderson@akerman.com 10/18/2022 4:28:28 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Teresa Rowe trowe@krcl.com 10/18/2022 4:28:28 PM SENT
Connie Nims cnims@krcl.com 10/18/2022 4:28:28 PM SENT
Preview
FILED 10/18/2022 4:28 PM FELICIA PITRE DISTRICT CLERK DALLAS 00., TEXAS Lafonda Sims DEPUTY CAUSE N0. DC-21-11406 MILTON 635 GRAVOIS ROAD LLC, § IN THE DISTRICT COURT 635 GRAVOIS ROAD LEASING LLC, and § 635 GRAVOIS ROAD REAL ESTATE, § LLC, § § Plaintiffs, § § V. § 44TH JUDICIAL DISTRICT § TRT HOLDINGS, INC., § RBR REAL ESTATE HOLDINGS, LLC, § BRIAN ZELMAN, and ADAM ZEITSIFF, § § DALLAS COUNTY, TEXAS Defendants. § DEFENDANTS’ RESPONSE T0 PLAINTIFFS’ MOTION FOR LEAVE Defendants hereby respond to Plaintiffs’ Motion for Leave to Supplement Plaintiffs’ Response to Defendants’ Motion for Summary Judgment (“Motion for Leave”) as follows: SUMMARY Plaintiffs would have this Court believe they bought a $10 million property based on generic, subjective representations (like the property was financially “solid” and “fiscally well- managed”) and with a boilerplate agreement that they somehow couldn ’t negotiate. Well-settled Texas law precludes this precise kind of fraud-based lawsuit Where, like here, the parties expressly disclaimed reliance on such representations. Plaintiffs’ Motion for Leave is merely a sur-reply in which they claim to offer a dispositive “clarification” that the disclaimer-of—reliance provision in the parties’ PSA “could not possibly be applicable to exclude reliance on representations made by Defendants after the Parties had executed the PSA.” Plaintiffs, however, also negotiated the Amended PSA that followed and still agreed to leave the disclaimer-of—reliance as is. They attach no evidence and offer no authority suggesting otherwise. Plaintiffs’ Motion for Leave is without good cause, and it should be denied. BACKGROUND A. The PSA and APSA Defendant RBR Real Estate Holdings, LLC entered into the PSA with nonparty Leeton Real Estate Inc. on May 1, 2019, for a shopping center located in Fenton, Missouri (the “Shopping Center”) for $10.5 million. See Mot. for Summ. J ., EX. 2. When Leeton failed to deliver the required notice indicating its intent to move forward with the purchase, the PSA terminated automatically, but the parties subsequently reinstated the PSA with amendments on September 27, 2019 in the First Amendment to Agreement of Purchase and Sale (“APSA”). See id., EX. 3. The terms of the PSA and the APSA, which include a disclaimer-of—reliance provision, were negotiated by Leeton and its counsel. See id., Ex. 1 11 6. B. Relevant Procedural History Plaintiffs filed this lawsuit in August 2021, contending that Defendants fraudulently induced them into buying a shopping center because the parent company of its anchor tenant, Gold’s Gym, filed for bankruptcy six months after the parties entered into the APSA (and at the beginning of the pandemic no less). Defendants filed their Motion for Summary Judgment on April 11, 2022 based primarily on Texas law’s instruction to uphold “clear and unequivoca ” disclaimers that are: (i) negotiated (ii) at arm’s length (iii) by knowledgeable, sophisticated business players (iv) who are represented by legal counsel—all of which occurred here. Plaintiffs filed their Response brief on May 1 (the “Initial Response”), Defendants filed their Reply brief on May l7, and, per the Court’s procedures, the motion was heard by submission on May 20. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT RESPONSE TO DEFENDANTS’ MOTION FO SUMMARY JUDGMENT Page 2 On September 27—more than four months after the May 20 hearing date—Plaintiffs filed their Motion for Leave, attaching as an exhibit their proposed Supplemental Response. Plaintiffs seek to “clarify” the following: Defendants’ misrepresentations that form the basis of Plaintiffs’ claims were made after the PSA had lapsed, and before the Parties had entered into the APSA. Thus, the purported disclaimer provision at issue, which Defendants assert “disclaim” prior representations and reliance, could not possibly be applicable to exclude reliance on representations made by Defendants after the Parties had executed the PSA. P1.’s Supp. at 2-3. ARGUMENT AND AUTHORITIES I. Plaintiffs have no good cause to supplement their Response months late. Plaintiffs are not responding to anything filed by Defendants, nor are they offering new evidence—they seek only to “clarify” an argument. But the cases they cite to justify their late supplement do not involve such “clarifying” responses, let alone supplemental responses filed four months after the motion’s hearing. First, Caro v. Sharp, No. 03-02-00108—CV, 2003 WL 21354602, at *4 (Tex. App—Austin June 12, 2003, pet. denied), did not involve a supplemental response to a summary judgment but supplemental motions for summary judgment. Additionally, the motion for leave there was filed only because the nonmovants had asked for leave to file an amended petition adding causes of action. Id. The supplemental motions were therefore needed to address these new causes and also didn’t alter the hearing date that was some two weeks later. Id. The court allowed both the amendments to the petition and the supplemental motions to be filed, with appellant’s response due the day before the hearing. Id. Similarly, in Mowbray v. Avery, 76 S.W.3d 663, 688 (Tex. App—Corpus Christi— Edinburg 2002, pet. denied), leave for a supplemental motion for summary judgment was filed in DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT RESPONSE TO DEFENDANTS’ MOTION F0 SUMMARY JUDGMENT Page 3 response to a second amended petition, and, again, was filed before the motion’s original submission date. Under those circumstances, the court held, “appellees were required to file a supplemental motion for summary judgment prior to the submission date in order to address the new claims if they wished the court to be able to dispose of the entire case.” Id. Here, unlike in Caro and Mowbray, Plaintiffs are not supplementing a summary judgment motion to respond to new causes of action, nor are they doing so before the court has heard the summary judgment motion. Plaintiffs cite no case in which a party was permitted leave to supplement their summary judgment response months after the motion’s hearing date and merely to “clarify” an argument already before the court. For this reason alone, Plaintiffs’ Supplement does operate as a surprise to Defendants because Plaintiff is upending the finality of Defendants’ summary judgment motion, the briefing for which is closed and the submission hearing for which has already occurred. What’s to stop Plaintiffs from continuing to offer “clarifying” briefing until this Court issues a ruling on Defendants’ summary judgment motion? In the absence of good cause, Plaintiffs’ Motion for Leave should be denied. II. Plaintiffs’ argument doesn’t change that Defendants are entitled to summary judgment. Plaintiffs’ purported clarification that the disclaimer cannot be applicable since the alleged representations were made after the parties entered into the PSA fails as a matter of fact and law.1 But even accepting Plaintiffs’ argument as true that the alleged statements were made after the 1 Neither their Initial Response nor their Supplement attaches actual evidence of when the alleged misrepresentations were made, let alone any evidence they were made at all. Arguments such as this are F not summary judgment evidence. See Solano v. Landamerica Com. Title of ort Worth, Ina, N0. 2-07- 152—CV, 2008 WL 5115294, at *1 l (Tex. App—Fort Worth Dec. 4, 2008, no pet); Madeksho v. Abraham, Watkins, Nichols & Friend, 57 S.W.3d 448, 455 (Tex. App—Houston [14th Dist] 2001, pet. denied) (arguments contained in a response to a summary judgment motion are not evidence); Quanaim v. Frasco Rest. & Catering, l7 S.W.3d 30, 42 (Tex. App—Houston [14th Dist] 2000, pet. denied) (explaining that “neither the motion for summary judgment, nor the response, even if sworn is ever proper summary judgment proof’). DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT RESPONSE TO DEFENDANTS’ MOTION FO SUMMARY JUDGMENT Page 4 panics entered the PSA in May 2019 and before they entered the Amended PSA in September 2019, only further proves Defendants’ point. Specifically, the APSA, Exhibit 3 to Defendants’ Motion for Summary Judgment, provides: A. Seller and Purchaser are parties to that certain Agreement of Purchase and Sale having an Effective Date of May l, 20 l9 and relating to that certain property located at 635 Gravois Rd in Patton, Missouri 63026 (as amended fi'om lime to time, the “Agreement”). *** C. The Agreement has been terminated as a result of Purchaser not delivering a Go Forward Notice prior to the expiration of the Inspection Period. D.The parties wish to reinstate the Agreement and amend the terms of the Agreement as set forth below. The parties thus expressly reinstated the PSA and intended to and did agree to its original terms except Where expressly amended in the APSA. Plaintiffs offer no evidence in their Supplement that they were somehow prevented from negotiating, amending, or deleting the disclaimer-of- reliance provision in the APSA, nor do they argue as much because they indeed intended to disclaim reliance. Plaintiffs twice agreed—once in the PSA and again in the APSA—to disclaim reliance, and it’s undisputed that both the parties negotiated both the PSA and the APSA. Plaintiffs concede the PSA and APSA were negotiated and attached to their Initial Response a declaration from Mark S. Cohen, the attorney who “was the point person who discussed the legal terms of the transaction with [Defendants’] counsel,”—i.e., negotiated—the PSA’s and APSA’s terms. Initial Resp., Ex. A at 1. As Defendants previously argued, Plaintiffs’ choice to avoid the word “negotiate” does not make it any less true. Plaintiffs’ Supplement is just another attempt to minimize that they negotiated the APSA and only reframes their previous argument that the disclaimer provision wasn’t negotiated. Their argument still doesn’t comport with the reasoning for upholding disclaimer provisions. As DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT RESPONSE TO DEFENDANTS’ MOTION FO SUMMARY JUDGMENT Page 5 Defendants explained in their summary judgment reply, and as a matter of law, even if there is no evidence about whether the parties specifically negotiated a disclaimer-of-reliance provision, where the parties indisputably discussed the “topic of the subsequent dispute” and addressed as much in the subject contract, the party claiming fraud is precluded from arguing the contract is mere boilerplate that wasn’t negotiated, which is What Plaintiffs argue. See Bever Properties, LLC v. Jerry Huffman Custom Builder, L.L.C., No. 05-13-01519-CV, 2015 WL 4600347, at *10—11 (Tex. App—Dallas July 31, 2015, no pet). See also Mot. for Summ. J. at 13-14 and Reply at 7- 8. Here, the very purpose of the PSA and APSA was to achieve a final sale of the Property at a price that reflected the agreed-upon value of the Shopping Center, including the leases, which is the topic of the present dispute. For Plaintiffs to argue now that the disclaimer “could not possibly be applicable to exclude reliance on representations made by Defendants after the Parties had executed the PSA” is misguided and disingenuous. RELIEF REQUESTED Defendants respectfully request that the Court deny Plaintiffs’ Motion for Leave to Supplement Response to Defendants’ Motion for Summary Judgment and request that the Court grant such other relief, either in law or equity, to which Defendants may show themselves justly entitled. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT RESPONSE TO DEFENDANTS’ MOTION FO SUMMARY JUDGMENT Page 6 Date: October 18, 2022 Respectfully submitted, /s/ Elliot Strader Elliot Strader Texas Bar No. 24063966 Xakema Henderson Texas Bar No. 24107805 AKERMAN LLP 2001 Ross Avenue, Suite 3600 Dallas, Texas 75201 Tel: 214-720-4380 Fax: 214-981-9339 elliot.strader@akerman.com Counsel for Defendants CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served on all counsel of record in accordance with the Texas Rules of CiVil Procedure on October 18, 2022. /s/ Elliot Strader Elliot Strader DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT RESPONSE TO DEFENDANTS’ MOTION FO SUMMARY JUDGMENT Page 7 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Elliot Strader Bar No. 24063966 elliot.strader@akerman.com Envelope ID: 69343998 Status as of 10/19/2022 10:40 AM CST Associated Case Party: MILTON 635 GRAVOIS ROAD LLC Name BarNumber Email TimestampSubmitted Status Robert LeMay rlemay@krcl.com 10/18/2022 4:28:28 PM SENT Jaime DeWees jdewees@krcl.com 10/18/2022 4:28:28 PM SENT Associated Case Party: TRT HOLDINGS, INC. Name BarNumber Email TimestampSubmitted Status Elliot Strader elliot.strader@akerman.com 10/18/2022 4:28:28 PM SENT Xakema Henderson xakema.henderson@akerman.com 10/18/2022 4:28:28 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Teresa Rowe trowe@krcl.com 10/18/2022 4:28:28 PM SENT Connie Nims cnims@krcl.com 10/18/2022 4:28:28 PM SENT