Preview
FILED
9/27/2022 4:47 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Terri Kilgore DEPUTY
CAUSE NO. DC—21-11406
MILTON 635 GRAVOIS ROAD LLC, 1N 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 ZEITSIEE,
Defendants. DALLAS COUNTY, TEXAS
PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE
TO DEFENDANTS' MOTION FOR SUMMARY IUDGMENT. AND REQUEST FOR
HEARING
TO THE HONORABLE COURT:
Pursuant to Rule 63 Of the Texas Rules Of Civil Procedure, Plaintiffs Milton 635 GraVOis
Road LLC, 635 Gravois Road Leasing LLC, and 635 Gravois Road Real Estate, LLC (collectively
the "Plaintiffs") respectfully move for leave of Court to file a Supplement to Plaintiffs' Response to
Defendants' Motion for Summary Judgment (the "Motion"). The Motion was filed by Defendants
TRT Holdings, Inc. ("TRT"), RBR Real Estate Holdings, LLC ("RBR"), Brian Zelman ("Zelman"),
and Adam Zeitsiff ("Zeitsiff‘) (each a "Defendant" and collectively the "Defendants") on or about
April 11, 2022, and remains pending, after Plaintiffs' Response (filed May 13, 2022), Defendants'
Reply (filed May 17, 2022), and after submission May 20, 2022 (the "Submission Date").
The proposed Supplement to Plaintiffs' Response to the Motion (attached for consideration
as Exhibit 1) includes clarification Of the facts pled on which the Motion was based and a related
dispositive legal argument for the Court's consideration prior to ruling on the Motion, and for which
leave of Court should be freely given. Therefore, because the proposed Supplement makes an
PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE TO
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND REQUEST FOR HEARING - Page 1 of 4
9582176 V2 (7220800006000)
additional dispositive legal argument on the existing summary judgment record of evidence, leave of
this Court to Plaintiffs Will not operate as a surprise to Defendants.
I.
MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE
Rule 63 of the Texas Rules of Civil Procedure authorizes Plaintiffs to supplement their
Response to the Motion "only after leave of the judge is obtained, which leave $11211 be granted by
the judge unIess there is a showing that such a filing will operate as a surprise to the opposite
party." The Motion currently remains pending as of the Submission Date, such that the Court has
discretion to grant leave to supplement summary judgment briefings and evidence. See Moll/bray! v.
A060), 76 S.W.3d 663, 688 (Tex. App—Corpus Christi—Edinburg 2002, pet. denied); Caro p. Sham
No. 03-02-00108-CV, 2003 WL 21354602 (T ex. App—Austin June 12, 2003, pet. denied).
Pursuant to Rule 166a(c), Plaintiffs seek leave of Court to supplement their response in
order to set out an additional matter of law based on the existing summary judgment record before
the Court. In other words, Plaintiff seek leave to clarify a dispositive legal argument based upon the
summary judgment record, but do not seek to introduce additional evidence that Defendants are not
already aware of} Specifically, the proposed Supplement to Plaintiffs' Response to the Motion
includes a dispositive legal argument concerning the applicable terms and provisions used by the
parties in their Original Agreement of Purchase and Sale (the "PSA"), which lapsed, and the First
Amendment to the Agreement of Purchase and Sale (the "Amendment to PSA"). Defendants
included both the PSA and the Amendment to PSA in the summary judgment record, and additional
legal argument concerning this evidence will not operate as a surprise to Defendants, as a matter of
law. Accordingly, Plaintiffs respectfully request that they be granted leave to supplement their
Indeed, for brevity of the filing record, Plaintiffs expressly relied upon and incorporated by reference for all purposes
1
the exhibits introduced by the Motion, which included the PSA (Defendants' Exhibit 2, RBR000408—432) and the First
Amendment to the PSA (Defendants' Exhibit 3, RBR000128—78).
PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE TO
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND REQUEST FOR HEARING - Page 2 of 4
9582176 V2 (7220800006000)
summary judgment briefing, and authorized by this Court to file their proposed Supplement to
Plaintiffs' Response to the Motion, attached for consideration as Exhibit 1.
II.
CONCLUSION AND PRAYER
For all of these reasons, Plaintiffs Milton 635 Gravois Road LLC, 635 Gravois Road Leasing
LLC, and 635 Gravois Road Real Estate, LLC respectfully request that they be granted leave to file
their proposed Supplement to Plaintiffs' Response to the Motion, and that this motion be set for
hearing for oral argument before the Court. Plaintiffs respectfully request all other and further relief
to which the Court determines Plaintiffs are justly entitled, at law or in equity.
Dated: September 27, 2022.
Respectfully submitted,
KANE RUSSELL COLEMAN LOGAN P.C.
By: /J/ RobmN. LeMav
Robert N. LeMay
State Bar No. 12188750
rlema krcl.com
Jaime M. DeWees
State Bar No. 24097593
Brandon Keaton
State Bar No. 24128456
bkeaton@krcl.com
901 Main Street
Suite 5200
Dallas, Texas 75202
Telephone (214) 777—4254
Facsimile (214) 777-4299
ATTORNEYS FOR PLAINTIFFS
PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE TO
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND REQUEST FOR HEARING - Page 3 of 4
9582176 V2 (7220800006000)
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document was
served on all known counsel of record in this cause in accordance with the Texas Rules of Civil
Procedure on September 27, 2022 as follows:
VIA EFILE
Elliot Strader
Xakema Henderson
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
elliot.strader@akerman.c0m
xakema.henderson@akerman.com
ATTORNEYS FOR DEFENDANTS
/.r/ RoberfN. LeMav
Robert N. LeMay
PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE TO
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND REQUEST FOR HEARING - Page 4 of 4
9582176 V2 (7220800006000)
CAUSE NO. DC—21—11406
MILTON 635 GRAVOIS ROAD LLC, 635 § IN THE DISTRICT COURT
GRAVOIS ROAD LEASING LLC, and 635 §
GRAVOIS ROAD REAL ESTATE LLC, §
§
Plaintiffs,
g
v. § 44TH JUDICIAL DISTRICT
§
TRT HOLDINGS, INC., §
RBR REAL ESTATE HOLDINGS, LLC, §
BRIAN ZELMAN, and ADAM ZEITSIFF, §
§
Defendants. § DALLAS COUNTY, TEXAS
PLAINTIFFS' SUPPLEMENT TO PLAINTIFFS' RESPONSE TO DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiffs Milton 635 Gravois Road LLC ("Gravois LLC"), 635 Gravois
Road Leasing LLC ("Gravois Leasing"), and 635 Gravois Road Real Estate LLC ("Gravois Real
Estate") (each a "Plaintiff", and collectively "Plaintiffs"), and respectfully supplement the summary
judgment record in opposition to Defendants' Motion for Summary Judgment, as follows:
I.
SUPPLEMENTAL ARGUMENT1
Supplemental to the arguments previously advanced, Plaintiffs Wish to draw the Court's
attention to an additional argument, based on genuine issues of material fact already set forth in the
summary judgment record, to further establish Why Defendants' Motion for Summary Judgment
should be denied.
As the Court is aware, Defendants attempt to avoid liability for their fraud based upon non—
negotiated boilerplate provisions in the Agreement of Purchase and Sale ("PSA"). The PSA—which
1This Supplement incorporates by reference and preserves for all purposes the arguments and summary judgment
evidence previously advanced in Plaintiffs’ Response to Defendants’ Motion for Summary Judgment.
9590236 v3 (7220800006000)
EXHIBITI 1 - Page 1 of 5
was entered into in May of 2019—0riginated as a boilerplate form generated by Defendant RBR Real
Estate Holdings, LLC ("RBR").2 N0 evidence exists as to What terms of the PSA were negotiated, if
any, including the purported disclaimer provisions raised by Defendants' Motion (Sections 9 and
20.6 of the PSA).3 Notably, however, the PSA lapsed and negotiations amongst the Parties
continued.4
Since negotiations continued after the PSA lapsed, and in order to further entice Plaintiffs'
principals' interest and induce the purchase acquisition of the premises, Defendants represented to
Plaintiffs' principal that Gold's Gym International was a "solid company" that was "fiscally well—
managed" and could "assure financial performance of the Lease" to Tenant, which anchored the
shopping center at the premises. Defendant RBR and Defendant TRT Holdings, Inc. ("TRT")
further represented that if Plaintiffs acquired the premises and the lease to tenant, they would
acquire a stable, long-term income stream from "a good, solid performing location." In reliance
upon Defendants' representations, Plaintiffs‘ affiliate Leeton Real Estate Inc., on behalf of Plaintiffs,
entered into a First Amendment to Agreement of Purchase and Sale ("APSA") on or about
September 27, 2019. Defendants' Motion for Summary Judgment does not address or point to any
summary judgment evidence controverting the facts pled regarding Defendants' misrepresentations.
Plaintiffs bring these facts to the Court's attention to advance an additional argument to aid
the Court in denying summary judgment. Specifically, Defendants' misrepresentations that form the
basis of Plaintiffs' claims were made after the PSA had lapsed, and before the Parties had entered
2
Declaration of Mark S. Cohen, Exhibit A to Plaintiffs' Response to Defs.' MS], at p. 1; Declaration of Mark Sher,
Exhibit B to Plaintiffs' Response to Defs.' MS], at p. 1
3A8 previously argued, Section 20.6 does not contain the word “disclaimer” or “disclaims” and does not expressly apply
to fraudulent omissions or non—disclosures.
4
Declaration of Mark S. Cohen, Exhibit A to Plaintiffs' Response to Defs.' MS], at pp.1-2 ("After an original agreement
with multiple seller entities for the Real Property and two other real estate tracts in Killen, Texas and San Antonio, Texas
had lapsed [the PSA] I sent the Email only after being advised that the transactions were being reconsidered and
revived").
9590236 v3 (7220800006000)
EXHIBITI 1 - Page 2 of 5
into the APSA.5 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 rnade by Defendants after the Parties had executed the PSA. Indeed, the purported
disclaimer provision itself applied by its very terms only to "representations" made in entering into
the PSA. Furthermore, the APSA does not include any language or terms regarding purported
disclaimers of representations or reliance made prior to the date the APSA was executed. Even the
"Reinstatement" term in the APSA (Section 2) reinstates the PSA "[f]rom and after the date of this
First Amendment,” but does not in any fashion apply the purported disclaimer of reliance language
in the PSA to the APSA or representations made prior t0 its entry.
II.
CONCLUSION AND PRAYER
For all of these reasons—in addition to those stated in Plaintiffs' Response to Defendants'
Motion for Summary Judgment—Plaintiffs Milton 635 Gravois Road LLC, 635 Gravois Road
Leasing LLC, and 635 Gravois Road Real Estate, LLC respectfully pray that the Court deny
Defendants' Motion for Summary Judgment in its entirety, and award Plaintiffs all other and further
relief to which the Court determines Plaintiffs are justly entitled, at law or in equity.
Dated: September 27, 2022.
Respectfully submitted,
KANE RUSSELL COLEMAN LOGAN P.C.
By: /J/ RobmN. LeMav
Robert N. LeMay
State Bar No. 12188750
rlema krcl.com
Jaime M. DeWees
State Bar No. 24097593
5The purported disclaimer provision specifically provides that “the Parties have not relied upon any statement,
representation, warranty, or agreement of the other party except for those expressly contained in this Agreement [the
defined term for the PSA].”
6
Exhibit 3 to Defendants' MS] (RBR0000128—78), at p. 1 ("2. Reinstatement").
9590236 v3 (7220800006000)
EXHIBITI 1 - Page 3 of 5
j deweesngrclcom
Brandon Keaton
State Bar N0. 24128456
bkeaton@krcl.com
901 Main Street
Suite 5200
Dallas, Texas 75202
Telephone (214) 777-4254
Facsimile (214) 777-4299
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that
a true and correct copy of the above and foregoing document was
served on all known counsel of record in this cause in accordance with the Texas Rules of Civil
Procedure on September 27, 2022 as follows:
VIA EFILE
Elliot Strader
Xakema Henderson
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
elliot.strader@akerman.com
xakema.henderson@akerman.com
ATTORNEYS FOR DEFENDANTS
/.r/ RoberiN. LeMav
Robert N. LeMay
9590236 v3 (7220800006000)
EXHIBITI 1 - Page 4 of 5
CAUSE NO. DC—21-11406
MILTON 635 GRAVOIS ROAD LLC, 635 § 1N THE DISTRICT COURT
GRAVOIS ROAD LEASING LLC, and 635 §
GRAVOIS ROAD REAL ESTATE LLC, §
§
Plaintiffs,
g
v. § 44TH JUDICIAL DISTRICT
§
TRT HOLDINGS, INC,
RBR REAL ESTATE HOLDINGS, LLC, g
BRIAN ZELMAN, and ADAM ZEITSIFF, §
§
Defendants. § DALLAS COUNTY, TEXAS
[PROPOSED] ORDER
The Court, having considered Plaintiffs‘ Motion for Leave to Supplement Plaintiffs'
Response to Defendants' Motion for Summary Judgment, filed September 27, 2022, is of the
opinion that the same should be GRANTED. Accordingly, Plaintiffs are hereby granted leave of
Court, and directed to file Plaintiffs' Exhibit 1 as Plaintiffs' Supplement to Plaintiffs' Response to
Defendants' Motion for Summary Judgment.
SO ORDERED.
. 2022.
JUDGE PRESIDING
9590236 v3 (7220800006000)
EXHIBITI 1 - Page 5 of 5
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.
Teresa Rowe on behalf of Robert LeMay
Bar No. 12188750
trowe@krcl.com
Envelope ID: 68671489
Status as of 9/28/2022 2:54 PM CST
Associated Case Party: MILTON 635 GRAVOIS ROAD LLC
Name BarNumber Email TimestampSubmitted Status
Robert LeMay rlemay@krcl.com 9/27/2022 4:47:04 PM SENT
Jaime DeWees jdewees@krcl.com 9/27/2022 4:47:04 PM SENT
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.
Teresa Rowe on behalf of Robert LeMay
Bar No. 12188750
trowe@krcl.com
Envelope ID: 68671489
Status as of 9/28/2022 2:54 PM CST
Associated Case Party: TRT HOLDINGS, INC.
Name BarNumber Email TimestampSubmitted Status
Elliot Strader elliot.strader@akerman.com 9/27/2022 4:47:04 PM SENT
Xakema Henderson xakema.henderson@akerman.com 9/27/2022 4:47:04 PM SENT
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.
Teresa Rowe on behalf of Robert LeMay
Bar No. 12188750
trowe@krcl.com
Envelope ID: 68671489
Status as of 9/28/2022 2:54 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Teresa Rowe trowe@krcl.com 9/27/2022 4:47:04 PM SENT
Connie Nims cnims@krcl.com 9/27/2022 4:47:04 PM SENT
Preview
FILED 9/27/2022 4:47 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Terri Kilgore DEPUTY CAUSE NO. DC—21-11406 MILTON 635 GRAVOIS ROAD LLC, 1N 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 ZEITSIEE, Defendants. DALLAS COUNTY, TEXAS PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY IUDGMENT. AND REQUEST FOR HEARING TO THE HONORABLE COURT: Pursuant to Rule 63 Of the Texas Rules Of Civil Procedure, Plaintiffs Milton 635 GraVOis Road LLC, 635 Gravois Road Leasing LLC, and 635 Gravois Road Real Estate, LLC (collectively the "Plaintiffs") respectfully move for leave of Court to file a Supplement to Plaintiffs' Response to Defendants' Motion for Summary Judgment (the "Motion"). The Motion was filed by Defendants TRT Holdings, Inc. ("TRT"), RBR Real Estate Holdings, LLC ("RBR"), Brian Zelman ("Zelman"), and Adam Zeitsiff ("Zeitsiff‘) (each a "Defendant" and collectively the "Defendants") on or about April 11, 2022, and remains pending, after Plaintiffs' Response (filed May 13, 2022), Defendants' Reply (filed May 17, 2022), and after submission May 20, 2022 (the "Submission Date"). The proposed Supplement to Plaintiffs' Response to the Motion (attached for consideration as Exhibit 1) includes clarification Of the facts pled on which the Motion was based and a related dispositive legal argument for the Court's consideration prior to ruling on the Motion, and for which leave of Court should be freely given. Therefore, because the proposed Supplement makes an PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND REQUEST FOR HEARING - Page 1 of 4 9582176 V2 (7220800006000) additional dispositive legal argument on the existing summary judgment record of evidence, leave of this Court to Plaintiffs Will not operate as a surprise to Defendants. I. MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE Rule 63 of the Texas Rules of Civil Procedure authorizes Plaintiffs to supplement their Response to the Motion "only after leave of the judge is obtained, which leave $11211 be granted by the judge unIess there is a showing that such a filing will operate as a surprise to the opposite party." The Motion currently remains pending as of the Submission Date, such that the Court has discretion to grant leave to supplement summary judgment briefings and evidence. See Moll/bray! v. A060), 76 S.W.3d 663, 688 (Tex. App—Corpus Christi—Edinburg 2002, pet. denied); Caro p. Sham No. 03-02-00108-CV, 2003 WL 21354602 (T ex. App—Austin June 12, 2003, pet. denied). Pursuant to Rule 166a(c), Plaintiffs seek leave of Court to supplement their response in order to set out an additional matter of law based on the existing summary judgment record before the Court. In other words, Plaintiff seek leave to clarify a dispositive legal argument based upon the summary judgment record, but do not seek to introduce additional evidence that Defendants are not already aware of} Specifically, the proposed Supplement to Plaintiffs' Response to the Motion includes a dispositive legal argument concerning the applicable terms and provisions used by the parties in their Original Agreement of Purchase and Sale (the "PSA"), which lapsed, and the First Amendment to the Agreement of Purchase and Sale (the "Amendment to PSA"). Defendants included both the PSA and the Amendment to PSA in the summary judgment record, and additional legal argument concerning this evidence will not operate as a surprise to Defendants, as a matter of law. Accordingly, Plaintiffs respectfully request that they be granted leave to supplement their Indeed, for brevity of the filing record, Plaintiffs expressly relied upon and incorporated by reference for all purposes 1 the exhibits introduced by the Motion, which included the PSA (Defendants' Exhibit 2, RBR000408—432) and the First Amendment to the PSA (Defendants' Exhibit 3, RBR000128—78). PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND REQUEST FOR HEARING - Page 2 of 4 9582176 V2 (7220800006000) summary judgment briefing, and authorized by this Court to file their proposed Supplement to Plaintiffs' Response to the Motion, attached for consideration as Exhibit 1. II. CONCLUSION AND PRAYER For all of these reasons, Plaintiffs Milton 635 Gravois Road LLC, 635 Gravois Road Leasing LLC, and 635 Gravois Road Real Estate, LLC respectfully request that they be granted leave to file their proposed Supplement to Plaintiffs' Response to the Motion, and that this motion be set for hearing for oral argument before the Court. Plaintiffs respectfully request all other and further relief to which the Court determines Plaintiffs are justly entitled, at law or in equity. Dated: September 27, 2022. Respectfully submitted, KANE RUSSELL COLEMAN LOGAN P.C. By: /J/ RobmN. LeMav Robert N. LeMay State Bar No. 12188750 rlema krcl.com Jaime M. DeWees State Bar No. 24097593 Brandon Keaton State Bar No. 24128456 bkeaton@krcl.com 901 Main Street Suite 5200 Dallas, Texas 75202 Telephone (214) 777—4254 Facsimile (214) 777-4299 ATTORNEYS FOR PLAINTIFFS PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND REQUEST FOR HEARING - Page 3 of 4 9582176 V2 (7220800006000) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served on all known counsel of record in this cause in accordance with the Texas Rules of Civil Procedure on September 27, 2022 as follows: VIA EFILE Elliot Strader Xakema Henderson AKERMAN LLP 2001 Ross Avenue, Suite 3600 Dallas, Texas 75201 elliot.strader@akerman.c0m xakema.henderson@akerman.com ATTORNEYS FOR DEFENDANTS /.r/ RoberfN. LeMav Robert N. LeMay PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND REQUEST FOR HEARING - Page 4 of 4 9582176 V2 (7220800006000) CAUSE NO. DC—21—11406 MILTON 635 GRAVOIS ROAD LLC, 635 § IN THE DISTRICT COURT GRAVOIS ROAD LEASING LLC, and 635 § GRAVOIS ROAD REAL ESTATE LLC, § § Plaintiffs, g v. § 44TH JUDICIAL DISTRICT § TRT HOLDINGS, INC., § RBR REAL ESTATE HOLDINGS, LLC, § BRIAN ZELMAN, and ADAM ZEITSIFF, § § Defendants. § DALLAS COUNTY, TEXAS PLAINTIFFS' SUPPLEMENT TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiffs Milton 635 Gravois Road LLC ("Gravois LLC"), 635 Gravois Road Leasing LLC ("Gravois Leasing"), and 635 Gravois Road Real Estate LLC ("Gravois Real Estate") (each a "Plaintiff", and collectively "Plaintiffs"), and respectfully supplement the summary judgment record in opposition to Defendants' Motion for Summary Judgment, as follows: I. SUPPLEMENTAL ARGUMENT1 Supplemental to the arguments previously advanced, Plaintiffs Wish to draw the Court's attention to an additional argument, based on genuine issues of material fact already set forth in the summary judgment record, to further establish Why Defendants' Motion for Summary Judgment should be denied. As the Court is aware, Defendants attempt to avoid liability for their fraud based upon non— negotiated boilerplate provisions in the Agreement of Purchase and Sale ("PSA"). The PSA—which 1This Supplement incorporates by reference and preserves for all purposes the arguments and summary judgment evidence previously advanced in Plaintiffs’ Response to Defendants’ Motion for Summary Judgment. 9590236 v3 (7220800006000) EXHIBITI 1 - Page 1 of 5 was entered into in May of 2019—0riginated as a boilerplate form generated by Defendant RBR Real Estate Holdings, LLC ("RBR").2 N0 evidence exists as to What terms of the PSA were negotiated, if any, including the purported disclaimer provisions raised by Defendants' Motion (Sections 9 and 20.6 of the PSA).3 Notably, however, the PSA lapsed and negotiations amongst the Parties continued.4 Since negotiations continued after the PSA lapsed, and in order to further entice Plaintiffs' principals' interest and induce the purchase acquisition of the premises, Defendants represented to Plaintiffs' principal that Gold's Gym International was a "solid company" that was "fiscally well— managed" and could "assure financial performance of the Lease" to Tenant, which anchored the shopping center at the premises. Defendant RBR and Defendant TRT Holdings, Inc. ("TRT") further represented that if Plaintiffs acquired the premises and the lease to tenant, they would acquire a stable, long-term income stream from "a good, solid performing location." In reliance upon Defendants' representations, Plaintiffs‘ affiliate Leeton Real Estate Inc., on behalf of Plaintiffs, entered into a First Amendment to Agreement of Purchase and Sale ("APSA") on or about September 27, 2019. Defendants' Motion for Summary Judgment does not address or point to any summary judgment evidence controverting the facts pled regarding Defendants' misrepresentations. Plaintiffs bring these facts to the Court's attention to advance an additional argument to aid the Court in denying summary judgment. Specifically, Defendants' misrepresentations that form the basis of Plaintiffs' claims were made after the PSA had lapsed, and before the Parties had entered 2 Declaration of Mark S. Cohen, Exhibit A to Plaintiffs' Response to Defs.' MS], at p. 1; Declaration of Mark Sher, Exhibit B to Plaintiffs' Response to Defs.' MS], at p. 1 3A8 previously argued, Section 20.6 does not contain the word “disclaimer” or “disclaims” and does not expressly apply to fraudulent omissions or non—disclosures. 4 Declaration of Mark S. Cohen, Exhibit A to Plaintiffs' Response to Defs.' MS], at pp.1-2 ("After an original agreement with multiple seller entities for the Real Property and two other real estate tracts in Killen, Texas and San Antonio, Texas had lapsed [the PSA] I sent the Email only after being advised that the transactions were being reconsidered and revived"). 9590236 v3 (7220800006000) EXHIBITI 1 - Page 2 of 5 into the APSA.5 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 rnade by Defendants after the Parties had executed the PSA. Indeed, the purported disclaimer provision itself applied by its very terms only to "representations" made in entering into the PSA. Furthermore, the APSA does not include any language or terms regarding purported disclaimers of representations or reliance made prior to the date the APSA was executed. Even the "Reinstatement" term in the APSA (Section 2) reinstates the PSA "[f]rom and after the date of this First Amendment,” but does not in any fashion apply the purported disclaimer of reliance language in the PSA to the APSA or representations made prior t0 its entry. II. CONCLUSION AND PRAYER For all of these reasons—in addition to those stated in Plaintiffs' Response to Defendants' Motion for Summary Judgment—Plaintiffs Milton 635 Gravois Road LLC, 635 Gravois Road Leasing LLC, and 635 Gravois Road Real Estate, LLC respectfully pray that the Court deny Defendants' Motion for Summary Judgment in its entirety, and award Plaintiffs all other and further relief to which the Court determines Plaintiffs are justly entitled, at law or in equity. Dated: September 27, 2022. Respectfully submitted, KANE RUSSELL COLEMAN LOGAN P.C. By: /J/ RobmN. LeMav Robert N. LeMay State Bar No. 12188750 rlema krcl.com Jaime M. DeWees State Bar No. 24097593 5The purported disclaimer provision specifically provides that “the Parties have not relied upon any statement, representation, warranty, or agreement of the other party except for those expressly contained in this Agreement [the defined term for the PSA].” 6 Exhibit 3 to Defendants' MS] (RBR0000128—78), at p. 1 ("2. Reinstatement"). 9590236 v3 (7220800006000) EXHIBITI 1 - Page 3 of 5 j deweesngrclcom Brandon Keaton State Bar N0. 24128456 bkeaton@krcl.com 901 Main Street Suite 5200 Dallas, Texas 75202 Telephone (214) 777-4254 Facsimile (214) 777-4299 ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served on all known counsel of record in this cause in accordance with the Texas Rules of Civil Procedure on September 27, 2022 as follows: VIA EFILE Elliot Strader Xakema Henderson AKERMAN LLP 2001 Ross Avenue, Suite 3600 Dallas, Texas 75201 elliot.strader@akerman.com xakema.henderson@akerman.com ATTORNEYS FOR DEFENDANTS /.r/ RoberiN. LeMav Robert N. LeMay 9590236 v3 (7220800006000) EXHIBITI 1 - Page 4 of 5 CAUSE NO. DC—21-11406 MILTON 635 GRAVOIS ROAD LLC, 635 § 1N THE DISTRICT COURT GRAVOIS ROAD LEASING LLC, and 635 § GRAVOIS ROAD REAL ESTATE LLC, § § Plaintiffs, g v. § 44TH JUDICIAL DISTRICT § TRT HOLDINGS, INC, RBR REAL ESTATE HOLDINGS, LLC, g BRIAN ZELMAN, and ADAM ZEITSIFF, § § Defendants. § DALLAS COUNTY, TEXAS [PROPOSED] ORDER The Court, having considered Plaintiffs‘ Motion for Leave to Supplement Plaintiffs' Response to Defendants' Motion for Summary Judgment, filed September 27, 2022, is of the opinion that the same should be GRANTED. Accordingly, Plaintiffs are hereby granted leave of Court, and directed to file Plaintiffs' Exhibit 1 as Plaintiffs' Supplement to Plaintiffs' Response to Defendants' Motion for Summary Judgment. SO ORDERED. . 2022. JUDGE PRESIDING 9590236 v3 (7220800006000) EXHIBITI 1 - Page 5 of 5 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. Teresa Rowe on behalf of Robert LeMay Bar No. 12188750 trowe@krcl.com Envelope ID: 68671489 Status as of 9/28/2022 2:54 PM CST Associated Case Party: MILTON 635 GRAVOIS ROAD LLC Name BarNumber Email TimestampSubmitted Status Robert LeMay rlemay@krcl.com 9/27/2022 4:47:04 PM SENT Jaime DeWees jdewees@krcl.com 9/27/2022 4:47:04 PM SENT 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. Teresa Rowe on behalf of Robert LeMay Bar No. 12188750 trowe@krcl.com Envelope ID: 68671489 Status as of 9/28/2022 2:54 PM CST Associated Case Party: TRT HOLDINGS, INC. Name BarNumber Email TimestampSubmitted Status Elliot Strader elliot.strader@akerman.com 9/27/2022 4:47:04 PM SENT Xakema Henderson xakema.henderson@akerman.com 9/27/2022 4:47:04 PM SENT 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. Teresa Rowe on behalf of Robert LeMay Bar No. 12188750 trowe@krcl.com Envelope ID: 68671489 Status as of 9/28/2022 2:54 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Teresa Rowe trowe@krcl.com 9/27/2022 4:47:04 PM SENT Connie Nims cnims@krcl.com 9/27/2022 4:47:04 PM SENT