Preview
FILED
10/27/2022 11:04 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Brandon Keys DEPUTY
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 respectfillly supplement the summary
judgment record in opposition to Defendants' Motion for Summary Judgment, as follows:
I.
SUPPLEMENTAL ARGUMENTI
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 0f 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 SummaryJudgment.
9590236 v3 (7220800006000)
was entered into in May of 2019—0riginated as a boilerplate form generated by Defendant RBR Real
Estate Holdings, LLC ("RBR")? No 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)
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 made 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 to 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 fiarther
relief to which the Court determines Plaintiffs are justly entitled, at law or in equity.
Dated: October 27, 2022.
5The purported disclaimer provision specifically provides that “the Pardes 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)
Respectfully submitted,
KANE RUSSELL COLEMAN LOGAN P.C.
By: /5/ RobmN. LeMm/
Robert N. LeMay
State Bar N0. 12188750
—
rlema
M.
krcl.com
DeWees
Jaime
State Bar N0. 24097593
—
jdeweeszkrclcom
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
CERTIFICATE OF SERVICE
I hereby certify that copy of the above and foregoing document was
a true and correct
served on all known counsel of record in this cause in accordance with the Texas Rules of Civil
Procedure on October 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/ RobmN. LeMav
Robert N. LeMay
9590236 v3 (7220800006000)
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: 69624571
Status as of 10/27/2022 2:30 PM CST
Associated Case Party: MILTON 635 GRAVOIS ROAD LLC
Name BarNumber Email TimestampSubmitted Status
Robert LeMay r|emay@krcl.com 10/27/2022 11:04:14 AM SENT
Jaime DeWees jdewees@krcl.com 10/27/2022 11:04:14 AM SENT
Associated Case Party: TRT HOLDINGS, INC.
Name BarNumber Email TimestampSubmitted Status
Elliot Strader elliot.strader@akerman.com 10/27/2022 11:04:14 AM SENT
Xakema Henderson xakema.henderson@akerman.com 10/27/2022 11:04:14 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Teresa Rowe trowe@krcl.com 10/27/2022 11:04:14 AM SENT
Connie Nims cnims@krcl.com 10/27/2022 11:04:14 AM SENT
Bree Kimball BKimball@krcl.com 10/27/2022 11:04:14 AM SENT
Preview
FILED 10/27/2022 11:04 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Brandon Keys DEPUTY 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 respectfillly supplement the summary judgment record in opposition to Defendants' Motion for Summary Judgment, as follows: I. SUPPLEMENTAL ARGUMENTI 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 0f 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 SummaryJudgment. 9590236 v3 (7220800006000) was entered into in May of 2019—0riginated as a boilerplate form generated by Defendant RBR Real Estate Holdings, LLC ("RBR")? No 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) 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 made 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 to 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 fiarther relief to which the Court determines Plaintiffs are justly entitled, at law or in equity. Dated: October 27, 2022. 5The purported disclaimer provision specifically provides that “the Pardes 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) Respectfully submitted, KANE RUSSELL COLEMAN LOGAN P.C. By: /5/ RobmN. LeMm/ Robert N. LeMay State Bar N0. 12188750 — rlema M. krcl.com DeWees Jaime State Bar N0. 24097593 — jdeweeszkrclcom 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 CERTIFICATE OF SERVICE I hereby certify that copy of the above and foregoing document was a true and correct served on all known counsel of record in this cause in accordance with the Texas Rules of Civil Procedure on October 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/ RobmN. LeMav Robert N. LeMay 9590236 v3 (7220800006000) 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: 69624571 Status as of 10/27/2022 2:30 PM CST Associated Case Party: MILTON 635 GRAVOIS ROAD LLC Name BarNumber Email TimestampSubmitted Status Robert LeMay r|emay@krcl.com 10/27/2022 11:04:14 AM SENT Jaime DeWees jdewees@krcl.com 10/27/2022 11:04:14 AM SENT Associated Case Party: TRT HOLDINGS, INC. Name BarNumber Email TimestampSubmitted Status Elliot Strader elliot.strader@akerman.com 10/27/2022 11:04:14 AM SENT Xakema Henderson xakema.henderson@akerman.com 10/27/2022 11:04:14 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Teresa Rowe trowe@krcl.com 10/27/2022 11:04:14 AM SENT Connie Nims cnims@krcl.com 10/27/2022 11:04:14 AM SENT Bree Kimball BKimball@krcl.com 10/27/2022 11:04:14 AM SENT