Preview
FILED
9/13/2023 4:15 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Marissa Gomez 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,
v. 44TH JUDICIAL DISTRICT
TRT HOLDINGS, INC.,
RBR REAL ESTATE HOLDINGS, LLC,
BRIAN ZELMAN, and ADAM ZEITSIFF,
Defendants. DALLAS COUNTY, TEXAS
PLAINTIFFS' RESPONSE TO DEFENDANTS’ MOTION TO STRIKE, CONTINUE
TRIAL SETTING, AMEND SCHEDULING ORDER, AND QUASH JURY DEMAND
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") (collectively
"Plaintiffs") submit their Response opposing the Motion to Strike, Continue Trial Setting, Amend
Scheduling Order and Quash Jury Setting ("Motion") filed by Defendants RBR Real Estate Holdings,
LLC ("RBR"), TRT Holdings, Inc. ("TRT"), Brian Zelman, and Adam Zeitsiff (collectively,
"Defendants"), and pray that the Court issue an order denying all relief sought by the Motion.
I, PRELIMINARY STATEMENT
The Motion is unsupported by the facts and the law, and Defendants have wholly failed to
establish any unfair surprise or prejudice. On August 25, 2023, Plaintiffs supplemented their initial
disclosures 73 days prior to trial to include several names of persons with knowledge that had
previously been disclosed in discovery and about whom Defendants were well aware and chose not
to depose. Also on August 25, 2023, Plaintiffs timely disclosed their damages experts and produced,
PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND.
QUASH JuRY DEMAND- PAGE |
10344695
in addition to expert reports, 24 documents upon which the experts relied.' Defendants have until
October 9, 2023, under the Court's present scheduling order that Defendants and their counsel agreed
to, to depose those damages experts and examine them on those 24 documents. The disclosures were
not a surprise, and all disclosures were timely. Defendants can point to no harm because expert
discovery has not concluded, and the damages experts are available for deposition. Lastly, two of the
Plaintiffs did not sign a jury waiver and are entitled to a jury trial.
Il. SUMMARY OF RESPONSE
The Court should deny Defendants! Motion and allow this case to proceed to its current trial
setting of November 6, 2023—an agreed jury trial setting sixty days after the filing of the Motion—
and allow the parties to proceed on the remaining pretrial matters under the current operative
Amended Scheduling Order dated July 5, 2023. Exhibit 1. The chief complaint of Defendants'
haphazard Motion is that Plaintiffs made timely expert disclosures under TEX. R. Cv. P. 195.5, but
because these timely disclosures included relevant supplementation of Plaintiffs’ disclosures under
TEX. R. Civ. P. 194.2, the Court must either strike those supplemental disclosures (which would be
improper) or else grant a continuance (solely on that basis). The Court should decline Defendants'
improper invitation to do either.
Less than ninety days ago, all parties and counsel agreed to this November 6, 2023 trial setting
and all of the pretrial deadlines in the current operative Amended Scheduling Order of July 5, 2023,
that Defendants' Motion now unilaterally seeks to amend. The Motion itself directs the Court to the
remaining pretrial deadlines, including that all expert discovery closes on October 9, 2023; a date all
parties and counsel expressly and jointly agreed would follow Plaintiffs' deadline, as the party seeking
' "The 24 documents consist mainly of loan documents. ‘The majority of the other documents produced on August 25,
2023 were attorney's fee invoices and expert reports. ‘Those 24 documents will be made available for review at the hearing.
‘These documents offer no surprise.
PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND.
QUASH JuRY DEMAND- PAGE 2
10344695
affirmative relief, to designate experts and provide reports on August 25, 2023—the day Plaintiffs
made the disclosures now attacked in the Motion. In this regard, Defendants are improperly
conflating the close of fact discovery on August 18, 2023, with the still-pending future deadline for
expert discovery to conclude on October 9, 2023, that the parties and counsel agreed would precede
their agreed November 6, 2023 trial setting. Moreover, in substance, Defendants' Motion cannot
demonstrate any unfair surprise arising from Plaintiffs' August 25, 2023 supplementation of their
disclosures under Tex. R. Civ. P. 194.2, nor any harm for Defendants own expert disclosures which
were timely made. As a result, the Court must deny Defendants' other bases to continue the trial
setting or amend the scheduling order. Lastly, Plaintiffs are entitled to proceed to a jury trial for their
damages claims that are not subject to any jury trial waiver.
Til. ARGUMENT AND AUTHORITY
A. All of Plaintiffs' Disclosures are Timely, and Pose No Unfair Surprise or Prejudice to
Defendants.
Plaintiffs have demonstrably complied with their obligations under Rule 193.5(b) of the Texas
Rules of Civil Procedure, which authorizes amended and supplemental discovery responses when
made reasonably promptly after the party discovers the necessity for such a response, and in any event
no less than 30 days before trial. Defendants offer no appropriate basis to strike, or in any way limit
or exclude, Plaintiffs’ August 25, 2023 supplementation of their disclosures under TEX. R. Clv. P.
194.2 made 73 days prior to trial. Behind the bizarre request to strike timely supplemental disclosures
is the failure to acknowledge that the document production in question expressly pertained to
Plaintiffs' timely expert disclosures under TEX. R. CIV. P. 195.5 made the same day and were required
by Tex. R. Civ. P. 195.5(a)(4)(A). Defendants’ Motion offers fallacious statements to this Court
regarding the "several new witnesses" and the "first time" damages contentions supplemented by
Plaintiffs.
PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND.
QUASH JuRY DEMAND- PAGE 3
10344695
The handful of "new" witnesses with knowledge of relevant facts disclosed by Plaintiffs on
August 25, 2023, are people who were previously identified in discovery and whose names appeat in
documents produced in this case. Plaintiffs' supplemental disclosure of Joe Coleman comes from
documents produced by Defendants (e.g. RBR 1906; 1908-09, produced by Defendants on June 6,
2022; RBRO03147, produced by Defendants on September 1, 2022), and from testimony given by
Defendants’ witnesses in April 2023 and August 2023. Exhibit 2, deposition excerpts of
Defendants’ corporate representative Paul Jorge (42:4—43:7) ("[Mr. Coleman] would have been
employed by TRT Equity Advisors. ... He would have ultimately reported to Mike Frantz. I don't
know if there was somebody in between Mr. Coleman and Mr. Frantz. But he was on the investment
team and Michael Frantz leads the investment team.") (RBR003147 marked as Deposition Exhibit
26); see also Exhibit 3, deposition excerpts of Defendant Brian Zelman (104:23—107:1) ("When you
responded to Mr. Coleman — who do you think was ultimately going to receive the information you
provided?" "I think the ultimate audience is Bob [Rowling].") (139:12-22) ("The board meeting [Mr.
Coleman's] referencing, I believe, is TRT Holdings.") (RBR 1906 and RBR 1908-09 marked as
Deposition Exhibits 174 and 191).
In addition to their own former TRT-affiliated employee Joe Coleman, Defendants have been
equally aware of the role of Lexington Realty International and the names of individuals within this
company, who Defendants themselves communicated with in April 2020 after expressly
identifying Lexington Realty International as the landlord point-of-contact for the Premises in Fenton,
MO. IExhibit
xhibit 4,4, documents produced December 8, 2022, by non-party RSG Group USA, Inc., as
successor to Gold's Gym International (RSG00337: April 2020 emails between Defendant Adam
Zeitsiff and other TRT and Gold's Gym employees, identifying "Landlord Portfolio" to discuss
"CLOSURES" and "RE-NEGOTIATE" locations of Gold's Gyms) (RSG00339: identifying
"Lexington Realty International" as "True Owner/Landlord" for 635 Gravois Road Leasing, LLC as
PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND.
QUASH JuRY DEMAND- PAGE 4
10344695
"Landlord Entity"); (RSG00346: April 2020 emails between Defendant Brian Zelman, Defendants!
corporate representative Paul Jorge, and other TRT and Gold's Gym employees, identifying Gold's
Gym locations for discussions with landlords) (RSG00348: identifying "Lexington Realty
International" as landlord for Fenton, MO location). Defendants' witness Paul Early further
confirmed in his April 19, 2023 deposition that he personally reached out to Lexington Realty
International regarding closure and rejection of the lease at Fenton, MO location. Exhibit_5,
deposition excerpts of Paul Early (168:5—169:24) (Deposition Exhibit 93, at PLAINTIFFS_010931).
Even assuming agvendo that Plaintiffs’ supplemental disclosures of these witnesses was
somehow untimely, Defendants could properly seek to exclude such evidence or witness testimony at
trial under Rule 193.6, but only if Plaintiffs' purported untimeliness will cause unfair surprise or unfair
prejudice to Defendants. TEX. R. Crv. P. 193.6(a)(2); (b) ("A finding of . . . unfair surprise or unfair
prejudice must be supported by the record."). As demonstrated above in the discovery record,
Defendants cannot objectively substantiate any of their vague allegations about purported late
supplementation of persons with knowledge, or what, if any, unfair surprise or unfair prejudice they
have suffered as a result. Rather, Plaintiffs have carried their burden of amending and supplementing
their disclosures in a timely matter before trial under Rule 193.5(b), in the unlikely event these
witnesses ate called at trial. In their Motion, however, Defendants make no showing that Plaintiffs
intend to call any of these witnesses at trial, nor have they asked the Court to strike them.
Defendants’ final complaint regarding Plaintiffs’ supplementation of their damages
contentions is also a deceptive non-starter. Defendants' Motion conveniently quotes one selective
line from Plaintiffs' representative's deposition, and in doing so obscures critical testimony given May
25, 2023 regarding the amounts and methods for calculating Plaintiffs' damages. Exhibit 6, deposition
excerpts from Mark Sher (195:8—197:20) ("The out-of-pocket damages are very simple. . . That's
the difference between what we paid for the property and what the property is worth now. But then
PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND.
QUASH JURY DEMAND- PAGE 5
10344695
there's all of the consequential damages. . . Those are the ones that keep increasing at time goes by
hour by hour. .. [T]he vacancy at the property also hurts the property, right? So that's damaging the
tenants that were there before Gold's Gym was a big driver for the other tenants that were there.
[W]e know we have someone willing to pay $5.4 million dollars for [the property now]. And that was
for a user. So I would say for a use, that's an accurate valuation. Just to sell it to an investor who plans
to lease it out, probably twenty to thirty percent less than that. [That is based on] the net operating
income and the cost to back fill the vacant space. . . We also have . . . an appraisal of what the
property was worth at the time we bought the property without the Gold's Gym lease.").
Plaintiff's expert appraisal dated August 11, 2023 was timely disclosed on August 25, 2023—
the date agreed to in the scheduling order for Plaintiffs' deadline "to provide reports"—under Rule
195.5 as an expert report prepared by a testifying expert, and was accompanied by Plaintiffs’ August
25, 2023 supplemental production of " all documents, tangible things, reports, models, or data
compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation
of the expert's testimony." TEx. R. Crv. P. 195.5(a)(4)(A) In sum, Plaintiffs' disclosures relating to
their damages have not been revealed "for the first time" and, even if they were, remain timely under
Rule 193.6, Rule 195.5, and the current operative Amended Scheduling Order. Again, Defendants
expressly agreed with Plaintiffs that after Plaintiffs’ August 25, 2023 expert disclosures and service of
expert reports, Defendants would proceed with theit own expert disclosures and reports by September
8, 2023, with sufficient time to conclude all expert discovery by October 9, 2023, and proceed to the
trial setting on November 6, 2023. The Court should decline to amend the current scheduling order
or continue the trial setting.
PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND.
QUASH JURY DEMAND- PAGE 6
10344695
B. Defendants Offer No Other Appropriate Basis to Continue the Trial Setting or
Amend the Current Scheduling Order.
Defendants’ Motion as it pertains to amending the current operative Amended Scheduling
Order is governed by Rule 190.5, which provides that the Court may modify a discovery control plan
"related to new, amended or supplemental pleadings, or new information disclosed in a discovery
responses of in an amended supplemental response if: (1) the pleadings or responses were made after
the deadline for completion of discovery or so nearly before that deadline that an adverse party does
not have an adequate opportunity to conduct discovery related to the new matters, and (2) the adverse
party would be unfairly prejudiced without such additional discovery." TEX. R. CIv. P. 190.5(a)(1)-(2).
Defendants’ Motion fails to substantiate the logical gap between Plaintiffs’ August 25, 2023
disclosures of additional witnesses and damages contentions, and the discovery that they say they need
a new scheduling order for. Nothing in Plaintiffs' August 25, 2023 disclosures, under either Rule
193.6, Rule 195.5, objectively or demonstrably affected Defendants! ability to prepare and produce
their own expert disclosures (and Defendants make no such argument) or to depose any witnesses
(that they are purposefully unclear about what they would actually do with a new fact discovery
deadline). Other than self-serving conclusory assertions, Defendants' Motion makes no showing of
inability or need to re-open or re-visit the fact discovery deadline. No basis is suggested for new
expert disclosure dates when experts have already been disclosed. Rather, under the current operative
Amended Scheduling Order, Defendants still have the tight and opportunity to depose Plaintiffs'
experts, which Plaintiffs offer and fully expect Defendants to do.
Under these circumstances, the Court is fully within its discretion under Rule 190.5 to deny
Defendants! motion to amend the scheduling order. See State v. Sherley Partners, Ltd., No. 05-21-01160-
CV, 2023 WL 3371454, at *3 (Tex. App—Dallas, May 11, 2023) ("[IJhe plain language of rule 190.5(b)
requires the trial court to allow additional discovery 'regarding matters that have changed materially
PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND.
QUASH JURY DEMAND- PAGE 7
10344695
after the discovery cutoff if trial is set or postponed so that the trial date is more than three months
after the discovery period ends.' TEX. R. CIV. P. 190.5(b). [T]he State does not identify any matter
that ‘changed materially’ after the scheduling order's deadlines elapsed."); Brown v. Brown, 145 S.W.3d
745, 750 (Tex. App—Dallas 2004, no pet.) ("Appellant's motion did not explain what further
discovery appellant would seek if the discovery period were increased. We conclude the trial court did
not abuse its discretion by denying appellant's motion because, in this situation, 'the interest of justice’
did not require modification of the discovery period."); Abdelhak v. Farney, No. 04-07-00121-CV, 2007
WL 4180133, at *2 (ex. App.—San Antonio, Nov. 28, 2007, pet. denied) ("Rule 190.5 specifies two
situations when the trial court must allow additional discovery. Abdelhak, however, does not argue
that either of these two situations applies. For the same reasons that the trial court did not abuse its
discretion in denying Abdelhak's motion for a continuance, we conclude that it was within the trial
court's discretion to hold that 'the interest of justice’ did not require modification of the discovery
petiod."); Est. of Grogan, 595 S.W.3d 807, 825 (Tex. App.—Texarkana 2020, no pet. h.) (affirming trial
court's denial of continuance) ("[T]he motion for continuance generally argued that depositions were
required 'in order to more fully discover the witness's connection and relevant knowledge of the claims
in this case.' The trial court could have concluded that William had been afforded adequate time to
conduct discovery related to those [witnesses and issues]. . . Under the circumstances discussed
above, we cannot say that the trial court abused its discretion in finding that William had been afforded
a reasonable opportunity to conduct discovery or was not unfairly prejudiced without additional
discovery.").
Moreover, Defendants’ other pending motion, their Motion to Compel Documents from
Plaintiffs, also does not support the relief sought by Defendants' motions to amend the scheduling
order and continue the trial setting. Pursuant to Texas Rule of Civil Procedure 58, Defendants adopt
and incorporate by reference the entirety of their Response Opposing Defendants' Motion to Compel,
PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND.
QUASH JuRY DEMAND- PAGE 8
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which demonstrates that Plaintiffs have produced all responsive, non-privileged documents and
communications, and are not withholding any non-privileged documents or communications on the
basis of any objection, in response to Defendants’ requests for production ("RFPs") as well as such
productions made the basis of Plaintiffs’ expert disclosures under TEX. R. CIV. P. 195.5 and
disclosures under TEX. R. CIV. P. 194.2. Because Defendants' Motion to Compel has not
substantiated that Plaintiffs are withholding any documents and communications, it is not a proper
basis or reason to amend the scheduling order or continue the trial setting.
C. Plaintiffs are Entitled to Proceed to a Jury Trial Setting against Defendants.
The "Waiver of Jury Trial" provision is contained in the Purchase and Sale Agreement for the
subject shopping center that was signed by Defendant RBR Real Estate Holdings, LLC, and Leeton
Real Estate, Inc. The Plaintiffs in this case who sustained damages (as disclosed on August 25, 2023
in their expert disclosures) resulting from Defendants’ fraudulent conduct and inducements to
purchase the Premises—Plaintiff 635 Gravois Road Real Estate, LLC, and Plaintiffs 635 Gravois Road
Leasing, LLC—are not parties to the PSA and did not sign jury waivers. Accordingly, the Court
should order the parties to proceed to their current trial setting of November 6, 2023, on the jury
docket.
IV. CONCLUSION AND PRAYER
Plaintiffs pray that the Court deny Defendants' Motion in its entirety and issue an order
denying all relief sought by the Motion; in addition to such other further and additional relief to which
Plaintiffs may be justly entitled.
PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND.
QUASH JuRY DEMAND- PAGE 9
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Respectfully submitted,
KANE RUSSELL COLEMAN LOGAN P.C.
By: s/ Robert N. LeMay
Robert N. LeMay
State Bar No. 12188750
tlemay@krcl.com
Jaime M. DeWees
State Bar No. 24097593
jdewees@krcl.com
Collin Delano
State Bar No. 24109801
cdelano@krcl.com
901 Main Street
Suite 5200
Dallas, Texas 75202
Telephone (214) 777-4254
Facsimile (214) 777-4299
ATTORNEYS FOR PLAINTIFFS
Certificate of Service
Thereby 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 13, 2023, 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
/s/ Robert N. LeMay
Robert N. LeMay
PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND.
QUASH JuRY DEMAND- PAGE 10
10344695
EXHIBIT
ale
CAUSE NO. 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,
vs. 44™ JUDICIAL DISTRICT
TRT HOLDINGS, INC.,
RBR REAL ESTATE HOLDINGS, LLC,
BRIAN ZELMAN, and ADAM ZEITSIFF,
Defendants. DALLAS COUNTY, TEXAS
AMENDED SCHEDULING ORDER
After considering the Parties Agreed Joint Motion for Entry of Amended Scheduling Order,
the Court is of the opinion that good cause has been shown therein and that the Motion should be
GRANTED.
Accordingly, this civil action was previously set and remains set for trial on November 6,
2023 ("Trial Setting"). It is further ORDERED that the following pretrial matters will be
completed by the following dates:
Fact discovery closes August 18, 2023 7
Party seeking affirmative relief to designate experts and provide reports on August 25,
2023
Party opposing affirmative relief to designate experts and provide reports on September
8, 2023
Designation of rebuttal experts and provide reports on September 25, 2023
All expert discovery closes October 9, 2023
Other amended pleadings due 45 days before the Trial Setting; and
Mediation before Hon. Carl Ginsburg as Mediator is to be held no later than 30 days
before the Trial Setting.
‘AMENDED SCHEDULING ORDER 10193263
'
EXHIBIT 1
occa e eee e SESEeSeSESSS
so ORDERED, this , 2023.
AGREED:
By: /s/ Robert N. LeMay
Robert N. LeMay
State Bar No. 12188750
Jaime M. DeWees
State Bar No. 24097593
Collin Delano
State Bar No. 24109801
KANE RUSSELL COLEMAN LOGAN PC
901 Main Street, Suite 5200
Dallas, Texas 75202
Telephone (214) 777-4254
Facsimile (214) 777-4299
lemay@krel.com
jdewees@krel.com
bkeaton@qcl.com
ATTORNEYS FOR PLAINTIFFS
and
By: /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
xakema.henderson@akerman.com
ATTORNEYS
FOR DEFENDANTS
1
1
“AMENDED SCHEDULING ORDER 10193263
EXHIBIT 1
EXHIBIT
ae
PAUL JORGE April 06, 2028
MILTON 635 GRAVOIS RD vs TRT HOLDINGS
Q Again, so let's just look at one other,
maybe -- okay. So we're on Exhibit 26.
(Exhibit 26 marked.)
Q (BY MR. LEMAY) And let me show you a document
marked as Exhibit 26.
So this document appears somewhat similar.
It's a couple of e-mails back and forth between Brian
Zelman and Joe Coleman. It's dated May 24, 2019. AnGe dt
is regarding RBR Real Estate Page of Board Materials.
10 Do you see that?
11 Yes.
12 Have you seen this document before?
13 No, I have not.
14 Q Who was Joe Coleman?
15 A Joe Coleman was a member of our team. I believe
16 he is also a son of one of your partners.
17 Q Okay. I have met him.
18 A Good. You probably know him better than me.
19 Q Who did -- who did he work for?
20 A He would have been employed by TRT Equity
21 Advisors.
22 Q All right. And like Mr. O'Hara, he also has the
23 TRT Holdings, Inc., underneath his name on his e-mail,
24 correct?
25 A Correct.
@ ESQUIRE 800.211.DEPO (3376)
EsquireSolutions.com
EXHIBIT2
PAUL JORGE April 06, 2023
MILTON 635 GRAVOIS RD vs TRT HOLDINGS 43
Q And do you recall who Mr. Coleman worked for?
A Who he would have reported to?
Q TM SOleiay;. Yes. Thank you.
A He would have ultimately reported to Mike
Frantz I don't know if there was somebody in between
Mr. Coleman and Mr. Frantz. But he was on the investment
team, and Michael Frantz leads the investment team.
Q Okay. And so the subject matter here is RBR
RE -- I assume that is real estate -- page of board
10 materials.
11 Is that roughly referring to this section
12 of the notebook that you have already referenced?
i A Yes, I think so.
14 Q Okay. And the Michael that he's referring to in
15 his e-mail is Michael Frantz?
16 A Correct.
17 Q Okay. So that would have been a typical
18 practice for someone in the finance group with TRT Equity
19 Advisors, to collect information about RBR Real Estate
20 transactions for the benefit of the TRT Holdings, Inc.,
21 board?
22 A You keep saying for the TRT Holdings, Inc.,
23 board. And that is a misnomer. It's not for the -- TRT
24 Holdings board. It is for Mr. Bob Rowling. It's not for
25 the board.
2 ESQUIRE 800.211.DEPO (3376)
EsquireSolutions.com
EXHIBIT2
From: Brian Zelman [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP
(FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=886DSEDEF7434A3D83B6F74EF82B5413-BRIAN ZELMA}
Sent: 5/24/2019 2:53:16 PM
To: Joe Coleman [joe.coleman@trtholdings.com]
Subject: RE: RBR RE Page of Board Matertals.
No changes. Bob is well aware, but you might footnote thatwe signed contractsto sell both Berean May'1. Killeen
for $10.2M and Fenton for$10.5M. Phase 1s were conducted
this week andthe appraisals should bein-next week.
From: Joe Coleman
Sent: Friday, May 24, 2019 2:04 PM
To: Brian Zelman
Subject: RBR RE Page of Board Materials
Hey Brian,
Michael wanted me to touch base with you to confirm that there has not beenany changes since the last board meeting
(4/24) as it relates tothe RBR RE page of the board materials. See attached forthe current RBR RE page that we intend
to includein the materials unless we hear otherwise. Thanksin advance.
Joe Caleman
TRT Holdings, Inc,
4001 Maple Avenue | Suite 600 | Dallas, TX 75219
214.283.8584 (Office)
214.236.4700 (Cell)
RBR003147
EXHIBIT 2
oe
EXHIBIT
ng
BRIAN ZELMAN VOL 1 August
23, 2023
MILTON 635 GRAVOIS ROAD vs TRT HOLDINGS 104
A My anticipation for receiving six agreements was
based on the proposed structure they sent to us. And then
they had changed it without explaining that thoroughly or
at all and -- so I was looking for clarification. I'm
opening this on my iPhone at 6:30 at night. Probably
seeing three attachments, where I was expecting six.
Q Fair enough. Johnson responds That changed it to
3, I guess they didn't need to split land/building until
after it closes. Do you know what that means?
10 A I can read it at face value. T done ts ae | Cont
11 know what their structure looked like. Like I said, it was
12 never clear to me exactly how their structure came
13 together.
14 Q Okay.
15 MR. STRADER: Can we take a quick break?
16 MR. LEMAY: Yes.
17 THE VIDEOGRAPHER: All right. The time is
18 now 1:44 p.m. We are off the record.
19 (Break taken from 1:44 p.m. to 1:52 p.m.)
20 (Exhibit 174 was marked.)
au THE VIDEOGRAPHER: All right. The time is
22 now 1:52 a- -- p.m. We are back on the record.
23 Q (BY MR. LEMAY) We're back on the record after a
24 break. Let me show you what's been marked as Exhibit 174.
25 It's RBR 1906. I believe I asked you about one similar
@ ESQUIRE 800.211.DEPO (3376)
EsquireSolutions.com
EXHIBIT 3
BRIAN ZELMAN VOL 1 August
23, 2023
MILTON 635 GRAVOIS ROAD vs TRT HOLDINGS 105
e-mail in your other -- your deposition as corporate rep
but -- and I don't recall if I asked you this. But do you
-- do you recall who Joe Coleman was?
A I do. But could you clarify what you just said?
Did you --
Q I think we may have talked about this -- a similar
e-mail in your prior deposition.
A Okay.
Q So I'm not trying to be repetitive. I'm just --
10 we didn't talk about this one so I'm just trying to nail
11 down what was going on. So the question is: Do you recall
12 Joe Coleman?
iS A doe
14 Q And was he an employee of TRI Equity Advisors?
15 A I don't know. I assume that's -- sorry. I don't
16 know who his employer was.
17 Q Okay.
18 A He worked on the 6th floor.
19 Q Okay. And did he -~ when he says -- makes a
20 reference to Michael, is he referring to Michael Smith?
21 A I would assume he's work- ~- he's referencing Mike
22 -- Michael Frantz --
23 Q Ah.
24 A -- who he reported to.
25 Q There we go. Thank you. Michael Frantz. Is that
2 ESQUIRE 800.211.DEPO (3376)
EsquireSolutions.com
EXHIBIT 3
BRIAN ZELMAN VOL 1 August
23, 2023
MILTON 635 GRAVOIS ROAD vs TRT HOLDINGS 106
how you say it?
A Frantz.
Q Frantz?
A F-r-a-n-t-z.
Q Got it. And what was Mr. Frantz' -- however you
say it -- responsibilities, if you know?
A He handles private equity-type investments.
Q The subject is RBR RE Page of Board Materials. Do
you know what board he's referring to?
10 A Not specifically here, no. I mean, it -- it's RBR
ae -- let's see. I remember the page. It's an RBR Real
a2 Estate page that has the real -- the RBR assets listed.
13 Q And do you recall who -- who that page was
14 prepared for?
a A Bob owned the assets. I think it was prepared for
16 him.
17 Q And do you believe that this reference to board
18 materials is -- concerns RBR's board?
19 MR. STRADER: Objection. Form.
20 A I -- I don't know. I never sat through a R- -- I
21 don't know who exactly was on the RBR Real Estate board. I
22 never sat through an RBR board meeting.
23 Q (BY MR. LEMAY) So when you responded to
24 Mr. Coleman -- who do you think was ultimately gonna
25 receive the information that you provided?
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EXHIBIT 3
BRIAN ZELMAN VOL 1 August
23, 2023
MILTON 635 GRAVOIS ROAD vs TRT HOLDINGS 107
A I think the ultimate audience is Bob.
Q Okay. Let me -- oh. This is previously marked.
This document was previously marked as Exhibit 137. This
is a series of e-mails that were between Aaron Johnson and
Mark Sher that appears to have been forwarded to you on
Wednesday, May 29, 2019. Do you see that?
A Yes.
Q Do you recall any conversations with Mr. Johnson
about this e-mail? Where he forwards you this series of
10 e-mails.
11 A I don't know what precipitated this e-mail
12 jumping from September 24th to -- to May 29th. I can't say
13 with certainty.
14 Q So you don't recall any conversations about this
15 e-mail with Mr. Johnson?
16 A I do not recall the specifics of any conversation.
7 It appears that we're looking to -- to figure out what was
18 provided previously.
19 Q And do you know why that was?
20 A We're reengaging with the buyer. They went under
21 contract in -- whatever it was -- September of '18. Going
22 back before that. We engaged with the buyer in early '18,
23 go under contract in September of '18, fall out of
24 contract, go under contract, fall out of contract. Just
a) trying to get up to speed on where we were.
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EXHIBIT 3
From: Joe Coleman (joe.coleman@trthaldings.com)
Sent: 5/24/2019 2:59:14 PM
Brian Zelman (bzel man@trtholdings.com]
cc: Brendan O'Hara [brendan.chara@trtholdings.com]
Subject: RE: RBR RE Page of Board Materials
Good call, Thanks. Wil! add the footnote,
Joe Coleman
TRT Holdings, inc.
4001 Maple Avenue | Suite 600 | Dallas, TX 75219
214,283,8584 (Office)
224.236.4700 (Cell)
From: Brian Zelman
Sent: Friday, May 24, 2019 2:53 PM
To: Joe Coleman
Subject: RE: RBR RE Page of Board Materials
No changes. Bobis well aware, but you might f
Preview
FILED 9/13/2023 4:15 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Marissa Gomez 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, v. 44TH JUDICIAL DISTRICT TRT HOLDINGS, INC., RBR REAL ESTATE HOLDINGS, LLC, BRIAN ZELMAN, and ADAM ZEITSIFF, Defendants. DALLAS COUNTY, TEXAS PLAINTIFFS' RESPONSE TO DEFENDANTS’ MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND QUASH JURY DEMAND 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") (collectively "Plaintiffs") submit their Response opposing the Motion to Strike, Continue Trial Setting, Amend Scheduling Order and Quash Jury Setting ("Motion") filed by Defendants RBR Real Estate Holdings, LLC ("RBR"), TRT Holdings, Inc. ("TRT"), Brian Zelman, and Adam Zeitsiff (collectively, "Defendants"), and pray that the Court issue an order denying all relief sought by the Motion. I, PRELIMINARY STATEMENT The Motion is unsupported by the facts and the law, and Defendants have wholly failed to establish any unfair surprise or prejudice. On August 25, 2023, Plaintiffs supplemented their initial disclosures 73 days prior to trial to include several names of persons with knowledge that had previously been disclosed in discovery and about whom Defendants were well aware and chose not to depose. Also on August 25, 2023, Plaintiffs timely disclosed their damages experts and produced, PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND. QUASH JuRY DEMAND- PAGE | 10344695 in addition to expert reports, 24 documents upon which the experts relied.' Defendants have until October 9, 2023, under the Court's present scheduling order that Defendants and their counsel agreed to, to depose those damages experts and examine them on those 24 documents. The disclosures were not a surprise, and all disclosures were timely. Defendants can point to no harm because expert discovery has not concluded, and the damages experts are available for deposition. Lastly, two of the Plaintiffs did not sign a jury waiver and are entitled to a jury trial. Il. SUMMARY OF RESPONSE The Court should deny Defendants! Motion and allow this case to proceed to its current trial setting of November 6, 2023—an agreed jury trial setting sixty days after the filing of the Motion— and allow the parties to proceed on the remaining pretrial matters under the current operative Amended Scheduling Order dated July 5, 2023. Exhibit 1. The chief complaint of Defendants' haphazard Motion is that Plaintiffs made timely expert disclosures under TEX. R. Cv. P. 195.5, but because these timely disclosures included relevant supplementation of Plaintiffs’ disclosures under TEX. R. Civ. P. 194.2, the Court must either strike those supplemental disclosures (which would be improper) or else grant a continuance (solely on that basis). The Court should decline Defendants' improper invitation to do either. Less than ninety days ago, all parties and counsel agreed to this November 6, 2023 trial setting and all of the pretrial deadlines in the current operative Amended Scheduling Order of July 5, 2023, that Defendants' Motion now unilaterally seeks to amend. The Motion itself directs the Court to the remaining pretrial deadlines, including that all expert discovery closes on October 9, 2023; a date all parties and counsel expressly and jointly agreed would follow Plaintiffs' deadline, as the party seeking ' "The 24 documents consist mainly of loan documents. ‘The majority of the other documents produced on August 25, 2023 were attorney's fee invoices and expert reports. ‘Those 24 documents will be made available for review at the hearing. ‘These documents offer no surprise. PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND. QUASH JuRY DEMAND- PAGE 2 10344695 affirmative relief, to designate experts and provide reports on August 25, 2023—the day Plaintiffs made the disclosures now attacked in the Motion. In this regard, Defendants are improperly conflating the close of fact discovery on August 18, 2023, with the still-pending future deadline for expert discovery to conclude on October 9, 2023, that the parties and counsel agreed would precede their agreed November 6, 2023 trial setting. Moreover, in substance, Defendants' Motion cannot demonstrate any unfair surprise arising from Plaintiffs' August 25, 2023 supplementation of their disclosures under Tex. R. Civ. P. 194.2, nor any harm for Defendants own expert disclosures which were timely made. As a result, the Court must deny Defendants' other bases to continue the trial setting or amend the scheduling order. Lastly, Plaintiffs are entitled to proceed to a jury trial for their damages claims that are not subject to any jury trial waiver. Til. ARGUMENT AND AUTHORITY A. All of Plaintiffs' Disclosures are Timely, and Pose No Unfair Surprise or Prejudice to Defendants. Plaintiffs have demonstrably complied with their obligations under Rule 193.5(b) of the Texas Rules of Civil Procedure, which authorizes amended and supplemental discovery responses when made reasonably promptly after the party discovers the necessity for such a response, and in any event no less than 30 days before trial. Defendants offer no appropriate basis to strike, or in any way limit or exclude, Plaintiffs’ August 25, 2023 supplementation of their disclosures under TEX. R. Clv. P. 194.2 made 73 days prior to trial. Behind the bizarre request to strike timely supplemental disclosures is the failure to acknowledge that the document production in question expressly pertained to Plaintiffs' timely expert disclosures under TEX. R. CIV. P. 195.5 made the same day and were required by Tex. R. Civ. P. 195.5(a)(4)(A). Defendants’ Motion offers fallacious statements to this Court regarding the "several new witnesses" and the "first time" damages contentions supplemented by Plaintiffs. PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND. QUASH JuRY DEMAND- PAGE 3 10344695 The handful of "new" witnesses with knowledge of relevant facts disclosed by Plaintiffs on August 25, 2023, are people who were previously identified in discovery and whose names appeat in documents produced in this case. Plaintiffs' supplemental disclosure of Joe Coleman comes from documents produced by Defendants (e.g. RBR 1906; 1908-09, produced by Defendants on June 6, 2022; RBRO03147, produced by Defendants on September 1, 2022), and from testimony given by Defendants’ witnesses in April 2023 and August 2023. Exhibit 2, deposition excerpts of Defendants’ corporate representative Paul Jorge (42:4—43:7) ("[Mr. Coleman] would have been employed by TRT Equity Advisors. ... He would have ultimately reported to Mike Frantz. I don't know if there was somebody in between Mr. Coleman and Mr. Frantz. But he was on the investment team and Michael Frantz leads the investment team.") (RBR003147 marked as Deposition Exhibit 26); see also Exhibit 3, deposition excerpts of Defendant Brian Zelman (104:23—107:1) ("When you responded to Mr. Coleman — who do you think was ultimately going to receive the information you provided?" "I think the ultimate audience is Bob [Rowling].") (139:12-22) ("The board meeting [Mr. Coleman's] referencing, I believe, is TRT Holdings.") (RBR 1906 and RBR 1908-09 marked as Deposition Exhibits 174 and 191). In addition to their own former TRT-affiliated employee Joe Coleman, Defendants have been equally aware of the role of Lexington Realty International and the names of individuals within this company, who Defendants themselves communicated with in April 2020 after expressly identifying Lexington Realty International as the landlord point-of-contact for the Premises in Fenton, MO. IExhibit xhibit 4,4, documents produced December 8, 2022, by non-party RSG Group USA, Inc., as successor to Gold's Gym International (RSG00337: April 2020 emails between Defendant Adam Zeitsiff and other TRT and Gold's Gym employees, identifying "Landlord Portfolio" to discuss "CLOSURES" and "RE-NEGOTIATE" locations of Gold's Gyms) (RSG00339: identifying "Lexington Realty International" as "True Owner/Landlord" for 635 Gravois Road Leasing, LLC as PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND. QUASH JuRY DEMAND- PAGE 4 10344695 "Landlord Entity"); (RSG00346: April 2020 emails between Defendant Brian Zelman, Defendants! corporate representative Paul Jorge, and other TRT and Gold's Gym employees, identifying Gold's Gym locations for discussions with landlords) (RSG00348: identifying "Lexington Realty International" as landlord for Fenton, MO location). Defendants' witness Paul Early further confirmed in his April 19, 2023 deposition that he personally reached out to Lexington Realty International regarding closure and rejection of the lease at Fenton, MO location. Exhibit_5, deposition excerpts of Paul Early (168:5—169:24) (Deposition Exhibit 93, at PLAINTIFFS_010931). Even assuming agvendo that Plaintiffs’ supplemental disclosures of these witnesses was somehow untimely, Defendants could properly seek to exclude such evidence or witness testimony at trial under Rule 193.6, but only if Plaintiffs' purported untimeliness will cause unfair surprise or unfair prejudice to Defendants. TEX. R. Crv. P. 193.6(a)(2); (b) ("A finding of . . . unfair surprise or unfair prejudice must be supported by the record."). As demonstrated above in the discovery record, Defendants cannot objectively substantiate any of their vague allegations about purported late supplementation of persons with knowledge, or what, if any, unfair surprise or unfair prejudice they have suffered as a result. Rather, Plaintiffs have carried their burden of amending and supplementing their disclosures in a timely matter before trial under Rule 193.5(b), in the unlikely event these witnesses ate called at trial. In their Motion, however, Defendants make no showing that Plaintiffs intend to call any of these witnesses at trial, nor have they asked the Court to strike them. Defendants’ final complaint regarding Plaintiffs’ supplementation of their damages contentions is also a deceptive non-starter. Defendants' Motion conveniently quotes one selective line from Plaintiffs' representative's deposition, and in doing so obscures critical testimony given May 25, 2023 regarding the amounts and methods for calculating Plaintiffs' damages. Exhibit 6, deposition excerpts from Mark Sher (195:8—197:20) ("The out-of-pocket damages are very simple. . . That's the difference between what we paid for the property and what the property is worth now. But then PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND. QUASH JURY DEMAND- PAGE 5 10344695 there's all of the consequential damages. . . Those are the ones that keep increasing at time goes by hour by hour. .. [T]he vacancy at the property also hurts the property, right? So that's damaging the tenants that were there before Gold's Gym was a big driver for the other tenants that were there. [W]e know we have someone willing to pay $5.4 million dollars for [the property now]. And that was for a user. So I would say for a use, that's an accurate valuation. Just to sell it to an investor who plans to lease it out, probably twenty to thirty percent less than that. [That is based on] the net operating income and the cost to back fill the vacant space. . . We also have . . . an appraisal of what the property was worth at the time we bought the property without the Gold's Gym lease."). Plaintiff's expert appraisal dated August 11, 2023 was timely disclosed on August 25, 2023— the date agreed to in the scheduling order for Plaintiffs' deadline "to provide reports"—under Rule 195.5 as an expert report prepared by a testifying expert, and was accompanied by Plaintiffs’ August 25, 2023 supplemental production of " all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony." TEx. R. Crv. P. 195.5(a)(4)(A) In sum, Plaintiffs' disclosures relating to their damages have not been revealed "for the first time" and, even if they were, remain timely under Rule 193.6, Rule 195.5, and the current operative Amended Scheduling Order. Again, Defendants expressly agreed with Plaintiffs that after Plaintiffs’ August 25, 2023 expert disclosures and service of expert reports, Defendants would proceed with theit own expert disclosures and reports by September 8, 2023, with sufficient time to conclude all expert discovery by October 9, 2023, and proceed to the trial setting on November 6, 2023. The Court should decline to amend the current scheduling order or continue the trial setting. PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND. QUASH JURY DEMAND- PAGE 6 10344695 B. Defendants Offer No Other Appropriate Basis to Continue the Trial Setting or Amend the Current Scheduling Order. Defendants’ Motion as it pertains to amending the current operative Amended Scheduling Order is governed by Rule 190.5, which provides that the Court may modify a discovery control plan "related to new, amended or supplemental pleadings, or new information disclosed in a discovery responses of in an amended supplemental response if: (1) the pleadings or responses were made after the deadline for completion of discovery or so nearly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and (2) the adverse party would be unfairly prejudiced without such additional discovery." TEX. R. CIv. P. 190.5(a)(1)-(2). Defendants’ Motion fails to substantiate the logical gap between Plaintiffs’ August 25, 2023 disclosures of additional witnesses and damages contentions, and the discovery that they say they need a new scheduling order for. Nothing in Plaintiffs' August 25, 2023 disclosures, under either Rule 193.6, Rule 195.5, objectively or demonstrably affected Defendants! ability to prepare and produce their own expert disclosures (and Defendants make no such argument) or to depose any witnesses (that they are purposefully unclear about what they would actually do with a new fact discovery deadline). Other than self-serving conclusory assertions, Defendants' Motion makes no showing of inability or need to re-open or re-visit the fact discovery deadline. No basis is suggested for new expert disclosure dates when experts have already been disclosed. Rather, under the current operative Amended Scheduling Order, Defendants still have the tight and opportunity to depose Plaintiffs' experts, which Plaintiffs offer and fully expect Defendants to do. Under these circumstances, the Court is fully within its discretion under Rule 190.5 to deny Defendants! motion to amend the scheduling order. See State v. Sherley Partners, Ltd., No. 05-21-01160- CV, 2023 WL 3371454, at *3 (Tex. App—Dallas, May 11, 2023) ("[IJhe plain language of rule 190.5(b) requires the trial court to allow additional discovery 'regarding matters that have changed materially PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND. QUASH JURY DEMAND- PAGE 7 10344695 after the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period ends.' TEX. R. CIV. P. 190.5(b). [T]he State does not identify any matter that ‘changed materially’ after the scheduling order's deadlines elapsed."); Brown v. Brown, 145 S.W.3d 745, 750 (Tex. App—Dallas 2004, no pet.) ("Appellant's motion did not explain what further discovery appellant would seek if the discovery period were increased. We conclude the trial court did not abuse its discretion by denying appellant's motion because, in this situation, 'the interest of justice’ did not require modification of the discovery period."); Abdelhak v. Farney, No. 04-07-00121-CV, 2007 WL 4180133, at *2 (ex. App.—San Antonio, Nov. 28, 2007, pet. denied) ("Rule 190.5 specifies two situations when the trial court must allow additional discovery. Abdelhak, however, does not argue that either of these two situations applies. For the same reasons that the trial court did not abuse its discretion in denying Abdelhak's motion for a continuance, we conclude that it was within the trial court's discretion to hold that 'the interest of justice’ did not require modification of the discovery petiod."); Est. of Grogan, 595 S.W.3d 807, 825 (Tex. App.—Texarkana 2020, no pet. h.) (affirming trial court's denial of continuance) ("[T]he motion for continuance generally argued that depositions were required 'in order to more fully discover the witness's connection and relevant knowledge of the claims in this case.' The trial court could have concluded that William had been afforded adequate time to conduct discovery related to those [witnesses and issues]. . . Under the circumstances discussed above, we cannot say that the trial court abused its discretion in finding that William had been afforded a reasonable opportunity to conduct discovery or was not unfairly prejudiced without additional discovery."). Moreover, Defendants’ other pending motion, their Motion to Compel Documents from Plaintiffs, also does not support the relief sought by Defendants' motions to amend the scheduling order and continue the trial setting. Pursuant to Texas Rule of Civil Procedure 58, Defendants adopt and incorporate by reference the entirety of their Response Opposing Defendants' Motion to Compel, PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND. QUASH JuRY DEMAND- PAGE 8 10344695 which demonstrates that Plaintiffs have produced all responsive, non-privileged documents and communications, and are not withholding any non-privileged documents or communications on the basis of any objection, in response to Defendants’ requests for production ("RFPs") as well as such productions made the basis of Plaintiffs’ expert disclosures under TEX. R. CIV. P. 195.5 and disclosures under TEX. R. CIV. P. 194.2. Because Defendants' Motion to Compel has not substantiated that Plaintiffs are withholding any documents and communications, it is not a proper basis or reason to amend the scheduling order or continue the trial setting. C. Plaintiffs are Entitled to Proceed to a Jury Trial Setting against Defendants. The "Waiver of Jury Trial" provision is contained in the Purchase and Sale Agreement for the subject shopping center that was signed by Defendant RBR Real Estate Holdings, LLC, and Leeton Real Estate, Inc. The Plaintiffs in this case who sustained damages (as disclosed on August 25, 2023 in their expert disclosures) resulting from Defendants’ fraudulent conduct and inducements to purchase the Premises—Plaintiff 635 Gravois Road Real Estate, LLC, and Plaintiffs 635 Gravois Road Leasing, LLC—are not parties to the PSA and did not sign jury waivers. Accordingly, the Court should order the parties to proceed to their current trial setting of November 6, 2023, on the jury docket. IV. CONCLUSION AND PRAYER Plaintiffs pray that the Court deny Defendants' Motion in its entirety and issue an order denying all relief sought by the Motion; in addition to such other further and additional relief to which Plaintiffs may be justly entitled. PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND. QUASH JuRY DEMAND- PAGE 9 10344695 Respectfully submitted, KANE RUSSELL COLEMAN LOGAN P.C. By: s/ Robert N. LeMay Robert N. LeMay State Bar No. 12188750 tlemay@krcl.com Jaime M. DeWees State Bar No. 24097593 jdewees@krcl.com Collin Delano State Bar No. 24109801 cdelano@krcl.com 901 Main Street Suite 5200 Dallas, Texas 75202 Telephone (214) 777-4254 Facsimile (214) 777-4299 ATTORNEYS FOR PLAINTIFFS Certificate of Service Thereby 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 13, 2023, 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 /s/ Robert N. LeMay Robert N. LeMay PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE, CONTINUE TRIAL SETTING, AMEND SCHEDULING ORDER, AND. QUASH JuRY DEMAND- PAGE 10 10344695 EXHIBIT ale CAUSE NO. 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, vs. 44™ JUDICIAL DISTRICT TRT HOLDINGS, INC., RBR REAL ESTATE HOLDINGS, LLC, BRIAN ZELMAN, and ADAM ZEITSIFF, Defendants. DALLAS COUNTY, TEXAS AMENDED SCHEDULING ORDER After considering the Parties Agreed Joint Motion for Entry of Amended Scheduling Order, the Court is of the opinion that good cause has been shown therein and that the Motion should be GRANTED. Accordingly, this civil action was previously set and remains set for trial on November 6, 2023 ("Trial Setting"). It is further ORDERED that the following pretrial matters will be completed by the following dates: Fact discovery closes August 18, 2023 7 Party seeking affirmative relief to designate experts and provide reports on August 25, 2023 Party opposing affirmative relief to designate experts and provide reports on September 8, 2023 Designation of rebuttal experts and provide reports on September 25, 2023 All expert discovery closes October 9, 2023 Other amended pleadings due 45 days before the Trial Setting; and Mediation before Hon. Carl Ginsburg as Mediator is to be held no later than 30 days before the Trial Setting. ‘AMENDED SCHEDULING ORDER 10193263 ' EXHIBIT 1 occa e eee e SESEeSeSESSS so ORDERED, this , 2023. AGREED: By: /s/ Robert N. LeMay Robert N. LeMay State Bar No. 12188750 Jaime M. DeWees State Bar No. 24097593 Collin Delano State Bar No. 24109801 KANE RUSSELL COLEMAN LOGAN PC 901 Main Street, Suite 5200 Dallas, Texas 75202 Telephone (214) 777-4254 Facsimile (214) 777-4299 lemay@krel.com jdewees@krel.com bkeaton@qcl.com ATTORNEYS FOR PLAINTIFFS and By: /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 xakema.henderson@akerman.com ATTORNEYS FOR DEFENDANTS 1 1 “AMENDED SCHEDULING ORDER 10193263 EXHIBIT 1 EXHIBIT ae PAUL JORGE April 06, 2028 MILTON 635 GRAVOIS RD vs TRT HOLDINGS Q Again, so let's just look at one other, maybe -- okay. So we're on Exhibit 26. (Exhibit 26 marked.) Q (BY MR. LEMAY) And let me show you a document marked as Exhibit 26. So this document appears somewhat similar. It's a couple of e-mails back and forth between Brian Zelman and Joe Coleman. It's dated May 24, 2019. AnGe dt is regarding RBR Real Estate Page of Board Materials. 10 Do you see that? 11 Yes. 12 Have you seen this document before? 13 No, I have not. 14 Q Who was Joe Coleman? 15 A Joe Coleman was a member of our team. I believe 16 he is also a son of one of your partners. 17 Q Okay. I have met him. 18 A Good. You probably know him better than me. 19 Q Who did -- who did he work for? 20 A He would have been employed by TRT Equity 21 Advisors. 22 Q All right. And like Mr. O'Hara, he also has the 23 TRT Holdings, Inc., underneath his name on his e-mail, 24 correct? 25 A Correct. @ ESQUIRE 800.211.DEPO (3376) EsquireSolutions.com EXHIBIT2 PAUL JORGE April 06, 2023 MILTON 635 GRAVOIS RD vs TRT HOLDINGS 43 Q And do you recall who Mr. Coleman worked for? A Who he would have reported to? Q TM SOleiay;. Yes. Thank you. A He would have ultimately reported to Mike Frantz I don't know if there was somebody in between Mr. Coleman and Mr. Frantz. But he was on the investment team, and Michael Frantz leads the investment team. Q Okay. And so the subject matter here is RBR RE -- I assume that is real estate -- page of board 10 materials. 11 Is that roughly referring to this section 12 of the notebook that you have already referenced? i A Yes, I think so. 14 Q Okay. And the Michael that he's referring to in 15 his e-mail is Michael Frantz? 16 A Correct. 17 Q Okay. So that would have been a typical 18 practice for someone in the finance group with TRT Equity 19 Advisors, to collect information about RBR Real Estate 20 transactions for the benefit of the TRT Holdings, Inc., 21 board? 22 A You keep saying for the TRT Holdings, Inc., 23 board. And that is a misnomer. It's not for the -- TRT 24 Holdings board. It is for Mr. Bob Rowling. It's not for 25 the board. 2 ESQUIRE 800.211.DEPO (3376) EsquireSolutions.com EXHIBIT2 From: Brian Zelman [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=886DSEDEF7434A3D83B6F74EF82B5413-BRIAN ZELMA} Sent: 5/24/2019 2:53:16 PM To: Joe Coleman [joe.coleman@trtholdings.com] Subject: RE: RBR RE Page of Board Matertals. No changes. Bob is well aware, but you might footnote thatwe signed contractsto sell both Berean May'1. Killeen for $10.2M and Fenton for$10.5M. Phase 1s were conducted this week andthe appraisals should bein-next week. From: Joe Coleman Sent: Friday, May 24, 2019 2:04 PM To: Brian Zelman Subject: RBR RE Page of Board Materials Hey Brian, Michael wanted me to touch base with you to confirm that there has not beenany changes since the last board meeting (4/24) as it relates tothe RBR RE page of the board materials. See attached forthe current RBR RE page that we intend to includein the materials unless we hear otherwise. Thanksin advance. Joe Caleman TRT Holdings, Inc, 4001 Maple Avenue | Suite 600 | Dallas, TX 75219 214.283.8584 (Office) 214.236.4700 (Cell) RBR003147 EXHIBIT 2 oe EXHIBIT ng BRIAN ZELMAN VOL 1 August 23, 2023 MILTON 635 GRAVOIS ROAD vs TRT HOLDINGS 104 A My anticipation for receiving six agreements was based on the proposed structure they sent to us. And then they had changed it without explaining that thoroughly or at all and -- so I was looking for clarification. I'm opening this on my iPhone at 6:30 at night. Probably seeing three attachments, where I was expecting six. Q Fair enough. Johnson responds That changed it to 3, I guess they didn't need to split land/building until after it closes. Do you know what that means? 10 A I can read it at face value. T done ts ae | Cont 11 know what their structure looked like. Like I said, it was 12 never clear to me exactly how their structure came 13 together. 14 Q Okay. 15 MR. STRADER: Can we take a quick break? 16 MR. LEMAY: Yes. 17 THE VIDEOGRAPHER: All right. The time is 18 now 1:44 p.m. We are off the record. 19 (Break taken from 1:44 p.m. to 1:52 p.m.) 20 (Exhibit 174 was marked.) au THE VIDEOGRAPHER: All right. The time is 22 now 1:52 a- -- p.m. We are back on the record. 23 Q (BY MR. LEMAY) We're back on the record after a 24 break. Let me show you what's been marked as Exhibit 174. 25 It's RBR 1906. I believe I asked you about one similar @ ESQUIRE 800.211.DEPO (3376) EsquireSolutions.com EXHIBIT 3 BRIAN ZELMAN VOL 1 August 23, 2023 MILTON 635 GRAVOIS ROAD vs TRT HOLDINGS 105 e-mail in your other -- your deposition as corporate rep but -- and I don't recall if I asked you this. But do you -- do you recall who Joe Coleman was? A I do. But could you clarify what you just said? Did you -- Q I think we may have talked about this -- a similar e-mail in your prior deposition. A Okay. Q So I'm not trying to be repetitive. I'm just -- 10 we didn't talk about this one so I'm just trying to nail 11 down what was going on. So the question is: Do you recall 12 Joe Coleman? iS A doe 14 Q And was he an employee of TRI Equity Advisors? 15 A I don't know. I assume that's -- sorry. I don't 16 know who his employer was. 17 Q Okay. 18 A He worked on the 6th floor. 19 Q Okay. And did he -~ when he says -- makes a 20 reference to Michael, is he referring to Michael Smith? 21 A I would assume he's work- ~- he's referencing Mike 22 -- Michael Frantz -- 23 Q Ah. 24 A -- who he reported to. 25 Q There we go. Thank you. Michael Frantz. Is that 2 ESQUIRE 800.211.DEPO (3376) EsquireSolutions.com EXHIBIT 3 BRIAN ZELMAN VOL 1 August 23, 2023 MILTON 635 GRAVOIS ROAD vs TRT HOLDINGS 106 how you say it? A Frantz. Q Frantz? A F-r-a-n-t-z. Q Got it. And what was Mr. Frantz' -- however you say it -- responsibilities, if you know? A He handles private equity-type investments. Q The subject is RBR RE Page of Board Materials. Do you know what board he's referring to? 10 A Not specifically here, no. I mean, it -- it's RBR ae -- let's see. I remember the page. It's an RBR Real a2 Estate page that has the real -- the RBR assets listed. 13 Q And do you recall who -- who that page was 14 prepared for? a A Bob owned the assets. I think it was prepared for 16 him. 17 Q And do you believe that this reference to board 18 materials is -- concerns RBR's board? 19 MR. STRADER: Objection. Form. 20 A I -- I don't know. I never sat through a R- -- I 21 don't know who exactly was on the RBR Real Estate board. I 22 never sat through an RBR board meeting. 23 Q (BY MR. LEMAY) So when you responded to 24 Mr. Coleman -- who do you think was ultimately gonna 25 receive the information that you provided? @ ESQUIRE 800.211.DEPO (3376) EsquireSolutions.com EXHIBIT 3 BRIAN ZELMAN VOL 1 August 23, 2023 MILTON 635 GRAVOIS ROAD vs TRT HOLDINGS 107 A I think the ultimate audience is Bob. Q Okay. Let me -- oh. This is previously marked. This document was previously marked as Exhibit 137. This is a series of e-mails that were between Aaron Johnson and Mark Sher that appears to have been forwarded to you on Wednesday, May 29, 2019. Do you see that? A Yes. Q Do you recall any conversations with Mr. Johnson about this e-mail? Where he forwards you this series of 10 e-mails. 11 A I don't know what precipitated this e-mail 12 jumping from September 24th to -- to May 29th. I can't say 13 with certainty. 14 Q So you don't recall any conversations about this 15 e-mail with Mr. Johnson? 16 A I do not recall the specifics of any conversation. 7 It appears that we're looking to -- to figure out what was 18 provided previously. 19 Q And do you know why that was? 20 A We're reengaging with the buyer. They went under 21 contract in -- whatever it was -- September of '18. Going 22 back before that. We engaged with the buyer in early '18, 23 go under contract in September of '18, fall out of 24 contract, go under contract, fall out of contract. Just a) trying to get up to speed on where we were. @ ESQUIRE 800.211.DEPO (3376) EsquireSolutions.com EXHIBIT 3 From: Joe Coleman (joe.coleman@trthaldings.com) Sent: 5/24/2019 2:59:14 PM Brian Zelman (bzel man@trtholdings.com] cc: Brendan O'Hara [brendan.chara@trtholdings.com] Subject: RE: RBR RE Page of Board Materials Good call, Thanks. Wil! add the footnote, Joe Coleman TRT Holdings, inc. 4001 Maple Avenue | Suite 600 | Dallas, TX 75219 214,283,8584 (Office) 224.236.4700 (Cell) From: Brian Zelman Sent: Friday, May 24, 2019 2:53 PM To: Joe Coleman Subject: RE: RBR RE Page of Board Materials No changes. Bobis well aware, but you might f