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FILED
9/29/2023 3:53 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Terri Kilgore DEPUTY
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, §
§
v. § 44TH JUDICIAL DISTRICT
§
TRT HOLDINGS, INC., §
RBR REAL ESTATE HOLDINGS, LLC, §
BRIAN ZELMAN, and ADAM ZEITSIFF, §
§ DALLAS COUNTY, TEXAS
Defendants.
DEFENDANTS’ ANSWER TO
PLAINTIFFS’ THIRD AMENDED PETITION
Defendants TRT Holdings, Inc., RBR Real Estate Holdings, LLC, Brian Zelman, and
Adam Zeitsiff (collectively, “Defendants”) file the following Answer to Plaintiffs Third Amended
Petition (“Petition”) as follows:
I. GENERAL DENIAL
Pursuant to Texas Rule of Civil Procedure 92, Defendants generally deny each and every
allegation in the Petition and request that the court require Plaintiffs to prove their allegations by
a preponderance of the credible evidence as required by the law, the Texas Rules of Civil
Procedure, and the Constitution of the State of Texas.
II. AFFIRMATIVE DEFENSES
Subject to the above, and pleading in the alternative, to the extent necessary, Defendants
assert the following affirmative and/or further defenses, without assuming any burden of proof
with regard to such matters:
1. Plaintiffs’ claims are barred, in whole or in part, for failure to state a claim for relief,
including that they have no standing to bring their claims.
2. Plaintiffs’ negligent misrepresentation claim is barred, in whole or in part, by the
applicable statutes of limitations.
3. Plaintiffs’ negligent misrepresentation claim is barred, in Whole or in part, because
an enforceable agreement exists.
4. Plaintiffs’ claims are barred, in Whole or in part, because the purchase of the
Property was “as is” and Leeton Real Estate Inc., the original buyer, unequivocally disclaimed
reliance on any of Defendants’ representations, which is binding on Leeton’s assignees:
20.6 Mergerfl’rior Agreements. THIS AGREEMENT CONSTITUTES THE
FINAL AGREEMENT BETWEEN THE PARTIES. IT IS THE COMPLETE AND EXCLUSIVE
EXPRESSION 0F THE PARTIES’ AGREEMENT 0N THE MATTERS CONTAINED IN THIS
AGREEMENT. ALL PRIOR AND CONTEMPORANEOUS NEGOTIATIONS AND
AGREEMENTS BETWEEN THE PARTIES ON THE MATTERS CONTAINED IN THIS
AGREEMENT ARE EXPRESSLY MERGED INTO AND SUPERSEDED BY THIS
AGREEMENT. THE PROVISIONS 0F THIS AGREEMENT MAY NOT BE EXPLAINED,
SUPPLEMENTED, 0R QUALIFIED THROUGH EVIDENCE 0F TRADE USAGE 0R A PRIOR
COURSE 0F DEALINGS. IN ENTERING INTO TIIIS AGREEMENT, THE PARTIES HAVE
NOT RELIED UPON ANY STATEMENT, REPRESENTATION, WARRANTY, OR
AGREEMENT OF THE OTHER PARTY EXCEPT F OR THOSE EXPRESSLY CONTAINED IN
THIS AGREEMENT. THERE IS N0 CONDITION PRECEDENT TO THE EFFECTIVENESS
0F THIS AGREEMENT OTHER THAN THOSE EXPRESSLY STATED IN THIS
AGREEMENT.
5. Plaintiffs’ claims are barred, in whole or in part, because Defendants did not make
any false representations of fact, false promises, or benefit by not disclosing information.
6. Plaintiffs’ claims are barred, in Whole or in part, because Defendants had no duty
to disclose the alleged omitted information.
7. Plaintiffs’ claims are barred, in Whole or in part, because the Defendants did not
make a false partial disclosure.
8. Plaintiffs’ claims are barred, in whole or in part, because if Defendants made any
false representations, which they deny, Plaintiffs had actual knowledge of such falsity and/or knew
what they didn’t know.
DEFENDAN TS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED PETITION Page 2
9. Plaintiffs’ claims are barred, in Whole or in part, because if Defendants made any
false representations, which they deny, Defendants did not intend or have reason to expect that
Plaintiffs would enter into any contracts in reliance on those representations.
10. Plaintiffs’ claims are barred, in Whole or in part, because Plaintiffs’ did not rely on
the representations they allege Defendants made, or if they did rely upon such alleged
misrepresentations, such reliance was not reasonable.
11. Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs’ own acts or
omissions caused or contributed to their alleged injuries, including by failing to mitigate.
12. Defendants are entitled to an offset of any alleged damages that may be awarded,
including by amounts Plaintiffs recovered or could have recovered as a result of the bankruptcy of
Gold’s Gym International, Inc. and its subsidiaries.
13. Plaintiffs’ claims are barred, in whole or in part, because the own acts or omissions
of one or more third parties caused or contributed to Plaintiffs’ alleged injuries, including
superseding acts associated with the global pandemic and decisions made by Gold’s Gym
International, Inc.
14. Plaintiffs’ claims are barred, in whole or in part, because there is no agreement
between the parties, including Brian Zelman, Adam Zeitsiff, and TRT Holdings, Inc.
15. Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs have no
recoverable damages or injuries.
16. Plaintiffs’ claims are barred, in whole or in part, by the doctrines of waiver,
estoppel, and ratification.
17. Plaintiffs request for a jury is precluded by the jury waiver in the Agreement of
Purchase and Sale, which is effective on Leeton’s assignees:
DEFENDAN TS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED PETITION Page 3
22. Waiver of Jun Trial. EACH PARTY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY T0 THE EXTENT
PERMITTED BY LAW IN ANY ACTION 0R OTHER LEGAL PROCEEDING ARISING OUT
0F 0R RELATING T0 THIS AGREEMENT AND THE TRANSACTIONS IT
CONTEMPLATES. THIS WAIVER APPLIES T0 ANY ACTION OR OTHER LEGAL
PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT, 0R OTHERWISE. EACH
PARTY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADVICE OF COMPETENT
COUNSEL.
18. Defendants reserve the right to assert other defenses.
III. ATTORNEYS’ FEES
Under Paragraph 20.4 of the subject Agreement of Purchase and Sale, Defendants are
entitled to recover their reasonable attorneys’ fees actually incurred, court costs, and expert Witness
fees.
PRAYER
For these reasons, Defendants request that the court to enter a take nothing judgment
against Plaintiffs, and grant these Defendants any further relief, both general and special, at law
and in equity, to which they may be justly entitled.
Respectfully submitted,
/s/ Elliot Strader
Elliot Strader
Texas Bar N0. 24063 966
Xakema Henderson
Texas Bar No. 24107805
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
Tel: 214-720-4380
Fax: 214-981-9339
e11iot.strader@akerman.com
Counsel for Defendants
DEFENDAN TS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED PETITION Page 4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on all counsel of
record in accordance with the Texas Rules of Civil Procedure on September 29, 2023.
/s/ Elliot Strader
Elliot Strader
DEFENDAN TS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED PETITION Page 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.
Elliot Strader
Bar No. 24063966
elliot.strader@akerman.com
Envelope ID: 80110742
Filing Code Description: Original Answer - General Denial
Filing Description: TO 3RD AMENDED PETITION
Status as of 10/2/2023 10:46 AM CST
Associated Case Party: MILTON 635 GRAVOIS ROAD LLC
Name BarNumber Email TimestampSubmitted Status
Robert LeMay rlemay@krcl.com 9/29/2023 3:53:10 PM SENT
Jaime DeWees jdewees@krcl.com 9/29/2023 3:53:10 PM SENT
Collin Delano cdelano@krcl.com 9/29/2023 3:53:10 PM SENT
Associated Case Party: TRT HOLDINGS, INC.
Name BarNumber Email TimestampSubmitted Status
Elliot Strader elliot.strader@akerman.com 9/29/2023 3:53:10 PM SENT
Xakema Henderson xakema.henderson@akerman.com 9/29/2023 3:53:10 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Teresa Rowe trowe@krcl.com 9/29/2023 3:53:10 PM SENT
Connie Nims cnims@krc|.com 9/29/2023 3:53:10 PM SENT
Bree Kimball BKimball@krcl.com 9/29/2023 3:53:10 PM SENT
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FILED 9/29/2023 3:53 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Terri Kilgore DEPUTY 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, § § v. § 44TH JUDICIAL DISTRICT § TRT HOLDINGS, INC., § RBR REAL ESTATE HOLDINGS, LLC, § BRIAN ZELMAN, and ADAM ZEITSIFF, § § DALLAS COUNTY, TEXAS Defendants. DEFENDANTS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED PETITION Defendants TRT Holdings, Inc., RBR Real Estate Holdings, LLC, Brian Zelman, and Adam Zeitsiff (collectively, “Defendants”) file the following Answer to Plaintiffs Third Amended Petition (“Petition”) as follows: I. GENERAL DENIAL Pursuant to Texas Rule of Civil Procedure 92, Defendants generally deny each and every allegation in the Petition and request that the court require Plaintiffs to prove their allegations by a preponderance of the credible evidence as required by the law, the Texas Rules of Civil Procedure, and the Constitution of the State of Texas. II. AFFIRMATIVE DEFENSES Subject to the above, and pleading in the alternative, to the extent necessary, Defendants assert the following affirmative and/or further defenses, without assuming any burden of proof with regard to such matters: 1. Plaintiffs’ claims are barred, in whole or in part, for failure to state a claim for relief, including that they have no standing to bring their claims. 2. Plaintiffs’ negligent misrepresentation claim is barred, in whole or in part, by the applicable statutes of limitations. 3. Plaintiffs’ negligent misrepresentation claim is barred, in Whole or in part, because an enforceable agreement exists. 4. Plaintiffs’ claims are barred, in Whole or in part, because the purchase of the Property was “as is” and Leeton Real Estate Inc., the original buyer, unequivocally disclaimed reliance on any of Defendants’ representations, which is binding on Leeton’s assignees: 20.6 Mergerfl’rior Agreements. THIS AGREEMENT CONSTITUTES THE FINAL AGREEMENT BETWEEN THE PARTIES. IT IS THE COMPLETE AND EXCLUSIVE EXPRESSION 0F THE PARTIES’ AGREEMENT 0N THE MATTERS CONTAINED IN THIS AGREEMENT. ALL PRIOR AND CONTEMPORANEOUS NEGOTIATIONS AND AGREEMENTS BETWEEN THE PARTIES ON THE MATTERS CONTAINED IN THIS AGREEMENT ARE EXPRESSLY MERGED INTO AND SUPERSEDED BY THIS AGREEMENT. THE PROVISIONS 0F THIS AGREEMENT MAY NOT BE EXPLAINED, SUPPLEMENTED, 0R QUALIFIED THROUGH EVIDENCE 0F TRADE USAGE 0R A PRIOR COURSE 0F DEALINGS. IN ENTERING INTO TIIIS AGREEMENT, THE PARTIES HAVE NOT RELIED UPON ANY STATEMENT, REPRESENTATION, WARRANTY, OR AGREEMENT OF THE OTHER PARTY EXCEPT F OR THOSE EXPRESSLY CONTAINED IN THIS AGREEMENT. THERE IS N0 CONDITION PRECEDENT TO THE EFFECTIVENESS 0F THIS AGREEMENT OTHER THAN THOSE EXPRESSLY STATED IN THIS AGREEMENT. 5. Plaintiffs’ claims are barred, in whole or in part, because Defendants did not make any false representations of fact, false promises, or benefit by not disclosing information. 6. Plaintiffs’ claims are barred, in Whole or in part, because Defendants had no duty to disclose the alleged omitted information. 7. Plaintiffs’ claims are barred, in Whole or in part, because the Defendants did not make a false partial disclosure. 8. Plaintiffs’ claims are barred, in whole or in part, because if Defendants made any false representations, which they deny, Plaintiffs had actual knowledge of such falsity and/or knew what they didn’t know. DEFENDAN TS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED PETITION Page 2 9. Plaintiffs’ claims are barred, in Whole or in part, because if Defendants made any false representations, which they deny, Defendants did not intend or have reason to expect that Plaintiffs would enter into any contracts in reliance on those representations. 10. Plaintiffs’ claims are barred, in Whole or in part, because Plaintiffs’ did not rely on the representations they allege Defendants made, or if they did rely upon such alleged misrepresentations, such reliance was not reasonable. 11. Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs’ own acts or omissions caused or contributed to their alleged injuries, including by failing to mitigate. 12. Defendants are entitled to an offset of any alleged damages that may be awarded, including by amounts Plaintiffs recovered or could have recovered as a result of the bankruptcy of Gold’s Gym International, Inc. and its subsidiaries. 13. Plaintiffs’ claims are barred, in whole or in part, because the own acts or omissions of one or more third parties caused or contributed to Plaintiffs’ alleged injuries, including superseding acts associated with the global pandemic and decisions made by Gold’s Gym International, Inc. 14. Plaintiffs’ claims are barred, in whole or in part, because there is no agreement between the parties, including Brian Zelman, Adam Zeitsiff, and TRT Holdings, Inc. 15. Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs have no recoverable damages or injuries. 16. Plaintiffs’ claims are barred, in whole or in part, by the doctrines of waiver, estoppel, and ratification. 17. Plaintiffs request for a jury is precluded by the jury waiver in the Agreement of Purchase and Sale, which is effective on Leeton’s assignees: DEFENDAN TS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED PETITION Page 3 22. Waiver of Jun Trial. EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY T0 THE EXTENT PERMITTED BY LAW IN ANY ACTION 0R OTHER LEGAL PROCEEDING ARISING OUT 0F 0R RELATING T0 THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER APPLIES T0 ANY ACTION OR OTHER LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT, 0R OTHERWISE. EACH PARTY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADVICE OF COMPETENT COUNSEL. 18. Defendants reserve the right to assert other defenses. III. ATTORNEYS’ FEES Under Paragraph 20.4 of the subject Agreement of Purchase and Sale, Defendants are entitled to recover their reasonable attorneys’ fees actually incurred, court costs, and expert Witness fees. PRAYER For these reasons, Defendants request that the court to enter a take nothing judgment against Plaintiffs, and grant these Defendants any further relief, both general and special, at law and in equity, to which they may be justly entitled. Respectfully submitted, /s/ Elliot Strader Elliot Strader Texas Bar N0. 24063 966 Xakema Henderson Texas Bar No. 24107805 AKERMAN LLP 2001 Ross Avenue, Suite 3600 Dallas, Texas 75201 Tel: 214-720-4380 Fax: 214-981-9339 e11iot.strader@akerman.com Counsel for Defendants DEFENDAN TS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED PETITION Page 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served on all counsel of record in accordance with the Texas Rules of Civil Procedure on September 29, 2023. /s/ Elliot Strader Elliot Strader DEFENDAN TS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED PETITION Page 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. Elliot Strader Bar No. 24063966 elliot.strader@akerman.com Envelope ID: 80110742 Filing Code Description: Original Answer - General Denial Filing Description: TO 3RD AMENDED PETITION Status as of 10/2/2023 10:46 AM CST Associated Case Party: MILTON 635 GRAVOIS ROAD LLC Name BarNumber Email TimestampSubmitted Status Robert LeMay rlemay@krcl.com 9/29/2023 3:53:10 PM SENT Jaime DeWees jdewees@krcl.com 9/29/2023 3:53:10 PM SENT Collin Delano cdelano@krcl.com 9/29/2023 3:53:10 PM SENT Associated Case Party: TRT HOLDINGS, INC. Name BarNumber Email TimestampSubmitted Status Elliot Strader elliot.strader@akerman.com 9/29/2023 3:53:10 PM SENT Xakema Henderson xakema.henderson@akerman.com 9/29/2023 3:53:10 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Teresa Rowe trowe@krcl.com 9/29/2023 3:53:10 PM SENT Connie Nims cnims@krc|.com 9/29/2023 3:53:10 PM SENT Bree Kimball BKimball@krcl.com 9/29/2023 3:53:10 PM SENT