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CAUSE NO. DC-21-11406
MILTON 635 GRAVOIS ROAD LLC, § IN THE DISTRICT COURT OF
635 GRAVOIS ROAD LEASING LLC, §
and 635 GRAVOIS ROAD REAL §
ESTATE, LLC, §
§
Plaintiffs, § 44th JUDICIAL DISTRICT
§
v. §
§
TRT HOLDINGS, INC., RBR REAL §
ESTATE HOLDINGS, LLC, BRIAN §
ZELMAN, and ADAM ZEITSIFF, §
§
Defendants. § DALLAS COUNTY, TEXAS
ORDER GRANTING MOTION FOR AWARD OF ATTORNEYS’ FEES, COSTS
AND EXPENSES, AND EXPERT WITNESS FEES, AND MOTION FOR
ENTRY OF FINAL JUDGMENT, AND FINAL JUDGMENT
This case was called to trial November 6, 2023, and all parties appeared and
announced ready for trial. Plaintiffs and Counter-Defendants Milton 635 Gravois Road,
LLC, 635 Gravois Road Leasing, LLC, and 635 Gravois Road Real Estate, LLC
(“Plaintiffs”) appeared through their counsel of record. Defendants TRT Holdings, Inc.,
Brian Zelman, and Adam Zeitsiff, and Defendant and Counter-Plaintiff RBR Real Estate
Holdings, LLC (“Defendants”) appeared through their counsel of record.
After a jury was impaneled and sworn on November 6, 2023, the jury heard
evidence and arguments of counsel through and including November 16, 2023. At the
conclusion of the evidence and arguments by counsel, and after the submission of the
Jury Charge to the Court, the jury rendered its findings on November 16, 2023, which the
Court received and filed, and which are attached hereto as Exhibit A and incorporated
by reference.
Based on RBR Real Estate Holdings, LLC’s (“RBR”) Motion for Award of Attorneys’
Fees, Costs and Expenses, and Expert Witness Fees, and Motion for Entry of Final
Judgment (“Motion”), the responses thereto, and the arguments of counsel, the Court
hereby orders the Motion is GRANTED.
Therefore, and based on the evidence presented at trial, the jury’s verdict, and the
legal and equitable powers of this Court, the Court further ORDERS:
1. Plaintiffs take nothing;
2. RBR shall recover from Plaintiffs its attorneys’ fees, costs, and expenses in
the amount of $1,580,591.50 that it reasonably and necessarily incurred in this suit,
including and through trial of this suit: i.e., $1,180,669.50 in attorneys’ fees, $122,964.41
in costs and expenses, and $276,957.59 in expert witness fees;
3. RBR shall also recover the reasonable and necessary attorneys’ fees
associated with the Moton in the amount of $7,500; and
4. If Plaintiffs appeal and Defendants prevail, Defendants shall also recover
from Plaintiffs the reasonable and necessary attorneys’ fees in the following amounts:
$150,000 for representation in the Court of Appeals; $50,000 for representation at the
petition for review stage before the Supreme Court of Texas; $50,000 for representation
at the merits briefing stage in the Supreme Court of Texas; and $50,000 for representation
through oral argument and the completion of proceedings in the Supreme Court of Texas.
Accordingly, it is hereby ORDERED and ADJUDGED that RBR is entitled to
recover from Plaintiffs its:
ORDER AND FINAL JUDGMENT 2
1. Reasonable and necessary attorneys’ fees, costs, and expenses in the
amount of $1,580,591.50 incurred through the trial of this suit, and upon appeal, the
amounts set forth above in paragraph 3;
2. Reasonable and necessary attorneys’ fees associated with the Moton in the
amount of $7,500.00; and
3. Post-judgment interest at the rate of 8.50%, compounded annually, from the
date the Final Judgment is signed until all amounts are paid in full.
All relief not expressly granted in this Final Judgment is denied. This Final
Judgment finally disposes of all parties and all claims and is appealable.
SIGNED __________________________, 2024.
_______________________________
Hon. Veretta L. Frazier
Presiding Judge, 44th District Court
ORDER AND FINAL JUDGMENT 3
r
r. . .
TE; .' "-v ‘
ORIGINAL
CAUSE NO. DC-21-11406
E Em
‘
§§§§§
MILTON 635 GRAVOIS ROAD LLC, N y:
EL: RT.6tfDU
my EM
“TRTQv'fiT-E‘au
GRAVOIs ROAD LEASING LLC,
635 GRAVOIS LLc,
and
635 GRAVOIS ROAD REAL ESTATE MN 66 2023
WM 2923
LLC
LLC, r RWRE
3A PETRE
IA
DA AS CO. TEXAS
A3 CO.
1
DiS CLE
Dig 5.5
. .
’ DEPUTY
”DEPUTY
if /
§§§§§§§§§
Plaintiffs, I
VS.
VS- 44TH JUDICIAL DISTRICT
'TRT
TRT HOLDINGS, INC.,
|NC.,
RBR REAL ESTATE
ESTATE HOLDINGS, LLC,
BRIAN ZELMAN,'
ZELMAN, and ADAM ZEITSIFF,
ZEITSIFF,
Defendants. DALLAS COUNTY, TEXAS
CHARGE OF THE COURT
MEMBERS OF THE JURY:
After the closing
closing arguments,
arguments, you
you will gogo to the jury
jury room to decide the case, answer
the questions that are attached, and reach a verdict. You may may discuss the case
case with other
jurors only the'Jjury discuss
jurors only when you
you are all together
together"in
In the ury room.
Remember my my previous instructions: Do not discuss the casecase with anyone
anyone else, either
in person
person or by
by any
any other means. Do not do any independent investigation
any independent investigation about the casecase or
conduct any
any research. Do not look up any
up any words in dictionaries or on the Internet. Do not
post
post information about the case
case on the Internet. Do not share any any special knowledge or
experiences with the other jurors. Do not use your
otherjurors. phone or
your phone any any other electronic device during
during
your
your deliberations for
deliberations’for any
any reason. I will
| give you
you a number where others may contact you
you in
case
case of an emergency.
Any
Any notes you
you have taken are for your
your own personal
personal use. You may
may take your
your notes
back into the jury
jury room and consult them during
during deliberations, but do not show or read your
your
notes to your
your fellow jurors
jurors during your
during your deliberations. Your notes are not evidence. Each of
you
you should rely
rely on your independent
independent recollection of the evidence and not be influenced by
by the
fact that another juror has or has not taken notes.
anotherjuror
You must leave your
your notes with the bailiff when you
you are not deliberating.
deliberating. The bailiff
will give your
your notes to me promptly
promptly after collecting
collecting them from you.
you. Il will make sure your
your notes
are kept
kept in a safe, secure location
location. and not disclosed to anyone.
anyone. After you
you complete your
your
deliberations, the bailiff will collect your
your notes. When you
you are released from jury duty, the
jury duty,
bailiff will promptly
promptly destroy your
your notes so that nobody
nobody can read what
what you
you wrote.
Here are the instructions for answering
answering the questions. EXHIBIT
1. Do not let bias, prejudice,
prejudice, or sympathy
sympathy play
play any
any part
part in your
your decision. A
CHARGE OF THE COURT PAGE 1
1 OF 13
13
2. Base your only on the evidence admitted in court and on the law that
your answers only
any evidence
questions. Do not consider or discuss any
is in these instructions and questions.
that was not admitted in the courtroom.
3. You are to make up your own minds about the facts. You are the sole judges
up your judges
credibility of the witnesses and the weight
of the credibility weight to give testimony. But on
give their testimony.
matters of law, you
you must follow all of my
my instructions.
4. If
If my ordinary meaning,
way that is different from its ordinary
my instructions use a word in a way meaning,
meaning Il give
use the meaning you, which will be a proper
give you, proper legal
legal definition.
definition.
5. All of the questions important. No one should say
questions and answers are important. say that any
any
question
question or answer
answer is not important.
important.
6. Answer "yes" "no” to all questions
“yes” or "no" you are told otherwise.
questions unless you othen/vise. A "yes"
“yes”
preponderance of the evidence. Whenever a
answer must be based on a preponderance
answer
question requires “yes” or "no,"
requires an answer other than "yes" “no,” your
your answer must be
based on a preponderance
preponderance of the evidence.
The term "preponderance evidence” means the greater
"preponderance of the evidence" greater weight
weight of credible
evidence presented case. If
presented in this case. lf you
you do not find
find that a preponderance
preponderance of the
evidence supports a "yes"
supports “yes” answer, then answer "no."
“no.” A preponderance
preponderance of the
evidence is not measured by by the number of witnesses or by
by the number of
documents admitted in evidence. For a fact to be proved
proved by by a preponderance
preponderance
of the evidence, you
you must find that the fact is more likely
likely true than not true.
A fact may
may be established byby direct evidence or by
by circumstantial evidence or
both. A fact is established by
by direct evidence when proved by
by documentary
documentary
evidence or by
by witnesses who saw the act done or heard the words spoken.
spoken. A
fact is established byby circumstantial evidence when it may may be fairly
fairly and
reasonably
reasonably inferred from other facts proved.
proved.
7. Do not decide who you
you think should win before you
you answer the questions
questions and
then just
just answer the questions
questions to match your decision.
your decision. Answer each question
carefully
carefully without considering
considering who will win. Do not discuss or consider the effect
your
your answers will have.
8. Do not answer questions
questions by drawing straws or by
by drawing by any
any method of chance.
9. Some questions
questions might
might ask you
you for a dollar amount. Do not agree
agree in advance
to decide on a dollar amount by
by adding
adding up
up each juror’s
juror's amount and then figuring
figuring
the average.
average.
10.
10. Do not trade your
your answers. For example,
example, do not say,
say, "I
“l will answer this question
question
your way if
your way you you answer another question my way."
my way."
11. The answers to the questions
questions must be based on the decision of at least ten of
the twelve jurors. The same ten jurors
jurors must agree
agree on every
every answer. Do not
agree
agree to be bound by
by a vote of anything
anything less than ten jurors, even
jurors, even if it would be
a majority.
majority.
0F THE COURT
CHARGE OF 0F 13
PAGE 2 OF 13
12. If
If you
you want to communicate with me at any any time during
during your
your deliberations,
please give
give a written message
message or question
question to the bailiff,
bailiff, who will bring
bring itit to me.
I will then respond
|
respond as promptly
promptly as possible either in writing
writing or by
by having
having youyou
brought
brought into the courtroom so that Ilcan address you
you orally.
orally. I will
| first disclose
your questions and my my response to the attorneys
attorneys before Il answer your question.
question.
As I have said before, if you
l
you do not follow these instructions, youyou will be guilty
guilty of juror
ofjuror
misconduct, and Il mightmight have to order a new trial and start this process over again. This
would waste your your time and the parties'
parties’ money
money and would require
require the taxpayers
taxpayers of this county
county
to paypay for another trial. If
lf a juror breaks any
juror any of these rules, tell that person
person to stop
stop and report
report
itit to me immediately.
immediately.
0F THE COURT
CHARGE OF 0F 13
PAGE 3 OF 13
GENERAL DEFINITIONS
1.
1. "Plaintiffs" Leasing LLC,
PIaintiffs/Counter-Defendants 635 Gravois Road Leasing
“Plaintiffs” means Plaintiffs/Counter-Defendants
and 635 Gravois Road Real Estate LLC.
2. "Leasing
"Leasing LLC" "Gravois Leasing" means 635 Gravois Road Leasing
“Gravois Leasing" Leasing LLC.
3. "Real Estate LLC" "Gravois Estate” means 635 Gravois Real Estate LLC.
“Gravois Real Estate"
4. “RBR” refers to the Defendant/Counter-Plaintiff
"RBR" Defendant/Counter-Plaintiff RBR Holdings,
Holdings, LLC.
5. “TRT” refers to Defendant TRT Holdings,
"TRT" Holdings, Inc.
6. "Brian Zelman” refers to Defendant Brian Zelman.
“Brian Zelman"
7. "Adam Zeitsiff” refers to Defendant Adam Zeitsiff.
“Adam Zeitsiff'
8. “Defendants” refers collectively
"Defendants" collectively to Defendants RBR, TRT, Brian Zelman, and Adam
Zeitsiff.
9. "Contract"
“Contract” refers to the parties'
parties’ written contractual agreement
agreement that is at issue in this
lawsuit, the Agreement
Agreement of Purchase and Sale, also known .as the PSA,
PSA, dated MayMay
1,
1, 2019, and the amended contract, the First Amendment to Agreement Agreement of
“APSA.”
Purchase and Sale, also known as the "APSA."
10. "Premises" "Property"
“Property” means 635 Gravois Road, Fenton, Missouri, the shopping
shopping
center at issue in this lawsuit. The Property
Property included the space Gold’s Gym
space that Gold's
leased.
CHARGE OF THE COURT PAGE 4 OF 13
13
QUESTION NO. 1
1
Did one of more of the Defendants named below commit common-law fraud
against Leasing or Gravois Real Estate?
against Gravois Leasing
For this question,
question, fraud occurs
occurs when—
1.
1. a party
party makes a material misrepresentation,
misrepresentation, and
2. the misrepresentation
misrepresentation is made with knowledge
knowledge of its falsity
falsity or made recklessly
recklessly
without any
any knowledge
knowledge of the truth and as a positive
positive assertion, and
3. the misrepresentation is made with the intention that it should be acted on by
by
the party,
party, and
4. the other party justifiably relies on the misrepresentation
party justifiably misrepresentation and thereby
thereby suffers
injury.
injury.
"Misrepresentation" means a false statement of fact.
A party's
party's conduct includes
inclUdes the conduct of another who acts with the party's
party's
authority
authority of apparent authority.
authority.
Authority
Authority for another to act for a party
party must arise from the party's
party's agreement that
the other act on behalf and for the benefit of the party.
party. If
If a party
party so authorizes another to
perform
perform an act, that other party
party is also authorized to do whatever else is proper,
prOper, usual,
and necessary to perform
necessary perform the act expressly
expressly authorized.
Apparent authority
authority exists if a party
party (1)
(1) knowingly
knowingly permits
permits another to hold himself
out as having authority
authority or,
or, (2)
(2) through
through lack of ordinary
ordinary care, bestows on another such
indications of authority
authority that lead a reasonably
reasonably prudent
prudent person to rely
rely on the apparent
existence of authority
authority to his detriment. Only
Only the acts of the party
party sought to be charged
charged
with responsibility
responsibility for the conduct of another may
may be considered in determining whether
apparent authority.
authority.
“Yes” or "No"
Answer "Yes" “No" as to each Plaintiff:
For Gravois Leasing:
Leasing:
Answer as
as to TRT Holdings,
Holdings, Inc.:
lnc.: 11No
\10
Answer as to RBR Real Estate Holdings,
Holdings, LLC: “‘0
rdo
Answer as
as to Brian Zelman: We
VJe.
CHARGE OF
0F THE COURT PAGE 5 OF
or= 13
For Gravois Real
Real Estate:
Answer as
as to TRT Holdings,
Holdings, Inc.:
lnc.: wo
£510
'
Answer as
as to RBR Real Estate Holdings,
Holdings, LLC: 0
Na
P
'
Answer as to Brian Zelman: [yo
CHARGE OF THE COURT PAGE 6 OF 13
13
If
If you “Yes" to Question No. 1,
you answered "Yes" 1, for any
any of those named below, then
answer
answer Question No. 2. Otherwise,
Othewvise, do not answer
answer Question No. 2.
QUESTION NO. 2
What sum of money,
money, if any,
any, if paid
paid now in cash, would fairly
fairly and reasonably
compensate Gravois Leasing
Leasing and Gravois Real Estate for their damages,
damages, if any,
any, that
resulted from Defendants' fraud?
In
In answering
answering questions about damages,
damages, answer
answer each question separately.
separately. Do not
increase or reduce the amount in one answer because of your your answer to any other
question
question about damages.
damages. Do not speculate
speculate about what any
any party's
party’s ultimate recovery
recovery may
may
or may
may not be. Any
Any recovery
recovery will be determined by
by the court when it applies
applies the law to
your
your answers at the time of judgment. Do not add any
judgment. any amount for interest on damages,
if any.
any.
Do not include in your
your answer any
any amount that you
you find
find Gravois Leasing
Leasing and
Gravois Real Estate could have avoided by
by the exercise of reasonable care.
Do not include in your
your answer any
any amount that you
you find
find was not the proximate
cause of Defendants'
cause Defendants’ fraud.
"Proximate cause” means a cause that was
“Proximate cause" was a substantial factor in bringing
bringing about
an event, and without which cause such event would not have occurred. In ln order to be a
proximate cause, the act or omission complained
complained of must be such
such that a person
person using the
degree of care required
required of him would have foreseen that the event, or some
some similar event,
might
might reasonably
reasonably result therefrom. There may
may be more than one proximate causecause of an
event
event.
"New and independent cause" means an act of a third person
person or other force, not
reasonably
reasonably foreseeable, that destroys
destroys the causal connection, if any, between the act or
omission inquired
inquired about and the injury
injury in question and thereby
thereby becomes the immediate
cause of such injury.
cause injUry.
Consider the following
following elements of damages,
damages, if any,
any, and none other:
a. The difference, if any,
any, between the value expended
expended for the Property versus
Property versus
the value received for the Property
Property in November 2019.
Gravois Leasing:
Leasing: Answer: $
Gravois Real Estate: Answer: $
CHARGE OF THE COURT PAGE 7 OF 13
13
Answer the following question regarding
following question only if you
regarding a defendant only unanimously answered
you unanimously
“Yes" to Question 1
"Yes" regarding that defendant. Otherwise, do not answer the following
1 regarding following
question
question regarding
regarding that defendant.
QUESTION NO. 3
What sum of money,
money, if any,
any, if paid
paid now in cash, should be assessed against
against Brian
Zelman if you
you answered “Yes”
"Yes" to Brian Zelman on Question 1
1 and awarded to Gravois
Leasing
Leasing and Gravois Real Estate as exemplary
exemplary damages,
damages, if any,
any, for the conduct found in
response 1?
response to Question 1?
"Exemplary
“Exemplary damages"
damages" means any
any damage
damage awarded as a penalty
penalty or by
by way
way of
punishment but not for compensatory purposes.
compensatory purposes. Factors to consider in awarding
awarding
exemplary damages, if any,
exemplary damages, any, are—
1. The nature of the wrong.
wrong.
2. The character of the conduct involved.
3. The degree
degree of culpability
culpability of Brian Zelman.
4. The situation and sensibilities of the parties
parties concerned.
5. The extent to which such conduct offends a public sense of
public sense justice and
ofjustice
propriety.
propriety.
'
6. The net worth of each Brian Zelman.
You are instructed that, in order for you
you to find exemplary
exemplary damages,
damages, your answer
to the question regarding
regarding the amount of such damages
damages must be unanimous.
Any
Any prejudgment
prejudgment interest may
may not be assessed or recovered on an award of
exemplary
exemplary damages.
damages.
Answer in dollars and cents, if any,
any, only
only for that Defendant you
you unanimously
“Yes” to in Question 1.
answered "Yes"
Answer for Brian Zelman: $
CHARGE OF
0F THE COURT 0F 13
PAGE 8 OF 13
QUESTION NO. 4
Did Plaintiffs fail to comply
comply with the Contract:
“Yes” or "No."
Answer "Yes" “No.” Answer: y, $$
\[rf
CHARGE OF THE COURT PAGE 9 OF 13
13
Instructions Regarding
Instructions Regarding the Presiding
Presiding Juror:
1.
1. When you
you go jury room to answer the questions,
go into the jury questions, the first
first thing
thing you
you will
needto
need to do is choose a presiding juror.
presiding juror.
2. The presiding juror has these duties:
presiding juror
a. have this complete
complete charge
charge read aloud if it will be helpful
helpful to your
your
deliberations;
b. preside
preside over your
your deliberations, meaning
meaning manage
manage the discussions, and see
that you
you follow these instructions;
c. give
give written questions
questions or comments to the bailiff who will give
give them to the
judge;
judge;
d. write down the answers you
you agree
agree on;
on;
e. sign
sign or get
get the signatures
signatures for the verdict certificate;
certificate; and
f. notify
notify the bailiff that you
you have
have reached a verdict.
Do you
you understand the duties of the presiding juror? If
presiding juror? lf you
you do not,
not, please
please tell me now.
CHARGE OF THE COURT PAGE 10
10 OF 13
13
Instructions for Signing
Instructions S_igning the Verdict Certificate:
1.
1. You may
may answer the questions
question
Preview
CAUSE NO. DC-21-11406 MILTON 635 GRAVOIS ROAD LLC, § IN THE DISTRICT COURT OF 635 GRAVOIS ROAD LEASING LLC, § and 635 GRAVOIS ROAD REAL § ESTATE, LLC, § § Plaintiffs, § 44th JUDICIAL DISTRICT § v. § § TRT HOLDINGS, INC., RBR REAL § ESTATE HOLDINGS, LLC, BRIAN § ZELMAN, and ADAM ZEITSIFF, § § Defendants. § DALLAS COUNTY, TEXAS ORDER GRANTING MOTION FOR AWARD OF ATTORNEYS’ FEES, COSTS AND EXPENSES, AND EXPERT WITNESS FEES, AND MOTION FOR ENTRY OF FINAL JUDGMENT, AND FINAL JUDGMENT This case was called to trial November 6, 2023, and all parties appeared and announced ready for trial. Plaintiffs and Counter-Defendants Milton 635 Gravois Road, LLC, 635 Gravois Road Leasing, LLC, and 635 Gravois Road Real Estate, LLC (“Plaintiffs”) appeared through their counsel of record. Defendants TRT Holdings, Inc., Brian Zelman, and Adam Zeitsiff, and Defendant and Counter-Plaintiff RBR Real Estate Holdings, LLC (“Defendants”) appeared through their counsel of record. After a jury was impaneled and sworn on November 6, 2023, the jury heard evidence and arguments of counsel through and including November 16, 2023. At the conclusion of the evidence and arguments by counsel, and after the submission of the Jury Charge to the Court, the jury rendered its findings on November 16, 2023, which the Court received and filed, and which are attached hereto as Exhibit A and incorporated by reference. Based on RBR Real Estate Holdings, LLC’s (“RBR”) Motion for Award of Attorneys’ Fees, Costs and Expenses, and Expert Witness Fees, and Motion for Entry of Final Judgment (“Motion”), the responses thereto, and the arguments of counsel, the Court hereby orders the Motion is GRANTED. Therefore, and based on the evidence presented at trial, the jury’s verdict, and the legal and equitable powers of this Court, the Court further ORDERS: 1. Plaintiffs take nothing; 2. RBR shall recover from Plaintiffs its attorneys’ fees, costs, and expenses in the amount of $1,580,591.50 that it reasonably and necessarily incurred in this suit, including and through trial of this suit: i.e., $1,180,669.50 in attorneys’ fees, $122,964.41 in costs and expenses, and $276,957.59 in expert witness fees; 3. RBR shall also recover the reasonable and necessary attorneys’ fees associated with the Moton in the amount of $7,500; and 4. If Plaintiffs appeal and Defendants prevail, Defendants shall also recover from Plaintiffs the reasonable and necessary attorneys’ fees in the following amounts: $150,000 for representation in the Court of Appeals; $50,000 for representation at the petition for review stage before the Supreme Court of Texas; $50,000 for representation at the merits briefing stage in the Supreme Court of Texas; and $50,000 for representation through oral argument and the completion of proceedings in the Supreme Court of Texas. Accordingly, it is hereby ORDERED and ADJUDGED that RBR is entitled to recover from Plaintiffs its: ORDER AND FINAL JUDGMENT 2 1. Reasonable and necessary attorneys’ fees, costs, and expenses in the amount of $1,580,591.50 incurred through the trial of this suit, and upon appeal, the amounts set forth above in paragraph 3; 2. Reasonable and necessary attorneys’ fees associated with the Moton in the amount of $7,500.00; and 3. Post-judgment interest at the rate of 8.50%, compounded annually, from the date the Final Judgment is signed until all amounts are paid in full. All relief not expressly granted in this Final Judgment is denied. This Final Judgment finally disposes of all parties and all claims and is appealable. SIGNED __________________________, 2024. _______________________________ Hon. Veretta L. Frazier Presiding Judge, 44th District Court ORDER AND FINAL JUDGMENT 3 r r. . . TE; .' "-v ‘ ORIGINAL CAUSE NO. DC-21-11406 E Em ‘ §§§§§ MILTON 635 GRAVOIS ROAD LLC, N y: EL: RT.6tfDU my EM “TRTQv'fiT-E‘au GRAVOIs ROAD LEASING LLC, 635 GRAVOIS LLc, and 635 GRAVOIS ROAD REAL ESTATE MN 66 2023 WM 2923 LLC LLC, r RWRE 3A PETRE IA DA AS CO. TEXAS A3 CO. 1 DiS CLE Dig 5.5 . . ’ DEPUTY ”DEPUTY if / §§§§§§§§§ Plaintiffs, I VS. VS- 44TH JUDICIAL DISTRICT 'TRT TRT HOLDINGS, INC., |NC., RBR REAL ESTATE ESTATE HOLDINGS, LLC, BRIAN ZELMAN,' ZELMAN, and ADAM ZEITSIFF, ZEITSIFF, Defendants. DALLAS COUNTY, TEXAS CHARGE OF THE COURT MEMBERS OF THE JURY: After the closing closing arguments, arguments, you you will gogo to the jury jury room to decide the case, answer the questions that are attached, and reach a verdict. You may may discuss the case case with other jurors only the'Jjury discuss jurors only when you you are all together together"in In the ury room. Remember my my previous instructions: Do not discuss the casecase with anyone anyone else, either in person person or by by any any other means. Do not do any independent investigation any independent investigation about the casecase or conduct any any research. Do not look up any up any words in dictionaries or on the Internet. Do not post post information about the case case on the Internet. Do not share any any special knowledge or experiences with the other jurors. Do not use your otherjurors. phone or your phone any any other electronic device during during your your deliberations for deliberations’for any any reason. I will | give you you a number where others may contact you you in case case of an emergency. Any Any notes you you have taken are for your your own personal personal use. You may may take your your notes back into the jury jury room and consult them during during deliberations, but do not show or read your your notes to your your fellow jurors jurors during your during your deliberations. Your notes are not evidence. Each of you you should rely rely on your independent independent recollection of the evidence and not be influenced by by the fact that another juror has or has not taken notes. anotherjuror You must leave your your notes with the bailiff when you you are not deliberating. deliberating. The bailiff will give your your notes to me promptly promptly after collecting collecting them from you. you. Il will make sure your your notes are kept kept in a safe, secure location location. and not disclosed to anyone. anyone. After you you complete your your deliberations, the bailiff will collect your your notes. When you you are released from jury duty, the jury duty, bailiff will promptly promptly destroy your your notes so that nobody nobody can read what what you you wrote. Here are the instructions for answering answering the questions. EXHIBIT 1. Do not let bias, prejudice, prejudice, or sympathy sympathy play play any any part part in your your decision. A CHARGE OF THE COURT PAGE 1 1 OF 13 13 2. Base your only on the evidence admitted in court and on the law that your answers only any evidence questions. Do not consider or discuss any is in these instructions and questions. that was not admitted in the courtroom. 3. You are to make up your own minds about the facts. You are the sole judges up your judges credibility of the witnesses and the weight of the credibility weight to give testimony. But on give their testimony. matters of law, you you must follow all of my my instructions. 4. If If my ordinary meaning, way that is different from its ordinary my instructions use a word in a way meaning, meaning Il give use the meaning you, which will be a proper give you, proper legal legal definition. definition. 5. All of the questions important. No one should say questions and answers are important. say that any any question question or answer answer is not important. important. 6. Answer "yes" "no” to all questions “yes” or "no" you are told otherwise. questions unless you othen/vise. A "yes" “yes” preponderance of the evidence. Whenever a answer must be based on a preponderance answer question requires “yes” or "no," requires an answer other than "yes" “no,” your your answer must be based on a preponderance preponderance of the evidence. The term "preponderance evidence” means the greater "preponderance of the evidence" greater weight weight of credible evidence presented case. If presented in this case. lf you you do not find find that a preponderance preponderance of the evidence supports a "yes" supports “yes” answer, then answer "no." “no.” A preponderance preponderance of the evidence is not measured by by the number of witnesses or by by the number of documents admitted in evidence. For a fact to be proved proved by by a preponderance preponderance of the evidence, you you must find that the fact is more likely likely true than not true. A fact may may be established byby direct evidence or by by circumstantial evidence or both. A fact is established by by direct evidence when proved by by documentary documentary evidence or by by witnesses who saw the act done or heard the words spoken. spoken. A fact is established byby circumstantial evidence when it may may be fairly fairly and reasonably reasonably inferred from other facts proved. proved. 7. Do not decide who you you think should win before you you answer the questions questions and then just just answer the questions questions to match your decision. your decision. Answer each question carefully carefully without considering considering who will win. Do not discuss or consider the effect your your answers will have. 8. Do not answer questions questions by drawing straws or by by drawing by any any method of chance. 9. Some questions questions might might ask you you for a dollar amount. Do not agree agree in advance to decide on a dollar amount by by adding adding up up each juror’s juror's amount and then figuring figuring the average. average. 10. 10. Do not trade your your answers. For example, example, do not say, say, "I “l will answer this question question your way if your way you you answer another question my way." my way." 11. The answers to the questions questions must be based on the decision of at least ten of the twelve jurors. The same ten jurors jurors must agree agree on every every answer. Do not agree agree to be bound by by a vote of anything anything less than ten jurors, even jurors, even if it would be a majority. majority. 0F THE COURT CHARGE OF 0F 13 PAGE 2 OF 13 12. If If you you want to communicate with me at any any time during during your your deliberations, please give give a written message message or question question to the bailiff, bailiff, who will bring bring itit to me. I will then respond | respond as promptly promptly as possible either in writing writing or by by having having youyou brought brought into the courtroom so that Ilcan address you you orally. orally. I will | first disclose your questions and my my response to the attorneys attorneys before Il answer your question. question. As I have said before, if you l you do not follow these instructions, youyou will be guilty guilty of juror ofjuror misconduct, and Il mightmight have to order a new trial and start this process over again. This would waste your your time and the parties' parties’ money money and would require require the taxpayers taxpayers of this county county to paypay for another trial. If lf a juror breaks any juror any of these rules, tell that person person to stop stop and report report itit to me immediately. immediately. 0F THE COURT CHARGE OF 0F 13 PAGE 3 OF 13 GENERAL DEFINITIONS 1. 1. "Plaintiffs" Leasing LLC, PIaintiffs/Counter-Defendants 635 Gravois Road Leasing “Plaintiffs” means Plaintiffs/Counter-Defendants and 635 Gravois Road Real Estate LLC. 2. "Leasing "Leasing LLC" "Gravois Leasing" means 635 Gravois Road Leasing “Gravois Leasing" Leasing LLC. 3. "Real Estate LLC" "Gravois Estate” means 635 Gravois Real Estate LLC. “Gravois Real Estate" 4. “RBR” refers to the Defendant/Counter-Plaintiff "RBR" Defendant/Counter-Plaintiff RBR Holdings, Holdings, LLC. 5. “TRT” refers to Defendant TRT Holdings, "TRT" Holdings, Inc. 6. "Brian Zelman” refers to Defendant Brian Zelman. “Brian Zelman" 7. "Adam Zeitsiff” refers to Defendant Adam Zeitsiff. “Adam Zeitsiff' 8. “Defendants” refers collectively "Defendants" collectively to Defendants RBR, TRT, Brian Zelman, and Adam Zeitsiff. 9. "Contract" “Contract” refers to the parties' parties’ written contractual agreement agreement that is at issue in this lawsuit, the Agreement Agreement of Purchase and Sale, also known .as the PSA, PSA, dated MayMay 1, 1, 2019, and the amended contract, the First Amendment to Agreement Agreement of “APSA.” Purchase and Sale, also known as the "APSA." 10. "Premises" "Property" “Property” means 635 Gravois Road, Fenton, Missouri, the shopping shopping center at issue in this lawsuit. The Property Property included the space Gold’s Gym space that Gold's leased. CHARGE OF THE COURT PAGE 4 OF 13 13 QUESTION NO. 1 1 Did one of more of the Defendants named below commit common-law fraud against Leasing or Gravois Real Estate? against Gravois Leasing For this question, question, fraud occurs occurs when— 1. 1. a party party makes a material misrepresentation, misrepresentation, and 2. the misrepresentation misrepresentation is made with knowledge knowledge of its falsity falsity or made recklessly recklessly without any any knowledge knowledge of the truth and as a positive positive assertion, and 3. the misrepresentation is made with the intention that it should be acted on by by the party, party, and 4. the other party justifiably relies on the misrepresentation party justifiably misrepresentation and thereby thereby suffers injury. injury. "Misrepresentation" means a false statement of fact. A party's party's conduct includes inclUdes the conduct of another who acts with the party's party's authority authority of apparent authority. authority. Authority Authority for another to act for a party party must arise from the party's party's agreement that the other act on behalf and for the benefit of the party. party. If If a party party so authorizes another to perform perform an act, that other party party is also authorized to do whatever else is proper, prOper, usual, and necessary to perform necessary perform the act expressly expressly authorized. Apparent authority authority exists if a party party (1) (1) knowingly knowingly permits permits another to hold himself out as having authority authority or, or, (2) (2) through through lack of ordinary ordinary care, bestows on another such indications of authority authority that lead a reasonably reasonably prudent prudent person to rely rely on the apparent existence of authority authority to his detriment. Only Only the acts of the party party sought to be charged charged with responsibility responsibility for the conduct of another may may be considered in determining whether apparent authority. authority. “Yes” or "No" Answer "Yes" “No" as to each Plaintiff: For Gravois Leasing: Leasing: Answer as as to TRT Holdings, Holdings, Inc.: lnc.: 11No \10 Answer as to RBR Real Estate Holdings, Holdings, LLC: “‘0 rdo Answer as as to Brian Zelman: We VJe. CHARGE OF 0F THE COURT PAGE 5 OF or= 13 For Gravois Real Real Estate: Answer as as to TRT Holdings, Holdings, Inc.: lnc.: wo £510 ' Answer as as to RBR Real Estate Holdings, Holdings, LLC: 0 Na P ' Answer as to Brian Zelman: [yo CHARGE OF THE COURT PAGE 6 OF 13 13 If If you “Yes" to Question No. 1, you answered "Yes" 1, for any any of those named below, then answer answer Question No. 2. Otherwise, Othewvise, do not answer answer Question No. 2. QUESTION NO. 2 What sum of money, money, if any, any, if paid paid now in cash, would fairly fairly and reasonably compensate Gravois Leasing Leasing and Gravois Real Estate for their damages, damages, if any, any, that resulted from Defendants' fraud? In In answering answering questions about damages, damages, answer answer each question separately. separately. Do not increase or reduce the amount in one answer because of your your answer to any other question question about damages. damages. Do not speculate speculate about what any any party's party’s ultimate recovery recovery may may or may may not be. Any Any recovery recovery will be determined by by the court when it applies applies the law to your your answers at the time of judgment. Do not add any judgment. any amount for interest on damages, if any. any. Do not include in your your answer any any amount that you you find find Gravois Leasing Leasing and Gravois Real Estate could have avoided by by the exercise of reasonable care. Do not include in your your answer any any amount that you you find find was not the proximate cause of Defendants' cause Defendants’ fraud. "Proximate cause” means a cause that was “Proximate cause" was a substantial factor in bringing bringing about an event, and without which cause such event would not have occurred. In ln order to be a proximate cause, the act or omission complained complained of must be such such that a person person using the degree of care required required of him would have foreseen that the event, or some some similar event, might might reasonably reasonably result therefrom. There may may be more than one proximate causecause of an event event. "New and independent cause" means an act of a third person person or other force, not reasonably reasonably foreseeable, that destroys destroys the causal connection, if any, between the act or omission inquired inquired about and the injury injury in question and thereby thereby becomes the immediate cause of such injury. cause injUry. Consider the following following elements of damages, damages, if any, any, and none other: a. The difference, if any, any, between the value expended expended for the Property versus Property versus the value received for the Property Property in November 2019. Gravois Leasing: Leasing: Answer: $ Gravois Real Estate: Answer: $ CHARGE OF THE COURT PAGE 7 OF 13 13 Answer the following question regarding following question only if you regarding a defendant only unanimously answered you unanimously “Yes" to Question 1 "Yes" regarding that defendant. Otherwise, do not answer the following 1 regarding following question question regarding regarding that defendant. QUESTION NO. 3 What sum of money, money, if any, any, if paid paid now in cash, should be assessed against against Brian Zelman if you you answered “Yes” "Yes" to Brian Zelman on Question 1 1 and awarded to Gravois Leasing Leasing and Gravois Real Estate as exemplary exemplary damages, damages, if any, any, for the conduct found in response 1? response to Question 1? "Exemplary “Exemplary damages" damages" means any any damage damage awarded as a penalty penalty or by by way way of punishment but not for compensatory purposes. compensatory purposes. Factors to consider in awarding awarding exemplary damages, if any, exemplary damages, any, are— 1. The nature of the wrong. wrong. 2. The character of the conduct involved. 3. The degree degree of culpability culpability of Brian Zelman. 4. The situation and sensibilities of the parties parties concerned. 5. The extent to which such conduct offends a public sense of public sense justice and ofjustice propriety. propriety. ' 6. The net worth of each Brian Zelman. You are instructed that, in order for you you to find exemplary exemplary damages, damages, your answer to the question regarding regarding the amount of such damages damages must be unanimous. Any Any prejudgment prejudgment interest may may not be assessed or recovered on an award of exemplary exemplary damages. damages. Answer in dollars and cents, if any, any, only only for that Defendant you you unanimously “Yes” to in Question 1. answered "Yes" Answer for Brian Zelman: $ CHARGE OF 0F THE COURT 0F 13 PAGE 8 OF 13 QUESTION NO. 4 Did Plaintiffs fail to comply comply with the Contract: “Yes” or "No." Answer "Yes" “No.” Answer: y, $$ \[rf CHARGE OF THE COURT PAGE 9 OF 13 13 Instructions Regarding Instructions Regarding the Presiding Presiding Juror: 1. 1. When you you go jury room to answer the questions, go into the jury questions, the first first thing thing you you will needto need to do is choose a presiding juror. presiding juror. 2. The presiding juror has these duties: presiding juror a. have this complete complete charge charge read aloud if it will be helpful helpful to your your deliberations; b. preside preside over your your deliberations, meaning meaning manage manage the discussions, and see that you you follow these instructions; c. give give written questions questions or comments to the bailiff who will give give them to the judge; judge; d. write down the answers you you agree agree on; on; e. sign sign or get get the signatures signatures for the verdict certificate; certificate; and f. notify notify the bailiff that you you have have reached a verdict. Do you you understand the duties of the presiding juror? If presiding juror? lf you you do not, not, please please tell me now. CHARGE OF THE COURT PAGE 10 10 OF 13 13 Instructions for Signing Instructions S_igning the Verdict Certificate: 1. 1. You may may answer the questions question