Preview
FILED
10/16/2023 3:19 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Debra Clark DEPUTY
CAUSE NO. DC-23-08584
SOUTHWEST LEGEND INVESTMENTS § IN THE DISTRICT COURT
LLC, §
§
Plaintiff, §
§
v. § 134th JUDICIAL DISTRICT
§
PURE AND NATURAL-LAKEWAY LLC, §
PURE AND NATURAL ONE-TN, LLC, §
GSRX INDUSTRIES INC., AND THOMAS §
J. GINGERICH §
§
Defendants. § DALLAS COUNTY, TEXAS
DEFENDANTS’ TRADITIONAL MOTION
FOR PARTIAL SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendants Pure and Natural-Lakeway LLC (“PN Lakeway”), Pure and
Natural One-TN, LLC (“PN One-TN”), GSRX Industries Inc. (“GSRX”), and Thomas J.
Gingerich (“Gingerich”) (collectively, “Defendants”), and file this Motion for Partial Summary
Judgment on Plaintiff’s claim for breach of contract, and in support thereof respectfully show the
following:
SUMMARY 0F MOTION
1. This suit arises from a written Settlement Agreement entered into between the
parties on or about June 29, 2022. Pursuant to the terms of the Settlement Agreement, the
Defendants agreed to pay Plaintiff consideration of $175,000 consisting of “(i) $25,000 from
Defendants, which Defendants would obtain from the sale of a tract of real property in California;
and (ii) a Promissory Note in which GSRX became obligated to pay Plaintiff the sum of $150,000.
2. It has long been held that the words of a contract control over a party’s unexpressed
intent unless there is a mutual mistake or something of the sort. Here, Plaintiff does not allege
DEFENDANTs’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 1
there was a mutual mistake or that the Settlement Agreement is ambiguous. Nonetheless, Plaintiff
seeks to rewrite the terms of the Settlement Agreement to assert that all Defendants have breached
the Settlement Agreement and the non-GSRX Defendants are liable for the obligations of
Defendant GSRX under the terms of the Promissory Note.
3. As shown below, the words of the Settlement Agreement control, and Plaintiff’s
claim for breach of contract against the non-GSRX Defendants fails as a matter of law.
Accordingly, Defendants seek a partial summary judgment that Plaintiff take nothing on its breach
of contract claim against the non-GSRX Defendants: Pure and Natural-Lakeway LLC, Pure and
Natural One—TN, LLC and Thomas J. Gingerich.
SUMMARY JUDGMENT EVIDENCE
4. In support of this Motion, Defendants rely upon and incorporate into this Response
Exhibit A-I and Exhibit A-2 attached to Plaintiff‘s Second Amended Motion Traditional Motion
for Summary Judgment filed in this cause on or about October 11, 2023.
RELEVANT PROCEDURAL BACKGROUND
5. Plaintiff filed its Original Petition on June 26, 2023, alleging that Defendants failed
to comply with the terms of a Settlement Agreement executed between the parties and a
Promissory Note executed between Plaintiff and Defendant GSRX. Plaintiffs’ Original Petition
alleges claims against all Defendants for (i) breach of contract; (ii) fiaud; (iii) negligent
misrepresentation; and (iv) promissory estoppel.
6. On August 11, 2023, Plaintiff filed its Traditional Motion for Summary Judgment
seeking summary judgment on its claims for breach of contract and promissory estoppel.
7. On August 25, 2023, Defendants filed a Partial Motion to Dismiss pursuant to
Texas Rule of Civil Procedure 91a seeking dismissal of Plaintiffs’ claim for promissory estoppel
due. As a matter of law, a claim of promissory estoppel lacks Viability in the face of a written
DEFENDANTs’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 2
contract encompassing the same subject matter. Fortune Prod. C0. v. Conoco, Inc. 52 S.W.3d 671,
684 (Tex. 2000).
8. On September 10, 2023, Plaintiff filed its First Amended Traditional Motion for
Summary Judgment seeking summary judgment on its claims for breach of contract and
promissory estoppel.
9. On September 21, 2023, Plaintiff filed its First Amended Petition. The First
Amended Petition does not contain a claim of promissory estoppel against the Defendants.
10. On October 11, 2023, Plaintiff filed its Second Amended Traditional Motion for
Summary Judgment seeking summary judgment on its claims for breach of contract and attorney’s
fees. Because the issues raised by Plaintiff s Second MSJ are purely issues of law, Defendants
have filed this counter-Motion for Traditional Summary Judgment seeking summary judgment on
Plaintiffs claims for breach of contract and attorney’s fees.
RELEVANT PROCEDURAL BACKGROUND
11. On or about June 29, 2022, Plaintiff and Defendants entered into a written
Settlement Agreement to resolve claims asserted by Plaintiff against Defendants in a prior lawsuit.1
12. Paragraph 2 of the Settlement Agreement sets forth the consideration to be
exchanged by the Defendants:
2. Settlement Payment. In consideration of this Agreement, and as a material
inducement and condition precedent hereto, Defendants agree to pay SWL a total
consideration of $175,000 consisting of:
2.1 Proceeds of 138 Main Street, Point Arena, CA 95468. Defendants
agree to cause its subsidiary to pledge $25,000 of the proceeds
from the sale of property located at 138 Main Street, Point Arena,
CA 95468. Defendants agree that SWL may, at its convenience, file
a lien on such property in the amount of $25,000, and Defendants
1
See Exhibit A-I attached to Plaintiffs Second Amended Motion for Traditional Summary Judgment (“Plaintiffs
Motion”).
DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 3
will guaranty the party owning the property will not contest such
lien.
2.2 Note for $150,000. Within two (2) days of the Parties’ execution of
this Agreement, GSRX will issue a note payable to SWL. The terms
of the note will be as set forth below:
2.2.1 Full Payment: 18 months
2.2.2 6-Month Deferred Payments: No payments required
for first 6 months.
2.2.3 Months 7-9: $5,000/mo.
2.2.4 Months 10-18: $15,000/mo.
2.2.5 Any pre-payments are credited toward the first
payments due (i.e., pre-payments of $10,000 are
credited toward Month 7 and 8)?
13. It is undisputed Defendants paid to Plaintiff the $25,000 from the proceeds of the
sale of 138 Main Street pursuant to Section 2.1 of the Settlement Agreement?
14. It is also undisputed that GSRX, as Maker, signed and delivered a promissory note
in the amount of $150,00 payable to Plaintiff (the “Promissory Note”) pursuant to Section 2.2 of
the Settlement Agreement.4 Notably, GSRX is the only signatory on the Promissory Note and
none of the other Defendants are guarantors of GSRX’s obligations under the Promissory Notes
15. Paragraph 4 of the Settlement Agreement defines the event(s) that constitute a
default under the Settlement Agreement:
4. Default.
4.1 Default. An event of default occurs if Defendants, together or
separately, fail to make the payment required in Paragraph 2.1.5
16. Paragraph 4.1 is the only provision in the Settlement Agreement that describes the
act(s) that constitute a default. As shown above, the singular act that constitutes a default by the
2
Id.
3
See Plaintiff’s Second Amended Motion for Traditional Summary Judgment at 1i 7.
4
Id at 1i 9, see also Exhibit A-2 to Plaintiffs Motion.
5
See Exhibit A-2 to Plaintiff’s Motion.
6
See Exhibit A-l to Plaintiff’s Motion.
DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 4
Defendants is failure to make the $25,000 payment referenced in Section 2.1. As noted above, it
is undisputed that Defendants paid to Plaintiff the $25,000 from the proceeds of the sale of 138
Main Street pursuant to Section 2.1 of the Settlement Agreement.7
ARGUMENTS AND AUTHORITIES
A. PLAINTIFF’S CLAIM FOR BREACH 0F THE SETTLEMENT
AGREEMENT FAILs As A MATTER 0F LAW
17. Under Texas law, the “primary concern of a court in construing a written contract
is to ascertain the true intent of the parties as expressed in the instrument. If a written contract is
so worded that it can be given a definite or certain legal meaning, then it is not ambiguous. Parol
evidence is not admissible for the purpose of creating ambiguity. Kelly-Coppedge, Inc. v.
Highlands Ins. C0,, 980 S.W.2d 462, 464 (Tex. 1998).
18. A plain reading of the relevant language in the Settlement Agreement is fatal to
Plaintiff’s claim that Defendants have breached the Settlement Agreement. As shown above, the
Settlement Agreement clearly provides that the consideration to Plaintiff consisted of m distinct
parts:
(i) $25,000 paid by Defendants from the sale of the real property
located at 138 Main Street in Point Arena, CA; and
(ii) A $150,000 note issued by GSRX payable to Plaintiff. 8
19. It is undisputed that Defendants made the $25,000 payment to Plaintiff required in
Section 2.1 and that GSRX delivered the Promissory Note to Plaintiff required in Section 2.2 of
the Settlement Agreementg Moreover, the only event of default defined in the Settlement
Agreement is a failure by Defendants to make the payment required in Section 2.1.
7
See Plaintiff’s Second Amended Motion for Traditional Summary Judgment at 11 7.
8
Id.
9
See Plaintiff s Motion at 1H] 7-9.
DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 5
20. Plaintiff” s claim that the Defendants have breached the breached the Settlement
Agreement fails as a matter of law because it is undisputed that Defendants performed their
obligations under the Settlement Agreement. Moreover, under the clear and unambiguous
language of Section 4.1 of the Settlement Agreement, no default of the Settlement Agreement has
occurred because “default” under the Settlement Agreement is defined as a failure to comply with
Paragraph 2.1 and it is undisputed that Defendants have complied with Section 2.1.10
B. PLAINTIFF’S CLAIM THAT THE NON-GSRX DEFENDANTS HAVE
BREACHED THE PROMISSORY NOTE FAILS As A MATTER 0F LAW
21. For the same reasons as those stated above, Plaintiff’ s claim that the non-GSRX
Defendants (PN Lakeway, PN One-TN and Gingerich) have breached the Promissory Note fails
as a matter of law.
22. The only payment obligation of the non-GSRX Defendants under the terms of the
Settlement Agreement is their promise to pay Plaintiff $25,000 from the sale of the real property
in California referenced in Section 2.1. The promise stated in Section 2.2 to deliver a promissory
note is Llely the obligation of GSRX, and GSRX undisputedly delivered and has made payments
to Plaintiff pursuant to the terms of the Promissory Note.“
23. The Settlement Agreement does not impose any obligations upon the non-GSRX
Defendants with respect to the Promissory Note and the non-GSRX Defendants are not guarantors
of GSRX’s obligations under the Promissory Note.” Similarly, the Promissory Note is not signed
by the non-GSRX Defendants, and it does not contain any provisions obligating the non-GSRX
Defendants to perform the terms of the Promissory Note.” Accordingly, Plaintiff’ s claim that the
non-GSRX Defendants have breached the terms of the Promissory Note fails as a matter of law.
1°
See Exhibit A-l to Plaintiff” s Motion.
11
See Plaintiff’ s Motion at 1H 9, 11.
12
See Exhibit A-2 to Plaintiff” s Motion.
13
Id.
DEFENDANTs’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 6
C. PLAINTIFF’S CLAIMS FOR ATTORNEY’S FEES FAIL As A MATTER 0F LAW
24. Finally, because Plaintiff is unable to establish a breach of the Settlement
Agreement by the Defendants or a breach of the Promissory Note by the non-GSRX Defendants,
Defendants are entitled to summary judgment on Plaintiff‘s claim for attomey’s fees arising from
a breach of the Settlement Agreement, and the non-GSRX Defendants are entitled to summary
judgment on Plaintiff s claim for attorney’s fees arising from a breach of the Promissory Note.
CONCLUSION
25. Plaintiff” s claims for breach of contract improperly attempt to rewrite the terms of
the Settlement Agreement entered into between Plaintiff and Defendants and the Promissory Note
signed by Defendant GSRX. It is well-settled that a written contract has, strictly speaking, nothing
to do with the personal, or individual, intent of the parties. This principle was famously stated by
Judge Learned Hand in the seminal case of Hotchkz'ss v. National City Bank ofNew York:
A contract is an obligation attached by the mere force of law to certain acts of the
parties, usually words, which ordinarily accompany and represent a known intent.
I}? however, it were proved by twenty bishops that either party, when he used the
words, intended something else than the usual meaning which the law imposes upon
them, he would still be held, unless there were some mutual mistake, or something
else of the sort.“
26. The Court should construe the Settlement Agreement and Promissory Note
according to the plain and unambiguous terms of those documents. The fact that Plaintiff may have
intended something different than the language in the Settlement Agreement is of no consequence
and should be disregarded. As a matter of law, Defendants have complied with the terms of the
Settlement Agreement and the non- GSRX Defendants have not breached any provision of the
Settlement Agreement or Promissory Note. Neither Plaintiff - nor twenty bishops — can show
otherwise.
14
Hotchkiss v. National City Bank ofNew York, 200 F. 287, 293 (S.D.N.Y. 1911) (Judge Learned Hand).
DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 7
WHEREFORE, PREMISES CONSIDERED, Defendants Pure and Natural-Lakeway LLC
(“PN Lakeway”), Pure and Natural One-TN, LLC (“PN One-TN”), GSRX Industries Inc.
(“GSRX”), and Thomas J. Gingerich (“Gingerich”) request the Court grant summary judgment as
follows:
(i) That Plaintiff take nothing on its claim that Defendants have breached the
Settlement Agreement;
(ii) That Plaintiff take nothing on its claim that Defendants Pure and Natural-Lakeway
LLC, Pure and Natural One-TN, LLC and Thomas J. Gingerich, have breached the
Promissory Note;
(iii) That Plaintiff take nothing on its claim for attomey’s fees from Defendants arising
from a breach of the Settlement Agreement;
(iv) That Plaintiff take nothing on its claim for attorney’s fees from Defendants Pure
and Natural-Lakeway LLC, Pure and Natural One-TN, LLC and Thomas J.
Gingerich arising from a breach of the Promissory Note; and
(V) Grant Defendants such further relief to which they may be entitled.
Dated: October 16, 2023.
Respectfully submitted,
SCHEEF & STONE, L.L.P.
By: /s/ C. Brenton Kugler
C. Brenton Kugler
State Bar No. 11756250
brent.kugler@solidcounsel.com
500 North Akard, Suite 2700
Dallas, Texas 75201
(214) 706-4200
(214) 706-4242 (Fax)
ATTORNEYS FOR DEFENDANTS
DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 8
CERTIFICATE OF SERVICE
I certify that on October 16, 2023, a true and correct copy of the foregoing was served upon
the following counsel of record Via E—file:
Ryan A. Stames, Esq.
Jonathan Brad Bryan, Esq.
LIBBY SPARKS WILLIS STARNES PLLC
5950 Berkshire Lane
Ste. 200
Dallas, Texas 75225
/s/ C. Brenton Kugler
C. Brenton Kugler
DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 9
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.
Loretta Forbey on behalf of Brent Kugler
Bar No. 11756250
loretta.forbey@solidcounsel.com
Envelope ID: 80637794
Filing Code Description: Motion - Partial Summary Judgment
Filing Description:
Status as of 10/16/2023 3:23 PM CST
Associated Case Party: GSRX INDUSTRIES INC
Name BarNumber Email TimestampSubmitted Status
Loretta Forbey loretta.forbey@solidcounsel.com 10/16/2023 3:19:56 PM SENT
Brent Kugler brent.kugler@so|idcounse|.com 10/16/2023 3:19:56 PM SENT
Anthony Vecchione anthony.vecchione@solidcounsel.com 10/16/2023 3:19:56 PM SENT
Damaris Walker damaris.walker@solidcounsel.com 10/16/2023 3:19:56 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Ryan AStarnes rstarnes@libbysparks.com 10/16/2023 3:19:56 PM SENT
Francine Ly fly@dal|ascourts.org 10/16/2023 3:19:56 PM SENT
J. Bailey jbailey@|ibbysparks.com 10/16/2023 3:19:56 PM SENT
Jonathan Bryan bbryan@libbysparks.com 10/16/2023 3:19:56 PM SENT
Connall DuncanMcCormack cmccormack@libbysparks.com 10/16/2023 3:19:56 PM SENT
Jennifer Wallace jwallace@libbysparks.com 10/16/2023 3:19:56 PM SENT
Associated Case Party: SOUTHWEST LEGEND INVESTMENTS LLC
Name BarNumber Email TimestampSubmitted Status
RYAN ASTILES RSTARNES@L|BBYSPARKS.COM 10/16/2023 3:19:56 PM SENT
Preview
FILED 10/16/2023 3:19 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Debra Clark DEPUTY CAUSE NO. DC-23-08584 SOUTHWEST LEGEND INVESTMENTS § IN THE DISTRICT COURT LLC, § § Plaintiff, § § v. § 134th JUDICIAL DISTRICT § PURE AND NATURAL-LAKEWAY LLC, § PURE AND NATURAL ONE-TN, LLC, § GSRX INDUSTRIES INC., AND THOMAS § J. GINGERICH § § Defendants. § DALLAS COUNTY, TEXAS DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendants Pure and Natural-Lakeway LLC (“PN Lakeway”), Pure and Natural One-TN, LLC (“PN One-TN”), GSRX Industries Inc. (“GSRX”), and Thomas J. Gingerich (“Gingerich”) (collectively, “Defendants”), and file this Motion for Partial Summary Judgment on Plaintiff’s claim for breach of contract, and in support thereof respectfully show the following: SUMMARY 0F MOTION 1. This suit arises from a written Settlement Agreement entered into between the parties on or about June 29, 2022. Pursuant to the terms of the Settlement Agreement, the Defendants agreed to pay Plaintiff consideration of $175,000 consisting of “(i) $25,000 from Defendants, which Defendants would obtain from the sale of a tract of real property in California; and (ii) a Promissory Note in which GSRX became obligated to pay Plaintiff the sum of $150,000. 2. It has long been held that the words of a contract control over a party’s unexpressed intent unless there is a mutual mistake or something of the sort. Here, Plaintiff does not allege DEFENDANTs’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 1 there was a mutual mistake or that the Settlement Agreement is ambiguous. Nonetheless, Plaintiff seeks to rewrite the terms of the Settlement Agreement to assert that all Defendants have breached the Settlement Agreement and the non-GSRX Defendants are liable for the obligations of Defendant GSRX under the terms of the Promissory Note. 3. As shown below, the words of the Settlement Agreement control, and Plaintiff’s claim for breach of contract against the non-GSRX Defendants fails as a matter of law. Accordingly, Defendants seek a partial summary judgment that Plaintiff take nothing on its breach of contract claim against the non-GSRX Defendants: Pure and Natural-Lakeway LLC, Pure and Natural One—TN, LLC and Thomas J. Gingerich. SUMMARY JUDGMENT EVIDENCE 4. In support of this Motion, Defendants rely upon and incorporate into this Response Exhibit A-I and Exhibit A-2 attached to Plaintiff‘s Second Amended Motion Traditional Motion for Summary Judgment filed in this cause on or about October 11, 2023. RELEVANT PROCEDURAL BACKGROUND 5. Plaintiff filed its Original Petition on June 26, 2023, alleging that Defendants failed to comply with the terms of a Settlement Agreement executed between the parties and a Promissory Note executed between Plaintiff and Defendant GSRX. Plaintiffs’ Original Petition alleges claims against all Defendants for (i) breach of contract; (ii) fiaud; (iii) negligent misrepresentation; and (iv) promissory estoppel. 6. On August 11, 2023, Plaintiff filed its Traditional Motion for Summary Judgment seeking summary judgment on its claims for breach of contract and promissory estoppel. 7. On August 25, 2023, Defendants filed a Partial Motion to Dismiss pursuant to Texas Rule of Civil Procedure 91a seeking dismissal of Plaintiffs’ claim for promissory estoppel due. As a matter of law, a claim of promissory estoppel lacks Viability in the face of a written DEFENDANTs’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 2 contract encompassing the same subject matter. Fortune Prod. C0. v. Conoco, Inc. 52 S.W.3d 671, 684 (Tex. 2000). 8. On September 10, 2023, Plaintiff filed its First Amended Traditional Motion for Summary Judgment seeking summary judgment on its claims for breach of contract and promissory estoppel. 9. On September 21, 2023, Plaintiff filed its First Amended Petition. The First Amended Petition does not contain a claim of promissory estoppel against the Defendants. 10. On October 11, 2023, Plaintiff filed its Second Amended Traditional Motion for Summary Judgment seeking summary judgment on its claims for breach of contract and attorney’s fees. Because the issues raised by Plaintiff s Second MSJ are purely issues of law, Defendants have filed this counter-Motion for Traditional Summary Judgment seeking summary judgment on Plaintiffs claims for breach of contract and attorney’s fees. RELEVANT PROCEDURAL BACKGROUND 11. On or about June 29, 2022, Plaintiff and Defendants entered into a written Settlement Agreement to resolve claims asserted by Plaintiff against Defendants in a prior lawsuit.1 12. Paragraph 2 of the Settlement Agreement sets forth the consideration to be exchanged by the Defendants: 2. Settlement Payment. In consideration of this Agreement, and as a material inducement and condition precedent hereto, Defendants agree to pay SWL a total consideration of $175,000 consisting of: 2.1 Proceeds of 138 Main Street, Point Arena, CA 95468. Defendants agree to cause its subsidiary to pledge $25,000 of the proceeds from the sale of property located at 138 Main Street, Point Arena, CA 95468. Defendants agree that SWL may, at its convenience, file a lien on such property in the amount of $25,000, and Defendants 1 See Exhibit A-I attached to Plaintiffs Second Amended Motion for Traditional Summary Judgment (“Plaintiffs Motion”). DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 3 will guaranty the party owning the property will not contest such lien. 2.2 Note for $150,000. Within two (2) days of the Parties’ execution of this Agreement, GSRX will issue a note payable to SWL. The terms of the note will be as set forth below: 2.2.1 Full Payment: 18 months 2.2.2 6-Month Deferred Payments: No payments required for first 6 months. 2.2.3 Months 7-9: $5,000/mo. 2.2.4 Months 10-18: $15,000/mo. 2.2.5 Any pre-payments are credited toward the first payments due (i.e., pre-payments of $10,000 are credited toward Month 7 and 8)? 13. It is undisputed Defendants paid to Plaintiff the $25,000 from the proceeds of the sale of 138 Main Street pursuant to Section 2.1 of the Settlement Agreement? 14. It is also undisputed that GSRX, as Maker, signed and delivered a promissory note in the amount of $150,00 payable to Plaintiff (the “Promissory Note”) pursuant to Section 2.2 of the Settlement Agreement.4 Notably, GSRX is the only signatory on the Promissory Note and none of the other Defendants are guarantors of GSRX’s obligations under the Promissory Notes 15. Paragraph 4 of the Settlement Agreement defines the event(s) that constitute a default under the Settlement Agreement: 4. Default. 4.1 Default. An event of default occurs if Defendants, together or separately, fail to make the payment required in Paragraph 2.1.5 16. Paragraph 4.1 is the only provision in the Settlement Agreement that describes the act(s) that constitute a default. As shown above, the singular act that constitutes a default by the 2 Id. 3 See Plaintiff’s Second Amended Motion for Traditional Summary Judgment at 1i 7. 4 Id at 1i 9, see also Exhibit A-2 to Plaintiffs Motion. 5 See Exhibit A-2 to Plaintiff’s Motion. 6 See Exhibit A-l to Plaintiff’s Motion. DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 4 Defendants is failure to make the $25,000 payment referenced in Section 2.1. As noted above, it is undisputed that Defendants paid to Plaintiff the $25,000 from the proceeds of the sale of 138 Main Street pursuant to Section 2.1 of the Settlement Agreement.7 ARGUMENTS AND AUTHORITIES A. PLAINTIFF’S CLAIM FOR BREACH 0F THE SETTLEMENT AGREEMENT FAILs As A MATTER 0F LAW 17. Under Texas law, the “primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. If a written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous. Parol evidence is not admissible for the purpose of creating ambiguity. Kelly-Coppedge, Inc. v. Highlands Ins. C0,, 980 S.W.2d 462, 464 (Tex. 1998). 18. A plain reading of the relevant language in the Settlement Agreement is fatal to Plaintiff’s claim that Defendants have breached the Settlement Agreement. As shown above, the Settlement Agreement clearly provides that the consideration to Plaintiff consisted of m distinct parts: (i) $25,000 paid by Defendants from the sale of the real property located at 138 Main Street in Point Arena, CA; and (ii) A $150,000 note issued by GSRX payable to Plaintiff. 8 19. It is undisputed that Defendants made the $25,000 payment to Plaintiff required in Section 2.1 and that GSRX delivered the Promissory Note to Plaintiff required in Section 2.2 of the Settlement Agreementg Moreover, the only event of default defined in the Settlement Agreement is a failure by Defendants to make the payment required in Section 2.1. 7 See Plaintiff’s Second Amended Motion for Traditional Summary Judgment at 11 7. 8 Id. 9 See Plaintiff s Motion at 1H] 7-9. DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 5 20. Plaintiff” s claim that the Defendants have breached the breached the Settlement Agreement fails as a matter of law because it is undisputed that Defendants performed their obligations under the Settlement Agreement. Moreover, under the clear and unambiguous language of Section 4.1 of the Settlement Agreement, no default of the Settlement Agreement has occurred because “default” under the Settlement Agreement is defined as a failure to comply with Paragraph 2.1 and it is undisputed that Defendants have complied with Section 2.1.10 B. PLAINTIFF’S CLAIM THAT THE NON-GSRX DEFENDANTS HAVE BREACHED THE PROMISSORY NOTE FAILS As A MATTER 0F LAW 21. For the same reasons as those stated above, Plaintiff’ s claim that the non-GSRX Defendants (PN Lakeway, PN One-TN and Gingerich) have breached the Promissory Note fails as a matter of law. 22. The only payment obligation of the non-GSRX Defendants under the terms of the Settlement Agreement is their promise to pay Plaintiff $25,000 from the sale of the real property in California referenced in Section 2.1. The promise stated in Section 2.2 to deliver a promissory note is Llely the obligation of GSRX, and GSRX undisputedly delivered and has made payments to Plaintiff pursuant to the terms of the Promissory Note.“ 23. The Settlement Agreement does not impose any obligations upon the non-GSRX Defendants with respect to the Promissory Note and the non-GSRX Defendants are not guarantors of GSRX’s obligations under the Promissory Note.” Similarly, the Promissory Note is not signed by the non-GSRX Defendants, and it does not contain any provisions obligating the non-GSRX Defendants to perform the terms of the Promissory Note.” Accordingly, Plaintiff’ s claim that the non-GSRX Defendants have breached the terms of the Promissory Note fails as a matter of law. 1° See Exhibit A-l to Plaintiff” s Motion. 11 See Plaintiff’ s Motion at 1H 9, 11. 12 See Exhibit A-2 to Plaintiff” s Motion. 13 Id. DEFENDANTs’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 6 C. PLAINTIFF’S CLAIMS FOR ATTORNEY’S FEES FAIL As A MATTER 0F LAW 24. Finally, because Plaintiff is unable to establish a breach of the Settlement Agreement by the Defendants or a breach of the Promissory Note by the non-GSRX Defendants, Defendants are entitled to summary judgment on Plaintiff‘s claim for attomey’s fees arising from a breach of the Settlement Agreement, and the non-GSRX Defendants are entitled to summary judgment on Plaintiff s claim for attorney’s fees arising from a breach of the Promissory Note. CONCLUSION 25. Plaintiff” s claims for breach of contract improperly attempt to rewrite the terms of the Settlement Agreement entered into between Plaintiff and Defendants and the Promissory Note signed by Defendant GSRX. It is well-settled that a written contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. This principle was famously stated by Judge Learned Hand in the seminal case of Hotchkz'ss v. National City Bank ofNew York: A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. I}? however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held, unless there were some mutual mistake, or something else of the sort.“ 26. The Court should construe the Settlement Agreement and Promissory Note according to the plain and unambiguous terms of those documents. The fact that Plaintiff may have intended something different than the language in the Settlement Agreement is of no consequence and should be disregarded. As a matter of law, Defendants have complied with the terms of the Settlement Agreement and the non- GSRX Defendants have not breached any provision of the Settlement Agreement or Promissory Note. Neither Plaintiff - nor twenty bishops — can show otherwise. 14 Hotchkiss v. National City Bank ofNew York, 200 F. 287, 293 (S.D.N.Y. 1911) (Judge Learned Hand). DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 7 WHEREFORE, PREMISES CONSIDERED, Defendants Pure and Natural-Lakeway LLC (“PN Lakeway”), Pure and Natural One-TN, LLC (“PN One-TN”), GSRX Industries Inc. (“GSRX”), and Thomas J. Gingerich (“Gingerich”) request the Court grant summary judgment as follows: (i) That Plaintiff take nothing on its claim that Defendants have breached the Settlement Agreement; (ii) That Plaintiff take nothing on its claim that Defendants Pure and Natural-Lakeway LLC, Pure and Natural One-TN, LLC and Thomas J. Gingerich, have breached the Promissory Note; (iii) That Plaintiff take nothing on its claim for attomey’s fees from Defendants arising from a breach of the Settlement Agreement; (iv) That Plaintiff take nothing on its claim for attorney’s fees from Defendants Pure and Natural-Lakeway LLC, Pure and Natural One-TN, LLC and Thomas J. Gingerich arising from a breach of the Promissory Note; and (V) Grant Defendants such further relief to which they may be entitled. Dated: October 16, 2023. Respectfully submitted, SCHEEF & STONE, L.L.P. By: /s/ C. Brenton Kugler C. Brenton Kugler State Bar No. 11756250 brent.kugler@solidcounsel.com 500 North Akard, Suite 2700 Dallas, Texas 75201 (214) 706-4200 (214) 706-4242 (Fax) ATTORNEYS FOR DEFENDANTS DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 8 CERTIFICATE OF SERVICE I certify that on October 16, 2023, a true and correct copy of the foregoing was served upon the following counsel of record Via E—file: Ryan A. Stames, Esq. Jonathan Brad Bryan, Esq. LIBBY SPARKS WILLIS STARNES PLLC 5950 Berkshire Lane Ste. 200 Dallas, Texas 75225 /s/ C. Brenton Kugler C. Brenton Kugler DEFENDANTS’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 9 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. Loretta Forbey on behalf of Brent Kugler Bar No. 11756250 loretta.forbey@solidcounsel.com Envelope ID: 80637794 Filing Code Description: Motion - Partial Summary Judgment Filing Description: Status as of 10/16/2023 3:23 PM CST Associated Case Party: GSRX INDUSTRIES INC Name BarNumber Email TimestampSubmitted Status Loretta Forbey loretta.forbey@solidcounsel.com 10/16/2023 3:19:56 PM SENT Brent Kugler brent.kugler@so|idcounse|.com 10/16/2023 3:19:56 PM SENT Anthony Vecchione anthony.vecchione@solidcounsel.com 10/16/2023 3:19:56 PM SENT Damaris Walker damaris.walker@solidcounsel.com 10/16/2023 3:19:56 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Ryan AStarnes rstarnes@libbysparks.com 10/16/2023 3:19:56 PM SENT Francine Ly fly@dal|ascourts.org 10/16/2023 3:19:56 PM SENT J. Bailey jbailey@|ibbysparks.com 10/16/2023 3:19:56 PM SENT Jonathan Bryan bbryan@libbysparks.com 10/16/2023 3:19:56 PM SENT Connall DuncanMcCormack cmccormack@libbysparks.com 10/16/2023 3:19:56 PM SENT Jennifer Wallace jwallace@libbysparks.com 10/16/2023 3:19:56 PM SENT Associated Case Party: SOUTHWEST LEGEND INVESTMENTS LLC Name BarNumber Email TimestampSubmitted Status RYAN ASTILES RSTARNES@L|BBYSPARKS.COM 10/16/2023 3:19:56 PM SENT