Preview
FILED
3/23/2021 5:24 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele DEPUTY
CAUSE NO. DC-21-01866
BRANDON AND GINA GALE, IN THE DISTRICT COURT
Plaintls
v.
298th JUDICIAL DISTRICT
CHRISTOPHER ULSH, NICK
STEWART, BLAKE IBANEZ, CHRIS
WHETZEL, and FREE MONEY
ENTERPRISES, LLC, a TEXAS
LIMITED LIABILITY COMPANY,
Defendants DALLAS COUNTY, TEXAS
DEFENDANTS’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT TO
DEFENDANTS’ MOTION TO DISMISS OR ABATE PLAINTIFFS’ CLAIMS
COMES NOW Defendants Christopher Ulsh (“Ulsh”), Nick Stewart (“Stewart”), Blake
Ibanez (“Ibanez”), Chris Whetzel (“Whetzel”), and Free Money Enterprises, LLC (“FME”)
(collectively “Power Trip”), and le Defendants" Special Exceptions and Answer Subject to
’ ’
Defendants Motion to Dismiss or Abate Plainnfs‘ Claims and would respectfully show the Court
the following:
I.
SPECIAL EXCEPTIONS
Defendants specially except to Plaintiffs Brandon and Gina Gales’ First Amended Petition
(“Petition”) as a whole as it fails to establish or allege Plaintiffs have standing, capacity, or
authority to bring this lawsuit. Plaintiffs claim to be successors in interests to Riley Gale’s
purported band interest in-Power Trip, and assert they obtained same through probate. However,
Plaintiffs provide no specics and proof of standing or capacity.‘
In particular, Plaintiffs’ assertic'm that Riley Gale’s estate was probated and passed to his
parents is vague and conclusory. Plaintiffs do not allege they are personal representatives of
1
Plaintiffs’ omission is not accidental as noted in Defendants ’ Motion to Dismiss or Abate Plaintifs
’ Claims.
DEFENDANTS’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’
MOTION To DISMISS OR ABATE PLAINTII-‘Fs’ CLAIMS PAGE 1
Riley’s estate and/or provide any basis for them being exempt 'om such appointment including
any judicial declaration of an exemption such as small estate afdavit (“SEA”) approval. In fact,
the Gales led an SEA representing Riley’s estate assets are less than $75,000. However, in this
lawsuit they judicially admit Riley’s assets exceed $250,000. Therefore, any claim to standing or
capacity rests on fraud.
Defendants pray the Court orders Plaintiffs to plead and demonstrate how they have
standing and capacity to assert this lawsuit and how they are “successors in interest” including
what that means and any rights that ow therefrom.
Defendants also special except to Plaintiffs’ avennent that Power Trip is a de facto
partnership and on what specic basis Plaintiffs make this claim. In fact, Plaintiffs are aware,
know, and have statutory documentation that Power Trip a/k/a Free Money Enterprise, LLC is a
Texas statutory led and existing limited liability company and has been since at least 2017.
Indeed, Riley Gale’s income tax returns have included K-l’s ‘om Free Money Enterprises, LLC.
Plaintiffs’ pleading of a “de facto partnership” and/or “general partnership” is conclusory
and fails to provide sufcient details and notice to the Defendants for any sort of partnership and
how Free Money Enterprises, LLC has converted om a limited liability company to any sort of
partnership. Defendants ask the Court to order the Plaintiffs to replead and provide sufcient
factual allegations on how Power Trip is a defacto or general partnership.
Defendants further specially except to Plaintiffs’ vague and conclusory allegation in
Paragraph 13 of Plaintiffs’ Petition for any background as to how Riley allegedly and
independently conceived and formed Power Trip, as this allegation is hopelessly vague. In truth,
this allegation is patently and wildly false, but nevertheless if Plaintiffs choose to make this
allegation, they should be required to provide sufcient details so Defendants can defend
DEFENDANTs’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’
MOTION To DISMIss OR ABATE PLAINTIFrs’ CLAIMS PAGE 2
themselves regarding this averment.
Defendants specially except to Paragraph 14 as vague without reference to any dates and
times and details of the conduct Plaintiffs allege against Ulsh. This paragraph does not provide
any basis of when and how Ulsh did not provide monies to Riley for taxes, or on what basis and
when Ulsh did not pay band members.
Defendants specially except to Paragaph 15 as it is vague, conclusory and does not provide
any details of any malfeasance or the identity of others who are a part of any malfeasance.
Defendants also specially except to the vague conclusion of diverting revenue for Ulsh’s personal
benet and contrary to any duciary duties. Once more, Plaintiffs persist in making vague and
unsupported conclusions without a minimum of details. Defendants are unable to defend
themselves om these vague allegations.
Likewise, in Paragraph 16 Plaintiffs fail to provide sufcient details of how any band
member breached any duciary duty to Riley. No band member is identied, nor are any dates
and times. Further, Plaintiffs do not even remotely allege what revenues, how much, and 'om
what source that Riley was allegedly deprived of. Moreover, this paragraph avers Defendants
subjected Riley to criminal and civil liability, but Plaintiffs do not explain how, why, or when. The
totality of paragraph 16 is so general and vague that it fails to provide sufcient detail for
Defendants to defend themselves.
Additionally, paragaph l7 is merely a conclusion without adequate foundation.
Throughout the Petition, Plaintiffs have asserted general and vague conclusions. In Paragraph 17,
there are no references to time, place, or any specics. These averments are insufcient for
Defendants to prepare a defense.
Paragraph 18 is likewise vague and without details. There is no allegation of how Riley
DEFENDANTS’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT r0 DEFENDANTs’
MOTION To DISMIss 0R ABATE PLAINTrrFs’ CLAIMS PAGE 3
\
died, did he die intestate, or just how the Plaintiffs have standing or capacity to sue or how they
are “successors in interest.”
Defendants pray this Court grant their special exceptions to Paragraphs 13—1 8.
Defendants specially except to Paragraphs 19-23 as vague, without time and scope, and
based on conclusions. Incorporating previous paragraphs which are themselves vague, conclusory
and without sufcient details does not provide Defendants with notice for Plaintiffs’ claims,
including failing to plead any who, what, where, when, and why. No band members except Ulsh
are identied and no conduct in Paragraph 23 is alleged that gives rise to any exemplary damages.
With regard to paragraph 22, Plaintiffs attempt to allude to some sort of declaratory relief,
assumably to obtain attorney’s fees. However, Plaintiffs have alleged breaches of duciary duties,
so any declaratory relief regarding duciary duties and conduct does not add anything to the
lawsuit. The declaratory relief requested is subsumed in Plaintiffs’ conclusory claim and will not
provide any separate and distinct relief. Howell v. Mauzy, 899 S.W.2d 690, 706 (Tex. App. - Austin
1994, writ denied). Moreover, the claim being made has matured so any “what if’ request for relief
is moot. Lastly, declaratory relief is reserved for written instruments, but Plaintiffs claim there is
no written document but a de facto oral partnership. Accordingly, declaratory relief is not proper.
See Tex. Civ. Prac. & Rem. Code § 37.004(a).
Defendants pray the Court grant these special exceptions to Paragaphs 19-23.
Defendants specially except to Paragraphs 24-25 as vague, without foundation, and do not
provide any factual details to support the claims being made. What Plaintiffs allege is not a claim
for money had and received, which is equitable in nature and is gap ller when no express contract
exists. Alleging that facts will be determined through discovery will provide a basis for this claim
is nothing short of Plaintiffs attempting to go on a shing expedition because they have no facts
DEFENDANTS’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’
MOTION To Dismss 0R ABATE PLAINTIFFS’ CLAIMS PAGE 4
to support the cause of action. Plaintiffs allege a partnership, so this cause of action is contradicted
by Plaintiffs’ own pleadings. Lastly, Plaintiffs do not identify any particular funds or amounts that
are the subject ofthis claim, only that they will look for some. Again, this is not sufficient to allege
a claim for money had and received. Defendants ask that their special exceptions be granted.
Defendants specially except to paragraphs 26-27 seeking exemplary damages. These
paragraphs like all the others are conclusory and do not provide any factual foundation for seeking
exemplary damages. Plaintiffs fail to provide Defendants fair notice on how to defend such a claim,
particularly without alleging specic facts to justify any award of exemplary damages. Defendants
ask the Court to grant these special exceptions.
Defendants specially except to paragraphs 28-29 seeking attomey’s fees. Plaintiffs’
pleading does not properly allege any basis for declaratory relief and none of Plaintiffs’ claims
entitle them to attorneys’ fees. References to prior vague and conclusory paragaphs also do not
supply necessary details for purposes ofrequesting attomeys’ fees. Defendant’s special exceptions
to these paragraphs should be granted.
Lastly, Defendants specially except to paragraph 30 regarding conditions precedent.
Plaintiffs do not identify any conditions precedent but merely use a boilerplate generic statement.
If conditions precedent apply, Plaintiffs should be required to identify any conditions precedent.
This special exception should be granted.
Defendants request the Court grant all of Defendant’s special exceptions.
IL
GENERAL DENIAL
Defendants deny each and every, all and singular, of the allegations, claims and causes of
action set forth in Plaintiffs’ petition and all subsequent and/or amended petitions and demands
strict proof thereof as required by the Texas Rules of Civil Procedure, the Constitution and laws
DEFENDANTS’ SPECIAL Excmrrions AND ANSWER SUBJECT To DEFENDANTS’
MOTION To Dlswuss on ABATE PLAINTIFFS’ CLAIMS PAGE 5
of the State of Texas.
Defendants reserve the right to plead further and in more particularity, amend answers,
assert or amend counterclaims, assert cross-actions or third-party actions, designate responsible
third parties, le special exceptions, and any and all other pleadings allowed by law.
III.
AFFIRMATIVE DEFENSES
Defendants allege and assert the following afrmative defenses, each of which is stated in
the alternative to, and without waiving, any of Defendants’ other defenses:
1. Plaintiffs do not have standing and capacity to sue the Defendants;
2. Plaintiffs’ lawsuit is precluded by judicial estoppel and judicial admissions;
Plaintiffs’ lawsuit is precluded by fraud;
Plaintiffs’ lawsuit and claims are precluded by waiver;
There is no partnership or de facto partnership. Free Money Enterprise is a limited
liability company;
Plaintiffs’ claims are precluded by common law estoppel;
Plaintiffs’ claims fail because ofpayment;
Plaintiffs’ claims fail because of laches; and
Plaintiffs are not entitled to exemplary damages because there is no conduct which rises
to the level that satises Section 41 .003 of the Texas Civil Procedures and Remedies
Code.
IV.
CHAPTER 10 RECOVERY 0F FEES
Pursuant to Chapter 10 of the Texas Civil Practices and Remedies Code, Defendants seek
to recover their attorney’s fees and costs for Plaintiffs’ ling ofthis lawsuit. Plaintiffs’ lawsuit and
DEFENDANTS’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’
MOTION To Dismrss 0R ABATE PLAINTIFFS’ CLAIMS PAGE 6
claims are being asserted for an improper purpose to delay, harass, and needlessly cause
Defendants to incur fees and expenses. The factual allegations in Plaintiffs’ lawsuit also do not
have factual support and Plaintiffs know it. Plaintiffs’ lawsuit is intended to shake down the
Defendants as part of Plaintiffs’ previous threats. Riley Gale has been paid monies due to him, and
Riley never complained about monies he did not receive or claimed monies were being improperly
withheld. Further, Defendants paid Plaintiffs monies that Plaintiffs were not entitled to as a gesture
of goodwill despite the fact that all monies should have been split between allband members.
Defendants have not spent monies belonging to Riley and Plaintiffs are making false and reckless
allegations to obtain monies through improper threats.
Moreover, when Plaintiffs were advised that Riley had an issue with addiction and despite
Defendants’ genuine pleas for Riley to obtain immediate medical intervention, Brandon Gale
threatened the Defendants with legal harassment. The present lawsuit is a manifestation of
Brandon’s threats, all of which are reckless, groundless, and worst of all, intended to harass,
impede and impair Defendants in proceeding with their careers, and spend money to defend a
lawsuit being prosecuted for improper purposes. Defendants are unaware of any steps that were
taken to secure medical intervention for Riley, which should have been the priority.
Defendants seek recovery pursuant to Chapter 10 of the Texas Civil Practice & Remedies
Code for their fees.
V.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants pray the Court grant Defendants’
special exceptions, enter a take nothing judgment against the Plaintiffs, award Defendants all their
costs, including attorney’s fees pursuant to Chapter 10 of the Texas Civil Practice & Remedies
Code, and gant Defendants all other relief to which they are entitled.
DEFENDANTs’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’
MOTION To DISMlss 0R ABATE PLAINTIFFS’ CLAIMS PAGE 7
Respectllly submitted,
LAW OFFICE OF MARK A. TICER
By: /s/Mark A. Ticer
Mark A. Ticer
State Bar #2001 8900
mticer@ticerlaw.com
Jennifer W. Johnson
State Bar #24060029
jiohnsont0ticer1aw.com
10440 N. Central Expressway, Suite 600
Dallas, Texas 75231
w
(214) 219-4220
(214) 219-421 8 (FAX)
A TTORNEYS FOR DEFENDANTS
Pursuant to Rule 94 of the Texas Rules of Civil Procedure, and as counsel for the
Defendants, the statements and defenses regarding Plaintiffs lack of standing and capacity as well
as the denial of partnership, are true and correct and based on my knowledge as counsel
for Defendants. personal
3/23/21
Date MLkarkA.M‘HW
SUBSCRIBED AND SWORN TO BEFORE ME by the said MARK A. TICER on this the
23“ day of March 2021.
LlSA AM ERSON
Notary Public in and for the State of Texas
p
Notary Public State of Texas
Comm. Expires 08-26- 2023
Notary Io 130323513
My Commission
Expiresw
DEFENDANTS’ SPECIAL EXCEmONs AND ANSWER SUBJECT To DEFENDANTS’
MOTION To DISMIss 0R ABATE PLAINTIFFS’ CLAIMS PAGE 8
CERTIFICATE OF SERVICE
W
I hereby certify that a true and correct copy of the above and foregoing instrument has been
served upon all counsel of record via the Court’s electronic ling service on this the 23rd day of
March 2021.
Mark A. Ticer
DEFENDANTs’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’
MOTION To Dismss on ABATE PLAINTIFFs’ CLAIMS 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.
Lisa Amerson on behalf of Mark Ticer
Bar No. 20018900
lamerson@ticerlaw.com
Envelope ID: 51758470
Status as of 3/24/2021 12:03 PM CST
Associated Case Party: CHRISTOPHER ULSH
Name BarNumber Email TimestampSubmitted Status
Jennifer WeberJohnson jjohnson@ticerlaw.com 3/23/2021 5:24:19 PM SENT
Mark ATicer mticer@ticerlaw.com 3/23/2021 5:24:19 PM SENT
Brooke Bailey bbailey@ticerlaw.com 3/23/2021 5:24:19 PM SENT
Michelle Smith msmith@ticerlaw.com 3/23/2021 5:24:19 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Ralph Perry-Miller rperry-miller@grayreed.com 3/23/2021 5:24:19 PM SENT
Danyelle Stone dstone@grayreed.com 3/23/2021 5:24:19 PM SENT
Sue Jimison sjimison@grayreed.com 3/23/2021 5:24:19 PM SENT
David M.Lisch dlisch@grayreed.com 3/23/2021 5:24:19 PM SENT
Preview
FILED 3/23/2021 5:24 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Treva Parker-Ayodele DEPUTY CAUSE NO. DC-21-01866 BRANDON AND GINA GALE, IN THE DISTRICT COURT Plaintls v. 298th JUDICIAL DISTRICT CHRISTOPHER ULSH, NICK STEWART, BLAKE IBANEZ, CHRIS WHETZEL, and FREE MONEY ENTERPRISES, LLC, a TEXAS LIMITED LIABILITY COMPANY, Defendants DALLAS COUNTY, TEXAS DEFENDANTS’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT TO DEFENDANTS’ MOTION TO DISMISS OR ABATE PLAINTIFFS’ CLAIMS COMES NOW Defendants Christopher Ulsh (“Ulsh”), Nick Stewart (“Stewart”), Blake Ibanez (“Ibanez”), Chris Whetzel (“Whetzel”), and Free Money Enterprises, LLC (“FME”) (collectively “Power Trip”), and le Defendants" Special Exceptions and Answer Subject to ’ ’ Defendants Motion to Dismiss or Abate Plainnfs‘ Claims and would respectfully show the Court the following: I. SPECIAL EXCEPTIONS Defendants specially except to Plaintiffs Brandon and Gina Gales’ First Amended Petition (“Petition”) as a whole as it fails to establish or allege Plaintiffs have standing, capacity, or authority to bring this lawsuit. Plaintiffs claim to be successors in interests to Riley Gale’s purported band interest in-Power Trip, and assert they obtained same through probate. However, Plaintiffs provide no specics and proof of standing or capacity.‘ In particular, Plaintiffs’ assertic'm that Riley Gale’s estate was probated and passed to his parents is vague and conclusory. Plaintiffs do not allege they are personal representatives of 1 Plaintiffs’ omission is not accidental as noted in Defendants ’ Motion to Dismiss or Abate Plaintifs ’ Claims. DEFENDANTS’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’ MOTION To DISMISS OR ABATE PLAINTII-‘Fs’ CLAIMS PAGE 1 Riley’s estate and/or provide any basis for them being exempt 'om such appointment including any judicial declaration of an exemption such as small estate afdavit (“SEA”) approval. In fact, the Gales led an SEA representing Riley’s estate assets are less than $75,000. However, in this lawsuit they judicially admit Riley’s assets exceed $250,000. Therefore, any claim to standing or capacity rests on fraud. Defendants pray the Court orders Plaintiffs to plead and demonstrate how they have standing and capacity to assert this lawsuit and how they are “successors in interest” including what that means and any rights that ow therefrom. Defendants also special except to Plaintiffs’ avennent that Power Trip is a de facto partnership and on what specic basis Plaintiffs make this claim. In fact, Plaintiffs are aware, know, and have statutory documentation that Power Trip a/k/a Free Money Enterprise, LLC is a Texas statutory led and existing limited liability company and has been since at least 2017. Indeed, Riley Gale’s income tax returns have included K-l’s ‘om Free Money Enterprises, LLC. Plaintiffs’ pleading of a “de facto partnership” and/or “general partnership” is conclusory and fails to provide sufcient details and notice to the Defendants for any sort of partnership and how Free Money Enterprises, LLC has converted om a limited liability company to any sort of partnership. Defendants ask the Court to order the Plaintiffs to replead and provide sufcient factual allegations on how Power Trip is a defacto or general partnership. Defendants further specially except to Plaintiffs’ vague and conclusory allegation in Paragraph 13 of Plaintiffs’ Petition for any background as to how Riley allegedly and independently conceived and formed Power Trip, as this allegation is hopelessly vague. In truth, this allegation is patently and wildly false, but nevertheless if Plaintiffs choose to make this allegation, they should be required to provide sufcient details so Defendants can defend DEFENDANTs’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’ MOTION To DISMIss OR ABATE PLAINTIFrs’ CLAIMS PAGE 2 themselves regarding this averment. Defendants specially except to Paragraph 14 as vague without reference to any dates and times and details of the conduct Plaintiffs allege against Ulsh. This paragraph does not provide any basis of when and how Ulsh did not provide monies to Riley for taxes, or on what basis and when Ulsh did not pay band members. Defendants specially except to Paragaph 15 as it is vague, conclusory and does not provide any details of any malfeasance or the identity of others who are a part of any malfeasance. Defendants also specially except to the vague conclusion of diverting revenue for Ulsh’s personal benet and contrary to any duciary duties. Once more, Plaintiffs persist in making vague and unsupported conclusions without a minimum of details. Defendants are unable to defend themselves om these vague allegations. Likewise, in Paragraph 16 Plaintiffs fail to provide sufcient details of how any band member breached any duciary duty to Riley. No band member is identied, nor are any dates and times. Further, Plaintiffs do not even remotely allege what revenues, how much, and 'om what source that Riley was allegedly deprived of. Moreover, this paragraph avers Defendants subjected Riley to criminal and civil liability, but Plaintiffs do not explain how, why, or when. The totality of paragraph 16 is so general and vague that it fails to provide sufcient detail for Defendants to defend themselves. Additionally, paragaph l7 is merely a conclusion without adequate foundation. Throughout the Petition, Plaintiffs have asserted general and vague conclusions. In Paragraph 17, there are no references to time, place, or any specics. These averments are insufcient for Defendants to prepare a defense. Paragraph 18 is likewise vague and without details. There is no allegation of how Riley DEFENDANTS’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT r0 DEFENDANTs’ MOTION To DISMIss 0R ABATE PLAINTrrFs’ CLAIMS PAGE 3 \ died, did he die intestate, or just how the Plaintiffs have standing or capacity to sue or how they are “successors in interest.” Defendants pray this Court grant their special exceptions to Paragraphs 13—1 8. Defendants specially except to Paragraphs 19-23 as vague, without time and scope, and based on conclusions. Incorporating previous paragraphs which are themselves vague, conclusory and without sufcient details does not provide Defendants with notice for Plaintiffs’ claims, including failing to plead any who, what, where, when, and why. No band members except Ulsh are identied and no conduct in Paragraph 23 is alleged that gives rise to any exemplary damages. With regard to paragraph 22, Plaintiffs attempt to allude to some sort of declaratory relief, assumably to obtain attorney’s fees. However, Plaintiffs have alleged breaches of duciary duties, so any declaratory relief regarding duciary duties and conduct does not add anything to the lawsuit. The declaratory relief requested is subsumed in Plaintiffs’ conclusory claim and will not provide any separate and distinct relief. Howell v. Mauzy, 899 S.W.2d 690, 706 (Tex. App. - Austin 1994, writ denied). Moreover, the claim being made has matured so any “what if’ request for relief is moot. Lastly, declaratory relief is reserved for written instruments, but Plaintiffs claim there is no written document but a de facto oral partnership. Accordingly, declaratory relief is not proper. See Tex. Civ. Prac. & Rem. Code § 37.004(a). Defendants pray the Court grant these special exceptions to Paragaphs 19-23. Defendants specially except to Paragraphs 24-25 as vague, without foundation, and do not provide any factual details to support the claims being made. What Plaintiffs allege is not a claim for money had and received, which is equitable in nature and is gap ller when no express contract exists. Alleging that facts will be determined through discovery will provide a basis for this claim is nothing short of Plaintiffs attempting to go on a shing expedition because they have no facts DEFENDANTS’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’ MOTION To Dismss 0R ABATE PLAINTIFFS’ CLAIMS PAGE 4 to support the cause of action. Plaintiffs allege a partnership, so this cause of action is contradicted by Plaintiffs’ own pleadings. Lastly, Plaintiffs do not identify any particular funds or amounts that are the subject ofthis claim, only that they will look for some. Again, this is not sufficient to allege a claim for money had and received. Defendants ask that their special exceptions be granted. Defendants specially except to paragraphs 26-27 seeking exemplary damages. These paragraphs like all the others are conclusory and do not provide any factual foundation for seeking exemplary damages. Plaintiffs fail to provide Defendants fair notice on how to defend such a claim, particularly without alleging specic facts to justify any award of exemplary damages. Defendants ask the Court to grant these special exceptions. Defendants specially except to paragraphs 28-29 seeking attomey’s fees. Plaintiffs’ pleading does not properly allege any basis for declaratory relief and none of Plaintiffs’ claims entitle them to attorneys’ fees. References to prior vague and conclusory paragaphs also do not supply necessary details for purposes ofrequesting attomeys’ fees. Defendant’s special exceptions to these paragraphs should be granted. Lastly, Defendants specially except to paragraph 30 regarding conditions precedent. Plaintiffs do not identify any conditions precedent but merely use a boilerplate generic statement. If conditions precedent apply, Plaintiffs should be required to identify any conditions precedent. This special exception should be granted. Defendants request the Court grant all of Defendant’s special exceptions. IL GENERAL DENIAL Defendants deny each and every, all and singular, of the allegations, claims and causes of action set forth in Plaintiffs’ petition and all subsequent and/or amended petitions and demands strict proof thereof as required by the Texas Rules of Civil Procedure, the Constitution and laws DEFENDANTS’ SPECIAL Excmrrions AND ANSWER SUBJECT To DEFENDANTS’ MOTION To Dlswuss on ABATE PLAINTIFFS’ CLAIMS PAGE 5 of the State of Texas. Defendants reserve the right to plead further and in more particularity, amend answers, assert or amend counterclaims, assert cross-actions or third-party actions, designate responsible third parties, le special exceptions, and any and all other pleadings allowed by law. III. AFFIRMATIVE DEFENSES Defendants allege and assert the following afrmative defenses, each of which is stated in the alternative to, and without waiving, any of Defendants’ other defenses: 1. Plaintiffs do not have standing and capacity to sue the Defendants; 2. Plaintiffs’ lawsuit is precluded by judicial estoppel and judicial admissions; Plaintiffs’ lawsuit is precluded by fraud; Plaintiffs’ lawsuit and claims are precluded by waiver; There is no partnership or de facto partnership. Free Money Enterprise is a limited liability company; Plaintiffs’ claims are precluded by common law estoppel; Plaintiffs’ claims fail because ofpayment; Plaintiffs’ claims fail because of laches; and Plaintiffs are not entitled to exemplary damages because there is no conduct which rises to the level that satises Section 41 .003 of the Texas Civil Procedures and Remedies Code. IV. CHAPTER 10 RECOVERY 0F FEES Pursuant to Chapter 10 of the Texas Civil Practices and Remedies Code, Defendants seek to recover their attorney’s fees and costs for Plaintiffs’ ling ofthis lawsuit. Plaintiffs’ lawsuit and DEFENDANTS’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’ MOTION To Dismrss 0R ABATE PLAINTIFFS’ CLAIMS PAGE 6 claims are being asserted for an improper purpose to delay, harass, and needlessly cause Defendants to incur fees and expenses. The factual allegations in Plaintiffs’ lawsuit also do not have factual support and Plaintiffs know it. Plaintiffs’ lawsuit is intended to shake down the Defendants as part of Plaintiffs’ previous threats. Riley Gale has been paid monies due to him, and Riley never complained about monies he did not receive or claimed monies were being improperly withheld. Further, Defendants paid Plaintiffs monies that Plaintiffs were not entitled to as a gesture of goodwill despite the fact that all monies should have been split between allband members. Defendants have not spent monies belonging to Riley and Plaintiffs are making false and reckless allegations to obtain monies through improper threats. Moreover, when Plaintiffs were advised that Riley had an issue with addiction and despite Defendants’ genuine pleas for Riley to obtain immediate medical intervention, Brandon Gale threatened the Defendants with legal harassment. The present lawsuit is a manifestation of Brandon’s threats, all of which are reckless, groundless, and worst of all, intended to harass, impede and impair Defendants in proceeding with their careers, and spend money to defend a lawsuit being prosecuted for improper purposes. Defendants are unaware of any steps that were taken to secure medical intervention for Riley, which should have been the priority. Defendants seek recovery pursuant to Chapter 10 of the Texas Civil Practice & Remedies Code for their fees. V. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants pray the Court grant Defendants’ special exceptions, enter a take nothing judgment against the Plaintiffs, award Defendants all their costs, including attorney’s fees pursuant to Chapter 10 of the Texas Civil Practice & Remedies Code, and gant Defendants all other relief to which they are entitled. DEFENDANTs’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’ MOTION To DISMlss 0R ABATE PLAINTIFFS’ CLAIMS PAGE 7 Respectllly submitted, LAW OFFICE OF MARK A. TICER By: /s/Mark A. Ticer Mark A. Ticer State Bar #2001 8900 mticer@ticerlaw.com Jennifer W. Johnson State Bar #24060029 jiohnsont0ticer1aw.com 10440 N. Central Expressway, Suite 600 Dallas, Texas 75231 w (214) 219-4220 (214) 219-421 8 (FAX) A TTORNEYS FOR DEFENDANTS Pursuant to Rule 94 of the Texas Rules of Civil Procedure, and as counsel for the Defendants, the statements and defenses regarding Plaintiffs lack of standing and capacity as well as the denial of partnership, are true and correct and based on my knowledge as counsel for Defendants. personal 3/23/21 Date MLkarkA.M‘HW SUBSCRIBED AND SWORN TO BEFORE ME by the said MARK A. TICER on this the 23“ day of March 2021. LlSA AM ERSON Notary Public in and for the State of Texas p Notary Public State of Texas Comm. Expires 08-26- 2023 Notary Io 130323513 My Commission Expiresw DEFENDANTS’ SPECIAL EXCEmONs AND ANSWER SUBJECT To DEFENDANTS’ MOTION To DISMIss 0R ABATE PLAINTIFFS’ CLAIMS PAGE 8 CERTIFICATE OF SERVICE W I hereby certify that a true and correct copy of the above and foregoing instrument has been served upon all counsel of record via the Court’s electronic ling service on this the 23rd day of March 2021. Mark A. Ticer DEFENDANTs’ SPECIAL EXCEPTIONS AND ANSWER SUBJECT To DEFENDANTS’ MOTION To Dismss on ABATE PLAINTIFFs’ CLAIMS 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. Lisa Amerson on behalf of Mark Ticer Bar No. 20018900 lamerson@ticerlaw.com Envelope ID: 51758470 Status as of 3/24/2021 12:03 PM CST Associated Case Party: CHRISTOPHER ULSH Name BarNumber Email TimestampSubmitted Status Jennifer WeberJohnson jjohnson@ticerlaw.com 3/23/2021 5:24:19 PM SENT Mark ATicer mticer@ticerlaw.com 3/23/2021 5:24:19 PM SENT Brooke Bailey bbailey@ticerlaw.com 3/23/2021 5:24:19 PM SENT Michelle Smith msmith@ticerlaw.com 3/23/2021 5:24:19 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Ralph Perry-Miller rperry-miller@grayreed.com 3/23/2021 5:24:19 PM SENT Danyelle Stone dstone@grayreed.com 3/23/2021 5:24:19 PM SENT Sue Jimison sjimison@grayreed.com 3/23/2021 5:24:19 PM SENT David M.Lisch dlisch@grayreed.com 3/23/2021 5:24:19 PM SENT