dallas responds to trinity east

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    CITYS ORIGINAL ANSWER PAGE 2

    the City has breached the Leases. Without any assertion of facts demonstrating a breach of

    contract there can be no waiver of immunity for a breach of contract claim.

    b. The Leases are not contracts for goods and services to the City as required by

    section 271.153 of the Texas Local Government Code. Without a contract for goods or services,

    there can be no waiver of immunity for a breach of contract claim under section 271.153.

    c. The Leases were not entered into by the City in its proprietary capacity and the

    subjects of the Leases are not proprietary functions. In addition, the proprietary/governmental

    dichotomy is not applicable to the claim or to the City.

    d. The Leases did not obligate the City to provide Plaintiff with drill site locations.

    To the contrary, the Leases were amended so as to expressly provide that a specific use permit

    (SUP) is required before the land can be used for oil and gas drilling, that a decision on an

    application for a [SUP] is a police power that cannot be contracted away and that Lessee

    understands that the proposed drill sites are on park land and/or within the flood plain where

    drilling is not permitted unless authorized by the City Council.

    2. Plaintiffs inverse condemnation claim is invalid for the followingreasons:

    a. Plaintiff lacks a constitutionally protected property right or interest that has been

    taken by the City.

    b. The City has not deprived Plaintiff of its reasonable investment-backed

    expectations.

    c. The City has not denied Plaintiff all of its determinable fee simple property rights

    or interests in the City.

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    3. Plaintiffs common law fraud claimis invalid for the following reasons:

    a. The City is immune from a common law fraud claim because there has been no

    waiver of immunity.

    b. The Leases were not entered into by the City in its proprietary capacity and the

    subjects of the Leases are not proprietary functions. In addition, the proprietary/governmental

    dichotomy is not applicable to the claim or to the City.

    c. Plaintiff has not asserted and cannot assert any facts that the City engaged in

    fraudulent conduct.

    d. Plaintiff has not asserted and cannot assert any facts that: i) there were material

    representations by the City; ii) they were false or that the City knew were false; iii) they were

    made recklessly without any knowledge of their truth and as a positive assertion; iv) they were

    made with the intent that they be acted upon; v) Plaintiff acted upon the misrepresentations; and

    vi) Plaintiff suffered injury and damage.

    4. Plaintiffs fraud by nondisclosure claim is invalid for the followingreasons:

    a. The City is immune from a fraud by nondisclosure claim because there has been

    no waiver of immunity.

    b. The Leases were not entered into by the City in its proprietary capacity and the

    subjects of the Leases are not proprietary functions. In addition, the proprietary/governmental

    dichotomy is not applicable to the claim or to the City.

    c. Plaintiff has not asserted and cannot assert any facts that: i) the City failed to

    disclose facts to Plaintiff; ii) the City had a duty to disclose those facts; iii) the facts were

    material to the Leases; iv) the City knew Plaintiff did not have an equal opportunity to discover;

    v) the Citys representatives were deliberately silent when they had a duty to speak; vi) by failing

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    to disclose the facts the City intended to induce Plaintiff to pay the City $19 million; vii) Plaintiff

    relied on the disclosures; and viii) Plaintiff was injured as a result of acting without that

    knowledge.

    5. Plaintiffs statutory fraud claim is invalid for the following reasons:

    a. The City is immune from a statutory fraud claim because there has been no

    waiver of immunity.

    b. The Leases were not entered into by the City in its proprietary capacity and the

    subjects of the Leases are not proprietary functions. In addition, the proprietary/governmental

    dichotomy is not applicable to the claim or to the City.

    c. Plaintiff has not asserted and cannot assert any facts that the City falsely

    represented past or existing material facts to Plaintiff or that the City falsely promised to do an

    act.

    6. Plaintiffs negligent misrepresentation claim is invalid for the followingreasons:

    a. The City is immune from a negligent misrepresentation claim because there has

    been no waiver of immunity.

    b. The Leases were not entered into by the City in its proprietary capacity and the

    subjects of the Leases are not proprietary functions. In addition, the proprietary/governmental

    dichotomy is not applicable to the claim or to the City.

    c. Plaintiff has not asserted and cannot assert any facts that: i) the City provided

    false information; ii) the City failed to exercise reasonable care; iii) that Plaintiff justifiably

    relied on the information; and that Plaintiff suffered damages.

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    7. Plaintiffs request for attorneys fees is invalid for the following reasons:

    a. The City is immune from a request for attorneys feesbecause there has been no

    waiver of immunity.

    8. Plaintiffs request for prejudgment and post judgment interest is invalidfor the following reasons:

    a. The City is immune from a request for interest because there has been no waiver

    of immunity for any of Plaintiffs claims.

    b. The Leases were not entered into by the City in its proprietary capacity and the

    subjects of the Leases are not proprietary functions. In addition, the proprietary/governmental

    dichotomy is not applicable to the claim or to the City.

    B. Statutory prerequisites to suit. This Court lacks jurisdiction over this case

    because Plaintiff has failed to seek to drill in locations other than the ones identified in Plaintiffs

    applications for specific use permits (the SUPs) that were denied by the City. In addition or in

    the alternative, Plaintiff failed to provide proper notice of each claim, cause of action, or remedy

    as required by contract, ordinance, and/or statute.

    C. Ripeness. The Court lacks jurisdiction of this case because it is not ripe for

    adjudication because Plaintiff has failed to seek zoning approval for other sites within or without

    the City in which to drill and produce oil, gas, and related minerals from the leased premises and,

    therefore, failed to obtain a final decision from the City or any nearby city on the extent to which

    Plaintiff could drill and produce oil, gas, and related minerals from the leased premises.

    III.

    SPECIAL EXCEPTIONS

    1. The City specially excepts to Plaintiffs Petition in its entirety because Plaintiff

    has failed to alleged sufficient facts to show that there is a waiver of immunity from Plaintiffs

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    breach of contract claim. In connection with this special exception, the City requests that the

    Court enter an order sustaining this special exception and that Plaintiff be ordered to replead

    within 30 days to allege sufficient facts showing that there is a waiver of immunity from

    Plaintiffs breach of contract claim.

    2. The City specially excepts to Plaintiffs Petition in its entirety because there is no

    waiver of immunity from Plaintiffs fraud and negligence claims. In connection with this special

    exception, the City requests that the Court enter an order sustaining this special exception and

    that Plaintiff be ordered to replead within 30 days to allege sufficient facts showing that there is a

    waiver of immunity from Plaintiffs fraud and negligence claims.

    3. The City specially excepts to paragraph 5 of Plaintiffs Petition where it seeks

    discovery under Level 3 of Rule 190 of the Texas Rules of Civil Procedure for the reason that

    Level 2 is the more appropriate level of discovery in this case. In connection with this special

    exception, the City requests that the Court enter an order sustaining this special exception and

    that Plaintiff be ordered to replead within 30 days to state that this case will be tried under Level

    2 of Rule 190 of the Texas Rules of Civil Procedure.

    4. The City specially excepts to Plaintiffscomplete failure to allege the maximum

    amount of damages claimed throughout Plaintiffs Petition, as required by rule 47 of the Texas

    Rules of Civil Procedure. In connection with this special exception, the City requests that the

    Court enter an order sustaining this special exception and that Plaintiff be ordered to replead

    within 30 days so as to separately specify the maximum amount of damages it seeks to recover

    from the City.

    5. The City specially excepts to the allegations in paragraph 21.B of Plaintiffs

    Petition wherein it alleges that the Plaintiff performed or tendered performance according to the

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    terms of the Lease Agreements for the reason that Plaintiffs Petition fails to allege how it

    allegedly performed under the Lease Agreements and, therefore, fails to give the City reasonable

    notice of the claims being asserted against it. The City requests that the Court enter an order

    sustaining this special exception and that Plaintiff be ordered to replead within 30 days so as to

    separately specify how it has allegedly performed or tendered performance under the Lease

    Agreements.

    6. The City specially excepts to the allegations in paragraph 21.C of Plaintiffs

    Petition wherein it alleges that the Defendant breached the Lease Agreements for the reason

    that Plaintiffs Petition fails to allege how the City allegedly breached the Leases and, therefore,

    fails to give the City reasonable notice of the claims being asserted against it. The City requests

    that the Court enter an order sustaining this special exception and that Plaintiff be ordered to

    replead within 30 days so as to separately specify the conduct of the City that Plaintiff claims

    allegedly breached the Leases.

    7. The City specially excepts to the allegations in paragraph 21.D of Plaintiffs

    Petition wherein it alleges that the Plaintiff sustained damages as a result of the breach for the

    reason that Plaintiffs Petition fails to allege facts showing how it has allegedly been damaged as

    a result of the alleged breach of the Leases, and the type and amount of each type of damage and,

    therefore, fails to give the City reasonable notice of the claims being asserted against it. The

    City requests that the Court enter an order sustaining this special exception and that Plaintiff be

    ordered to replead within 30 days so as to separately specify how it has allegedly been damaged

    as a result of the alleged breach of the Leases.

    8. The City specially excepts to the allegations in paragraph 24 of Plaintiffs Petition

    wherein it alleges that the City has taken all of Plaintiffs property rightsor property interests for

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    the reason that Plaintiffs Petition fails to identify what alleged property rights and/or property

    interests were allegedly taken or damaged by the City and, therefore, fails to give the City

    reasonable notice of the claims being asserted against it. The City requests that the Court enter

    an order sustaining this special exception and that Plaintiff be ordered to replead within 30 days

    so as to separately specify Plaintiffs property rights and/or property interests that were allegedly

    taken by the City.

    9. The City specially excepts to the allegations in paragraph 24 of Plaintiffs Petition

    wherein it alleges that the City has taken Plaintiffsproperty rights and/or property interests for a

    public use for the reason that Plaintiffs Petition fails to allege what alleged public use the City

    made of Plaintiffsalleged property rights and/or property interests and, therefore, fails to give

    the City reasonable notice of the claims being asserted against it. The City requests that the

    Court enter an order sustaining this special exception and that Plaintiff be ordered to replead

    within 30 days so as to separately specify the alleged public use that the City has allegedly made

    of Plaintiffs alleged property rights and/or property interests.

    10. The City specially excepts to the allegations in paragraph 24 of Plaintiffs Petition

    wherein it alleges that the City had acquisitory intent in allegedly damaging or taking

    Plaintiffs property rights and/or property interests for the reason that Plaintiffs Petition fails to

    allege what this acquisitory intent allegedly was and, therefore, fails to give the City reasonable

    notice of the claims being asserted against it. The City requests that the Court enter an order

    sustaining it and that Plaintiff be ordered to replead within 30 days so as to separately specify the

    alleged acquisitory intent that the City had in the alleged taking or damaging of Plaintiffs

    alleged property rights and/or property interests.

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    11. The City specially excepts to the allegations in paragraphs 27-32 of Plaintiffs

    Petition on the grounds that they fail to assert facts showing that the claim for inverse taking is a

    valid claim and therefore fails to establish that the Court has jurisdiction. The City requests that

    the Court enter an order sustaining it and that Plaintiff be ordered to replead within 30 days so as

    to separately specify how Plaintiff has a valid takings claim.

    12. The City specially excepts to the allegations in paragraph 28.A of Plaintiffs

    Petition wherein it alleges that the City made material representations to Trini ty to induce

    Trinity to enter into the Lease Agreements for the reason that Plaintiffs Petition fails to allege

    what those alleged material representations were and, therefore, fails to give the City reasonable

    notice of the claims being asserted against it. The City requests that the Court enter an order

    sustaining this special exception and that Plaintiff be ordered to replead within 30 days so as to

    separately specify what alleged material representations the City allegedly made to Plaintiff to

    allegedly induce Plaintiff to enter into the Leases.

    13. The City specially excepts to the allegations in paragraph 28.B of Plaintiffs

    Petition wherein it alleges that the material representations that the City allegedly made were

    false for the reason that Plaintiffs Petition fails to allege how those alleged material

    representations were allegedly false and, therefore, fails to give the City reasonable notice of the

    claims being asserted against it. The City requests that the Court enter an order sustaining this

    special exception and that Plaintiff be ordered to replead within 30 days so as to separately

    specify how the Citys alleged material representations were allegedly false.

    14. The City specially excepts to the allegations in paragraph 28.C(1) of Plaintiffs

    Petition wherein it alleges that the City knew that the material representations were false for the

    reason that Plaintiffs Petition fails to allege how the City allegedly knew these alleged material

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    representations were allegedly false and, therefore, fails to give the City reasonable notice of the

    claims being asserted against it. The City requests that the Court enter an order sustaining this

    special exception and that Plaintiff be ordered to replead within 30 days so as to separately

    specify how the City allegedly knew that the alleged material representations were allegedly

    false.

    15. The City specially excepts to the allegations in paragraph 28.C(2) of Plaintiffs

    Petition wherein it alleges that the City made the material representations recklessly without any

    knowledge of their truth and as a positive assertion for the reason that Plaintiffs Petition fails to

    allege how the City allegedly made these alleged representations without any alleged knowledge

    of their truth and as an alleged positive assertion and, therefore, fails to give the City reasonable

    notice of the claims being asserted against it. The City requests that the Court enter an order

    sustaining this special exception and that Plaintiff be ordered to replead within 30 days so as to

    separately specify how the City allegedly made the alleged material representations recklessly

    without any alleged knowledge of their truth and as an alleged positive assertion.

    16. The City specially excepts to the allegations in paragraph 28.D of Plaintiffs

    Petition wherein it alleges that the City made the material representations with the intent that

    they be acted upon for the reason that Plaintiffs Petition fails to allege how the City allegedly

    made these alleged representations with the alleged intent that they be acted upon and, therefore,

    fails to give the City reasonable notice of the claims being asserted against it. The City requests

    that the Court enter an order sustaining this special exception and that Plaintiff be ordered to

    replead within 30 days so as to separately specify how the City allegedly made the alleged

    material representations with the alleged intent that they be acted upon.

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    17. The City specially excepts to the allegations in paragraph 28.E of Plaintiffs

    Petition wherein it alleges that Plaintiff acted on the material representations for the reason that

    Plaintiffs Petition fails to allege how Plaintiff allegedly acted on the alleged material

    representations and, therefore, fails to give the City reasonable notice of the claims being

    asserted against it. The City requests that the Court enter an order sustaining this special

    exception and that Plaintiff be ordered to replead within 30 days so as to separately specify how

    Plaintiff allegedly acted on the alleged material representations.

    18. The City specially excepts to the allegations in paragraph 28.F of Plaintiffs

    Petition wherein it alleges that Plaintiff suffered injury and damages as a result of the alleged

    representations for the reason that Plaintiffs Petition fails to allege how Plaintiff has suffered

    injury and damages as a result of the alleged material representations and, therefore, fails to give

    the City reasonable notice of the claims being asserted against it. The City requests that the

    Court enter an order sustaining this special exception and that Plaintiff be ordered to replead

    within 30 days so as to separately specify how Plaintiff allegedly has suffered injury and

    damages as a result of the alleged material representations.

    19. The City specially excepts to the allegations in paragraph 29.A of Plaintiffs

    Petition wherein it alleges that the City failed to disclose facts to Plaintiff for the reason that

    Plaintiffs Petition fails to allege what alleged facts the City allegedly failed to disclose to

    Plaintiff and, therefore, fails to give the City reasonable notice of the claims being asserted

    against it. The City requests that the Court enter an order sustaining this special exception and

    that Plaintiff be ordered to replead within 30 days so as to separately specify what alleged facts

    the City allegedly failed to disclose to Plaintiff.

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    20. The City specially excepts to the allegations in paragraph 29.B of Plaintiffs

    Petition wherein it alleges that the City had a duty to disclose facts to Plaintiff for the reason that

    Plaintiffs Petition fails to allege what alleged duty the City had to disclose alleged facts to

    Plaintiff and, therefore, fails to give the City reasonable notice of the claims being asserted

    against it. The City requests that the Court enter an order sustaining this special exception and

    that Plaintiff be ordered to replead within 30 days so as to separately specify what alleged duty

    the City had to disclose alleged facts to Plaintiff and what alleged facts were required to be

    disclosed to Plaintiff.

    21. The City specially excepts to the allegations in paragraph 29.C of Plaintiffs

    Petition wherein it alleges that the facts were material to the Lease Agreements for the reason

    that Plaintiffs Petition fails to allege how the alleged facts were allegedly material to the Lease

    Agreements and, therefore, fails to give the City reasonable notice of the claims being asserted

    against it. The City requests that the Court enter an order sustaining this special exception and

    that Plaintiff be ordered to replead within 30 days so as to separately specify how the alleged

    facts were allegedly material to the Lease Agreements.

    22. The City specially excepts to the allegations in paragraph 29.D of Plaintiffs

    Petition wherein it alleges that the City knew that Plaintiff did not have an equal opportunity to

    discover the facts for the reason that Plaintiffs Petition fails to allege how the City allegedly

    knew that Plaintiff did not have an equal opportunity to discover the alleged facts and, therefore,

    fails to give the City reasonable notice of the claims being asserted against it. The City requests

    that the Court enter an order sustaining this special exception and that Plaintiff be ordered to

    replead within 30 days so as to separately specify how that the City allegedly knew that Plaintiff

    did not have an equal opportunity to discover the alleged facts.

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    23. The City specially excepts to the allegations in paragraph 29.E of Plaintiffs

    Petition wherein it alleges that the Citys representativeswere deliberately silent when they had

    the duty to speak for the reason that Plaintiffs Petition fails to allege how the Citys

    representatives were allegedly deliberately silent when they allegedly had the duty to speak and,

    therefore, fails to give the City reasonable notice of the claims being asserted against it. The

    City requests that the Court enter an order sustaining this special exception and that Plaintiff be

    ordered to replead within 30 days so as to separately specify how the Citys representatives were

    allegedly deliberately silent when they allegedly had the duty to speak.

    24. The City specially excepts to the allegations in paragraph 29.F of Plaintiffs

    Petition wherein it alleges that the City intended to induce Plaintiff to pay $19 million for the

    reason that Plaintiffs Petition fails to allege how the City allegedly intended to induce Plaintiff

    to pay $19 million and, therefore, fails to give the City reasonable notice of the claims being

    asserted against it. The City requests that the Court enter an order sustaining this special

    exception and that Plaintiff be ordered to replead within 30 days so as to separately specify how

    the City allegedly intended to induce Plaintiff to pay $19 million.

    25. The City specially excepts to the allegations in paragraph 29.G of Plaintiffs

    Petition wherein it alleges that Plaintiff relied on the Citys nondisclosure for the reason that

    Plaintiffs Petition fails to allege how Plaintiff allegedly relied on the Citys alleged

    nondisclosure and, therefore, fails to give the City reasonable notice of the claims being asserted

    against it. The City requests that the Court enter an order sustaining this special exception and

    that Plaintiff be ordered to replead within 30 days so as to separately specify how Plaintiff

    allegedly relied on the Citys alleged nondisclosure.

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    26. The City specially excepts to the allegations in paragraph 29.H of Plaintiffs

    Petition wherein it alleges that Plaintiff was injured for the reason that Plaintiffs Petition fails to

    allege how Plaintiff allegedly was injured and, therefore, fails to give the City reasonable notice

    of the claims being asserted against it. The City requests that the Court enter an order sustaining

    this special exception and that Plaintiff be ordered to replead within 30 days so as to separately

    specify how Plaintiff was allegedly injured.

    27. The City specially excepts to the allegations in paragraph 32 of Plaintiffs Petition

    wherein it alleges that the Citys actions were taken with the requisite mental in tent for the

    reason that Plaintiffs Petition fails to state what requisite mental intent the City allegedly had in

    connection with the its actions and, therefore, fails to give the City reasonable notice of the

    claims being asserted against it. The City requests that the Court enter an order sustaining this

    special exception and that Plaintiff be ordered to replead within 30 days so as to separately

    specify what requisite mental intent the City allegedly had in connection with its actions.

    28. The City specially excepts to the allegations in paragraph 32 of Plaintiffs Petition

    wherein it alleges that Plaintiff is entitled to exemplary damages for the reason that such

    damages are not authorized against a municipality pursuant to Texas Civil Practice & Remedies

    Code, Section 101.024. In connection with this special exception, the City requests that the

    Court enter an order sustaining this special exception and that the Plaintiff be ordered to replead

    its cause of action within a reasonable time in conformity with the courts ruling hereon.

    29. The City specially excepts to the allegations in paragraph 34(1) of Plaintiffs

    Petition wherein it alleges that the City falsely represented past or existing material facts for the

    reason that Plaintiffs Petition fails to identify what alleged past or existing material facts the

    City allegedly falsely represented to Plaintiff and, therefore, fails to give the City reasonable

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    notice of the claims being asserted against it. The City requests that the Court enter an order

    sustaining this special exception and that Plaintiff be ordered to replead within 30 days so as to

    separately specify what alleged past or existing material facts the City allegedly falsely

    represented to Plaintiff.

    30. The City specially excepts to the allegations in paragraph 34(1)(B) of Plaintiffs

    Petition wherein it alleges that Plaintiff relied on the false representations for the reason that

    Plaintiffs Petition fails to identify how Plaintiff allegedly relied on the alleged false

    representations and, therefore, fails to give the City reasonable notice of the claims being

    asserted against it. The City requests that the Court enter an order sustaining this special

    exception and that Plaintiff be ordered to replead within 30 days so as to separately specify how

    Plaintiff allegedly relied on the alleged false representations.

    31. The City specially excepts to the allegations in paragraph 34(2) of Plaintiffs

    Petition wherein it alleges that the City falsely promised to do an act for the reason that

    Plaintiffs Petition fails to identify what act the City allegedly falsely promised to do and,

    therefore, fails to give the City reasonable notice of the claims being asserted against it. The

    City requests that the Court enter an order sustaining this special exception and that Plaintiff be

    ordered to replead within 30 days so as to separately specify what act the City allegedly falsely

    promised to do.

    32. The City specially excepts to the allegations in paragraph 34(2)(A) of Plaintiffs

    Petition wherein it alleges that the false promise was material for the reason that Plaintiffs

    Petition fails to identify how that alleged false promise was material and, therefore, fails to give

    the City reasonable notice of the claims being asserted against it. The City requests that the

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    Court enter an order sustaining this special exception and that Plaintiff be ordered to replead

    within 30 days so as to separately specify how that alleged false promise was allegedly material.

    33. The City specially excepts to the allegations in paragraph 34(2)(B) of Plaintiffs

    Petition wherein it alleges that the false promise was made with the intention of not fulfilling it

    for the reason that Plaintiffs Petition fails to identify how the alleged false promise was

    allegedly made with the alleged intention of not fulfilling it and, therefore, fails to give the City

    reasonable notice of the claims being asserted against it. The City requests that the Court enter

    an order sustaining this special exception and that Plaintiff be ordered to replead within 30 days

    so as to separately specify how the alleged false promise was allegedly made with the alleged

    intention of not fulfilling it.

    34. The City specially excepts to the allegations in paragraph 34(2)(C) of Plaintiffs

    Petition wherein it alleges that the false promise was made to Plaintiff for the purpose of

    inducing Plaintiff to enter into the Lease Agreements for the reason that Plaintiffs Petition fails

    to identify how the alleged false promise was allegedly made for the alleged purpose of inducing

    Plaintiff to enter into the Lease Agreements and, therefore, fails to give the City reasonable

    notice of the claims being asserted against it. The City requests that the Court enter an order

    sustaining this special exception and that Plaintiff be ordered to replead within 30 days so as to

    separately specify how the alleged false promise was allegedly made for the alleged purpose of

    inducing Plaintiff to enter into the Lease Agreements.

    35. The City specially excepts to the allegations in paragraph 34(2)(D) of Plaintiffs

    Petition wherein it alleges that Plaintiff relied on the false promise for the reason that Plaintiffs

    Petition fails to identify how the Plaintiff allegedly relied on the alleged false promise and,

    therefore, fails to give the City reasonable notice of the claims being asserted against it. The

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    City requests that the Court enter an order sustaining this special exception and that Plaintiff be

    ordered to replead within 30 days so as to separately specify how Plaintiff allegedly relied on the

    alleged false promise.

    36. The City specially excepts to the allegations in paragraph 38(A) of Plaintiffs

    Petition wherein it alleges that the City provided information to Plaintiff for the reason that

    Plaintiffs Petition fails toidentify what information the City allegedly provided to Plaintiff and,

    therefore, fails to give the City reasonable notice of the claims being asserted against it. The

    City requests that the Court enter an order sustaining this special exception and that Plaintiff be

    ordered to replead within 30 days so as to separately specify what information the City allegedly

    provided to Plaintiff.

    37. The City specially excepts to the allegations in paragraph 38(B) of Plaintiffs

    Petition wherein it alleges that the information provided to Plaintiff was false for the reason that

    Plaintiffs Petition fails to identify how the alleged information allegedly provided by the City

    was allegedly false and, therefore, fails to give the City reasonable notice of the claims being

    asserted against it. The City requests that the Court enter an order sustaining it and that Plaintiff

    be ordered to replead within 30 days so as to separately specify how the alleged information

    allegedly provided by the City was allegedly false.

    38. The City specially excepts to the allegations in paragraph 38(C) of Plaintiffs

    Petition wherein it alleges that the City did not exercise reasonable care or competence in

    obtaining or communicating the information for the reason that Plaintiffs Petition fails to

    identify how the City allegedly did not exercise reasonable care or competence in allegedly

    obtaining or communicating the alleged information and, therefore, fails to give the City

    reasonable notice of the claims being asserted against it. The City requests that the Court enter

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    an order sustaining this special exception and that Plaintiff be ordered to replead within 30 days

    so as to separately specify how the City allegedly did not exercise reasonable care or competence

    in allegedly obtaining or communicating the information.

    39. The City specially excepts to the allegations in paragraph 38(D) of Plaintiffs

    Petition wherein it alleges that Plaintiff justifiably relied on the information for the reason that

    Plaintiffs Petition fails to identify how Plaintiff allegedly justifiably relied on the alleged

    information and, therefore, fails to give the City reasonable notice of the claims being asserted

    against it. The City requests that the Court enter an order sustaining this special exception and

    that Plaintiff be ordered to replead within 30 days so as to separately specify how Plaintiff

    allegedly justifiably relied on the alleged information.

    40. The City specially excepts to the allegations in paragraph 38(E) of Plaintiffs

    Petition wherein it alleges that Plaintiff suffered damages proximately caused by its reliance on

    the false information for the reason that Plaintiffs Petition fails to identify how Plaintiff

    allegedly suffered damages proximately caused by its alleged reliance on the alleged false

    information and, therefore, fails to give the City reasonable notice of the claims being asserted

    against it. The City requests that the Court enter an order sustaining this special exception and

    that Plaintiff be ordered to replead within 30 days so as to separately specify how Plaintiff

    allegedly suffered damages proximately caused by its alleged reliance on the alleged false

    information.

    41. The City specially excepts to the following paragraphs of Plaintiffs Petition:

    paragraphs 23 (which incorporates paragraphs 1-22 by reference), 27 (which incorporates

    paragraphs 1-26 by reference), 33 (which incorporates paragraphs 1-32 by reference), 37 (which

    incorporates paragraphs 1-36 by reference); and 40 (which incorporates paragraphs 1-40 by

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    reference), on the ground that by incorporating fact and law allegations numerous times these

    paragraphs suffer from the same deficiencies as the paragraphs that they seek to incorporate and

    which are the subject of the Citys individual special exceptions. The City requests that the

    Court enter an order sustaining this special exception and that Plaintiff be ordered to replead

    within 30 days so as to state that any such incorporation is subject to the Courts ruling on each

    individual paragraph which the has been specially excepted to by the City.

    IV.

    AFFIRMATIVE DEFENSES

    The City affirmatively pleads the following defenses to the extent they are applicable,

    and reserves the right to plead additional affirmative defenses.

    1. In the alternative, the City affirmatively invokes the defense of governmental

    immunity and would show that it is a municipal corporation organized and existing as a political

    subdivision and a unit of government of the State of Texas, and a home rule city under the home

    rule amendment of the Constitution of the State of Texas and Tex. Rev. Stat. Ann. art. 1175.2.

    Governmental immunity prohibits this suit against the City because the City enjoys

    governmental immunity from the Plaintiffs invalid claims.

    2. In the alternative, the City affirmatively invokes the defense of laches.

    3. In the alternative, the City affirmatively invokes the defense of waiver.

    4. In the alternative, the City affirmatively states that Plaintiff lacks capacity to bring

    and/or maintain this action.

    5. In the alternative, the City affirmatively states that Plaintiff failed to mitigate its

    damages.

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    6. In the alternative, the City affirmatively states that Plaintiff failed to give proper

    notice of claims as required by the City Charter and applicable statutes and ordinances.

    7. In the alternative, the City affirmatively invokes the defense of the parol evidence

    rule.

    8. In the alternative, the City affirmatively invokes the defense of Plaintiffs failure

    to perform.

    9. In the alternative, the City affirmatively states that Plaintiff failed to comply with

    the requirements set forth in the Leases. The failure to comply with the requirements is a waiver,

    release, and/or failure of condition precedents.

    10. In the alternative, the City affirmatively invokes the defense that Plaintiff failed to

    give timely and proper presentment as required by Chapter 38 of the Texas Civil Practice and

    Remedies Code.

    11. In the alternative, the City affirmatively invokes the defense of estoppel.

    12. In the alternative, the City affirmatively invokes the defense of privilege and/or

    justification.

    13. In the alternative, the City affirmatively invokes the defense that Plaintiffsclaims

    are barred or limited by the terms of the Leases.

    14. In the alternative, the City invokes the defense of contributory negligence.

    15. In the alternative, the City affirmatively invokes the defense of statute of frauds.

    16. The City affirmatively states that Plaintiff has failed to exhaust its administrative

    remedies.

    17. In the alternative, Plaintiffs claims are barred or limited by immunity from

    liability.

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    18. In the alternative, the Plaintiffs clams are barred or limited by the economic loss

    rule.

    PRAYER

    Wherefore, Defendant City of Dallas prays that Plaintiff take nothing by this suit, that

    this suit is dismissed with prejudice and that Defendant be granted all other relief to which it is

    justly entitled.

    Respectfully submitted,

    WARREN M. S. ERNSTCITY ATTORNEY OF THE CITY OF DALLAS

    By: s/ Christopher J. CasoCHRISTOPHER J. CASOSenior Assistant City AttorneyTexas State Bar No. 03969230PATRICIA M. DE LA GARZAExecutive Assistant City AttorneyTexas State Bar No. 138979001500 Marilla Street, 7DNDallas, Texas 75201Phone: (214) 670-3519Telecopier: (214) [email protected]@dallascityhall.com

    MOSES, PALMER & HOWELL, L.L.P.

    By: s/ Shayne D. Moses

    SHAYNE D. MOSESTexas State Bar No. [email protected] A. PALMERTexas State Bar No. [email protected] D. HOWELLTexas State Bar No. 24002315

    mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]
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    [email protected] & Gas Building309 West 7thStreet, Suite 815Fort Worth, Texas 76102(817) 255-9100

    (817) 255-9199Fax

    ATTORNEYS FOR DEFENDANT

    CITY OF DALLAS

    CERTIFICATE OF SERVICE

    I certify that on the 9th day of March, 2014, a true and correct copy of the foregoing

    instrument was served via the Dallas County District Clerks e-filing system in accordance with

    Texas Rule of Civil Procedure 21(a), and also as indicated below:

    Via Facsimil e: 214-745-5390

    Arthur J. AndersonWinstead, P.C.2728 N. Harwood, Suite 500Dallas, Texas 75201

    Via Facsimil e: 817-420-8201

    Jeffrey C. KingWinstead, P.C.777 Main Street, Suite 1100Fort Worth, Texas 76102

    Attorneys for Plaintiff

    s/ Christopher J. CasoCHRISTOPHER J. CASO

    mailto:[email protected]:[email protected]:[email protected]