Trinity East V City of Dallas Docs

FILED
DALLAS COUNTY
4/29/2015 3:25:44 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-14-01443

TRINITY EAST ENERGY, LLC,
Plaintiff,
v.
CITY OF DALLAS, TEXAS,
Defendant.
IN THE DISTRICT COURT
192ND JUDICIAL DISTRICT
DALLAS COUNTY, TEXAS
CITYS SUPPLEMENTAL PLEA TO THE JURISDICTION

TO THE HONORABLE COURT:
Defendant, the City of Dallas (City), files this supplemental plea to the
jurisdiction (the Plea) demonstrating that this Court lacks jurisdiction over the claims
and causes of action of Plaintiff, Trinity East Energy, LLC (Trinity East), as follows:
I.
FACTS
On or about October 1, 2007, the City issued amendments to its requests for
proposal for oil and gas drilling and production within the City (the RFP). (Plaintiffs
First Amended Petition Amd. Pet. at p. 4, 9). The RFP included locations of drilling
sites on city-owned properties. Pertinent provisions of the RFP are identified below:
22.
CONTACT WITH CITY STAFF: DURING THE PROPOSAL
PROCESS, PROPOSER SHALL NOT CONTACT ANY CITY STAFF
EXCEPT THOSE DESIGNATED IN THE TEXT OF THE RFP OR IN
SUBSEQUENT DOCUMENTATION.
AND QUESTIONS OR
CONCERNS SHOULD BE ADDRESSED IN WRITING TO THE CITYS
PURCHAING AGENT OR DESIGNEE
24.
MODIFICATIONS: THE RFP CAN ONLY BE MODIFIED OR
REVISED BY WRITTEN ADDENDUM PREPARED AND ISSUED BY
THE CITYS BUSINESS DEVELOPMENT & PROCUREMENT
SERVICES DEPARTMENT.
AUTHORIZED.
ORAL MODIFICATIONS ARE NOT
ORDINANCE GOVERNING DRILLING: The Dallas City Council

approved the amendments to the ordinance governing gas drilling and
production facilities on September 12, 2007. The lease agreement will be
governed by the ordinance. A copy of the approved ordinance is attached
as Exhibit A-Revised.
POTENTIAL SURFACE USE: The City of Dallas has identified and
included a list of possible drilling site locations. A map and chart of the
potential sites is attached as Exhibit G.
INTERPRETATIONS, AMENDMENTS AND ADDENDA:
Any
explanation, clarification, or interpretation desired by a Respondent
regarding any part of this Proposal must be requested in writing
Nothing stated or discussed orally during any conversation shall alter,
modify or change the requirements of the Proposal. Only interpretations,
explanations, or clarifications of this Proposal and answers to questions that
are incorporated into a written amendment or addendum to this Proposal
issued by the City of Dallas shall be considered by Respondents
By submitting a Proposal, the Respondent specifically waives any right to
recover or be paid attorneys fees from the City of Dallas
EXHIBIT G
PROPERTY AVAILABLE FOR POTENTIAL
SURFACE USE The City of Dallas has identified potential drill site
locations. Such locations shall be limited to the designated portions of land
that are currently undeveloped and not planned to be developed.
(emphasis in original)
On or about October 10, 2007, the City provided a follow-up to the RFP, deleting
certain parcels from the list of potential drilling sites.
On or about November 9, 2007, Trinity East submitted its response to the RFP.
(Amd. Pet. at 4, 9). Trinity Easts response was for properties known as the Group 1
and Group 2A parcels. Trinity East also provided the City with a document entitled
COMMENTS AND PROPOSALS REGARDING THE FORM OF OIL AND GAS

LEASE.
On or about February 27, 2008, the Dallas City Council authorized the city
manager to execute two 36-month oil and gas lease agreements with one 36-month
renewal option with Trinity East. (Amd. Pet. at 4, 10).
On or about August 15, 2008, the City and Trinity East executed two oil and gas
leases (the Leases). (Amd. Pet. at 5, 149).
On that date the City also consented to
the assignment of the Leases.

On or about August 15, 2008, Trinity East and the Dallas city manager signed a
letter that stated although the City makes no guarantees, and the city staff was reasonably
confident that Trinity East would be granted the right to use the Radio Tower Tract as a
drill site location and that City staff would use its reasonable efforts to assist Trinity East
in placing an item before the Dallas City Council to permit such drilling. (Amd. Pet. at 6,
15).
On or about August 20, 2008, the City Council held a Chapter 26 public hearing
and authorized the non-park subsurface gas drilling and production use on certain park
land. (Amd. Pet. at 7, 1 9).
On or about December 20, 2010, in connection with the SUP Applications
(defined below), the Citys Assistant Director of the Real Estate Division sent a letter to
the Citys Current Planning Division stating that the City, as the owner of real property
known as the Gun Club Site, authorizes, approves, adopts and consents to, the subject
SUP applications, and agrees to submit upon request, supplemental information in
3
support of the Application. A similar letter was sent in connection with the Radio
Tower Site. (Amd. Pet. at 8, 22).
On or about March 17, 2011, Trinity East filed two zoning applications for
specific use permits for surface gas drilling and production. The first was for the Gun
Club Site located at 1700 Royal Lane, Dallas, Texas, and it was given zoning case
number Z101-220. The second was for the Radio Tower site located at 1500 Royal Lane,
Dallas, Texas, and it was given zoning case number Z101-221. Trinity East also filed a
third zoning application for a specific use permit for gas drilling and production that was
located on the east side of Luna Road, Dallas, Texas, and it was given zoning case
number Z101-248. These three applications will be collectively referred to as the SUP
Applications.
On or about June 22, 2011, the Dallas City Council adopted a resolution
authorizing an amendment to the Leases, which added a provision stating that Trinity
East understood that it was required to obtain the required SUPs.
On or about July 1, 2011, the City Manager signed the amendment of oil and gas
leases that explicitly stated that the lessee understands that the proposed drill sites are on
parkland and that the Dallas City Council must approve drilling on parkland, that the drill
sites are in a floodplain and that gas drilling is not permitted in the floodplain without a
Code amendment or City Council authorization of a fill permit, and that Trinity East must
obtain a gas well permit before the land may be used for oil and gas drilling. Further, the
amended Leases also stated that the Citys police powers cannot be contracted away. The
Leases and their amendments shall be referred to as the Leases.
4
On or about December 20, 2012, the Dallas city staff recommended approval of
the SUP Applications. (Amd. Pet. at 9, 24).
On or about March 21, 2013, the Dallas City Plan Commission (the CPC)
recommended denial of the SUP Applications. (Amd. Pet. at 9, 25).
On or about August 23, 2013, the Dallas City Council voted 9-6 in favor of the
SUP Applications. (Amd. Pet. at 10, 26). However, because the CPC recommended
denial of the SUP Applications, Dallas Development Code Section 51A-4.701(c)(1),
pursuant to Texas Local Government Code, Section 211.006(f) requires a three-fourths
vote of all of the City Council members to pass; therefore, the SUP Applications were
denied. (Id.).
II. GROUNDS FOR THE PLEA
The Court does not have subject-matter jurisdiction of Trinity Easts claims in this
lawsuit for the following reasons:
1
The City has governmental immunity from an invalid breach of contract claim
relating to the Leases as asserted in Count 1 of the Amended Petition because:
a.
the governmental/proprietary distinction is not applicable;
b.
if the governmental/proprietary distinction applies, governmental functions

were involved;
c.
there was no waiver under chapter 271 of the Local Government Code
because the Lease is not a contract for goods and services;
d.
there was no waiver under chapter 271 of the Local Government Code
because Trinity East does not seek the balance due and owed under the
contract; and
e.
Trinity East has failed to allege a valid breach of contract claim.
2.
3.
4.
The City has governmental immunity from Trinity Easts common law fraud and
fraud by nondisclosure claims as asserted in Count 3 of the Amended Petition
because:
a.
the governmental/proprietary distinction is not applicable;
b.

were involved and there was no waiver under the Tort Claims Act;
c.
governmental immunity bars the common law fraud and fraud by

nondisclosure claims;
d.
Trinity East has failed to allege valid common law fraud and fraud by
nondisclosure claims; and
e.
fraud is an intentional tort for which the City has governmental immunity.
The City has governmental immunity from Trinity Easts statutory fraud claims as
asserted in Count 4 of the Amended Petition because:
a.
the governmental/proprietary distinction is not applicable and governmental

immunity bars the claim;
b.

were involved, there was no waiver under the Tort Claims Act and the
claim is barred by governmental immunity;
c.
statutory fraud is inapplicable to governmental entities;
d.
fraud is an intentional tort for which the City has governmental immunity;
and
e.
Trinity East has failed to allege a valid statutory fraud claim.
The City has governmental immunity from Trinity Easts promissory estoppel
claims as asserted in Count 5 of the Amended Petition because:
a.

immunity bars the claim and there was no waiver under the Tort Claims
Act;
b.

were involved and the claim is barred by governmental immunity; and
6
c.
5.
6.
Trinity East has failed to allege valid promissory estoppel claims.
The City has governmental immunity from Trinity Easts negligent

misrepresentation claims as asserted in Count 6 of the Amended Petition because:
a.

functions were involved and there was no waiver under the Tort Claims
Act;
b.
the City is immune from a negligent misrepresentation claim; and
c.
Trinity East has failed to allege valid negligent misrepresentation claims.
The City has governmental immunity from Trinity Easts claim for attorneys fees
because:
a.
the governmental/proprietary distinction is not applicable and the claim is

barred by governmental immunity;
b.

were involved and governmental immunity bars the claim;
c.
Trinity East is not entitled to attorneys fees for tort or inverse

condemnation claims;
d.
there is no contract term or statute that authorizes the award of attorney fees
against the City. Chapter 38 of the Texas Business and Commerce Code
and chapter 27 of the Texas Business and Commerce Code are inapplicable
to municipalities; and
e.
Trinity East has failed to allege a valid claim for attorneys fees.
III.
A.
JURISDICTIONAL REQUIREMENTS
The Court reviews a plea to the jurisdiction analyzing whether the plaintiff
pleaded jurisdictional facts and, if those facts are challenged with evidence,
whether the plaintiff presented evidence sufficient to create a fact issue.
A plea to the jurisdiction contests a trial courts subject-matter jurisdiction. Tex.
Dept of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The purpose of the plea is not
to force the preview of a case on the merits, but to establish a reason why the merits
should never be reached. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000).
In Texas Department of Parks & Wildlife v. Miranda, the supreme court
identified the proper analysis for deciding whether a plea to the jurisdiction should be
granted. See Tex. Dept of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.
2004).
When a plea to the jurisdiction challenges the pleadings, the court determines
whether the pleader has alleged facts that affirmatively demonstrate the courts
jurisdiction to hear the cause. Id. at 226 (citing Tex. Assn of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 446 (Tex. 1993)). Courts construe the pleadings liberally in favor of the
plaintiff and look to the pleaders intent. Id. If the pleadings do not contain sufficient
facts to affirmatively demonstrate the trial courts jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and
the plaintiff should be afforded the opportunity to amend. Id. at 226-27 (citing Cnty. of
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)). If the pleadings affirmatively
negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without
allowing the plaintiff an opportunity to amend. Id. at 227.
When a plea to the jurisdiction challenges the existence of jurisdictional facts, the
trial court considers relevant evidence submitted by the parties to resolve the
jurisdictional issues raised. Id. When the jurisdictional challenge implicates the merits
of a plaintiffs cause of action and the plea to the jurisdiction includes evidence, the trial
court reviews the evidence to determine whether a fact issue exists concerning the
8
jurisdictional issue. Id. If the relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court should grant the plea to the jurisdiction
as a matter of law. Id. at 227-28.
If a plaintiff has been provided a reasonable opportunity to amend after a
governmental entity files its plea to the jurisdiction, and the plaintiffs amended pleading
still does not allege facts that would constitute a waiver of immunity, then the trial court
should dismiss the plaintiffs action with prejudice. Harris Cnty. v. Sykes, 136 S.W.3d
635, 639 (Tex. 2004).
Whether a court has subject-matter jurisdiction is a question of law. Miranda, 133
S.W.3d at 226; Tex. Natural Res. Conservation Commn v. IT-Davy, 74 S.W.3d 849, 855
(Tex. 2002).
B.
Governmental immunity protects the City from invalid claims.

In Texas, governmental and sovereign immunity deprives a trial court of subject-
matter jurisdiction for lawsuits against the State or other governmental units unless the
State consents to suit. See Miranda, 133 S.W.3d at 224; Dallas Cnty. v. Wadley, 168
S.W.3d 373, 376 (Tex. App.Dallas 2005, pet. denied). To establish subject-matter
jurisdiction against a governmental unit, a plaintiffs pleading must establish, either by
reference to a statute or express legislative permission, the legislatures consent to its
lawsuit, or immunity from suit will deprive the trial court of subject-matter jurisdiction.
Jones, 8 S.W.3d at 638. Mere reference to a legislative waiver, however, does not
establish a governmental entitys consent to be sued and is not enough to confer
jurisdiction on the trial court. See Tex. Dept of Criminal Justice v. Miller, 51 S.W.3d
9
583, 587 (Tex. 2001) (holding that merely alleging the Tort Claims Act is not sufficient
to establish jurisdiction).
The plaintiff has the burden to allege facts affirmatively demonstrating that the
trial court has subject-matter jurisdiction. See Tex. Assn of Bus., 852 S.W.2d at 446. For
the waiver to be effective, a plaintiff must plead a constitutional or legislative waiver
with facts that make the waiver applicable.
See Gen. Servs. Commn v. Little-Tex
Insulation Co., 39 S.W.3d 591, 599 (Tex. 2001) (holding that the plaintiff had failed to
allege facts to demonstrate a valid takings claim to invoke a waiver of immunity from
suit); Tex. Assn of Bus., 852 S.W.2d at 446 (holding that the pleader must allege facts
that affirmatively demonstrate the courts jurisdiction to hear the cause). In order for
there to be a waiver of governmental immunity, the plaintiff must plead a valid claim.
See Kaufman Cnty. v. Combs, 393 S.W.3d 336, 345 (Tex. App.Dallas 2012, pet.
denied).
IV.
THERE IS NO WAIVER OF GOVERNMENTAL IMMUNITY FOR

TRINITY EASTS BREACH OF CONTRACT CLAIMS
Trinity East alleges that sovereign/governmental immunity for its contractual
claim was waived pursuant to sub-chapter I of chapter 271 of the Texas Local
Government Code (hereafter chapter 271). It also asserts that its contractual claims
involve proprietary functions and, therefore, no waiver of governmental immunity is
necessary. (Am. Pet. at 12 [ 30, 31]). Neither contention has merit.
10
A. There is no applicable waiver of immunity pursuant to chapter 271.

Plaintiff claims to have a written contract that is enforceable under the limited
waiver in chapter 271 of Texas Local Government Code. See Tex. Loc. Govt Code,
271.151 -.160. The general rule is that a governmental entity is immune from an action
for breach of contract. E.g., Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 408 (Tex. 1997).
In 2005, however, the legislature enacted chapter 271, which provides a limited waiver of
immunity from suit on a contract that is subject to the waiver. Tex. Loc. Govt Code
271.152; Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivs.
Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 327 (Tex. 2006).
The waiver found in chapter 271 is limited to written contracts, properly executed
by the local government, that state the essential terms of the agreement, and that provide
goods or services to the local government. Tex. Loc. Govt Code 271.151, .152).
1. There is no contract for the provision of goods and services to the City
and, therefore, there is no waiver of immunity.
Trinity East alleges it entered into an oil and gas lease and a real property interest
was conveyed to it. This is not a contract for providing goods and services to the City.
In Lubbock County Water Control and Improvement District v. Church & Akin,
LLC., 442 S.W.3d 297 (Tex. July 3, 2014), the Supreme Court confronted the issue of
whether the lease of a marina from the water district was a contract for goods and
services. The Court held that under sub-chapter 271, the terms of the written agreement
are themselves the substance that determines whether immunity is waived, adding that
11
if the written contract did not include the essential terms of agreement to provide goods
or services to a governmental entity, there was no waiver of sovereign immunity. Id., at
304. The Court then reviewed the terms of the agreement at issue and concluded it did
not qualify as a contract providing goods and services to the governmental entity and,
therefore, there was no waiver of sovereign immunity. Id. at 303-305. The Court
rejected the plaintiffs argument that it provided services. The Court noted that subchapter 271s limitation on damages to sums due and owed along with the requirement of
providing goods and services, meant the waiver typically applies only when the
governmental entity agrees to make payment for the goods and services. Id. at 304. The
Court held that the fact that the water district did not agree to pay under the contract
supported the Courts conclusion that the claimant did not agree to provide services. Id.
Trinity East entered into the Leases and agreed to make payments to the City. The
City had no contractual obligation to ever make any payment to Trinity East. Trinity East
did not provide any goods or services to the City and the waiver of immunity in chapter
271 is inapplicable.
Trinity East alleges that oil and gas are goods and the delivery of the royalty
payment to the City was a service. Any receipt of oil, gas, or money by the City from
Trinity Easts would be considered payment for the Leases and not for the purpose of
providing of goods or services to the City. Further, the Supreme Court expressly rejected
this argument in Church & Akin. The plaintiff claimed it provided services by operating
the marina. The Supreme Court concluded that, even though the parties may have
contemplated that the plaintiff would operate a marina, the language of the contract did
12
not require it do so. The Court held:

When a party has no right under a contract to receive services, the mere fact
that it may receive services as a result of the contract is insufficient to
invoke chapter 271s waiver of immunity. At best, such services are only
an indirect and attenuated benefit under the contract.
Church & Akin, 442 S.W.3d at 303 (citations and quotation marks omitted). Here,
Trinity East was not required to drill and produce oil and gas and the City had no right
under the Leases to receive the oil and gas or royalty payments unless oil and gas was
produced.
Other courts have concluded that leases or sale of real property interests do not
involve the sale of goods or services. See e.g. Bexar Metro. Water Dist. v. Educ. & Econ.
Dev. Joint Venture, 220 S.W.3d 25, 32 (Tex. App.San Antonio 2006, pet. dism'd
w.o.j.); Brown Water Marine Serv., Inc. v. Aransas Cnty. Navigation Dist. No. 1, No. 13
0700055CV, 2008 WL 1822727, at *2 n.1 (Tex. App.Corpus Christi April 24, 2008,
pet. denied) (mem. op.); Somerset Indep. Sch. Dist. v. Casias, No. 040700829CV,
2008 WL 1805533, at *3 (Tex. App.San Antonio April 23, 2008, pet. denied) (mem.
op.); Water Exploration Ltd. v. Bexar Metro. Water Dist., 342 S.W. 3d 492, 499-502
(Tex. App.San Antonio 2011, no pet.); Wasson Interests, Ltd. v. City of Jacksonville,
No. 12-13-00262-CV; 2014 WL 3368413, at *3 (Tex. App.Tyler July 9, 2014, pet.
filed).
There has been no waiver under chapter 271 because the Leases did not qualify as
contracts for providing goods or services to a governmental entity.
13
2. Trinity East does not seek sums due and owed under the Leases, and
therefore, there is no waiver of immunity.
Any recovery under chapter 271 is to limited the balance due and owed by the
local governmental entity under the contract including any amount owed as compensation
for increased cost to perform the work as a direct result of owner-caused delays or
acceleration. Tex. Loc. Govt Code 271.153(a)(1). Here, Trinity East does not seek
any sums due and owed under the Leases. Under the express terms of the Leases, the
City never made any payments to Trinity East; instead, only Trinity East was to make
payments. Since Trinity East does not seek the balance due and owed under the Leases,
it does not assert a valid claim within the waiver of chapter 271. This is yet another
reason that the Court lacks jurisdiction over the breach of contract claim. 1
B.
The governmental/proprietary distinction is not applicable to any of

Trinity Easts claims.
In a vain effort to escape the Citys governmental immunity, Trinity East claims
that the Citys actions involve proprietary rather than governmental functions.
As
discussed in more detail herein, the Citys actions involved governmental functions,
therefore, the governmental/proprietary distinction applies to none of the claims Trinity
East asserts and to none of the applicable actions taken by the City that form the basis of
Trinity Easts claims.
In addition, Trinity East seeks lost profits which are excluded under sub-chapter 271. Tex. Loc. Govt
Code 271.153(b)(1); Tooke v. City of Mexia, 197 S.W.3d 325, 346 (Tex. 2006).
14
1.
The dichotomy does not apply to contract claims.
In Tooke, the Supreme Court noted that it had never determined whether the
governmental/proprietary dichotomy is applicable to waivers of sovereign immunity for
breach of contract claims. Tooke, 197 S.W.3d at 343-344. Its application to breach of
contract claims has been repeatedly and expressly rejected. Lower Colorado River Auth.
v. City of Boerne, 422 S.W.3d 60, 65 (Tex. App.San Antonio 2014, pet. dismd by
agr.); Republic Power Partners, P.P. v. City of Lubbock, 424 S.W.3d 184, 193 (Tex.
App.Amarillo 2014, no pet. h.); W. Tex. Mun. Power Agency v. Republic Power
Partners, LP, No. 07-12-00374-CV, 2014 WL 486287, at *4 (Tex. App.Amarillo
2014, no pet. h.); Wasson Interests, 2014 WL 3368413, at *3; Gay v. City of Wichita
Falls, No. 08-13-00028-CV, 2014 WL 3939141, at *5 (Tex. App.El Paso Aug. 13,
2014, no pet.); City of San Antonio ex rel. City Public Serv. Bd. v. Wheelabrator Air
Pollution Control, Inc., 381 S.W.3d 597, 605 (Tex. App.San Antonio 2012, pet.
denied). 2
Application of the dichotomy to breach of contract claims has been rejected
because the dichotomy arose in the contexts of torts, the policy reasons for the dichotomy
are outdated and have no application to contractual claims, there have been significant
changes in governmental immunity law since the dichotomy first developed and those
changes all weigh against application of the dichotomy to contract claims, the Legislature
Only the Austin Court of Appeals reached a contrary conclusion. E.g. City of Austin v. MET Center NYCTEX
Phase II, Ltd., 2014 WL 538697 (Tex. App.Austin 2014, pet. dismd agr.). The Austin Court ignored Tooke and
looked to pre-Tooke cases.
15
has already determined the scope of the waiver for contract claims by its adoption of
chapter 271, and recognizing a dichotomy despite chapter 271 would create needless
uncertainty
the
Legislature
sought
to
eliminate
with
chapter
271.
The
governmental/proprietary function distinction has no application to breach of contract

claims.
The only waiver for breach of contract claims is found in chapter 271 and no
waiver is granted for Trinity Easts claim.
2.
The dichotomy does not apply to home rule municipalities.
Dallas is a home rule city. The common law governmental/proprietary distinction

is not applicable to home rule cities. In City of Galveston v. State, the Texas Supreme
Court observed that the high standard for a waiver of sovereign immunity was especially
true for home-rule cities. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007).
The court noted that such cities derive power from the Constitution and have all powers
of the State not inconsistent with the Constitution, the general laws, or the citys charter.
Id. The court concluded that the question is not whether any statute grants home-rule
cities immunity from suit but rather whether there is any statute that limits the cities
immunity from suit and that such limits exist only when a statute speaks with
unmistakable clarity. Id.
For the State, there is no common law governmental/proprietary distinction.
Instead, all functions are considered governmental. Hencerling v. Tex. A & M Univ., 986
S.W. 2d 373, 374-5 (Tex. App.Houston [1st Dist.] 1999, pet. denied). Home rule cities
have all the power of the State. Protor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998). In
16
the absence of legislation stating otherwise, the exercise of the State power is a
governmental function. See Perry v. Greanias, 95 S.W.3d 683, 692-4 (Tex. App.
Houston [1st Dist.] 2002, pet. denied) (home rule city audit part of self-government
power and a governmental function). For a home rule city, the only question is whether
there is a statute limiting the sovereign immunity. City of Galveston, 217 S.W.3d at 469.
For breach of contract claims, the only waiver is found in chapter 271 and it does not
contain a governmental/proprietary distinction. The distinction has no application to
home-rule cities.
3.
In the alternative, the common law governmental/proprietary

dichotomy should not be expanded to contract claims.
The common law distinction between functions should not be expanded to

contract claims. The Texas Supreme Court observed that:
In a world with increasingly complex webs of government units, the
Legislature is better suited to make the distinctions, exceptions, and
limitations that different situations require. The extent to which any
particular city, county, port, municipal utility district, school district, or
university should pay damages involves policy issues the Legislature is
better able to balance.
City of Galveston, 217 S.W.3d at 469.
There is a lack of a factual or policy reason to expand the common law distinction.
See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 537-548 (1985)
(analyzing, and then rejecting, a judicial distinction between governmental and
proprietary functions as unsound in principle and unworkable in practice.).
The
adherence to common law classifications formulated over a century ago without regard to
the modern role of local governments and the State is without reason.
17
In Texas, the case by case distinction of the function have yielded inconsistent
and incoherent results. Williams v. City of Midland, 932 S.W.2d 679, 682 (Tex. App.
El Paso 1996, no pet.). The United States Supreme Court described the distinction as a
quagmire that has long plagued the law of municipal corporations. A
comparative study of the cases in the forty-eight States will disclose an
irreconcilable conflict. More than that, the decisions in each of the States
are disharmonious and disclose the inevitable chaos when courts try to
apply a rule of law that is inherently unsound.
Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955).
Other courts have criticized the governmental/proprietary distinction as being
illusory, elusive, arbitrary, misguided, chaotic, illogical, and unworkable.
E.g.
Morningstar Water Users Ass'n, Inc. v. Farmington Mun. School Dist. No. 5, 901 P.2d
725, 731, 735 (N.M. 1995) (holding the governmental/proprietary distinction had little
to supporting the reasoning and concluding it had no decisive legal value); Northwest
Nat. Gas Co. v. City of Portland, 711 P.2d 119, 123, 126 (Ore. 1985) (stating the
distinction is unworkable, untenable and unhelpful); City and Cnty of Denver v.
Mountain States Tel. and Tel. Co., 754 P.2d 1172 (Colo. 1988) (stating the distinction is
unreliable, analytically unsound, and has no continuing validity); Pac. Tel. & Tel.
Co. v. Redevelopment Agency of City of Redlands, 75 Cal.App.3d 957, 968, 142 Cal.
Rptr. 584, 591 (1977) (stating the distinctions are of dubious value in any context).
As the United States Supreme Court noted in Indian Towing:
all Government activity is inescapably uniquely governmental in that it
is performed by the Government. Government is not partly public or
partly private, depending upon the governmental pedigree of the type of a
particular activity or the manner in which the Government conducts it.
Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 383-384, 68 S.Ct.
18
1, 3, 92 L.Ed. 10. it is hard to think of any governmental activity

which is uniquely governmental, in the sense that its kind has not at one
time or another been, or could not conceivably be, privately performed.
Id., 350 U.S. at 67-68. In Garcia, the Court continued its criticism in refusing to apply
the distinction in the context of federal regulation stating, Any such rule leads to
inconsistent results at the same time that it disserves principles of democratic selfgovernance, and it breeds inconsistency precisely because it is divorced from those
principles.
Id., 469 U.S. at 547.
There is no reason to expand a common law
classification system that the Texas Supreme Court has noted has not been clear.
Tooke, 197 S.W. 3d at 343.
4.
In the alternative, Trinity East

governmental functions are involved.
contractually
admitted
that
In the Leases, Trinity East acknowledged and agreed that, the City may not
legally contract away its constitutional or statutory police powers, including without
limitation the power to establish and subsequently amend city codes, development
guidelines, and other rules and regulations, that a decision on an application for a
Specific Use Permit is a police power that cannot be contracted away, and the city
council must authorize the oil and gas drilling use on park land [and] [t]his authorization
is a police power that cannot be contracted away. Thus, Trinity East through the
contract admitted that any decision about the SUP or other permits or authorizations were
the exercise of the Citys police powers.
Activities performed as part of a municipalitys police powers clearly fall within
the governmental functions of a city. City of Dallas v. Moreau, 718 S.W. 3d 776, 779
19
(Tex. App.Corpus Christi 1986, writ refd n.r.e.). A municipalitys zoning authority is
derived from the police powers of the State and a city functions in its governmental
capacity when it performs functions mandated by the State. Truong v. City of Houston,
99 S.W.3d 204, 210 (Tex. App.Houston [1st Dist.] 2003, no pet.). Zoning and landuse ordinances are valid exercises of a citys police powers and are the governmental
functions.
Id. at 211.
Trinity East contractually admitted that the Citys decision
regarding Trinity Easts applications for SUPs was a police power and a governmental
function.
Even without Trinity Easts admission, the Citys actions regarding the zoning and
the consideration of the requests for SUPs involved governmental functions. See Trail
Enter., Inc. v. City of Houston, 957 S.W.2d 625, 633-34 (Tex. App.Houston [14th Dist.
1997, pet. denied) cert. denied 525 U.S. 1070 (1999) (Adoption of an ordinance limiting
oil and gas drilling involved governmental function).
The following functions are governmental are applicable to the activities of the
City in this matter: sanitary and storm sewers, parks and zoos, dams and reservoirs,
building codes and inspections, and zoning, planning and plat approval. Tex. Civ. Prac.
& Rem. Code 101.0215(a) (9), (13), (19), (28) and (29).
Therefore, the only possible waiver for a breach of contract claim is in sub-chapter
271 and Trinity Easts claims do not fall within the limited waiver. Jurisdiction does not
exist for its breach of contract claim.
20
C.
Trinity East failed to allege a valid breach of contract claim.
Trinity East alleges that the City breached the Leases by interfering with Trinitys
exclusive right to drill and operate oil and gas wells, by unreasonably withholding its
consent to Trinitys request for access to the property for the purpose of drilling for oil
and gas, and by denying each of Trinitys SUP applications for surface locations for
operations. Trinity East has failed to allege a valid breach of contract claim.
A claim for breach of contract requires proof of the following elements: (1) the
existence of a valid contract; (2) performance or tendered performance by the plaintiff;
(3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as
a result of that breach. Holloway v. Dekkers, 380 S.W.3d 315, 324 (Tex. App.Dallas
2012, no pet.) (citing Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d
876, 882 (Tex. App.Dallas 2007, no pet.)).
With respect to the second and third elements, Trinity East has failed to allege that
it performed or tendered performance under the Leases or that the City breached the
Leases. Instead, Trinity East seeks to engraft additional terms into the Leases. There was
no contractual term that the City must approve SUPs to all potential drilling locations
selected by Trinity East. To the contrary, the Leases recognizes that the decision whether
or not to grant an SUP was an exercise of police power that could not be contracted away.
The City did not withhold its consent to explore for oil and gas because the Leases
specifically state that Trinity East was required to comply with all laws regarding the
exploration for oil and gas within the City. The Leases provided:
21
21(c)
Lessee shall conduct all operations hereunder in
accordance with all federal, state and local laws, ordinances and regulations
as they may be amended from time to time. As a governmental entity, the
City may not legally contract away its constitutional or statutory police
powers, including without limitation the power to establish and
subsequently amend city codes, development guidelines, and other rules
and regulations; and nothing in this Lease is to be interpreted as waiving
the Citys power to establish and amend them, even if the same subject
matters are addressed in this Lease
21(q)
If Lessee seeks a variance or waiver of any city, county, other
governmental entity ordinance, rule, order, or other regulation relating to
drilling, completing, operating, or producing an oil or gas well drilled on
the Land or in the area of the Land, then the Lessor shall not unreasonably
oppose Lessees request for such variance or waiver.
Lessee understands that a Specific Use Permit is required before the Land
can be used for oil and gas drilling and that a decision on an application for
a Specific Use Permit is a police power that cannot be contracted away.
Lessee further understands that a gas well permit pursuant to Dallas
Development Code Article III is required to conduct gas drilling and
production.
Lessee understands that the proposed drill sites are on park land and that
before the Land may be used for oil and gas drilling, and as required by the
Texas Parks and Wildlife Code, Sections 26.001 through 26.004, the city
council must authorize the oil and gas drilling use on park land. This
authorization is a police power that cannot be contracted away.
Lessee understands that the proposed drill sites are within the flood plain
and that oil and gas drilling is not a permitted use within the flood plain.
Lessee further understands that before the Land may be used for oil and gas
drilling, a decision by the city council must be made to amend the Dallas
Development Code to allow the use within the flood plain, or Lessee must
obtain a fill permit pursuant to Dallas Development Code Section 51A5.105.
These provisions in the Leases recognize that if an SUP or other regulatory
approval was needed, such approval was an exercise of police power and could not be
contracted away. Trinity East knew and contractually accepted the risk that the City
22
Council or some other governmental entity might not grant whatever regulatory approval
or permit was necessary. Trinity East entered the Leases knowing of that possibility and
accepted the risk that the necessary regulatory approval might not be granted. As the
pleadings admit, City staff did present and did support Trinity Easts requests. The City
Council, exercising the police power entrusted to it, decided not to grant the SUPs. There
are no allegations that in exercising that power, City Council unreasonably opposed the
SUPs.
Trinity East knew that it was required to obtain regulatory approval before it
could begin drilling within the City. Nothing in the Leases required the City Council to
approve the SUPs. Therefore, the City could not have breached the Leases by virtue of
not approving the SUPs. Trinity East can point to no action of the City to show that it
breached the Leases. Since Trinity East has failed to allege a valid breach of contract
claim, that claim should be dismissed with prejudice for lack of jurisdiction.
V.

TRINITY EASTS PROMISSORY ESTOPPEL CLAIM
A.
The governmental/proprietary function dichotomy is inapplicable,

governmental functions were involved, and there is no legislative
waiver of promissory estoppel claims.
Trinity East asserts a promissory estoppel claim and the only basis alleged to
evade governmental immunity is to claim that proprietary functions were involved. The
governmental/proprietary dichotomy does not apply to quasi-contractual claims and such
claims are barred by governmental immunity. See Gay, 2014 WL 3939141, at *5. Also
as discussed above, the governmental/proprietary dichotomy does not apply to home rule
23
cities, and the common law dichotomy should not be expanded beyond tort claims.
Further, as described above, governmental functions were involved.
In addition to Gay, many other courts have held there is no waiver of
governmental or sovereign immunity for promissory estoppel claims. Somerset Indep.
Sch. Dist. v. Casias, No. 040700829CV, 2008 WL 1805533, at *3 (Tex. App.San
Antonio Apr. 23, 2008, pet. denied) (mem. op.); City of Deer Park v. Ibarra, No. 0110
00490CV, 2011 WL 3820798, at *6-7 (Tex. App.Houston [1st Dist.] Aug. 25, 2011,
no pet.); Nussbaum v. Univ. of Tex. Med. Branch at Galveston, No. 019900871CV,
2000 WL 1864048, at **34, 89 (Tex. App.Houston [1st Dist.] Dec. 21, 2001, pet.
denied) (not designated for publication). See also H & H Sand & Gravel, Inc. v. City of
Corpus Christi, No. 13-06-00677-CV, 2007 WL 3293628, at *3 (Tex. App.Corpus
Christi Nov. 8, 2007, no pet.); City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4,
13 (Tex. App.Houston [1st Dist.] 2007, no pet.). Governmental immunity bars Trinity
Easts promissory estoppel claims.
B.
Trinity East failed to allege a valid promissory estoppel claim.

Trinity East has also failed to allege a valid promissory estoppel claim. Under
Texas law, promissory estoppel is not applicable when a valid contract exists. See
Doctors Hosp. 1997, L.P. v. Sambuca Hosp., L.P., 154 S.W.3d 634, 636-637 (Tex.
App.Houston [14th Dist.] 2004, pet. filed) and authorities listed therein; Jhaver v.
Zapata Off-Shore Co., 903 F.2d 381, 388 (5th Cir. 1990). Trinity East alleges a breach of
a valid contract and thereby precludes a valid promissory estoppel claim.
24
Additionally, the elements of promissory estoppel are: 1) a promise; 2)

foreseeability of reliance thereon by the promisor; and 3) substantial reliance by the
promise to his detriment. English v. Fischer, 660 S.W. 2d 521, 524 (Tex. 1983). The
reliance must be reasonable. See Wheeler v. White, 398 S.W.2d 93, 96-97 (Tex. 1965).
Trinity Easts pleading acknowledge that each element is missing.
First, as discussed above, the Leases did not contain promises that SUPs would be
granted and instead recognized the uncertainty of whether regulatory approval would be
granted. Trinity East has not alleged any promise by the City Council other than what is
in the Leases and the amendments to the Leases. Only the Dallas City Council can bind
the City.
The alleged promises by City employees are not binding on the City.
Additionally, the RFP documents specifically state that Trinity East was not to rely upon
any oral representations by anyone in connection with the Leases. Therefore, there is no
allegation or evidence of a City promise. Trinity Easts promissory estoppel claim fails.
However, even if the Court were to assume that alleged promises were made by
City employees to support Trinity Easts promissory estoppel claim, such promises were
fulfilled by the City officials. City officials stated that they would use their best efforts to
see that specific use permits were issued such that Trinity East would be permitted to drill
within the City. Trinity Easts pleadings admit that City staff recommended approval of
the SUPs, however, the Dallas City Council did not approve the SUPs. Therefore,
assuming that promises were made, City staff did not violate their promise.
Finally, Trinity Easts reliance was not reasonable. It was not reasonable for
Trinity East to rely on a promise by City employees that the SUPs would be approved
25
when it was not within the power of such employees to approve the SUPs. Also, the
Leases and the amendments specifically state that no such promises can be contractually
made. Since Trinity Easts reliance was not reasonable, it has failed the third element for
bringing a successful promissory estoppel claim. Since Trinity East has failed to allege a
valid promissory estoppel claim, that claim should be dismissed with prejudice.
VI.

TRINITY EASTS COMMON LAW FRAUD AND NEGLIGENCE
CLAIMS
A. Trinity East does not claim a waiver under the Torts Claims Act.
Trinity East asserts fraud and negligence claims. It does not contend that any of
its claims fit within the waiver of the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code,
101.001, et seq. If it attempted to do so, no waiver would be recognized. Its claims do
not involve property damage, personal injury, or death and do not involve motorized
equipment, tangible personal property, or a premise defect. See id., 101.021. To avoid
the lack of a waiver under the Tort Claims Act, Trinity East asserts that all of the claims
are proprietary. It relies on cases that pre-date and ignore the adoption of the article XI,
section 13 of the Texas Constitution and the Texas Tort Claims Act. The Act applies and
it provides no waiver for Trinity Easts tort claims.
B.
Trinity Easts fraud and negligence claims are barred by the Texas
Tort Claims Act.
1. The Citys actions involved governmental functions.
The Texas Constitution authorizes the Legislature to define for all purposes
those functions of a municipality that are to be considered governmental and those that
26
are proprietary, including reclassifying a function's classification assigned under prior

statute or common law. Tex. Const. art. XI, 13; see also City of Tyler v. Likes, 962
S.W.2d 489, 503 (Tex.1997). The Legislature has described governmental functions as
those functions that are enjoined on a municipality by law and are given it by the state as
part of the state's sovereignty, to be exercised by the municipality in the interest of the
general public. Tex. Civ. Prac. & Rem.Code Ann. 101.0215(a). The Legislature has
statutorily recognized a non-exclusive list of 36 governmental functions.
Id.
The
Legislature specified that the proprietary functions of a municipality do not include

those governmental activities listed under subsection (a). Id. 101 .0215(c). The courts
have no discretion to determine that a municipality's action is proprietary if it has been
designated as a governmental function by the Tort Claims Act. See City of Texas City v.
Suarez, No. 011200848CV, 2013 WL 867428, at *7 (Tex. App.Houston [1st Dist.]
March 7, 2013, pet. filed) (mem.op); accord City of Plano v. Homoky, 294 S.W.3d 809,
814 (Tex. App.Dallas 2009, no pet.); Tex. River Barges v. City of San Antonio, 21
S.W.3d 347, 357 (Tex. App.San Antonio 2000, pet. denied).
The listing of governmental functions in 101.215 is a non-exclusive list of
activities, and broad legislative concepts. Ethio Exp. Shuttle Serv., Inc. v. Houston,
164 S.W.3d 751, 755 (Tex. App.Houston [14th Dist.] 2005, no pet.); City of Dallas v.
Reata Constr. Co., 83 S.W.3d 392, 395-396 (Tex. App.Dallas 2002) revd on other
grounds, 197 S.W.3d 371 (2006). If an activity is encompassed within or touched on
a category or falls under the classification, then it is part of the governmental function.
Texas River Barges, 21 S.W.3d at 357; City of El Paso v. Gomez-Parrs, 198 S.W.3d 364,
27
369 (Tex. App.El Paso 2006, no pet.); City of Weslaco v. Borne, 210 S.W.3d 782, 792
(Tex. App.Corpus Christi 2006, pet. denied). If an activity can be considered a mixed
function, the entire function is considered governmental if any component of a function is
governmental. City of Texarkana v. City of New Boston, 141 S.W.3d 778, 784 n.3 (Tex.
App.Texarkana 2004, pet. denied).
Trinity East alleges that the City entered into oil and gas leases, which conveyed
real property interests of City park properties. It also alleges that the City denied its
zoning request for a SUP. These two allegations are critical to all of Trinity Easts
claims.
Section 101.215 lists the following as governmental function: sanitary and storm
sewers, parks and zoos, dams and reservoirs, building codes and inspections, and zoning,
planning and plat approval. Tex. Civ. Prac. & Rem. Code 101.0215(a) (9), (13), (19),
(28) and (29).
In addition, the grant or denial of permits is a governmental function. See Cities
of Friendswood, League City, Dickson v. Adair, No. 010300205CV, 2003 WL
22457996, at *2 (Tex. App.Houston [1st Dist.] Oct. 30, 2003, pet. denied) (and
authorities cited therein). Trinity Easts pleadings admit and acknowledge that the Citys
alleged actions or inactions were encompassed, touched upon, and were part of
governmental functions. All of Trinity Easts fraud and negligence claims involved
governmental functions and are barred by the Tort Claims Act.
28
2.
Fraud is an intentional tort for which the City has governmental

immunity.
Trinity East has alleged common law fraud, fraud by non-disclosure, and
statutory fraud. The Tort Claims Act and sub-chapter 271 specifically state there is no
waiver of immunity for intentional torts. Tex. Loc. Gov't Code 271.157; Tex. Civ.
Prac. & Rem. Code 101.057(2). Governmental immunity bars all of the fraud claims.
City of Freeport v. Briarwood Holdings, L.L.C., No. 011101108CV, 2013 WL
1136576, at *6 (Tex. App.Houston [1st Dist.] March 19, 2013, no pet.); LTTS Charter
School, Inc. v. Palasota, 362 S.W.3d 202, 209 (Tex. App.Dallas, 2012, no pet.).
3.
Governmental immunity bars Trinity Easts negligent

misrepresentation claim.
Trinity East has also alleged a negligent misrepresentation claim. Trinity Easts
claims for negligent misrepresentation do not contain any allegations involving tangible
personal property, use of motor-driven equipment, or a premises defect. Thus, like the
fraud claim, immunity is not waived with respect to this claim. Ethio Exp. Shuttle
Service, 164 S.W.3d at 757-58; Kojo Wih Nkansah v. University of Texas at Arlington,
No. 021000322CV, 2011 WL 4916355, at *3 (Tex. App.Fort Worth Oct. 13, 2011,
pet. denied). Trinity East has alleged no waiver under the Tort Claims Act and none
exists.
Furthermore, like its promissory estoppel claim, Trinity East has failed to allege a
valid claim since it has failed to allege what representation of the City was negligently
29
made. Without such assertion, it has failed to allege a valid negligent misrepresentation
claim.
Therefore, Trinity East has failed to allege a valid negligence claim and its
negligent misrepresentation claim must be dismissed with prejudice.
4.
Trinity Easts tort claims are also barred because the Citys actions
involved the exercise of its discretion.
The Tort Claims Act also provides that there is no waiver of governmental
immunity for a governments decision not to perform an act if the law leaves the
performance or nonperformance of the act to the discretion of the governmental unit.
Tex. Civ. Prac. & Rem. Code 101.056. Whether to grant or deny an application for a
SUP is a discretionary decision. There is no waiver of governmental immunity for the
Citys decision not to grant a SUP.
5.
Trinity Easts claims for punitive damages are barred.
Trinity East seeks punitive damages in association with its various fraud theories.
Because the Court lacks jurisdiction for these claims it also lacks jurisdiction over the
related punitive damages claims. Additionally, the Tort Claims Act and chapter 271
specifically state that there is no waiver of sovereign immunity for punitive damages.
Tex. Loc. Gov't Code 271.153(b)(2); Tex. Civ. Prac. & Rem. Code 101.024.
C.
Trinity Easts fraud and negligent misrepresentation claims are

duplicative of its breach of contract claim for which the City has
immunity.
To establish a cause of action for negligent misrepresentation, a plaintiff must

demonstrate, among other things, that the defendant supplied false information for the
30
guidance of others in their business. Gay, 2014 WL 3939141, at *6 (citing Airborne

Freight Corp. v. C.R. Lee Enter., Inc., 847 S.W.2d 289, 295 (Tex. App.El Paso 1992,
writ denied).
The false information necessary for negligent misrepresentation is a
misstatement of existing fact as opposed to false information about a promise of future

conduct. Id.
When a negligent misrepresentation claim is based upon allegedly false
information about a future promise rather than an existing fact, the claim sounds in
contract, not tort. Id. Here, Trinity East complains about the alleged failure to perform
future conduct that it contends were part of the Leases. Trinity Easts pleadings establish
that its negligent misrepresentative claim is duplicative of its contract based claim and,
therefore its claim sounds in contract, not tort. Gay, 2014 WL 3939141, at *6. Since
there is no waiver of immunity for any breach of contract claim, this purported negligent
misrepresentation claim is also barred.
Likewise, a common law fraud claim is duplicative of a breach of contract claim if
the defendant's alleged conduct would give rise to liability only because it breaches the
parties' agreement. Id. (citing and quoting Farah, 927 S.W.2d at 674, Southwestern Bell
Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991)). Looking at the substance of
the cause of action rather than the manner in which it was pleaded, Trinity Easts
common law fraud claim centers on the City's alleged promise that the City would
approve the SUPs and the subsequent failure to approve the SUPs. Like negligent
misrepresentation, the fraud claim is duplicative of the breach of contract claim and
sounds in contract. The claim falls under the purview of Sections 271.152 of the Local
31
Government Code and the City has immunity from that claim. Id. The purported fraud
claim is likewise barred.
VII.
GOVERNMENTAL IMMUNITY HAS NOT BEEN WAIVED FOR A

STATUTORY FRAUD CLAIM
Trinity East asserts a statutory fraud claim pursuant to section 27.001 of the Texas
Business and Commerce Code. The only alleged basis to avoid governmental immunity
is a claim that a proprietary function is involved. As described above, governmental
functions were involved and Trinity Easts contention fails. Also, as discussed above, the
governmental/proprietary dichotomy does not apply to home rule cities, and the common
law dichotomy should not be expanded.
In addition, statutory fraud is necessarily a statutory cause of action. Its attempted
use against governmental entities requires a waiver of sovereign immunity and there is no
such waiver in the statute. Dallas Cnty v. Rischon Dev. Corp. 42 S.W.3d 90, 94-95 (Tex.
App. Dallas 2007, pet. denied); Jefferson Cnty v. Bernard, 148 S.W.3d 698, 700-702
(Tex. App.Beaumont 2004, no pet.). Similarly, the statute is not applicable against
governmental entities and, as a matter of law, Trinity East cannot allege a valid statutory
fraud cause of action against a governmental entity such as the City. Id.
C.
TRINITY EAST HAS FAILED TO ALLEGE VALID TORT CLAIMS

1.
Trinity East has failed to allege valid common law tort claims.
The common elements to fraud, fraud by nondisclosure, and negligent

misrepresentation are a representation of an existing material fact or a failure to disclose
an existing material fact and the plaintiffs reasonable reliance on the representation or
32
omission. Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Services, Inc., 441
S.W. 3d 345, 358 (Tex. App.Houston [1st Dist.] 2013, pet. denied) (stating elements of
fraud); Horizon Shipbuilding, Inc. v. Blyn II Holding, LLC, 324 S.W.3d 840, 850 (Tex.
App.Houston [14th Dist.] 2010, no pet.) (stating elements of fraud by omission); Bank
of Tex., N.A. v. Glenny, 405 S.W.3d 310, 313 (Tex. App.Dallas 2013, no pet.) (stating
elements of negligent misrepresentation). See also McCamish, Martin, Brown & Loeffler
v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999). Trinity Easts pleadings
negate both of those elements.
First, Trinity East makes no allegation regarding a material existing fact. Instead,
its claims are all premised on an alleged future promise of conduct. As a matter of law,
this is insufficient for these tort claims. Trinity East claims that the City made the
following material representations to induce Trinity East into entering into the Lease
Agreements:
City Staffs assurances to Trinity that the City would make that happen on the
Radio Tower Tract and would attempt to get approval on the Gun Club Tract.
City Manager Mary Suhms letter to Trinity officials stating that she was
reasonably confident the company would obtain the right to use the Radio Tower
Tract for drilling operations.
[N]umerous City representations and promises that the City would provide any
and all necessary approvals to allow Trinity to perform under the Lease
Agreements.
All of the representations that Trinity East alleges City employees made were about
future actions. Alleged representations about future actions cannot form the basis for
these tort claims. Petrus v. Criswell, 248 S.W.3d 471, 476 (Tex. App.Dallas 2008, no
33
pet.) (granting summary judgment against negligent misrepresentation claim that was
based on future promises and conduct rather existing facts).
Second, Trinity East has failed to allege valid tort claim because Trinity East has
not identified any false representation that the Dallas City Council made to it. Its claims
are all based on representations of City employees. Trinity East was charged with notice
that under the Citys Charter and state law that City representatives could not make
binding promises on behalf of the City. Cleontes v. City of Laredo, 777 S.W.2d 187,
189-190 (Tex. App.San Antonio 1989, writ denied); City of Greenville v. Emerson,
740 S.W.2d 10, 13 (Tex. Civ. App.Dallas 1987, no writ); Barrett v. City of Dallas, 490
S.W.2d 605, 608 (Tex. Civ. App.Dallas 1973, no writ). Only the Dallas City Council
can bind the City. Id. Furthermore, the request for proposal documents made it clear that
Trinity East was not to rely upon representations other than those made in writing during
the RFP process.
Therefore, there was no false representation made by the City.
Moreover, since only the City Council can grant or deny a SUP or other necessary
permits, reliance on an employees representation was unreasonable. The tort claims fail.
Third, no false representation was made by City employees. Instead, the only
representation that Trinity East claims was made was as to the whether or not the City
staff would use its best efforts to see that the SUPs were approved. Trinity Easts
pleadings admit that the City staff recommended approval but the Dallas City Council did
not approve the SUPs. Therefore, even though such future promise cannot be considered
false information, City staff did not provide false information or representation since they
34
did exactly as they said they would, to use its best efforts to see that the SUPs were
approved.
Fourth, Trinity East could not reasonably rely on any claimed representation. The
Leases and the amendments specifically stated that Trinity East was required to obtain all
regulatory approvals before it would be permitted to drill within the City.
The
agreements also specifically stated such approvals were part of the Citys police powers
that could not be contracted away. By these very terms of the contract, the parties
acknowledged that there were no promises or representations that the approvals would be
granted. The terms acknowledge the uncertainty and risk which Trinity East accepted.
Furthermore, Trinity Easts pleadings admit the tentative and qualified nature of the
representations. (e.g. reasonably confident of approval).
Fifth, the tort claims are barred by the economic loss rule.
Basically, the rule
provides that a party should only be able to recover in contract and not in tort when the
injury is limited purely to economic losses suffered to the subject matter of a contract.
James J. Flanagan Shipping Corp. v. Del Monte Fresh Produce N.A., Inc., 403 S.W.3d
360, 365 (Tex. App.Houston [1st Dist.] 2013, no pet.). Application of the rule depends
on the source of the defendant's duty to act (whether it arose solely out of the contract or
from some common-law duty) and the nature of the remedy sought by the plaintiff.
Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 45
(Tex.1998). To maintain a separate tort action, the plaintiff must show that he has
suffered an injury that is distinct, separate, and independent from the economic losses
recoverable under a breach of contract claim. Sterling Chems., Inc. v. Texaco Inc., 259
35
S.W.3d 793, 797 (Tex. App.Houston [1st Dist.] 2007, pet. denied). Here, Trinity East
does not allege an injury separate from its breach of contract claim, the Citys alleged to
duty to act arises from the contract, and Trinity East seeks the benefit of the bargain.
Trinity East has failed to allege a valid tort claim because each is barred by the economic
loss rule.
2.
Trinity East has failed to allege a valid statutory fraud claim.
As discussed above, statutory fraud claims under chapter 27 of the Texas Business
and Commerce Code are not available against governmental entities. Rischon Dev. 42
S.W.3d at 94-95; Bernard, 148 S.W.3d at 700-702. As a matter of law, a valid claim
cannot be asserted against the City.
There are two theories for statutory fraud in transactions involving real estate.
Under the first, statutory fraud consists of a false representation of existing or past
material fact is made to a person for the purpose of inducing that person into a contract
and that person relied on the representation. Tex. Bus. & Com. Code 27.01(a)(1). As
discussed above, Trinity East does not complain about an existing or past material fact
and claim under this theory is not alleged.
Under the second theory, the elements are: (1) the defendant made a false, material
promise to do an act; (2) with the intention of not fulfilling it; (3) for the purpose of
inducing the plaintiff to enter into a contract; and (5) the plaintiff relied on the promise in
entering into the contract. Tex. Bus. & Com. Code 27.01(a)(2). As explained above,
the City, through City Council, did not make false promises. Also as explained above,
there were no false promises as the contract clearly stated there were no promises of
36
approval and highlighted that uncertainty. Finally, as previously stated, any reliance was
not reasonable or justified based upon the contract terms and the tentative and qualified
nature of the representations. A valid claim under this theory is not alleged.
VIII.
THERE IS NO WAIVER OF GOVERNMENTAL IMMUNITY AND

NO VALID CLAIM FOR TRINITY EASTS ATTORNEY FEES
CLAIM.
Trinity East asserts entitlement to attorney fees. It claims proprietary functions are
involved, a waiver pursuant to chapter 271, and entitlement based on Chapter 38 of the
Texas Business and Commerce Code. None of the arguments are applicable and Trinity
East is not entitled to attorney fees.
To be entitled to fees, Trinity East must first establish jurisdiction for any of its
claims. As discussed above, the Court lacks jurisdiction of such claims and, therefore,
lacks jurisdiction over attorney fees claims.
Also, Trinity East does not have a valid claim for fees. Attorney fees may only be
awarded if authorized by statute or allowed by the contract between the parties. Holland
v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999).
There is no statutory
authorization for attorney fees for the contract, tort or takings claims. The leases did not
authorize the award of attorney fees. And there is no statute that authorizes the award of
attorney fees against the City for an alleged breach of contract.
Trinity East relies on chapter 271.
However, as discussed above, it is not
applicable to this contract claim. Even if it were applicable, it only waives governmental
immunity as to claims for attorney fees; it does not authorize such awards.
37
Trinity East has likewise failed to allege how it is entitled to attorneys fees in an
inverse condemnation action. See State v. Biggar, 848 S.W.2d 291, 298 (Tex. App.Austin 1993), aff'd, 873 S.W.2d 11 (Tex.1994) (holding attorney's fees are not available
for prevailing on inverse-condemnation claim).
Finally, Trinity East relies on section 38.001 of the Texas Civil Practice and
Remedies Code. However, the statute is not applicable to municipalities, regardless of
the function involved. See City of Terrell v. McFarland, 766 S.W.2d 809, 813 (Tex.
App. Dallas 1988, writ denied); City of Corinth v. NuRock Dev., Inc., 293 S.W.3d 360,
370 (Tex. App.Fort Worth 2009, no pet.). Trinity East has failed to allege a valid
claim for attorney fees and the Court lacks jurisdiction.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, the City respectfully prays that the
Court: (1) grant the supplemental plea to the jurisdiction; and (2) dismiss Trinity Easts
claims, with the exception of its inverse condemnation claim, with prejudice for want of
jurisdiction.
38
Respectfully submitted,
WARREN M. S. ERNST
Dallas City Attorney
/s/Christopher J. Caso
Christopher J. Caso
Texas Bar No. 03969230
chris.caso@dallascityhall.com
Senior Assistant City Attorney
City Attorneys Office
1500 Marilla Street, Room 7D North
Dallas, Texas 75201
Telephone: 214-670-3519
Telecopier: 214-670-0622
CERTIFICATE OF SERVICE
This is to certify that on this the 29th day of April, 2015, a true and correct copy of
the above and foregoing was served in accordance with the Rules 21 and 21a of the Texas
Rules of Civil Procedure, upon all counsel of record.
Christopher J. Caso
39
FILED
DALLAS COUNTY
5/11/2015 4:26:46 PM
FELICIA PITRE
DISTRICT CLERK

Plaintiff,
v.
CITY OF DALLAS,
Defendant.
DEFENDANTS MOTION FOR PROTECTIVE ORDER

Defendant the City of Dallas (the City), hereby files Defendants Motion for Protective
Order to seek protection from Plaintiffs (Trinity East or Plaintiffs) attempt to take the oral
depositions of Shayne D. Moses, Mark Duebner, David Cossum and corporate representatives
and in support of which, shows the Court:
I.
1.
Introduction
Plaintiffs have sued the City for breach of contract, inverse condemnation, fraud,
promissory estoppel and negligent misrepresentation. The City filed its answer, containing a plea
to the jurisdiction and has recently filed a supplemental plea to the jurisdiction, alleging that the
Court lacks jurisdiction over Trinity Easts breach of contract, fraud, promissory estoppel,
negligence and attorneys fees claims.
2.
Trinity East noticed the oral depositions of Shayne D. Moses, Mark Duebner, David
Cossum and corporate representatives of the City on 20 topics on or about May 6, 2015. (See
Notices of Deposition, true and correct copies of which are attached hereto as Exhibit A, and
incorporated herein, by reference.) The City moved to quash the Notices on or about May 8,
2015. (See Citys Motion to Quash, which is attached hereto as Exhibit A and incorporated
herein by reference.)
Defendants Motion for Protective Order
Page 1
3.
The City seeks a protective order preventing the taking of any depositions until the Court
determines whether it has subject-matter jurisdiction over Plaintiffs claim.

4.
If discovery proceeds pending the Courts ruling on the plea to the jurisdiction, the City
will have the expense of complying with discovery requests and otherwise participating in
pretrial proceedings based on a mere assumption that the Court has jurisdiction. A protective
order is appropriate to protect the City from the burdens of litigation pending disposition of the
immunity issue. See City of Galveston v. Gray, 93 S.W.3d 587, 592 (Tex. App.Houston [14th
Dist.] 2002, pet. denied) (holding the trial court abused its discretion in refusing to rule on the
citys and the countys respective pleas to the jurisdiction based on sovereign immunity and in
granting the plaintiffs motion for a continuance of the plea hearing to allow discovery on
liability). The court in Gray held that a governmental units entitlement to be free from suit is
effectively lost if the trial court erroneously assumes jurisdiction and subjects the governmental
unit to pre-trial discovery and the costs incident to litigation; therefore the trial court abuses its
discretion and there is no adequate remedy at law. Id. at 591.
II.
Protective order from depositions
a. Shayne Moses, attorney of record for the City

5.
The City requests that the Court issue a protective order prohibiting the deposition of
Shayne Moses because the discovery sought is privileged as attorney work product and attorneyclient communication and because Trinity East is seeking to disqualify Moses from representing
the City.
6.
It is unclear what testimony Trinity East is seeking from. Presumably, Trinity East seeks
to depose Moses on privileged matters. Trinity East has alleged that Moses represented the City
in negotiating the leases that are the subject of this litigation but Moses did not negotiate the
leases, he represented the City as an attorney.
Page 2
7.
Because Trinity East has noticed an attorney of record, its request implicates the Citys
attorney-client communication. Moses represents the City in this litigation because he has
entered an appearance in this case.
8.
An attorneys actions taken in furtherance of his representation, including communication
with third parties and evidence strategy and method, fall squarely within core work product. See
In re Bexar Cnty. Criminal Dist. Attorneys Office, 224 S.W.3d 182, 186 (Tex. 2007) (orig.
proceeding) (Finding that the work product privilege is broader than the attorney-client
privilege because it includes all communications made in preparation for trial, including an
attorney's interviews with parties and non-party witnesses.) (emphasis added).
9.
In addition to the work product privilege and the objections in the Citys Motion to
Quash, the discovery Trinity seeks is protected from disclosure under the attorney-client
privilege.
See Tex. R. Evid. 503.
The discovery sought is privileged attorney-client
communication because it was made for the purpose of facilitating the rendition of professional
legal services to the City. That privilege attaches to the complete communication between
attorney and client, including both legal advice and factual information.
In re Southpak
Container Corp., 418 S.W.3d 360 (Tex. App.Dallas 2013, pet. den). Insofar as Trinity seeks
communication between Moses and his client, including any factual information, that
information is protected from disclosure.
10.
For the foregoing reasons, as well as for the reasons identified in section (b) below, the
City requests the Court issue a protective order prohibiting the deposition of Shayne Moses on
the grounds that the discovery sought is privileged as attorney work product and attorney-client
communication.
Page 3
b. Duebner, Moses, Cossum and City corporate reps.

11.
The City has filed its supplemental plea to the jurisdiction and has requesting a hearing.
The City has canceled that hearing to enable Trinity East to seek a decision from the Court as to
whether the hearing the supplemental plea should move forward without the depositions that
Trinity East is seeking. The City has already provided Trinity East with voluminous paper and
electronic documents containing all of the jurisdictional facts that Trinity East needs to
successfully respond to the supplemental plea. Furthermore, Trinity East has not identified any
jurisdictional facts that exist for which the City has not already provided documents to them.
Trinity Easts desire to depose several City employees and corporate representatives, without
identifying any jurisdictional facts that are left uncovered, is being sought merely for harassment
purposes. Finally, Trinity Easts desire to depose corporate representatives on 20 different topics
further illustrates that its desire to seek depositions is for harassing purposes only.
PRAYER
WHEREFORE, premises considered, the City requests the Court grant the Citys Motion
for Protective Order and order that Trinity East may not take the depositions of Shayne D.
Moses, David Cossum, Mark Duebner and corporate representatives of the City, or any other
depositions, pending this Courts ruling on the Citys supplemental plea to the jurisdiction, and
any and all other relief, in law or at equity, to which the City may be justly entitled.
Page 4
WARREN M. S. ERNST
DALLAS CITY ATTORNEY
By: s/ Christopher J. Caso

PATRICIA M. DE LA GARZA
Executive Assistant City Attorney
State Bar No. 13897900
patricia.medrano@dallascityhall.com
CHRISTOPHER J. CASO
1500 MARILLA STREET, 7DN
Dallas, Texas 75201
214.670.3519
214.670.0622 (FAX)
MOSES, PALMER & HOWELL, L.L.P.
SHAYNE D. MOSES
smoses@mph-law.com
DAVID A PALMER
dpalmer@mph-law.com
TIMOTHY D. HOWELL
thowell@mph-law.com
Oil & Gas Building
309 West 7th Street, Suite 815
Fort Worth, Texas 76102
ATTORNEYS FOR DEFENDANT
CITY OF DALLAS
Page 5
CERTIFICATE OF CONFERENCE
I certify that I have conferred with opposing counsel regarding the subject-matter of this
Motion, and he was opposed to the Motion, therefore we have not been able to secure agreement
to the relief sought by this Motion.
Certified on the 11th day of May, 2015.
s/ Christopher J.Caso___________________
CHRISTOPHER CASO
This is to certify that on May 11, 2015, a true and correct copy of the above and
foregoing was served in accordance with the Rules 21 and 21a of the Texas Rules of
Civil Procedure, upon all counsel of record.
Christopher J. Caso
Page 6
FlU
DALLAS COUN5/8/2015 3:11 :48 F
FELICIA PITF
DISTRICT CLEF

Plaintiff,
V.

Defendant.
DEFENDANT'S MOTION TO QUASH THE NOTICES OF ORAL DEPOSITIONS OF

DAVID COSSUM, MARK DUEBNER, SHAYNE MOSES, AND CORPORATE
REPRESENTATIVES OF THE CITY OF DALLAS
TO THE HONORABLE COURT:

Defendant the City of Dallas (the "City"), hereby files its Motion to Quash (the
"Motion") Plaintiffs ("Trinity") Notices of Oral Depositions (the "Notices"), requesting that the
oral depositions of the City's corporate representatives ("Corporate Reps"), Shayne D. Moses
("Moses"), Mark Duebner ("Duebner"), and David Cossum ("Cossum") (collectively the
"Deponents") be quashed pursuant to Texas Rule of Civil Procedure 199.4, and in support of
which, shows the Court the following:
1.
The Motion is filed by the third business day after service of the Notices. (True and
correct copies of the Notices are attached hereto as Exhibit A and incorporated herein by
reference.). The depositions are automatically stayed until the Motion can be determined. See
Tex. R. Civ. P. 199.4.
2.
The City objects to the time and place designated in the Notices. Trinity unilaterally
selected the date, time, and place of the deposition. Rule 199.2(a) of the Texas Rules of Civil
Procedure states that a notice for oral deposition must be served a reasonable time before the
deposition is to be taken. Trinity has provided the City only two business days' notice for the
EXHIBIT
Defendant 's Motion to Quash
Page 1
Moses and Duebner depositions and three business days' notice of the Corporate Reps and
Cossum depositions.
Attorneys for the City do not have sufficient time to prepare for the
depositions.
3.
The City has filed its Supplemental Plea to the Jurisdiction and has scheduled it for a
hearing.
The City should not be required to produce witnesses to testify about supposed
jurisdictional facts that Trinity believes have not been provided to it, because it has already
produced voluminous written discovery in response to Trinity's requests for production. In fact,
Trinity has not identified any jurisdictional facts that it is seeking from the Deponents in either
the Notices or its Motion for Continuance of the Supplemental Plea to the Jurisdiction that it
filed with the Court on May 7, 2015.
4.
The request to take the depositions of the Deponents is oppressive, harassing, and made
solely for the purpose of delay.

5.
The City has already provided Plaintiff with extensive discovery containing jurisdictional
facts in the form of written discovery. Over 100,000 pages of documents have been provided to
Trinity and the City has otherwise identified for Plaintiff where it can obtain documents
containing jurisdictional facts on the City's website, all of which contain the necessary
jurisdictional facts regarding Trinity's claims in the lawsuit that are the subject of the
Supplemental Plea to the Jurisdiction and are more than sufficient for Trinity to respond to the
Supplemental Plea to the Jurisdiction.
6.
Additionally, Moses is an attorney of record representing the City in this case and is not a
fact witness to any matter relevant to the lawsuit, including but not limited to any jurisdictional
facts concerning the Supplemental Plea to the Jurisdiction. It is improper for a party to seek to
depose an opposing party's attorney. Trinity seeks to depose Moses solely for the purpose of
Defendant's Motion to Quash
Page2
obtaining privileged information from the City and to seek to disqualify him as counsel for the
City.
PRAYER
WHEREFORE, the City requests that the Court quash the Notices, and that the City be
granted any and all other relief, in law or at equity, to which the City may be justly entitled.
WARREN M. S. ERNST
DALLAS CITY ATTORNEY
By: s/ Christopher J. Caso

PATRICIA M. DE LA GARZA
Executive Assistant City Attorney
patricia.medrano(q)dallascityhall.com
CHRISTOPHER J. CASO
chris.casoCC.:udallascityhall.com
1500 MARILLA STREET, 7DN
Dallas, Texas 75201
214.670.3519
214.670.0622 (FAX)
MOSES, PALMER & HOWELL, L.L.P.
SHAYNE D. MOSES
smoses(q>mph-law .com
DAVID A PALMER
dpalmer@)mph-law.com
Page 3
TIMOTHY D. HOWELL
State BarNo. 24002315
thowell((i),mph-law.com
Oil & Gas Building
309 West 7th Street, Suite 815
ATTORNEYS FOR DEFENDANT
CITY OF DALLAS
I certify that I have conferred with opposing counsel regarding the subject-matter of this
Motion, and he was opposed to the Motion, therefore we have not been able to secure agreement
to the relief sought by this Motion.
Certified on the 8th day of May, 2015.
s/ Christopher J Caso
CHRISTOPHER CASO
This is to certify that on May 8, 2015, a true and correct copy of the above and
foregoing was served in accordance with the Rules 21 and 21a of the Texas Rules of
Civil Procedure, upon all counsel of record.
Is/Christopher J. Caso
Christopher J. Caso
Page4

TRIL~ITY
EAST ENERGY, LLC,
Plaintiff,
v.
Defendant.
DALLASCOUNTY,TEXAS
192"d JUDICIAL DISTRICT
PLAINTIFF'S NOTICE OF INTENT TO

TAKE ORAL DEPOSITION OF MARK DUEBNER
TO:
Mark Duebner, by and through the attorney .of record for Defendant, the City of
Dallas, Texas, Christopher J. Caso, Patricia M. de la Garza, City of Dallas, Texas,
1500 Marilla Street, 7DN, Dallas, Texas 75201.
PLEASE TAKE NOTICE that, pursuant to Rules 192.3 and 195 of the Texas
Rules of Civil Procedure, Trinity East Energy, LLC ("Plaintiff' or "Trinity East") will
take the oral deposition of MARK DUEBNER (the "Witness") in the above-referenced
and styled cause, commencing at 9:00a.m. on Monday, May 11, 2015, at the offices of
the Dallas City Attorney, 1500 Marilla Street, Dallas, Texas 75201, and will continue
from day to day until completed or otherwise mutually agreed upon by the parties. The
deposition will be conducted before an officer authorized to administer oaths and will be
recorded stenographically and may be videotaped. All counsel are invited to attend and
examine the Witness.
EXHIBIT
PLAINTIFF'S NOTICE TOT AKE ORAL DEPOSITION OF MARK DUEBNER- PAGE 1

Motion for Continuance Page 103
Dated: May 6, 2015.

By:
Is/ Christopher A. Brown

Arthur J. Anderson
aanderson@winstead.corn
Christopher A. Brown
cabrown@winstead.com
500 Winstead Building
2728 N. Harwood Street
Dallas, Texas 75201
(214) 745-5745- Phone
(214) 745-5390- Fax
--and-Jeffrey C. King
jking@winstead. corn
301 Throckmorton
Suite 1700
(817) 420-8200 - Phone
(817) 420-8201 -Fax
ATTORNEYS FOR PLAINTIFF TRINITY
EAST ENERGY, LLC
PLAINTIFF'S NOTICE TO TAKE ORAL DEPOSITION OF MARK DUEBNER- PAGE 2
I hereby certify that on May 6, 2015, a true and correct copy of the foregoing
document has been served in accordance with the Texas Rules of Civil Procedure on the
following counsel of record:
Christopher J. Caso
Patricia M. de la Garza
City of Dallas, Texas
1500 Marilla Street, 7DN
Dallas, Texas 75201
Fax 214.670.0622
chris. caso@dallasci tyhall. com
patricia. medrano@dallasci tyhall. com
Shayne D. Moses
David A. Palmer
Timothy D. Howell
Moses, Palmer & Howell, L.L.P.
Oil & Gas Building
309 W. 7th Street, Suite 815
Fort Worth, Texas 7 6102
Fax 817.255.9199
smoses@mph-law .com
dpalmer@mph-law .com
thowell@mph-law .com

ONE OF COUNSEL
DALLAS I/6526012v.l
56620-1 05/06/2015
PLAINTIFF'S NOTICE TO TAKE ORAL DEPOSITION OF MARK DUEBNER- PAGE 3


Plaintiff,
v.
Defendant.
192"ct JUDICIAL DISTRICT

TAKE ORAL DEPOSITION OF SHAYNE MOSES
TO:
Shayne Moses, Moses, Palmer & Howell, L.L.P., Oil & Gas Building, 309 W. 7th
Street, Suite 815, Fort Worth, Texas 76102, and by and through the attorney for
Defendant, the City of Dallas, Texas, Christopher J. Caso, Patricia M. de la Garza,
City of Dallas, Texas, 1500 Marilla Street, 7DN, Dallas, Texas 75201.
take the oral deposition of SHAYNE MOSES (the "Witness") in the above-referenced
and styled cause, commencing at 2:30p.m. on Monday, May 11, 2015, at the offices of
PLAINTIFF'S NOTICE TOTAKE ORAL DEPOSITION OF SHAYNE MOSES- PAGE l

Dated: May 6, 2015.

By:

Arthur J. Anderson
aanderson@winstead.com
Dallas, Texas 75201
(214) 745-5745- Phone
(214) 745-5390- Fax
jking@winstead.com
301 Throckmorton
Suite 1700
(817) 420-8200- Phone
(817) 420-8201- Fax
EAST ENERGY, LLC
PLAINTIFF'S NOTICE TO TAKE ORAL DEPOSITION OF SHAYNE MOSES- PAGE 2

Christopher J. Caso
Dallas, Texas 75201
Fax 214.670.0622
chris. caso@dallasci tyhall. com
Shayne D. Moses
David A. Palmer
Timothy D. Howell
Oil & Gas Building
Fax 817.255.9199
smoses@mph-law.com
dpalmer@mph-law.com

ONE OF COUNSEL
DALLAS 1/6526034v.1
56620-1 05/06/2015
PLAINTIFF'S NOTICE TO TAKE ORAL DEPOSITION OF SHAYNE MOSES- PAGE 3


Plaintiff,
v.
Defendant.
DALLASCOUNTY,TEXAS
PLAINTIFF'S NOTICE OF INTENT TO TAKE ORAL DEPOSITION OF

CORPORATE REPRESENTATIVE(S) OF THE CITY OF DALLAS
TO:
Defendant Corporate Representative of City of Dallas, Texas, by and through its

attorney of record, Christopher J. Caso, Patricia M. de la Garza, City of Dallas,
Texas, 1500 Marilla Street, 7DN, Dallas, Texas 75201.
PLEASE TAKE NOTICE that, pursuant to Rules 120a and 199 of the Texas Rules
of Civil Procedure, Trinity East Energy, LLC ("Plaintiff' or "Trinity East") will take the
oral deposition of the designated corporate representative( s) (the "Witness") of Defendant
City of Dallas, Texas ("Defendant" or "City of Dallas") commencing at 9:00 a.m. on
Tuesday, May 12, 2015, at the offices of at the offices of the Dallas City Attorney, 1500
Marilla Street, Dallas, Texas 75201,or at some mutually agreeable time and location, and
will continue from day to day until completed or otherwise mutually agreed upon by the
parties. The deposition will be conducted before an officer authorized to administer oaths
and will be recorded stenographically and may be videotaped. All counsel are invited to
attend and examine the Witness.
PLAINTIFF'S NOTICE TO TAKE ORAL DEPOSITION OF CORPORATE REPRESENTATIVE- PAGE l

Defendant is requested to designate-a reasonable time before the depositionone or more representatives pursuant to Tex. R. Civ. P. 199 .2(b )(I) to testify on
Defendant's behalf concerning each of the matters listed on the attached Exhibit "A."
Dated: May 6, 2015.
By:

Arthur J. Anderson
Dallas, Texas 75201
(214) 745-5745- Phone
(214) 745-5390- Fax
jking@winstead.com
301 Throckmorton
Suite 1700
(817) 420-8200- Phone
(817) 420-8201 -Fax
EAST ENERGY, LLC
PLAINTIFF'S NOTICE TOT AKE ORAL DEPOSITION OF CORPORATE REPRESENTATIVE- PAGE 2

Christopher J. Caso
Dallas, Texas 75201
Fax 214.670.0622
patricia. medrano@dallascityhall. com
Shayne D. Moses
David A. Palmer
Timothy D. Howell
Oil & Gas Building
Fax 817.255.9199
smoses@mph-law .com

ONE OF COUNSEL
PLAINTIFF'S NOTICE TO TAKE ORAL DEPOSITION OF CORPORATE REPRESENTATIVE- PAGE 3
EXHIBIT A
MATTERS ON WHICH EXAMINATION IS REQUESTED
The designated representative of Defendant must be prepared to testify regarding

the following topics:
a.
The City's Negotiation of the oil and gas leases with Trinity East;
b.
Communications with and representations made to Trinity East by

the City of Dallas and its employees regarding the availability of
drillsites within the City of Dallas city limits;
c.

the City of Dallas and its employees regarding Trinity East's
authorization to drill one or more natural gas wells within the City of
Dallas city limits;
d.
Trinity East's compliance with the City of Dallas gas well drilling
ordinance in effect at the time of Trinity East's SUP applications
submitted on the Radio Tower tract, the Gun Club tract, and the
privately-owned Luna South tracts;
e.
The basis or bases for the City Plan Commission's denial of the
three SUP applications filed by Trinity East;
f.
The basis or bases for the City Council's failure to approve the three
SUP applications filed by Trinity East by a supermajority;
g.
Internal communications among City staff or with or among

members of the City Plan Commission or with or among members of
the City Council regarding surface drilling on city park land;
h.

the City Council regarding surface drilling in the 100-year
floodplain;
1.
The City's budgetary shortfall and projected revenue gap in 2007

and 2008;
J.
The City's revenues from the leasing of oil and gas rights;
k.
The City's planning staffs recommendations on Trinity East's SUP

applications;
1.

the City Council regarding the basis or bases for the City Plan
PLAINTIFF'S NOTICE TOT AKE ORAL DEPOSITION OF CORPORATE REPRESENTATIVE- PAGE 4
Commission's denial of the three SUP applications filed by Trinity

East;
m.

the City Council regarding the basis or bases for the City Council's
failure to approve the three SUP applications filed by Trinity East by
a supermajority;
n.
Any drillsites other than those on which Trinity East sought SUPs
that the City had identified as viable alternative drillsites and for
which SUPs would have been approved;
o.
The City's document retention policies relative to the City Council,

the Plan Commission, the City Manager's Office, and the City
Attorney's Office;
p.
The City's efforts to identify, collect, review, and produce

documents responsive to Trinity East's request for production;
q.
The location and types of physical file storage and electronic file
storage maintained by the City of Dallas where any documents or
information responsive to Trinity East's requests for production
might be found.
r.
The nature and scope of the oil and gas leases between the City and
Trinity East and, in particular, whether such leases are contracts for
good or services; and
s.
Whether the negotiation and execution of an oil and gas lease is a

governmental function of the City of Dallas; and
t.
Any other factual issues raised by or germane to the City's plea to

the jurisdiction.
DALLAS 1/6526029v.1
56620-1 05/06/2015
PLAINTIFF'S NOTICE TO TAKE ORAL DEPOSITION OF CORPORATE REPRESENTATIVE- PAGE 5

Plaintiff,
v.
Defendant.

TAKE ORAL DEPOSITION OF DAVID COSSUM
TO:
David Cossum, by and through the attorney of record for Defendant, the City of
take the oral deposition of DAVID COSSUM (the "Witness") in the above-referenced
and styled cause, commencing at 2:30p.m. on Tuesday, May 12, 2015, or immediately
following the conclusion of the deposition(s) of the corporate representative(s) identified
in response to Trinity East's Notice of Deposition to the City of Dallas, at the offices of
PLAINTIFF'S NOTICE TO TAKE ORAL DEPOSITION OF DAVID COSSUM- PAGE 1

Dated: May 6, 2015.

By:

Arthur J. Anderson
Dallas, Texas 75201
(214) 745-5745- Phone
(214) 745-5390- Fax
jking@winstead.com
301 Throckmorton
Suite 1700
(817) 420-8200 - Phone
(817) 420-8201- Fax
EAST ENERGY, LLC
Christopher J. Caso
Dallas, Texas 75201
Fax 214.670.0622
Shayne D. Moses
David A. Palmer
Timothy D. Howell
Oil & Gas Building
Fax 817.255.9199
smoses@mph-law .com

ONE OF COUNSEL
DALLAS 1/6526038v.1
56620-1 05/06/2015
FILED
DALLAS COUNTY
5/7/2015 1:28:12 PM
FELICIA PITRE
DISTRICT CLERK

Plaintiff,
v.
Defendant.

192nd JUDICIAL DISTRICT
PLAINTIFFS EMERGENCY MOTION FOR CONTINUANCE OF HEARING

ON DEFENDANTS SUPPLEMENTAL PLEA TO THE JURISDICTION
Plaintiff Trinity East Energy, LLC (Trinity East) files this Emergency Motion
for Continuance (the Motion) of the hearing on Defendants Supplemental Plea to the
Jurisdiction to allow Trinity East time to complete discovery relating to jurisdictional
matters, including depositions, which the Defendant has refused to provide.
SUMMARY OF MOTION
On Wednesday, May 6, 2015, Defendant, the City of Dallas (the City), served
notice that it had set its Supplemental Plea to the Jurisdiction (the Plea) for hearing on
Tuesday, May 19, 2015. Under the Local Rules three business-day response deadline,
the Citys hearing notices provides Trinity East a mere eight (8) days in which to respond
to a 39-page Plea that raises at least 26 purported bases for a lack of jurisdiction. Though
none of the Citys jurisdictional arguments has any merit, the Citys setting of this
hearing on barely a weeks notice fails to give Trinity East an adequate opportunity to
respond to the Plea and further deprives Trinity East of its right to complete discovery
relating to matters that bear directly on the jurisdictional challenges the Plea raises.
PLAINTIFFS MOTION FOR CONTINUANCE OF HEARING ON

DEFENDANTS SUPPLEMENTAL PLEA TO THE JURISDICTION
PAGE 1
Trinity East seeks an extension of at least 30 days or until 15 days after the City
has complied with its discovery obligations and has proffered relevant witnesses for
deposition.
EMERGENCY CONSIDERATION AND RELIEF REQUESTED
Due to the nature of relief requested herein and impending deadline of May
14, 2015 for Trinity Easts response to a lengthy Plea potentially dispositive of many of
Trinity Easts claims, Trinity East respectfully requests that the Court set an emergency
hearing on this Motion and grant the relief requested herein on an expedited basis.
RELEVANT EVIDENCE IN SUPPORT OF MOTION
In support of this Motion, Trinity East submits the following evidence, true and
correct copies of which are all attached to this Motion and incorporated herein by
reference:
1.
Affidavit of Christopher A. Brown, dated May 7, 2015 (Exhibit 1) and

the following exhibits attached thereto:
A.
Plaintiffs First Set of Requests for Production to Defendant City of

Dallas, Texas, served March 20, 2014 (Exhibit 1-A);
B.
Defendants Objections and Responses to Plaintiffs First Set of

Requests for Production, served May 5, 2014 (Exhibit 1-B);
C.
Email thread between Chris Caso and Chris Brown, dating from
April 15, 2015 to April 23, 2015, regarding additional City
documents for production (Exhibit 1-C);
D.
Letter dated April 24, 2015 from Chris Brown to Chris Caso
regarding outstanding discovery issues (Exhibit 1-D);
E.
Letter dated April 30, 2015 from Chris Brown to Chris Caso
regarding the need to complete discovery prior to a hearing on the
Citys Plea (Exhibit 1-E);

PAGE 2
F.
Email dated May 6, 2015 from Chris Brown to counsel for the City
serving notices of deposition on Mark Duebner, Shayne Moses, the
corporate representative(s) for the City of Dallas, and David Cossum
(Exhibit 1-F).
RELEVANT BACKGROUND
I.
Summary of the dispute

This case concerns the Citys taking of Trinity Easts property without just
compensation in violation of the Texas Constitution, the Citys breach of a binding

contract, and the Citys fraud and misrepresentations in connection with the oil and gas
leases at issue.
In 2008 the City, acting in its proprietary capacity, sold more than 3,600 acres of
oil and gas mineral interests to Trinity East in exchange for more than $19,000,000.00
and the right to receive royalties from production from Trinity East. At the time, the City
knew that Trinity East could only benefit from this contract if Trinity East was actually
allowed to drill a number of wells on City property to produce gas. Furthermore, the City
knew that Trinity East could only benefit from this contract and other leases which it held
in the city if Trinity East was actually allowed to operate within the City. The City also
knew that for drilling and production to occur, the City would be required to issue certain
permits and other authorizations. To induce Trinity East to enter into the oil and gas
leases at issue, the City represented to Trinity East that it would be able to drill on City
property and that the City would not unreasonably withhold its consent to Trinity Easts
operations within the City. In fact, the leases specifically designated certain tracts for
Trinity Easts use as drill site locations.

PAGE 3
At the time the City made these representations and entered into the leases, the
City knew that Trinity East would not have entered into the leases or paid the City
approximately $19,000,000.00 if it would not have had access to drill site locations on
City property. The City also knew, having been pointedly advised by Trinity East, that
Trinity East would not have entered into the leases or paid the City approximately
$19,000,000 if it was not allowed to conduct operations within the City.
Despite the City having made these representations, despite the Citys contractual
obligations, despite Trinitys reliance on the ability to operate within the City to extract
gas from the City property, despite Trinitys compliance with the regulatory requirements
in place at the time, despite the Parks Departments approval of the two sites on City
property, and despite the City planning staffs recommendation of approval of those drill
sites and a third site on private property, the City refused to grant Trinity the necessary
approvals to conduct drilling and production operations. Consequently, Trinity Easts
property interest in the minerals sold by the City became worthless. Further, despite
denying Trinity East the permits necessary to explore for and produce the minerals sold,
the City retained and has benefitted from the more than $19,000,000.00 paid by Trinity
East for the mineral leases.
Trinity East spent over $30 million in reliance upon the Citys promises and lost
hundreds of millions more in lost profits. By this suit, Trinity East seeks to hold the City
accountable for its conduct and to recover the damages caused by the Citys
unconstitutional actions, its blatant breach of the agreement between the parties, and its
fraudulent conduct.
PAGE 4
II.
Status of discovery from the City

Over one year ago and shortly after commencing this lawsuit, Trinity East served
requests for production of documents to the City. 1 The City and Trinity East then
commenced rolling productions of documents that continue to the date of this Motion. 2
Between June 2014 and November 2014, the City produced over 114,000 pages of
documents, email, and other data. 3 On January 12, 2015, at a hearing on the parties
Stipulation and Agreed Protective Order Regarding Confidential Information, Chris
Caso, counsel for the City informed the Court and Trinity East that the City intended to
file a supplemental plea to the jurisdiction in the weeks following that hearing. 4 The City
waited over four months to file its Plea. Despite its proclaimed intent to file the Plea, the
City made available for inspection four additional boxes of documents in April 2015,
from which approximately 1,000 pages have been tagged as potentially responsive. 5
Prior to April 29, 2015, the Citys responses to the requests for production and the
Citys documents produced in response were not limited to matters of jurisdictional
relevance. Instead, the City participated in a years worth of discovery concerning the
merits of this case without seeking or demanding any limitation based on a perceived lack
of jurisdiction over any of Trinity Easts claims.
On April 15, 2015, counsel for the City advised that the City had located
approximately 6,000 additional new responsive emails. 6 Counsel further advised that
1
2
3
4
5
6
See Exhibit 1-A, Exhibit 1-B.

See Exhibit 1.
See Exhibit 1.
See Exhibit 1.
See Exhibit 1.
See Exhibit 1-C.

PAGE 5
even more emails were expected. 7 Relying on the parties past cooperation in discovery,
Trinity Easts counsel reasonably expected these documents to be produced in due course
to allow for the completion of discovery and depositions. Despite repeated requests,
however, counsel for the City has refused to provide even approximate dates for the
production of these additional files and has refused to permit the depositions of City
employees and representatives. 8
III.
The Citys Plea to the Jurisdiction

Instead, the City filed its long-threatened Supplemental Plea on April 29, 2015,
and has now set the Plea it worked on for four months, following the remarks to the Court
on January 12, 2015, for a hearing on May 19, 2015. The City set this hearing without
regard to the Citys acknowledgment that additional responsive documents have not been
produced and the Citys refusal to permit depositions.
The hearing setting scheduled by the City, of which notice was served on May 6,
2015, gives Trinity East only eight (8) days to prepare and file a response to at least 26
separate bases for an alleged lack of jurisdiction over Trinity Easts claims and, without
the continuance sought, would require Trinity East to respond without the benefit of the
full and complete discovery to which Trinity East is entitled and that is necessary for
Trinity East to respond to the Plea.
Counsel for Trinity East has asked the City in writing at least three times to agree
to produce the additional responsive documents and to permit the depositions of City
7
8
See Exhibit 1-C.

Exhibit 1.

PAGE 6
employees and representatives on topics of jurisdictional relevance. 9 The City has yet to
respond to Trinity Easts written requests. Counsel for the City, however, has verbally
advised Trinity Easts counsel that the City does not intend to produce the additional
documents or make any witnesses available for deposition prior the hearing on its Plea. 10
ARGUMENT AND AUTHORITIES
I.
The Courts authority to consider jurisdictional evidence supports a

continuance for further discovery
In evaluating a plea to the jurisdiction, this Court must construe the pleadings
liberally in Trinity Easts favor and look to Trinity Easts intent. City of Dallas v. Heard,
252 S.W.3d 98, 102 (Tex. App.Dallas 2008, pet. denied). To succeed on its plea, the
City has the burden to assert and support, with evidence, its contention that the Court
lacks subject matter jurisdiction. Id. If it does so, the plaintiff must raise a material fact
issue regarding jurisdiction . . . . Id.
Consideration of evidence in deciding a plea to the jurisdiction is proper where a
petition does not affirmatively negate the courts jurisdiction.
See Heckman v.
Williamson County, 369 S.W.3d 137, 150 (Tex. 2012); Tex. Dept of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).
Trinity East submits that its First
Amended Petition (the Petition) affirmatively establishes this Courts jurisdiction over
each of Trinity Easts claims.
At a minimum, Trinity Easts Petition does not
affirmatively negate jurisdiction. The City contends otherwise, but offers no evidence in
support of its Plea.
9
10
Nevertheless, the Plea introduces issues that potentially make
See Exhibits 1-C, 1-D, 1-E.

See Exhibit 1.

PAGE 7
jurisdictional facts and evidence relevant.
Accordingly, the Court may entertain
jurisdictional evidence in this case to the extent Trinity Easts Petition, on its face, does
not defeat the Citys Plea. Id.
Because evidence may be admissible to determine jurisdictional facts, Trinity East
is entitled to a reasonable opportunity for discovery and time to gather evidence and
prepare for a hearing on the Plea. Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 642-43 (Tex. 2012); see also Miranda, 133 S.W.3d at 229 (Of course,
Texas practice and rules also allow the parties to request additional time to prepare for
certain hearings or to conduct discovery upon a showing of sufficient cause, and the
courts ruling on such a motion is reviewed for an abuse of discretion.); In re Tex. Dept
of Ins., No. 13-10-00471-cv, 2010 Tex. App. LEXIS 7626, *5-6 (Tex. App.Corpus
Christi Sept. 14, 2010, orig. proceeding) (confirming that the grant of a continuance for
further discovery before hearing on plea to the jurisdiction was not an abuse of
discretion).
Until the filing of its Plea, the City participated in cooperative efforts by both
parties to exchange documents and information relevant to all of Trinity Easts claims.
The sheer number of documents produced by the City to-date demonstrates that the
Citys production has not been limited to matters of jurisdictional relevance. Yet now the
City refuses to delay the hearing on its Plea until such time as it has reviewed and
produced the more than 6,000 additional emails and other documents the City admits
exist yet contends it only recently discovered. The Citys admission of a need to review

PAGE 8
the documents belies any assertion by the City that none of the documents are relevant to
the jurisdictional questions raised by the Plea.
II.
Trinity East seeks discovery relevant and material to jurisdictional issues

Trinity East has also sought relevant and material deposition testimony from the
City, which the City has refused. Specifically, Trinity East requested the depositions of
Mark Duebner (former Assistant City Manager who made certain representations to
Trinity East during the negotiations of the leases and prior to the closing date), Shayne
Moses (the person who drafted and negotiated the leases with Trinity East), David
Cossum (Trinity Easts contact at the City of Dallas during the permitting process), and
one or more City representatives requested to testify on a list of topics included in letters
dated April 24, 2015 and April 30, 2015 from Trinity Easts counsel to the Citys
counsel. 11 In response to the notice of hearing on the Plea, Trinity East served the City
with notices of deposition for each of the foregoing on May 6, 2015. 12 As of the time of
the filing of this Motion, counsel for the City has advised Trinity Easts counsel that the
City will file motions to quash each of the noticed depositions.
The documents and depositions sought bear directly on the jurisdictional issues
raised by the Citys Plea. By way of example only, the following arguments in the Citys
Plea raise questions of fact demonstrating the need for the following discovery sought by
Trinity East:
11
12
See Exhibits 1-D, 1-E.

See Exhibit 1-F.

PAGE 9
Citys Plea
Discovery necessary
The City claims immunity from Trinity

Easts breach of contract claim, fraud,
fraud by nondisclosure, statutory fraud,
promissory estoppel, negligent
misrepresentation, and for attorneys fees
because, if the governmental/proprietary
distinction applies, governmental functions
were involved.
Trinity East seeks documents and

deposition testimony relating to whether
the negotiation and execution of oil and gas
leases and the representations made to
induce Trinity East to enter into the oil and
gas leases are governmental functions of
the City.

Easts breach of contract claim because the
oil and gas leases allegedly were not
contracts for goods or services.

deposition testimony relating to how the
City characterizes oil and gas leases and
whether such contracts are contracts for
goods or services.

Easts breach of contract claim because
Trinity East does not seek the balance due
and owed under the leases.

deposition testimony relating to whether
the City owes Trinity East: (i) the more
than $19,000,000.00 that Trinity East paid
for leases that the City rendered worthless
by denying the drilling permits, and (ii) the
consequential losses Trinity East incurred
as a direct and necessary consequence of
the Citys breach.

Easts promissory estoppel claim because
Trinity East allegedly failed to assert any
promise by the City Council and because
promises by City employees cannot bind
the City.

deposition testimony regarding the
authority of City employees who made
specific promises and representations to
Trinity East that induced Trinity East to
enter into the oil and gas leases.

Easts tort claims because each allegedly
requires a representation or
misrepresentation of existing fact, yet the
City maintains no such representations
were made.

deposition testimony regarding the
representations made by the City and
regarding the facts surrounding the Citys
intent at the time of such representations to
Trinity East.

PAGE 10
Citys Plea
The city claims immunity from Trinity
Easts tort claims because each allegedly
fails to assert reasonable reliance.
Discovery necessary
deposition testimony regarding the nature
of the representations made, the person or
persons who made such representations;
and the facts surrounding such
representations to support Trinity Easts
reasonable reliance on affirmative and
negligent misrepresentations and
omissions.
As reflected in the chart above, Trinity East seeks and is entitled to complete
responses to the discovery it served over a year ago and to deposition testimony from the
Citys employees and representatives to explore the facts relating to the Citys
jurisdictional challenge.
Moreover, the documents the City has produced to-date have yielded information
relevant to the jurisdictional inquiry. For example, Trinity has reviewed documents
reflecting the sentiments of no fewer than two City Council members who asked if the
City could simply deny the SUPs when submitted by Trinity East. Such an inquiry seems
innocuous until placed in the context of the date on which it was raisedFebruary
2008six months before the City and Trinity East had even executed the leases. This
evidence bears directly on the issue of the misrepresentation of an existing fact that the
City contends is necessary for Trinity Easts tort claims.
The existence of documents such as these that bear on the jurisdictional issues
illustrates the necessity of full and complete discovery before this Court considers the
Plea and determines its jurisdiction over Trinity Easts claims.

PAGE 11
III.
Continuance of hearing serves justice and judicial economy

Trinity East does not seek this continuance solely for the purposes of delay but so
that Trinity East might have an adequate opportunity to respond to the dispositive
jurisdictional claims asserted in the Citys Plea and so that justice may be done.
Because this Courts ruling on the Plea will be subject to interlocutory appeal by
either party, it is imperative that the Court have at its disposal all the relevant facts and
arguments regarding its jurisdiction so that the issue is not decided at this stage only to be
remanded to the Court for consideration of additional facts not presently available to
Trinity East.
Thus, the full and complete development of relevant facts serves the
interests of justice and of judicial economy.

CONCLUSION AND PRAYER
Plaintiff Trinity East, therefore, respectfully requests that the Court grant this
Motion for Continuance and enter an order continuing the hearing on Defendants
Supplemental Plea to the Jurisdiction for 30 days or until 15 days after Defendant has
produced any additional responsive documents and information in its possession and has
made available for deposition the witnesses sought by Trinity East for purposes of
exploring jurisdictional facts pertinent to the Citys Plea so that Trinity East might have
the opportunity to make a full and complete response to the Citys Plea.
Dated: May 7, 2015.

PAGE 12
By: /s/ Christopher A. Brown

Arthur J. Anderson
Dallas, Texas 75201
(214) 745-5745 Phone
(214) 745-5390 Fax
-- and -Jeffrey C. King
jking@winstead.com
301 Throckmorton
Suite 1700
(817) 420-8200 Phone
(817) 420-8201 Fax
EAST ENERGY, LLC

PAGE 13
Christopher J. Caso
Dallas, Texas 75201
Fax 214.670.0622
Shayne D. Moses
David A. Palmer
Timothy D. Howell
Oil & Gas Building
Fax 817.255.9199
smoses@mph-law.com
dpalmer@mph-law.com
thowell@mph-law.com
/s/ Christopher A. Brown

ONE OF COUNSEL
The undersigned hereby certifies that on May 7, 2015, counsel for Plaintiff
conferred with counsel for Defendant concerning the details of the relief requested
herein, and Defendant is opposed to the continuance sought by this Motion.
One of Counsel

PAGE 14
VERIFICATION
The factual allegations and bases for the continuance requested in the above
Motion for Continuance of Hearing on Defendants Supplemental Plea to the Jurisdiction
are within personal knowledge of the undersigned Declarant as counsel for Plaintiff
Trinity East Energy, LLC, and are true and correct.
My name is CHRISTOPHER A. BROWN; my date of birth is January 7, 1976;
and my address is 2728 N. Harwood Street, Suite 500, Dallas, Texas 75201, USA. I
declare under penalty of perjury that the foregoing is true and correct.
Executed in DALLAS County, State of Texas on the 7th day of May, 2015.
Christopher A. Brown,

6525283v.3
Declarant
PAGE 15

Plaintiff,
v.
Defendant.

AFFIDAVIT OF CHRISTOPHER A. BROWN

STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, me notary public, on this day personally appeared CHRISTOPHER

A. BROWN, who being first duly sworn according to law, upon his oath deposed and
stated as follows:
1.
My name is Christopher A. Brown. I am over the age of twenty-one years
(21), have never been convicted of a felony or a crime of moral turpitude, and am
otherwise competent to make this affidavit. I am a shareholder at Winstead PC, and am
an attorney of record for Plaintiff Trinity East Energy, LLC (Trinity East), in the
above-referenced and styled lawsuit (the Lawsuit). The facts set forth in this affidavit
are within my personal knowledge as or have come to be known to me by and through
my representation of Trinity East in the Lawsuit and are true and correct.
2.
Over one year ago and shortly after commencing this lawsuit, Trinity East
served requests for production of documents to Defendant, the City of Dallas, Texas
(the City).
A true and correct copy of Trinity Easts First Set of Requests for
AFFIDAVIT OF CHRISTOPHER A. BROWN - Page 1
Production of Documents that was served on the City on March 20, 2014 is attached
hereto as Exhibit 1-A and incorporated herein by reference. A true and correct copy of
the Citys Objections and Responses to Plaintiffs First Request for Production served on
May 5, 2014 is attached hereto as Exhibit 1-B and incorporated herein by reference.
3.
The City and Trinity East then commenced rolling productions of
documents that continued until the City filed its Supplemental Plea to the Jurisdiction
(the Plea) on April 29, 2015.
4.
Between June 2014 and November 2014, the City produced over 114,000
pages of documents, email, and other data without regard to whether such documents,
email, and other data related to jurisdictional issues.
5.
On January 12, 2015, at a hearing on the parties Stipulation and Agreed
Protective Order Regarding Confidential Information, Chris Caso, counsel for the City
informed the Court and Trinity East that the City intended to file a supplemental plea to
the jurisdiction in the weeks following that hearing.
6.
The City, however, waited over four months to file its Plea.
7.
Despite its proclaimed intent to file the Plea shortly after the hearing on
January 12, 2015, the City continued to produce documents and made available for
inspection four additional boxes of documents in April 2015, from which approximately
1,000 pages have been tagged as potentially responsive.
8.
On April 15, 2015, counsel for the City advised that the City had located
approximately 6,000 additional new responsive emails. Attached hereto as Exhibit 1-C
is a true and correct copy of a series of emails between me and Chris Caso concerning the
substantial number of additional documents located by the City more than one year after
Trinity East served its discovery requests. Counsel advised that even more emails were
expected.
9.
Despite repeated requests, counsel for the City has refused to provide even
approximate dates for the production of these additional files.

10.
On April 24, 2015, after conferring with counsel for the City, I sent a letter
to Chris Caso concerning outstanding discovery issues and specifically requested a date
for the production of the additional emails and other documents by the City and dates for
the depositions of Mark Duebner (former Assistant City Manager who made certain
representations to Trinity East during the negotiations of the leases and prior to the
closing date), Shayne Moses (the person who drafted and negotiated the leases with
Trinity East), David Cossum (Trinity Easts contact at the City of Dallas during the
permitting process), and one or more City representatives requested to testify on a list of
topics included in the April 24, 2015 letter. A true and correct copy of the April 24, 2015
letter to Chris Caso is attached hereto as Exhibit 1-D and incorporated herein by
reference.
11.
On April 30, 2015, after receiving the Citys Plea, I sent another letter to
Chris Caso concerning Trinity Easts need to complete document discovery and take the
requested depositions for purposes of responding to the Citys Plea. A true and correct
copy of the April 30, 2015 letter to Chris Caso is attached hereto as Exhibit 1-E and
incorporated herein by reference.
12.
As of the date of this Affidavit, neither I nor any other counsel for Trinity
East has received any written response to the matters raised in either the April 24, 2015
letter or the April 30, 2015 letter.
13.
On or shortly after April 29, 2015 when the City filed its Plea, Chris Caso,
counsel for the City, verbally advised me during a phone call that the City did not intend
to produce additional documents prior to setting its Plea for hearing and that the City did
not intend to make any witnesses available for deposition prior to disposition of the Plea.
Counsel for the City has made no further response in writing or verbally to my requests to
produce the additional documents or make witnesses available for deposition.
14.
In response to the notice of hearing on the Plea, on May 6, 2015 Trinity
East served the City with notices of deposition for each of Mark Duebner, Shayne Moses,
David Cossum, and one or more City representatives requested to testify on a list of
topics included in the April 24, 2015 letter and the April 30, 2015 letter. A true and
correct copy of my email dated May 6, 2015 serving the above notices of deposition is
attached hereto as Exhibit 1-F and incorporated herein by reference.
FURTHER AFFIANT SAYETH NOT.
SUBSCRIBED AND SWORN TO BEFORE ME on this the
4^~day of May,
2015 to certify which witness my hand and seal.

JULIE K. GARRETT
Notary Public
STATE OF TEXAS
My Comm. Exp. July 17.2017
I
Notary
in and for the State of Texas

6526127v.l

Plaintiff,
v.
Defendant.

PLAINTIFFS FIRST SET OF REQUESTS FOR PRODUCTION TO

DEFENDANT CITY OF DALLAS, TEXAS
TO:
Defendant, the City of Dallas, Texas, by and through its attorney of record,
Christopher J. Caso, Sr. Assistant City Attorney, 1500 Marilla Street, 7DN,
Dallas, Texas 75201.
Pursuant to Rules 193 and 196 of the Texas Rules of Civil Procedure, Plaintiff
Trinity East Energy, LLC, (Plaintiff or Trinity East) hereby requests Defendant City
of Dallas, Texas (Defendant or You) to produce the requested documents and allow
inspection of certain items by making them available for inspection and copying within
30 days after service of this Request. Plaintiff requests that such documents and items be
produced at the offices of Winstead PC, 2728 N. Harwood, Suite 500, Dallas, Texas
75201, or such other place that is mutually agreed upon by the parties.
Plaintiff further requests that You supplement Your Responses by providing
additional documents, without the necessity for requests for supplementation, as You or
any other person acting on Your behalf may hereafter generate or obtain and/or which
augment or otherwise modify the initial responses given to Plaintiffs First Set of
Requests for Production. Such supplemental responses, if any, together with any
PLAINTIFFS FIRST SET OF REQUESTS FOR
PRODUCTION TO DEFENDANT CITY OF DALLAS, TEXAS
1-A
PAGE 1
additional documents, shall be filed and served upon Plaintiffs attorney immediately
after Your receipt or generation of such documents.

Arthur J. Anderson
WINSTEAD PC
Dallas, Texas 75201
(214) 745-5745 Phone
(214) 745-5390 Fax
and
Jeffrey C. King
jking@winstead.com
WINSTEAD PC
777 Main Street, Suite 1100
(817) 420-8200 Phone
(817) 420-8201 Fax
ATTORNEYS FOR PLAINTIFF
TRINITY EAST ENERGY, LLC

PAGE 2
I hereby certify that a true and correct copy of the foregoing instrument was served
upon all counsel of record in accordance with the Texas Rules of Civil Procedure as set
forth below on this 20th of March, 2014.
Christopher J. Caso
Dallas, Texas 75201
Fax 214.670.0622
Shayne D. Moses
David A. Palmer
Timothy D. Howell
Oil & Gas Building
Fax 817.255.9199
smoses@mph-law.com
dpalmer@mph-law.com
thowell@mph-law.com
via Certified Mail, RRR

via U.S. Mail (First Class)
via Federal Express
via Facsimile
via E-mail
via Hand Delivery
via Certified Mail, RRR

via U.S. Mail (First Class)
via Federal Express
via Facsimile
X via E-mail
via Hand Delivery


PAGE 3
I
INSTRUCTIONS
1.
These requests are addressed to Defendant and any employee, agent,
representative and/or attorney acting on Defendants behalf. If the requested documents
are in the possession or custody of a third party, who, at the Defendants direction, may
be required to produce such documents, please direct such individual or entity to produce
all responsive documents.
Unless otherwise specified in any request, or unless the context suggests

otherwise, the time period covered by these requests is from January 1, 2006 until the
time of trial in this matter, which time period may be referred to herein as the relevant
time period.
2.
These requests are intended to cover all documents and tangible things in
Defendants current or former possession, custody or control, including constructive
possession, pursuant to Rule 196.3.
3.
4.
In responding, schedule all documents and tangible things or groups of
documents and tangible things responsive to each Request. If no responsive documents or
tangible things can be found with respect to a particular Request, state such fact in the
written response hereto.
Pursuant to Rules 193.2 and 193.3 of the Texas Rules of Civil Procedure, if
you reasonably maintain that any of the following requests are privileged or otherwise
objectionable, respond to each request and each part that is not, in your view, privileged
or objectionable. Separately identify each part of each requests to which you raise a
claim or privilege or an objection, specify each and every ground upon which such claim
of privilege or objection is based, and specifically identify any document or tangible
thing that you refuse to produce under a claim of privilege or work product or under any
other assertion that it is not discoverable, as defined and allowed under Texas Law,
identify the date, author, recipient, type, and subject matter of each document, and
describe the basis of each claim of privilege or work product or assertion of nondiscoverability for each such document or tangible thing not produced. A formal
privilege log is hereby requested.
5.
If any document or tangible thing requested was at one time in existence, but
no longer exists, please so state, specifying for each document or tangible thing:
6.
(a)
The type of document or tangible thing;
(b)
The type of information contained therein;
(c)
The date upon which it ceased to exist;

PAGE 4
(d)
The circumstances by which it ceased to exist; and
(e)
The identity of all persons having knowledge of the contents of such

document or tangible thing.
7.
The conjunction or, as used in these requests, does not limit any part of
said request but, whenever applicable, should be given the same meaning as the word
and. For purposes of these requests, the singular includes the plural and the plural
includes the singular.
8.
Any includes the word all, and all includes the word any.
This request for discovery is continuing and the obligation to produce the
documents and tangible things requested herein is intended to be of a continuing nature
so that if at any time subsequent to the filing of responses to this Request you should
acquire possession, custody or control of any additional documents or tangible things
within the scope of this Request or which would alter or change in any way a response
made or which was not included in the responses to the Request below, such additional
information shall be furnished to Plaintiffs counsel as soon as possible without further
request.
9.
If any request herein cannot be complied with in full, it shall be complied

with to the extent possible with an explanation as to why full compliance is not possible.
10.
11.
Pursuant to Rule 196.4, these requests specifically include requests for
responsive data and information that exists in electronic or magnetic form. To the extent
reasonably possible, that data and information should be produced on a CD(s) or DVD(s)
in pdf. or tif. format. To the extent that data and information cannot reasonably be
produced in such a form, Plaintiffs request that such data be produced in its native
format and that any such data also be printed and produced in paper form.
II
DEFINITIONS
1.
As used herein, the term Plaintiff shall mean Trinity East Energy, LLC,
individually and collectively, and its agents, representatives, partners, associates,
employees, accountants, lawyers, advisors, brokers, consultants, trustees, beneficiaries,
joint venturers, predecessors in interest, successors in interest, and any other persons
acting or purporting to act on its behalf or under its direction.
2.
As used herein, the terms You, Your, Yourself, and the City shall
mean Defendant City of Dallas, Texas and its agents, representatives, partners, associates,
employees, accountants, lawyers (including, without limitation, Shayne Moses and any
other attorney at Moses, Palmer & Howell, L.L.P.), advisors, brokers, consultants,
PAGE 5
trustees, council members, board members, the members of any committee or

subcommittee formed by the City, beneficiaries, joint venturers, predecessors in interest,
successors in interest, and any other persons acting or purporting to act on its behalf or
under its direction.
3.
As used herein, the phrase oil and/or gas development shall mean any
activity relating to or associated with the exploration for or development or production of
oil or natural gas.
4.
As used herein, the term SUP shall mean specific use permit(s).
5.
As used herein, the term Leases shall mean the following oil and gas
leases between the City and Trinity East (each a Lease):
a)
Oil and Gas Lease (Paid-Up Lease) (Group 1 Tracts), dated August
15, 2008 between the City and Trinity East, as amended (the Group
1 Lease), which is attached to Plaintiffs First Request for
Admissions served herewith as Exhibit A; and
b)
Oil and Gas Lease (Paid-Up Lease) (Group 2A Tracts), dated August
15, 2008 between the City and Trinity East, as amended (the Group
2A Lease), which is attached to Plaintiffs First Request for
Admissions served herewith as Exhibit B.
6.
As used herein, the term Radio Tower Tract shall mean that certain
22.479 acres of land in Dallas County, Texas, described as Tract 137: Proposed Drill
Site Location in Exhibit A to the Group 1 Lease.
7.
As used herein, the term Gun Club Tract shall mean that certain 5.775
acre tract, described as follows:
Being a tract of land situated in the William A. Downing Survey, Abstract No.
391, Dallas County, Texas and being a portion of those certain tracts of land as
described in deeds to the City of Dallas as recorded in Volume 120, Page 1470 and
Volume 452, Page 962 of the Deed Records of Dallas County, Texas and being
more particularly described by metes and bounds as follows:
COMMENCING at a 3/4 inch iron rod found in concrete at the original
southeasterly corner of the Hasty Incorporated Addition, an addition to the City of
Dallas as recorded in Volume 86236, Page 1816 of the Deed Records of Dallas
County, Texas and being the intersection of the original westerly right-of-way line
of Luna Road (80 R.O.W. previously 60 R.O.W.) and the northerly right-ofway line of Northwest Highway (State Highway Spur 348 Variable width
R.O.W.);

PAGE 6
THENCE North 74 degrees 16 minutes 10 seconds West, along the southerly line
of said Hasty Incorporated Addition and the northerly right-of-way line of said
Northwest Highway, a distance of 447.90 feet to a 3/4 inch iron rod found at the
southwesterly corner of said Hasty Incorporated Addition;
THENCE North 74 degrees 16 minutes 10 seconds West, continuing along the
northerly right-of way line of said Northwest Highway, a distance of 783.35 feet
to a point for corner;
northerly right-of way line of said Northwest Highway, a distance of 12.19 feet to
a 5/8 inch iron rod set with RPLS 5539 cap for the POINT OF BEGINNING;
to a 5/8 inch iron rod set with RPLS 5539 cap for a corner;
THENCE North, departing the northerly right-of way line of said Northwest
Highway, a distance of 168.15 feet to a 5/8 inch iron rod set with RPLS 5539
cap for a corner;
THENCE East, a distance of 226.85 feet to a 5/8 inch iron rod set with RPLS
5539 cap for a corner;
THENCE North 77 degrees 31 minutes 06 seconds East, a distance of 56.30 feet to
a 5/8 inch iron rod set with RPLS 5539 cap for a corner;
THENCE East, a distance of 567.32 feet to a 5/8 inch iron rod set with RPLS
5539 cap for a corner;
THENCE South, a distance of 419.49 feet to the POINT OF BEGINNING and
Containing 5.775 acres of land, more or less.
8.
As used herein, the term Luna South Tract shall mean that certain 11.584 acres
tract, described as follows:
Being a tract of land situated in the William Babbett Survey, Abstract No. 155,
Dallas County, Texas and being a portion of that certain tract of land as described
in Special Warranty Deed to TCI Luna Ventures LLC, as recorded in Document
No. 20080106100 of the Official Public Records of Dallas County, Texas and also
being a portion of City Block 8376, and being more particularly described by
metes and bounds as follows (All bearings shown hereon are based on the Texas
State Plane Coordinate System, North Central Zone):

PAGE 7
BEGINNING at a 3/4 inch iron rod found on the easterly right-of-way line of
Luna Road (a 60 foot Right-Of-Way) and the southwesterly corner of a tract of
land as described to Alma S. Jackson as recorded in Probate Document No. 690061 of the Probate Records of Dallas County, Texas;
THENCE South 89 degrees 51 minutes 38 seconds East, (Record North 88
degrees 57 minutes 03 seconds East, 224.50 feet) departing the easterly right-ofway line of said Luna Road and along the southerly line of said Jackson tract, a
distance of 223.58 feet, to an axle found for corner;
THENCE South 89 degrees 43 minutes 46 seconds East, (Record North 89
degrees 39 minutes 39 seconds East, 1249.14 feet) continuing along the southerly
line of said Jackson tract, a distance of 1250.17 feet, to an axle found at the
southeasterly corner of said Jackson tract and also being the on the westerly rightof-way of a tract of land as described to the City of Dallas (100 foot wide Rightof-Way) as recorded in Volume 86057, Page 342 of the Deed Records of Dallas
County, Texas;
THENCE South 08 degrees 48 minutes 22 seconds West, (Record South 08
degrees 11 minutes 26 seconds West, 873.82 feet) along the westerly right-of-way
of said City of Dallas tract and along the westerly right-of-way line of the
Burlington Northern Santa Fe Railway Company tract, a distance of 869.34 feet to
an axle found at the northeasterly corner of the ONeal Metal, L.P. tract as
recorded in Volume 99004, Page 5754 of the Deed Records of Dallas County,
Texas;
degrees 52 minutes 18 seconds West, 433.29 feet) departing the westerly right-ofway line of said Burlington Northern Santa Fe Railway Company and along the
northerly line of said ONeal Metals tract, a distance of 433.29 feet to a 5/8 inch
iron rod found for a corner;
degrees 43 minutes 00 seconds West, 678.60 feet) continuing along the northerly
line of said ONeal Metals tract, a distance of 76.29 feet to a point for corner;
THENCE North 08 degrees 48 minutes 22 seconds East, a distance of 805.97 feet
THENCE North 89 degrees 43 minutes 46 seconds West, a distance of 731.15 feet
THENCE North 89 degrees 51 minutes 38 seconds West, a distance of 241.87 feet
to a point for corner on the aforementioned easterly right-of-way line of Luna
Road;
THENCE North 15 degrees 15 minutes 26 seconds East, along the easterly rightof-way line of said Luna Road a distance of 70.44 feet to the POINT OF
PAGE 8
BEGINNING and containing 11.584 acres of land or 504,587 square feet, more or
less.
9.
As used herein, the term document shall mean and include all
documents and tangible things to the broadest extent included and described in
Rule192.3(b) of the Texas Rules of Civil Procedure, including, but not limited to, the
originals and all drafts or copies of: all letters, reports, memoranda, studies, books,
drawings, photographs, publications, diaries, contracts, ledgers, telegrams, cables, telex
messages, correspondence, books of account, balance sheets, journals, credit memoranda,
minutes, resolutions, interoffice communications, bulletins, notices, summaries,
calendars, notes, magnetic or phonographic recordings, videotapes, models, prototypes,
statements, invoices, cancelled checks, computer printouts, flow charts,
electrocardiographs, X-rays, e-mail, back-up computer tapes, electroencephalograms,
radiographic records, checkbooks, agenda, agreements, analyses, bills, invoices, records
of obligations and expenditures, corporate bylaws and charters, correspondence, diaries,
files, legal documents, financial documents including balance sheets and profit and loss
statements, letters, memoranda recording telephone or in-person conferences, manuals,
books, press releases, purchase orders, records, schedules, memoranda of interviews,
evaluations, written reports of tests or experiments, public relations releases, telegrams,
teletypes, work papers, drafts of documents, and all other writings whose contents relate
to the subject matter of the discovery request, including communications not only in
words, but in symbols, pictures, sound recordings, film, tapes, and information stored in,
or accessible through, computer, computer disk (internal or external, and including but
not limited to hard disks, floppy disks, CDs, DVDs, zip drives, and similar media),
computer database or databank, computer readable tape, or other information storage or
retrieval systems. If the information is kept in a computer or informational storage or
retrieval system, the term also includes codes and programming instructions and other
materials necessary to understand and use such systems.
10.
Additionally, document shall include data or information existing in
electronic or magnetic form. All electronic and/or magnetic data or media is to be
produced in paper form and electronic or magnetic form. All electronic or magnetic data
or media are to be produced on either a DVD or CD-ROM. Image files are to be
produced in searchable single-page TIFF, GIF, JPEG or PDF formats with Summation
load files. Spreadsheet information shall be downloaded in a form compatible with Lotus
or Excel. Any presentation format shall be downloaded in a form compatible with
Microsoft PowerPoint. All other electronic or magnetic data shall be produced in ASCII
format and, for any field-based data, produced in an ASCII delimited text format
identifying the delimiters. All word processing information shall be downloaded to an
IBM compatible disk for Word Perfect 6.0 or higher or Microsoft Word 6.0 or higher.

PAGE 9
11.
As used herein, the term Person shall mean natural person(s), private or
public corporation(s), general partnership(s), limited partnership(s), sole
proprietorship(s), union(s), association(s), federation(s), government agency(ies), or any
other kind of entity or organization.
12.
Communication or communications means any transmittal of
information, of any kind, between or among two or more persons without regard to
whether such information was transmitted orally, in writing, electronically, visually, or
by any other means. For the purposes of these requests, communication or
communications specifically includes electronic mail (e-mail) communication,
instant messaging, text messaging, and any other form of electronic communication.
13.
Pertaining to or relating to means relating to or regarding in any way,
and includes not only the subject of the immediate Request, but also all documents that
memorialize, describe, substantiate, support, reflect or bear upon, either directly or
indirectly, any meeting, conference, conversation or communication, whether oral or
written, regarding the subject of the immediate Request.
14.
And as well as or shall be construed either disjunctively or
conjunctively as necessary to bring within the scope of the Document Request any and all
information and/or responses that might otherwise be construed as outside its scope.
15.
The term Lawsuit shall mean the above-entitled and numbered cause
currently pending and in which these Requests for Production are propounded.
16.
The term Petition shall mean Plaintiffs most recent petition on file with
the Court in this Lawsuit.
17.
The term Answer shall mean Defendants most recent response, answer,
and/or counterclaim on file with the Court in this Lawsuit.
18.
These requests seek all documents in your possession, custody, or control,
which includes electronic records maintained by internet service providers (ISPs), e-mail,
and web hosting services.
III
REQUESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 1:
All documents relating to the Citys leasing of public lands for potential oil and/or gas
development;
RESPONSE:

PAGE 10

All documents relating to Trinity East or to its principals, Thomas Blanton and/or Steve
Fort.
RESPONSE:

All leases and other agreements and/or contracts between the City and Trinity East.
RESPONSE:

All documents reflecting or relating to requests for proposals prepared by or for, and/or
issued by, the City for oil and/or gas leases on City-owned property.
RESPONSE:

All documents reflecting or relating to bids submitted in response to the Citys requests
for proposals for oil and/or gas leases for drilling on City-owned property.
RESPONSE:

All documents reflecting or relating to oil and/or gas leases executed by or on behalf of
the City and any amendments, supplements, extensions, or other modification thereto,
including, without limitation, the leases between the City and Trinity East.
RESPONSE:

PAGE 11

All documents reflecting or relating to the negotiation of any and all oil and/or gas leases
between the City and Trinity East, including, without limitation, all drafts, proposals,
reports, notes, memos, and communications relating thereto.
RESPONSE:

All documents authorizing or reflecting the authority of City Manager Mary Suhm to
negotiate and execute oil and gas leases, including without limitation the Trinity East
leases, on behalf of the City.
RESPONSE:

All documents demonstrating or reflecting that City Manager Mary Suhm lacked the
authority to negotiate and execute oil and gas leases, including, without limitation the
Trinity East leases, on behalf of the City.
RESPONSE:

All SUP requests or applications submitted to the City by any party seeking to undertake
exploration for oil and/or gas within the Dallas city limits.
RESPONSE:

All documents reflecting or relating to any recommendation made by City staff,
employees, or consultants concerning any SUP requests or applications submitted to the
City by any party seeking to undertake exploration for oil and/or gas within the Dallas
city limits.
RESPONSE:

PAGE 12

All documents reflecting or relating to each SUP approval for exploration for oil and/or
gas within the Dallas city limits.
RESPONSE:

All documents reflecting or relating to each SUP denial for exploration for oil and/or gas
within the Dallas city limits.
RESPONSE:

All documents referring to surface tracts considered or proposed for use in oil and/or gas
exploration within the Dallas city limits, including without limitation, the Radio Tower
Tract, the Gun Club Tract, and the Luna South Tract.
RESPONSE:

All documents reflecting or referring to existing or proposed uses, other than for oil
and/or gas exploration, of surface tracts considered or proposed for use in oil and/or gas
exploration within the Dallas city limits, including without limitation, the Radio Tower
Tract and the Gun Club Tract.
RESPONSE:

All documents reflecting or referring to locations on which the City would have granted
permits for Trinity East to drill and operate oil and/or gas wells to produce oil and/or gas
from the City-owned property leased to Trinity East.
RESPONSE:

PAGE 13

All documents reflecting or relating to the application for, and the approval or denial of,
each permit sought in connection with the exploration for oil and/or gas within the Dallas
city limits.
RESPONSE:

All documents contained in any packet of information provided to any one or more of:
(i) the members, employees, or staff of the City Council; (ii) the Current Planning
Division; (iii) the Park Board; (iv) the City Planning Commission; (v) the City Managers
office; (vi) the City Parks Department; (vii) the Dallas Floodplain Administrator;
(viii) the Dallas City Real Estate Division; or (ix) agents or consultants of the City
relating or referring to:
a)
the leasing of City-owned lands for oil and/or gas development.
b)
Trinity East,
c)
oil and/or gas exploration on City-owned property,
d)
the Radio Tower Tract,
e)
the Gun Club Tract,
f)
the Luna South Tract
g)
Trinity Easts SUP applications to the City, or
h)
any other applications for permits or approval submitted by Trinity East in

connection with its leases with the City or relating to the exploration and/or
development of oil or gas within the Dallas city limits.
RESPONSE:

All minutes, transcripts, recordings, or notes of any meetings of the City Council,
members of the City Council, the City Planning Commission, or any other board,
commission, committee, or subcommittee, or members thereof, relating to:
a)
the leasing of City-owned lands for oil and/or gas development.

PAGE 14
b)
Trinity East,
c)
oil and/or gas exploration on City-owned property,
d)
the Radio Tower Tract,
e)
the Gun Club Tract,
f)
the Luna South Tract
g)
Trinity Easts SUP applications to the City, or
h)
any other applications for permits or approval submitted by Trinity East in

connection with its leases with the City or relating to the exploration and/or
development of oil or gas within the Dallas city limits.
RESPONSE:

All documents reflecting or relating to any budget shortfalls experienced or anticipated
by the City from 2006 through 2010.
RESPONSE:

All docs reflecting or relating to payments or revenues received by the City in the form of
deposits or lease bonuses from Trinity East or from any other entity with whom the City
signed a lease for oil and/or gas exploration within the Dallas city limits.
RESPONSE:

All documents reflecting or relating to the use or uses of payments or revenues received
by the City in the form of lease bonuses or other compensation from Trinity East,
including without limitation, the identity of funds or accounts into which lease bonus
funds were deposited.
RESPONSE:

PAGE 15

All documents reflecting or relating to the use or uses of payments or revenues received
by the City in the form of lease bonuses or other compensation from any other entity with
whom the City signed a lease for oil and/or gas exploration within the Dallas City limits,
including without limitation, the identity of funds or accounts into which lease bonus
funds were deposited.
RESPONSE:

All budgets, reports, balance sheets, income statements, or cash-flow statements,
reflecting the Citys actual or anticipated revenues from oil and gas leasing and from the
development of oil and/or gas within the Dallas city limits.
RESPONSE:

All letters, correspondence, emails, communications, or other documents received from
or sent to Trinity East, Thomas Blanton, Steve Fort or their employees, agents, or
consultants, from 2006 through the present.
RESPONSE:

All letters, correspondence, emails, communications, or other documents received or sent
by the City from 2006 through the present relating to oil and/or gas development within
the Dallas city limits.
RESPONSE:

PAGE 16

by the City from 2006 through the present relating to the Citys leasing of City-owned
property for oil and/or gas development.
RESPONSE:

by the City from 2006 through the present reflecting or relating to opposition to oil and/or
gas development within the Dallas city limits.
RESPONSE:

All internal memoranda and communications relating to oil and/or gas development
within the Dallas city limits.
RESPONSE:

All internal memoranda and communications relating to Trinity East, Thomas Blanton,
Steve Fort, and/or their employees, agents or consultants.
RESPONSE:

All internal memoranda and communications relating to the Citys leasing of City-owned
property for oil and/or gas development.
RESPONSE:

PAGE 17

All internal memoranda and communications relating to opposition to oil and/or gas
development within the Dallas city limits.
RESPONSE:

All documents in any file maintained by or for Mary Suhm relating to any one or more of
the following:
a)
Trinity East,
b)
Thomas Blanton,
c)
Steve Fort,
d)
oil and/or gas exploration, and
e)
oil and/or gas leasing of City-owned property.
RESPONSE:

All documents in any file maintained by or for the office of the City Manager relating to
any one or more of the following:
a)
Trinity East,
b)
Thomas Blanton,
c)
Steve Fort,
d)
oil and/or gas exploration, and
e)
oil and/or gas leasing of City-owned property.
RESPONSE:

PAGE 18

All reports requested or generated by or for the City or any department or office within
the City relating to oil and/or gas development within the Dallas city limits.
RESPONSE:

All reports requested or generated by or for the City or any department or office within
the City reflecting or relating to actual or projected revenue from the leasing of Cityowned property for oil and/or gas development.
RESPONSE:

All documents reflecting or relating to any prohibition or proposed prohibition on drilling
for oil or gas on City-owned property.
RESPONSE:

for oil or gas on park land within the Dallas city limits.
RESPONSE:

for oil or gas on private land within the Dallas city limits.
RESPONSE:

PAGE 19

All documents reflecting or relating to any surface locations from which oil and/or gas
wells could be drilled subsurface into City-owned property and/or park land.
RESPONSE:

All documents reflecting or regarding City-owned land that is not park land and on which
You would grant a permit to drill and operate an oil or gas well.
RESPONSE:

All communications and documents exchanged between the City and any other
municipality or other governmental entity, or their council members, staff, agents or
consultants, including, without limitation, the City of Las Colinas or the City of Irving,
relating to any one or more of the following:
a)
leasing of City-owned lands for oil and/or gas development;
b)
the leasing of any other municipalitys property for oil and/or gas
development;
c)
revenues realized by or expected from the leasing of municipality-owned

property for oil and/or gas development; and
d)
the approval or denial of permits associated with the exploration for oil
and/or gas on municipality-owned property.
RESPONSE:

Any documents or information that tend to support or disprove any allegation in Trinity
Easts Original Petition, including any future amendments or supplements to the Petition,
or that tend to support or disprove any denial of or defense to any allegation in Trinity
Easts Original Petition.
RESPONSE:
PAGE 20

A copy of every written document retention policy of the City which has been in effect
since 2006.
RESPONSE:

Any documents or information that refer or relate to documents which have been
destroyed by the City, which destroyed documents refer or relate to the Leases, the SUPs,
or drilling within the Dallas city limits.
RESPONSE:

6253720v.6
PAGE 21
1-B
From:
To:
Cc:
Subject:
Date:
Caso, Chris
Brown, Chris
Villegas, Lilia
RE: File: L14-0196 Trinity East v. COD
Thursday, April 23, 2015 8:51:12 AM
Chris, below are my responses to your inquiries below. Sorry about the delay in responding, I was
out of the office with a back injury and didnt have access to my e-mails.
1. There were no additional search criteria applied in identifying and collecting the new emails.
2. At this time I dont know when we will have our review completed. I am still waiting on our
IT folks to let me know when that will be completed. I have also come across errors in the
emails I have reviewed where it appears some attachments or the texts of the e-mails from
the latest batch have not been captured. I am working with our IT folks on that issue as well.
3. We have not gotten the documents back from Open Door with the Bates numbers on them.
Can you fax or e-mail the e-mail in question that you think might be protected attorneyclient communication? If it is protected, I intend to invoke the rights under TRCP 193.3(d)
and the Protective Order.
Do you have any other additional search criteria as we have previously discussed?
Christopher J. Caso
Dallas City Attorneys Office
1500 Marilla Street
Dallas City Hall
Suite 7BN
Dallas, Texas 75201
214-670-3508 Phone
214-670-0622 Fax
From: Brown, Chris [mailto:cabrown@winstead.com]

Sent: Monday, April 20, 2015 1:02 PM
To: Caso, Chris
Cc: Villegas, Lilia
Subject: RE: File: L14-0196 Trinity East v. COD
Chris
Thank you for the heads up about the additional email documents. That is not an inconsequential
number of new documents given the parameters of the searches you had previously disclosed as
having been employed to arrive at the first three production installments. Please let me know what,
if any, additional search criteria were applied in identifying and collecting the new emails.
I will have additional Trinity documents to produce to you this week. I am expecting a final
collection of email from my client this week, as well, and, depending on volume, hope to have them
1-C
ready to produce by May 1.
With the current scheduling order as it stands, we would like to get a definitive date in place for
production of documents responsive to the written discovery served to-date. Do you now know the
volume of the additional emails you were expecting at the time of your email below? When do you
think those can be produced? Seems like May 15 might be a reasonable date to set as our mutual
deadline.
Lastly, as part of our review of the documents produced by the City, we have come across a single
document containing a series of emails that appear to be communications among some of the Citys
attorneys and staff. Please take a look at COD_114174 COD_114178 and let me know if you
believe its contents to be privileged and, if so, if you intend to invoke the rights under TRCP 193.3(d)
and Paragraph 11 of the Stipulation and Agreed Protective Order.
Best regards,
Chris Brown
214.745.5215 direct | 214.745.5390 fax | cabrown@winstead.com
From: Caso, Chris [mailto:chris.caso@dallascityhall.com]

Sent: Wednesday, April 15, 2015 4:12 PM
To: Brown, Chris
Cc: Villegas, Lilia
Subject: File: L14-0196 Trinity East v. COD
Chris, our IT folks have given us another approximately 6,000 new e-mails to review and I am
advising more are expected. I hope to get through the end of this match mid to next week and then
will let you know when we get the additional e-mails. Chris
Christopher J. Caso
Dallas City Attorneys Office
1500 Marilla Street
Dallas City Hall
Suite 7BN
Dallas, Texas 75201
214-670-3508 Phone
214-670-0622 Fax
Information contained in this transmission is attorney privileged and confidential. It is intended for the use of the individual or entity
named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or
copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by
telephone.
--

Dallas, Texas 75201,
214.745.5400
214.745.5390
winstead.com
OFFICE
FAX
direct dial: 214.745.52152
April 24, 2015

Via EMAIL
Christopher J. Caso
Office of the City Attorney
Dallas, Texas 75201
Re:
Trinity East Energy, LLC v. City of Dallas; No. DC-14-01443
Chris:
Further to our email communications over the past two weeks, I write to clarify a few
discovery-related matters.
Thank you for your response yesterday to my email dated April 20, 2015. Unfortunately,
the response did not address some of the important matters I raised. First, you have advised
that you do not know when you will have your review of the emails completed, but given the
current schedule, and as I suggested in my email, it is imperative at this point that we put an
orderly schedule in place for the completion of compliance with previously-served
requests. May 15, 2015three weeks from todayis a reasonable deadline for final
compliance with requests served more than one year ago. Please let me know if we can agree
pursuant to Rule 11 to a mutual deadline for compliance of May 15, 2015 by response to this
letter.
Regardless, Trinity East will produce the small balance of its responsive documents next
Friday, May 1, 2015. If there are any others, I will have those produced by May 15, 2015. If the
City is unable to produce the balance of its responsive documents (described in your email of
April 15, 2015 as approximately 6,000 new emails with an unknown quantity of additional emails
or documents expected) by May 15, 2015, Trinity East intends to file a motion to compel the
production of all remaining responsive documents in a timely manner so that Trinity can move
forward with depositions.
With regard to the substantial volume of additional documents, I am still confused as to
how so many emails could have been missed if the City employed the search criteria you
disclosed to me on April 1, 2015 and has not expanded its criteria for identifying potentially
responsive files. Could you please elaborate on your response regarding the criteria used? Did
the City apply the previously-employed criteria across a new list of City employees? Did the
City discover new sources (servers, computers, personal electronic devices, etc.) of files
maintained by employees whose email and electronic files had previously been searched? My
client is understandably concerned about the Citys level of compliance with the requests if so
1-D
April 24, 2015

Page 2
many files could have been overlooked in the twelve months since Trinity East served is
requests for production.
Also, further to my previous requests for dates of depositions, please provide three
alternative dates during the week of June 8, 2015 for each of the following City employees, or
confirm that the City does not intend to make witnesses available for deposition, even on issues
relative to jurisdiction:
1.
Mark Duebner
2.
Shayne Moses
3.
David Cossum
4.
Corporate representative(s) on at least the following topics (I will provide a full

and complete list of topics next week):
a.
The Citys Negotiation of the oil and gas leases with Trinity East;
b.
Communications with and representations made to Trinity East by the

City of Dallas and its employees regarding the availability of drillsites
within the City of Dallas city limits;
c.
Communications with and representations made to Trinity East by the

City of Dallas and its employees regarding Trinity Easts authorization to
drill one or more natural gas wells within the City of Dallas city limits;
d.
Trinity Easts compliance with the City of Dallas gas well drilling ordinance
in effect at the time of Trinity Easts SUP applications submitted on the
Radio Tower tract, the Gun Club tract, and the privately-owned Luna
South tracts;
e.
The basis or bases for the City Plan Commissions denial of the three
SUP applications filed by Trinity East;
f.
The basis or bases for the City Councils failure to approve the three SUP
applications filed by Trinity East by a supermajority;
g.
Internal communications among City staff or with or among members of

the City Plan Commission or with or among members of the City Council
regarding surface drilling on city park land;
h.

regarding surface drilling in the 100-year floodplain;
i.
The Citys budgetary shortfall and projected revenue gap in 2007 and
2008;
j.
The Citys revenues from the leasing of oil and gas rights;
k.
The Citys planning staffs recommendations on Trinity Easts SUP

applications;
l.

regarding the basis or bases for the City Plan Commissions denial of the
April 24, 2015

Page 3
m.

regarding the basis or bases for the City Councils failure to approve the
three SUP applications filed by Trinity East by a supermajority;
n.
Any drillsites other than those on which Trinity East sought SUPs that the
City had identified as viable alternative drillsites and for which SUPs
would have been approved;
o.
The Citys document retention policies relative to the City Council, the
Plan Commission, the City Managers Office, and the City Attorneys
Office;
p.
The Citys efforts to identify, collect, review, and produce documents

responsive to Trinity Easts request for production;
q.
The location and types of physical file storage and electronic file storage
maintained by the City of Dallas where any documents or information
responsive to Trinity Easts requests for production might be found.
Should you have any questions about the above, please do not hesitate to contact me.
I look forward to hearing from you.
Best regards,
Chris Brown
Attorney for Plaintiff
Trinity East Energy, LLC
CAB:pjh

Dallas, Texas 75201,
214.745.5400
214.745.5390
winstead.com
OFFICE
FAX
direct dial: 214.745.52152
April 30, 2015

Via EMAIL
Christopher J. Caso
Office of the City Attorney
Dallas, Texas 75201
Re:
Trinity East Energy, LLC v. City of Dallas; No. DC-14-01443
Chris:
I am in receipt of the email this afternoon from Lilia Villegas in your office regarding two
potential dates for the hearing on the Citys Supplemental Plea to the Jurisdiction filed
yesterday. Unfortunately, neither May 12 nor May 13, 2015 will work with our schedules.
Further, as I am sure you are aware, the Dallas Local Rules now require that responses to
motion be filed no later than three working days prior to a scheduled hearing; thus, Trinity Easts
response would be due one week from today, on May 7, 2015, for a hearing on May 12, 2015.
Without regard to the discovery matters address below, it should go without saying that one
week is simply not enough time to respond to a 39-page plea to the jurisdiction in a case of this
significance.
The Supplemental Plea also raises issues that must be addressed further in discovery
before a hearing on the Citys Supplemental Plea would be appropriate. You previously
disclosed to me on April 15, 2015 that the City has at least an additional 6,000 emails and other
electronic documents to be produced. You also disclosed on that date that there are possibly
even more documents to be collected and produced by the City in response to Trinity Easts
requests for production that were served in March 2014. As is evident from the documents that
have been produced thus far, documents in the Citys possession bear on the jurisdictional
questions raised by the Citys Supplemental Plea. Thus, it is imperative that Trinity East obtain
the requested documents and have an opportunity to depose relevant City personnel and
representatives prior to any hearing on the Supplemental Plea.
It also did not escape notice that the dates proposed by your office for the hearing are
prior to the May 15, 2015 deadline I proposed for final compliance with responses to written
discovery in my letter to you dated April 24, 2015, and to which I have yet to receive a response.
Having received no response to that letter, which included a request for available
deposition dates for certain City employees and representatives, it is my intention to serve
notices of deposition on each of the following at my convenience, and if the City is unable to
comply with its discovery obligations in a timely manner to accommodate the prompt taking of
1-E
April 30, 2015

Page 2
these depositions, they will be rescheduled at my convenience if mutually agreeable dates are
not provided:
1.
Mark Duebner
2.
Shayne Moses
3.
David Cossum
4.
Corporate representative(s) on each of the topics outlined in my letter dated April

24, 2015, as well as the following:
a.
Trinity East and, in particular, whether such leases are contracts for good
or services; and
b.

c.
Any other factual issues raised by or germane to the Citys plea to the
jurisdiction.
Please also note that Trinity East will oppose any setting of the Supplemental Plea for a
hearing prior to the production of all documents responsive to Trinity Easts requests for
production and the depositions of the above individuals and representatives.
Should you have any questions about the above, please do not hesitate to contact me.
I look forward to hearing from you.
Best regards,
Chris Brown
Attorney for Plaintiff
Trinity East Energy, LLC
CAB:pjh
From:
To:
Cc:
Subject:
Date:
Attachments:
Brown, Chris
chris.caso@dallascityhall.com; "patricia.medrano@dallascityhall.com"; "smoses@mph-law.com";
"dpalmer@mph-law.com"; "thowell@mph-law.com"
King, Jeff; Anderson, Art
Trinity East Energy, LLC v. City of Dallas, No. DC-14-01443
Wednesday, May 06, 2015 4:48:59 PM
3bclean-control.bin
DALLAS_1-#6526056-v1-2015-05-06_-_Notice_of_Deposition_-_City_of_Dallas_Corp__Rep.pdf
DALLAS_1-#6526055-v1-2015-05-06_-_Notice_of_Deposition_-_Moses.pdf
DALLAS_1-#6526054-v1-2015-05-06_-_Notice_of_Deposition_-_Duebner.pdf
DALLAS_1-#6526053-v1-2015-05-06_-_Notice_of_Deposition_-_Cossum.pdf
Counsel:
Please see the attached notices of deposition served hereby in the above-referenced cause. Trinity
East intends to take the depositions for the purposes of establishing jurisdictional facts relevant to
Trinity Easts response to the Supplemental Plea to the Jurisdiction filed last week and set for
hearing on May 19, 2015, per the notice served today. Based on the May 19 hearing date, Trinity
Easts response is due next Thursday, May 14, 2015; thus the need for the depositions on an
expedited basis. Trinity East reserves its right to re-notice each or any of the deponents for
deposition at a later date on the merits of the case and on matters raised in the documents in the
Citys possession that have not been produced to-date.
Sincerely,
Chris Brown
Winstead PC | 500 Winstead Building | 2728 N. Harwood Street | Dallas, Texas 75201
214.745.5215 direct | 214.745.5390 fax | cabrown@winstead.com | www.winstead.com
1100 Carter Burgess Plaza | 777 Main Street | Fort Worth, Texas 76102
817.420.8200 | 817.420.8201 fax |
1-F

Plaintiff,
v.
Defendant.

PLAINTIFFS NOTICE OF INTENT TO

TAKE ORAL DEPOSITION OF MARK DUEBNER
TO:
Mark Duebner, by and through the attorney of record for Defendant, the City of
Rules of Civil Procedure, Trinity East Energy, LLC (Plaintiff or Trinity East) will
take the oral deposition of MARK DUEBNER (the Witness) in the above-referenced
and styled cause, commencing at 9:00 a.m. on Monday, May 11, 2015, at the offices of
PLAINTIFFS NOTICE TO TAKE ORAL DEPOSITION OF MARK DUEBNER - PAGE 1
Dated: May 6, 2015.


Arthur J. Anderson
Dallas, Texas 75201
(214) 745-5745 Phone
(214) 745-5390 Fax
jking@winstead.com
301 Throckmorton
Suite 1700
(817) 420-8200 Phone
(817) 420-8201 Fax
EAST ENERGY, LLC
Christopher J. Caso
Dallas, Texas 75201
Fax 214.670.0622
Shayne D. Moses
David A. Palmer
Timothy D. Howell
Oil & Gas Building
Fax 817.255.9199
smoses@mph-law.com
dpalmer@mph-law.com
thowell@mph-law.com

ONE OF COUNSEL
DALLAS_1/6526012v.1
56620-1 05/06/2015

Plaintiff,
v.
Defendant.


TAKE ORAL DEPOSITION OF SHAYNE MOSES
TO:
Shayne Moses, Moses, Palmer & Howell, L.L.P., Oil & Gas Building, 309 W. 7th
Street, Suite 815, Fort Worth, Texas 76102, and by and through the attorney for
Defendant, the City of Dallas, Texas, Christopher J. Caso, Patricia M. de la Garza,
City of Dallas, Texas, 1500 Marilla Street, 7DN, Dallas, Texas 75201.
take the oral deposition of SHAYNE MOSES (the Witness) in the above-referenced
and styled cause, commencing at 2:30 p.m. on Monday, May 11, 2015, at the offices of
PLAINTIFFS NOTICE TO TAKE ORAL DEPOSITION OF SHAYNE MOSES - PAGE 1
Dated: May 6, 2015.


Arthur J. Anderson
Dallas, Texas 75201
(214) 745-5745 Phone
(214) 745-5390 Fax
jking@winstead.com
301 Throckmorton
Suite 1700
(817) 420-8200 Phone
(817) 420-8201 Fax
EAST ENERGY, LLC
Christopher J. Caso
Dallas, Texas 75201
Fax 214.670.0622
Shayne D. Moses
David A. Palmer
Timothy D. Howell
Oil & Gas Building
Fax 817.255.9199
smoses@mph-law.com
dpalmer@mph-law.com
thowell@mph-law.com

ONE OF COUNSEL
DALLAS_1/6526034v.1
56620-1 05/06/2015

Plaintiff,
v.
Defendant.

PLAINTIFFS NOTICE OF INTENT TO TAKE ORAL DEPOSITION OF

CORPORATE REPRESENTATIVE(S) OF THE CITY OF DALLAS
TO:
Defendant Corporate Representative of City of Dallas, Texas, by and through its

attorney of record, Christopher J. Caso, Patricia M. de la Garza, City of Dallas,
Texas, 1500 Marilla Street, 7DN, Dallas, Texas 75201.
PLEASE TAKE NOTICE that, pursuant to Rules 120a and 199 of the Texas Rules
of Civil Procedure, Trinity East Energy, LLC (Plaintiff or Trinity East) will take the
oral deposition of the designated corporate representative(s) (the Witness) of Defendant
City of Dallas, Texas (Defendant or City of Dallas) commencing at 9:00 a.m. on
Tuesday, May 12, 2015, at the offices of at the offices of the Dallas City Attorney, 1500
Marilla Street, Dallas, Texas 75201,or at some mutually agreeable time and location, and
will continue from day to day until completed or otherwise mutually agreed upon by the
parties. The deposition will be conducted before an officer authorized to administer oaths
and will be recorded stenographically and may be videotaped. All counsel are invited to
attend and examine the Witness.
PLAINTIFFS NOTICE TO TAKE ORAL DEPOSITION OF CORPORATE REPRESENTATIVE - PAGE 1
Defendant is requested to designatea reasonable time before the deposition

one or more representatives pursuant to Tex. R. Civ. P. 199.2(b)(1) to testify on
Defendants behalf concerning each of the matters listed on the attached Exhibit A.
Dated: May 6, 2015.

Arthur J. Anderson
Dallas, Texas 75201
(214) 745-5745 Phone
(214) 745-5390 Fax
jking@winstead.com
301 Throckmorton
Suite 1700
(817) 420-8200 Phone
(817) 420-8201 Fax
EAST ENERGY, LLC
Christopher J. Caso
Dallas, Texas 75201
Fax 214.670.0622
Shayne D. Moses
David A. Palmer
Timothy D. Howell
Oil & Gas Building
Fax 817.255.9199
smoses@mph-law.com
dpalmer@mph-law.com
thowell@mph-law.com

ONE OF COUNSEL
EXHIBIT A
MATTERS ON WHICH EXAMINATION IS REQUESTED
The designated representative of Defendant must be prepared to testify regarding
the following topics:
a.
The Citys Negotiation of the oil and gas leases with Trinity East;
b.

the City of Dallas and its employees regarding the availability of
drillsites within the City of Dallas city limits;
c.

the City of Dallas and its employees regarding Trinity Easts
authorization to drill one or more natural gas wells within the City of
Dallas city limits;
d.
Trinity Easts compliance with the City of Dallas gas well drilling
ordinance in effect at the time of Trinity Easts SUP applications
submitted on the Radio Tower tract, the Gun Club tract, and the
privately-owned Luna South tracts;
e.
The basis or bases for the City Plan Commissions denial of the
f.
The basis or bases for the City Councils failure to approve the three
SUP applications filed by Trinity East by a supermajority;
g.

the City Council regarding surface drilling on city park land;
h.

the City Council regarding surface drilling in the 100-year
floodplain;
i.
The Citys budgetary shortfall and projected revenue gap in 2007

and 2008;
j.
The Citys revenues from the leasing of oil and gas rights;
k.
The Citys planning staffs recommendations on Trinity Easts SUP

applications;
l.

the City Council regarding the basis or bases for the City Plan
Commissions denial of the three SUP applications filed by Trinity

East;
m.

the City Council regarding the basis or bases for the City Councils
failure to approve the three SUP applications filed by Trinity East by
a supermajority;
n.
Any drillsites other than those on which Trinity East sought SUPs
that the City had identified as viable alternative drillsites and for
which SUPs would have been approved;
o.
The Citys document retention policies relative to the City Council,

the Plan Commission, the City Managers Office, and the City
Attorneys Office;
p.
The Citys efforts to identify, collect, review, and produce

documents responsive to Trinity Easts request for production;
q.
The location and types of physical file storage and electronic file
storage maintained by the City of Dallas where any documents or
information responsive to Trinity Easts requests for production
might be found.
r.
Trinity East and, in particular, whether such leases are contracts for
good or services; and
s.

t.
Any other factual issues raised by or germane to the Citys plea to

the jurisdiction.
DALLAS_1/6526029v.1
56620-1 05/06/2015

Plaintiff,
v.
Defendant.


TAKE ORAL DEPOSITION OF DAVID COSSUM
TO:
David Cossum, by and through the attorney of record for Defendant, the City of
take the oral deposition of DAVID COSSUM (the Witness) in the above-referenced
and styled cause, commencing at 2:30 p.m. on Tuesday, May 12, 2015, or immediately
following the conclusion of the deposition(s) of the corporate representative(s) identified
in response to Trinity Easts Notice of Deposition to the City of Dallas, at the offices of
PLAINTIFFS NOTICE TO TAKE ORAL DEPOSITION OF DAVID COSSUM - PAGE 1
Dated: May 6, 2015.


Arthur J. Anderson
Dallas, Texas 75201
(214) 745-5745 Phone
(214) 745-5390 Fax
jking@winstead.com
301 Throckmorton
Suite 1700
(817) 420-8200 Phone
(817) 420-8201 Fax
EAST ENERGY, LLC
Christopher J. Caso
Dallas, Texas 75201
Fax 214.670.0622
Shayne D. Moses
David A. Palmer
Timothy D. Howell
Oil & Gas Building
Fax 817.255.9199
smoses@mph-law.com
dpalmer@mph-law.com
thowell@mph-law.com

ONE OF COUNSEL
DALLAS_1/6526038v.1
56620-1 05/06/2015

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FILED

CAUSE NO. DC-14-01443

IN THE DISTRICT COURT

192ND JUDICIAL DISTRICT

DALLAS COUNTY, TEXAS

CITYS SUPPLEMENTAL PLEA TO THE JURISDICTION

ORAL MODIFICATIONS ARE NOT

ORDINANCE GOVERNING DRILLING: The Dallas City Council

COMMENTS AND PROPOSALS REGARDING THE FORM OF OIL AND GAS

On that date the City also consented to

the assignment of the Leases.

the governmental/proprietary distinction is not applicable;

if the governmental/proprietary distinction applies, governmental functions

Trinity East has failed to allege a valid breach of contract claim.

the governmental/proprietary distinction is not applicable;

if the governmental/proprietary distinction applies, governmental functions

governmental immunity bars the common law fraud and fraud by

the governmental/proprietary distinction is not applicable and governmental

if the governmental/proprietary distinction applies, governmental functions

statutory fraud is inapplicable to governmental entities;

Trinity East has failed to allege a valid statutory fraud claim.

the governmental/proprietary distinction is not applicable and governmental

if the governmental/proprietary distinction applies, governmental functions

Trinity East has failed to allege valid promissory estoppel claims.

The City has governmental immunity from Trinity Easts negligent

the governmental/proprietary distinction is not applicable and governmental

the City is immune from a negligent misrepresentation claim; and

Trinity East has failed to allege valid negligent misrepresentation claims.

the governmental/proprietary distinction is not applicable and the claim is

if the governmental/proprietary distinction applies, governmental functions

Trinity East is not entitled to attorneys fees for tort or inverse

In Texas Department of Parks & Wildlife v. Miranda, the supreme court

Governmental immunity protects the City from invalid claims.

See Gen. Servs. Commn v. Little-Tex

THERE IS NO WAIVER OF GOVERNMENTAL IMMUNITY FOR

A. There is no applicable waiver of immunity pursuant to chapter 271.

not require it do so. The Court held:

The governmental/proprietary distinction is not applicable to any of

The dichotomy does not apply to contract claims.

governmental/proprietary function distinction has no application to breach of contract

The dichotomy does not apply to home rule municipalities.

Dallas is a home rule city. The common law governmental/proprietary distinction

In the alternative, the common law governmental/proprietary

The common law distinction between functions should not be expanded to

1, 3, 92 L.Ed. 10. it is hard to think of any governmental activity

Id., 469 U.S. at 547.

There is no reason to expand a common law

In the alternative, Trinity East

Trinity East contractually admitted that the Citys decision

Trinity East failed to allege a valid breach of contract claim.

THERE IS NO WAIVER OF GOVERNMENTAL IMMUNITY FOR

The governmental/proprietary function dichotomy is inapplicable,

Trinity East failed to allege a valid promissory estoppel claim.

Additionally, the elements of promissory estoppel are: 1) a promise; 2)

THERE IS NO WAIVER OF GOVERNMENTAL IMMUNITY FOR

are proprietary, including reclassifying a function's classification assigned under prior

Legislature specified that the proprietary functions of a municipality do not include

Fraud is an intentional tort for which the City has governmental

Governmental immunity bars Trinity Easts negligent

Trinity Easts claims for punitive damages are barred.

Trinity Easts fraud and negligent misrepresentation claims are

To establish a cause of action for negligent misrepresentation, a plaintiff must

guidance of others in their business. Gay, 2014 WL 3939141, at *6 (citing Airborne