CourtListener 10833781

Testo completo

FILED IN
BUSINESS COURT OF TEXAS
BEVERLY CRUMLEY, CLERK
ENTERED
4/2/2026
2026 Tex. Bus. 15

The Business Court of Texas,
1st Division

DALLAS SPORTS GROUP, LLC §
AND RADICAL ARENA, LTD., §
Plaintiffs §
v. § Cause No. 25-BC01B-0049
§
DSE HOCKEY CLUB, L.P., et al.
§
L.P., Defendants
§
═══════════════════════════════════════
OPINION AND ORDER ON
COMBINED SUMMARY JUDGMENT MOTIONS
═══════════════════════════════════════

Syllabus 1

This opinion discusses contract construction principles applied to four separate
but related contracts among three parties, executed over a one-year period. It
also concerns the inconsistent conduct requirement for implied waiver by
conduct necessary to overcome a contractual nonwaiver by conduct clause.

Opinion

Freedom of contract is a policy of individual self-determination;
individuals can control their destiny and structure their business

1
This syllabus is for the reader’s convenience; it is not part of the court’s opinion; and
it is not legal authority.

Opinion and Order on Combined Summary Judgment Motions, Page 1
interactions through agreements with other competent adults of
equal bargaining power, absent violation of law or public policy.

Shields Limited P’ship v. Bradberry, 526 S.W.3d 471, 482 (Tex. 2017)

(citations omitted).

[¶ 1] The Dallas Mavericks and Dallas Stars organizations co-own—

ﬁfty-ﬁfty—a limited partnership (Center Operating Company, L.P., a Texas

limited partnership (COC)) that contracted with the City of Dallas to operate

the American Airlines Center where both teams play their home games.2 They

also co-own—ﬁfty-ﬁfty—the partnership’s general partner (Center GP, LLC, a

Texas limited liability company).3 Between them, the parties ﬁled, briefed,

and argued seven summary judgment motions.

[¶ 2] Their legal disputes concern (i) the Mavericks’ claims that they

redeemed the Stars’ ownership interests in both entities, gained control of the

arena’s operations, and the Stars have since interfered with the Mavericks’

2
Unless indicated otherwise, the court calls plaintiffs the Mavericks and defendants
the Stars.
3
Although the parties colloquially refer themselves as the “Mavericks” and the
“Stars,” there is no entity named the “Mavericks” or the “Stars” that is a partner under
the COC Agreement or a member under the Center GP Agreement.

Opinion and Order on Combined Summary Judgment Motions, Page 2
right to control the arena, and (ii) defenses the Stars asserted in their summary

judgment motions and raised in response to the Mavericks’ motions.4

I. Preface

[¶ 3] The essential facts are well-documented and undisputed. There

is no conﬂicting testimony here, there are only documents and legal

consequences. However, the parties disagree about those consequences.5

That is, they dispute the proper application of existing law to undisputed facts.

[¶ 4] Despite extensive brieﬁng and arguments, this case distills to this

pivotal issue: whether the parties’ “Location Commitments” require that the

“Teams’” principal, public-facing presence be in Dallas, Texas?

4
After the parties filed their motions, responses, replies and two days before these
motions were originally set for hearing, the Stars notified the Mavericks and the court that
DSE Hockey Club, L.P. was not the correct successor to Stars’ ownership interests in COC
and Center GP. The Stars amended each of their five motions and submitted a supplemental
Brad Alberts declaration to correct his prior statements regarding the correct Stars
successor entity in interest. But the parties agree that those amendments and the
supplemental Alberts declaration do not affect the parties’ prior submissions. See Stars’
Response to Mavericks’ Rule 37 Motion at 9; Mavericks’ Response to Stars’ Motion for
Leave & Rule 37 Motion App. at 51–69. So, the court decides these issues based on the
amended motions and the supplemental Alberts declaration. Nonetheless, the court
granted the parties’ motions for leave to add Dallas Sports & Entertainment, L.P. as a party
to this case. However, Dallas Sports & Entertainment, L.P. was not legally before the court
when the parties argued their motions.
Both sides asked the court to issue an opinion with its rulings. See TEX. R. CIV. P .
5

360(a)(1).

Opinion and Order on Combined Summary Judgment Motions, Page 3
[¶ 5] As used in the Location Commitments, “Owner” and “Team” are

deﬁned terms, they mean diﬀerent things, and the court must use those

diﬀerent meanings when analyzing the parties’ arguments. After applying the

applicable law and contract construction rules to the undisputed facts, the

court concludes as a matter of law that the Location Commitments have only

one reasonable meaning: “Owners” are required to designate and maintain in

Dallas the principal corporate and executive oﬃces of their respective

“Team,” rather than the “Owner’s” own such oﬃces. Further, the evidence

conclusively establishes that at all relevant times the Mavericks have

complied with this requirement—and the Stars have not.

[¶ 6] Accordingly, for those and the additional reasons discussed

below, the court denies the Stars’ summary judgment motions and grants the

Mavericks’ declaratory judgment and aﬃrmative defenses motions.6

6
The court’s order does not address and reserves for later determination whether
these holdings also apply to Dallas Sports & Entertainment, L.P., which plaintiffs added as
a party in an amended pleading on February 26, 2026, assuming it is the correct Stars
owner.

Opinion and Order on Combined Summary Judgment Motions, Page 4
[¶ 7] Nonetheless, these rulings do not dispose of the entire case

because they do not address the Mavericks’ tortious interference claim, which

is set for trial on May 11, 2026, and other issues.7

II. Background

[¶ 8] The ultimate issue is whether the “Mavericks” redeemed the

“Stars’” ownership interests in COC and Center GP for a total of $110.00.

Resolving that issue requires the court to construe four related contracts:

(i) the Stars’ Franchise Agreement with Dallas, (ii) the Mavericks’ Franchise

Agreement with Dallas, (iii) the COC limited partnership agreement (COC

Agreement), and (iv) the Center GP company agreement (Center GP

Agreement).8 Those four contracts are part of an arrangement whereby Dallas

issued bonds to ﬁnance the construction of the American Airlines Center

7
The court requested supplemental briefing on March 10, 2026, concerning what
notice was required to a Relocation Partner to redeem its interest. This issue goes to
whether the Mavericks notified the correct party when they sent their redemption letter.
The court does not decide that issue in this opinion and order.
8
The Mavericks’ tortious interference claim depends on the Mavericks’ successful
redemption of the Stars’ partnership and membership interests. Thus, although the parties’
motions do not necessarily independently address the Mavericks’ tortious interference
claims, those claims would evaporate if the Mavericks did not successfully redeem the
Stars’ ownership interests. But the Stars did not make that specific argument, so it is not
properly before the court.

Opinion and Order on Combined Summary Judgment Motions, Page 5
where the Mavericks and Stars play their home games pursuant to a lease

between COC and Dallas. 9 That lease expires in 2031. 10

[¶ 9] In 1998, the parties executed separate franchise agreements with

Dallas. Each such agreement has a “Location Commitment” requiring that

“. . . the Owner shall continuously designate the City as the location (a) in

which the Home Games shall be played, and (b) in which the principal

corporate and executive oﬃces of the Team shall be maintained.”11 The

Mavericks were not a party to the Stars’ franchise agreement and vice versa.

[¶ 10] Eﬀective as of roughly a year later, the parties executed their

COC partnership and Center GP company agreements.12 Both agreements (the

Agreements) have “Relocation Events” clauses.13

[¶ 11] The Relocation Events clauses provide that if a Relocation Event

occurs, (i) the partnership and a general partner may redeem the Relocation

Partner’s/Member’s interests in that entity;14 or (ii) a “Remaining

9
E.g., Stars’ MSJ App., Vol. 1 at 12, 23.
10
See generally, Stars’ MSJ App., Vol. 1 at 77, 155-56.
11
Stars’ MSJ App., Vol. 1 at 14 (Stars’ Franchise Agreement, § 2.1. (emphasis
added)), 25 (Mavericks’ Franchise Agreement, § 2.1) (emphasis added)).
12
Stars’ MSJ App., Vol. 1 at 37, 134.
13
Stars’ MSJ App., Vol. 1 at 77, 155-56.
14
Stars’ MSJ App., Vol. 1 at 77, 155-56.

Opinion and Order on Combined Summary Judgment Motions, Page 6
Partner/Member” may cause such redemption.15 Either way, the redeeming

party must pay the redeemed party $100 for the partnership interest and $10

for the general partner membership interest. 16 Those amounts result from

contractual reductions to the redeemed party’s capital accounts.17

[¶ 12] A Relocation Event occurs if before 2031 a party breaches its

Location Commitment to Dallas.18

[¶ 13] The Mavericks contend that the Stars became a Relocation

Partner/Member no later than 2003 when they moved their administrative

oﬃces and practice facilities to Frisco, Texas. 19

[¶ 14] Conversely, the Stars contend that the Mavericks became a

Relocation Partner/Member when (i) Dallas Basketball Limited (DBL) on

November 15, 2024, identiﬁed a Las Vegas, Nevada address as its Principal

Oﬃce and Principal Place of Business on a Texas Franchise Tax Public

Information Report and (ii) in March 2025, Dallas Sports Group, LLC’s (DSG)

15
Stars’ MSJ App., Vol. 1 at 77, 155-56.
16
Stars’ MSJ App., Vol. 1 at 77, 155-56.
17
Stars’ MSJ App., Vol. 1 at 77, 155-56.
18
Stars’ MSJ App., Vol. 1 at 77, 155-56.
19
See Mavericks’ First Amended Petition (FAP) ¶s 44, 48; Mavericks’ MSJ App.
Vol 1 at 7.

Opinion and Order on Combined Summary Judgment Motions, Page 7
Texas Application for Registration of a Foreign Limited Liability Company

identiﬁed that its principal oﬃce address and that of its governing person

(Patrick Dumont) are in Las Vegas, Nevada.20

[¶ 15] On October 25, 2024, the Mavericks’ counsel delivered a letter

to the Stars’ counsel stating that a Stars’ Relocation Event had occurred and

the Mavericks were thereby causing COC and Center GP to redeem the Stars’

entire interests in those entities. 21 The Mavericks simultaneously tendered

$100 and $10 in cash, respectively, per the Agreements. 22

[¶ 16] Six days later, the Stars rejected the Mavericks’ purported

redemptions. 23

[¶ 17] During the summer of 2025, the Mavericks, Stars, and Dallas

were discussing plans for after the arena lease’ expiration.24 Those

discussions reached a boil, and Dallas sent the Stars an October 3, 2025, letter

discussing the Stars’ Location Commitment default.25

20
Stars’ Am. Answer (SAA) ¶s 4-9.
21
Mavericks’ MSJ App. at 201-02.
22
Mavericks’ MSJ App. at 201-02.
23
DSE Hockey Club, L.P.’s First Amended Counterclaim (Stars FAC) at 12-13 and
Exhibit D; DSE Hockey Club’s Second Amended Counterclaim at 12 and Exhibit D.
24
Mavericks’ MSJ App. at 206-09.
25
Mavericks’ MSJ App. at 208.

Opinion and Order on Combined Summary Judgment Motions, Page 8
[¶ 18] The Mavericks sued three weeks later, asserting two counts.

First, they requested a declaratory judgment that (i) they caused an October

25, 2024, redemption of the Stars’ COC and Center GP ownership interests;

(ii) the Mavericks became both entities’ sole owner; (iii) the Stars’ Center GP

board members are deemed to have resigned; and (iv) the Mavericks have sole

authority to designate their replacements. 26

[¶ 19] Second, they pled a tortious interference claim asserting that the

Stars’ refusal to acknowledge the redemptions, and the termination of the

Stars’ board positions, tortiously interferes with the Mavericks’ contract right

to approve necessary arena expenditures. 27 Finally, they seek injunctive relief

to prevent the Stars from interfering with those rights. 28

[¶ 20] The Stars answered, pled aﬃrmative defenses, and asserted a

declaratory judgment counterclaim that, on a granular level, seeks the

opposite of what the Mavericks requested.29

26
See Mavericks’ Original Pet., ¶s 68-75.
27
Mavericks’ Original Pet., passim.
28
Mavericks Original Pet. ¶ 96. They have amended their petition, but the essence
is the same.
29
See generally Stars’ Second Amended Answer at 2-7.

Opinion and Order on Combined Summary Judgment Motions, Page 9
III. The Parties’ Cross-Summary Judgment Motions

[¶ 21] The Stars ﬁled ﬁve traditional summary judgment motions, and

the Mavericks ﬁled two such motions.

[¶ 22] The Stars’ motions address whether:

(i) the COC and Center GP entities, as opposed to the Mavericks, are
the only proper parties capable of redeeming the Stars’ ownership
interests;

(ii) the Mavericks’ designations of Las Vegas as the principal oﬃces
for certain Mavericks corporate entities prevent the Mavericks from
asserting their claimed redemption rights as a Remaining Partner;

(iii) limitations bar the Mavericks’ “breach” cause of action;

(iv) the fact that the Stars were not located in Dallas when the parties
signed the partnership and LLC agreements defeats the Mavericks’
claims based on the original impossibility doctrine; and

(v) the Mavericks waived their claims by knowing the Stars’ location
for more than twenty years without exercising redemption rights.

[¶ 23] The Mavericks’ motions address whether:

(i) they eﬀectively caused a redemption of the Stars’ COC and Center
GP interests;

(ii) the Stars’ board members were terminated from the Center GP
board;

(iii) the parties’ nonwaiver clauses bar claims that the Mavericks
delayed in exercising their redemption rights; and

(iv) laches is a defense to their claims.

Opinion and Order on Combined Summary Judgment Motions, Page 10
[¶ 24] On the Saturday before the original setting for these motions,

the Stars announced that, despite their contrary allegations, arguments, and

submitted evidence, DSE Hockey Club, L.P. was not the actual successor to

the Stars’ contracting party and the Mavericks sued the wrong party. Both

sides later ﬁled motions to add Dallas Sports & Entertainment, L.P. (DSELP)

to the case as the ostensible Stars’ successor in interest. The Stars also ﬁled

amended summary judgment motions changing only the phrase “Stars’

interests” to “Stars’ purported interest.” 30

[¶ 25] During a February 26, 2026, status conference, the parties

agreed that adding DSELP would not aﬀect the pending summary judgment

motions or the upcoming hearing on those motions.

[¶ 26] On March 6, 2026, the court heard oral arguments regarding all

seven motions. The court then considered the parties’ motions, responses,

replies, evidence, and objections. By separate order, the court ruled on the

parties’ objections to the summary judgment evidence.

30
Compare, e.g., Stars’ Original Impossibility MSJ ¶ 2 with Stars’ Original
Impossibility Amended MSJ ¶ 2.

Opinion and Order on Combined Summary Judgment Motions, Page 11
IV. Applicable Standards

A. Summary Judgment Standards

[¶ 27] A party may move with or without supporting evidence for

summary judgment as to all, or any part of any, causes of action or defenses.31

TEX. R. CIV. P. 166a(a), (b). The motion must state its speciﬁc grounds. Id. at

166a(c).

[¶ 28] The court shall then render judgment if the pleadings, summary

judgment ﬁlings, and properly ﬁled evidence show that, except as to the

amount of damages, there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law on the issues stated in the

motion or in an answer or any other response. Id.; JLB Builders, L.L.C. v.

Hernandez, 622 S.W.3d 860, 864 (Tex. 2021).

[¶ 29] So, a summary judgment motion

… is essentially a motion for a pretrial directed verdict. * * * Once
such a motion is ﬁled, the burden shifts to the nonmoving party
to present evidence raising an issue of material fact as to the
elements speciﬁed in the motion. * * * [Courts] review the
evidence presented by the motion and response in the light most
favorable to the party against whom the summary judgment was
rendered, crediting evidence favorable to that party if reasonable

31
Texas Supreme Court Miscellaneous Order No. 26-9012 adopted amendments to
Rule 166a. The prior Rule 166a applies to these motions because the parties filed them
before the Rule amendments became effective. However, the changes would have no effect
on the motions or the court’s rulings.

Opinion and Order on Combined Summary Judgment Motions, Page 12
jurors could, and disregarding contrary evidence unless
reasonable jurors could not. * * *

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006) (citations

omitted).

[¶ 30] A genuine fact issue exists if more than a scintilla of evidence

supports the alleged fact. See Amazon.com Servs. LLC v. Grant, No. 05-23-

01306, 2024 WL 5053063, at *2 (Tex. App.—5th Dist. Dec. 10, 2024, no

pet.).

[¶ 31] Evidence is more than a scintilla when it “rises to a level that

would enable reasonable and fair-minded people to diﬀer in their conclusions.”

King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.3d 706, 711 (Tex. 1997)). However,

less than a scintilla exists when the evidence is “so weak as to do no more than

create a mere surmise or suspicion” of a fact. King Ranch, 118 S.W.3d at 755

(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

[¶ 32] When contract terms are unambiguous and the material facts are

undisputed, compliance with those terms is a question of law. Hrdy v. Second

St. Props., 649 S.W.3d 522, 554 (Tex. App.—1st Dist. 2022, pet. denied).

Opinion and Order on Combined Summary Judgment Motions, Page 13
[¶ 33] Thus, to decide these motions the court must apply contract

construction principles to the parties’ contracts.

B. Contract Construction

[¶ 34] A court’s primary objective when construing contracts “is to

ascertain and give eﬀect to the parties’ intent as expressed in the instrument.”

U.S. Polyco, Inc. v. Tex. Cent. Bus. Lines Corp., 681 S.W.3d 383, 387 (Tex.

2023) (quoting URI, Inc. v. Kleberg Cnty., 543 S.W.3d 755, 763 (Tex. 2018));

accord Equinor Energy LP v. Lindale Pipeline, LLC, ___S.W.3d ___ 2026 WL

705761, *2 (Tex. March 13, 2026).

[¶ 35] Usually, courts deem the contract alone to express the parties’

intent because it is objective, not subjective, intent that controls. Polyco, 681

S.W.3d at 387.

[¶ 36] Contract terms must be suﬃciently deﬁnite so that a court can

understand the parties’ rights and obligations. T.O. Stanley Boot Co., Inc. v.

Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); Bendalin v. Delgado, 406

S.W.2d 897, 899 (Tex. 1966).

[¶ 37] With unambiguous contracts, courts “can determine the parties’

rights and obligations under the agreement as a matter of law.” Inwood Nat’l

Bank v. Fagin, No. 24-0055, 2025 WL 349890, at *4 (Tex. 2025) (per curiam)

Opinion and Order on Combined Summary Judgment Motions, Page 14
(quoting ACS Invs., Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997));

accord Equinor Energy, 2026 WL 705761, *2.

[¶ 38] A written contract is unambiguous if it is so worded that it can

be given a deﬁnite or certain meaning when considered in context of the

circumstances surrounding its execution and as applied to the matter in

dispute.32 URI, 543 S.W.3d at 765.

[¶ 39] Context is a permissible indicator of meaning, and courts are to

harmonize and give eﬀect to all contract terms by analyzing them regarding

the whole contract. Polyco, 681 S.W.3d at 390.

[¶ 40] Appropriate context includes the circumstances that existed

when the parties made their contract:

Context is not, however, conﬁned to the two-dimensional
contractual environs in which the words exist but may also
encompass the circumstances present when the contract was
entered. This is so because words are the skin of a living thought
and our quest is to determine, objectively, what an ordinary
person using those words under the circumstances in which they
are used would understand them to mean.

32
An ambiguity arises when an agreement is susceptible to more than one reasonable
meaning after applying established rules of construction. DeWitt Cnty. Elec. Coop., Inc. v.
Parks, 1 S.W.3d 96, 100 (Tex. 1999).

Opinion and Order on Combined Summary Judgment Motions, Page 15
Board of Regents of the Univ. of Tex. Sys. v. IDEXX Labs., Inc., 691 S.W.3d 438,

443 (Tex. 2024) (per curiam) (quoting URI, Inc., 543 S.W.3d at 764). Stated

diﬀerently, context includes the business context and realities the words are

meant to address. Board of Regents, 691 S.W.3d at 445.

[¶ 41] Where contracts contain language of doubtful meaning, the

court’s primary concern is to ascertain and to give eﬀect to the parties’ true

intention. Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157-58

(Tex. 1951). To that end, courts will examine and consider the entire writing,

seeking as best they can to harmonize and give eﬀect to all its provisions so

that none will be rendered meaningless. Id.

[¶ 42] But contract terms need not be perfectly clear to be enforced if

the court can discern the parties’ objective intent from the words they chose.

Board of Regents, 691 S.W.3d at 443-44. Thus, courts apply a dominant intent

rule if only one proﬀered interpretation is reasonable:

Contractual text is not ambiguous in a legal sense merely because
it is unclear and certainly not because the parties disagree about
how to interpret it. The latter is irrelevant; after all, issues of
intent and proper interpretation arise only when there is
disagreement. Disagreement over the meaning of a contract does
not mean that it is ambiguous, legally. Lack of clarity is
commonplace. Not every unclear text is legally ambiguous.
Despite the deﬁcits inherent in the use of language, ʻ[w]henever

Opinion and Order on Combined Summary Judgment Motions, Page 16
possible, courts must assess adverse arguments and resolve a
text’s meaning as a matter of law.’

Id. at 443 (footnotes and citations omitted) (emphasis in original).

[¶ 43] Thus, courts “must decide whether the meaning of the text read

in context is genuinely uncertain or whether one reasonable meaning clearly

emerges.” Id. at 443-44.

[¶ 44] Because the COC and Center GP Agreements include

redemption opportunities, the court should give the relevant contract terms

meaning, if possible. Id. And the court should construe them in a way to avoid

absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008).

[¶ 45] The court concludes that the parties’ contracts have only one

reasonable meaning regarding the Location Commitments, redemption

clauses, the nonwaiver clauses, and their collective relationships.

V. The Stars’ “Standing” Motion

A. Introduction

[¶ 46] The Stars’ “Standing Motion” posits that:

1. This motion will require the Court to determine whether the
Mavericks can properly redeem interests in a partnership and
limited liability company without complying with the express
procedures of the partnership and membership agreements.

2. Texas law recognizes and protects broad freedom of contract
and obliges courts to enforce the parties’ bargain according to its

Opinion and Order on Combined Summary Judgment Motions, Page 17
express terms. In the present case, based on the Mavericks’
failure to comply with the terms of the partnership and
membership agreements, the Court should find that no
redemption occurred. Accordingly, the Court should Grant this
Motion for Summary Judgment.33

[¶ 47] To that end, the Stars argued that the Mavericks’ redemption

letter is ineﬀective because: (i) the agreements do not permit unilateral

redemptions by one of the parties; (ii) only COC and Center GP, and not the

Mavericks as a partner/member, can redeem the Stars’ interests; and (iii) the

Mavericks did not address their letter to the partnership or general partner.34

[¶ 48] The Mavericks responded that (i) the redemption clauses

provide redemption rights to the redeeming partner and member; (ii) those

clauses permit a redeeming party to “cause” the redemption; (iii) the

partnership and membership agreements permit redemptions to avoid

deadlock and futility; (iv) the Mavericks’ letter combined with the contracts’

terms satisﬁes the ordinary meaning of “cause”; and (v) whether the

33
Stars’ Standing MSJ at 1-2.
34
Stars’ Standing MSJ at 1.

Opinion and Order on Combined Summary Judgment Motions, Page 18
Mavericks are third-party beneﬁciaries of the Stars’ franchise agreement is

irrelevant.35

[¶ 49] Although the Stars purport to challenge the Mavericks’

“standing,” their motion turns on contract rights under the COC and Center

GP Agreements to which the Mavericks are parties and on which they stake

their claims. 36 So, the Stars’ Standing Motion presents only contract law

issues instead of constitutional standing or legal capacity to sue.37

35
The Mavericks’ response also addressed constitutional standing. The court
concludes that whether the Mavericks are intended third-party beneficiaries is not relevant
and does not specifically address that issue.
36
See the Mavericks’ Original and First Amended Petitions, in passim. The Stars’
Standing MSJ did not specifically mention lack of capacity to sue as a ground, the Stars’
answer raised a lack of capacity defense (Stars’ Original and First Amended Answers), and
their oral argument acknowledged that lack of capacity was a proper characterization of
their argument (Mar. 6, 2026, Tr. at 52:11-53:14).
37
The supreme court has held that usually “the question whether a claim brought by
a partner actually belongs to the partnership is [] a matter of capacity because it is a
challenge to the partner’s legal authority to bring the suit,” and not a question of standing.
Pike v. Texas EMC Mgmt., LLC, 610 S.W.3d 763, 779 (Tex. 2020). Accordingly, the
Mavericks have constitutional standing since they assert a concrete injury to themselves
and a real controversy between the parties that the court will resolve. Meyers v. JDC
Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018). Likewise, as a contracting party
asserting its rights at issue, the Mavericks have legal capacity to assert their claims. See
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-49 (Tex. 2005). So, the court
denies the Stars’ Standing Motion to the extent it challenges the Mavericks’ constitutional
standing or legal capacity to assert their claims.

Opinion and Order on Combined Summary Judgment Motions, Page 19
B. Analysis

1. Introduction

[¶ 50] Texas law recognizes redemption clauses are normal vehicles

that closely held entity owners may adopt to break deadlocks. Dunster Live,

LLC v. LoneStar Logos Mgmt. Co., No. 03-22-00014-CV, 2024 WL 291403, *5

(Tex. App.—3d Dist. January 26, 2024, no pet.) (mem. op.). Here, the parties’

Agreements created a redemption opportunity that the court must enforce if

the facts and law warrant. Universal C.I.T. Credit Corp., 243 S.W.2d at 157-

58. And, if possible, the court is to construe the contracts to avoid an absurd

result. City of Rockwall, 246 S.W.3d at 626.

2. The Agreements contemplate at least two redemption paths.

a. The Stars’ Arguments

[¶ 51] The Stars argued that “[p]ursuant to the express terms of the

[partnership and membership] Agreements, only COC Partnership or Center

GP may eﬀectuate redemption, and no individual member may do so.”38 But

they do not explain how the Mavericks could accomplish that corporate action

where there is a ﬁfty-ﬁfty deadlock. So, the logical extension of the Stars’

38
Stars’ Standing MSJ at 2. (footnote omitted) (citing Stars’ MSJ App., Vol. 1 at 77,
155-156 (emphasis added)).

Opinion and Order on Combined Summary Judgment Motions, Page 20
argument is that the Mavericks could never redeem the Stars’ ownership

interests over the Stars’ objection—despite express contract clauses giving

the Mavericks that right under certain conditions.

[¶ 52] At oral argument, the Stars argued that the Mavericks should

have called for a formal board vote. 39 But that argument does not explain how

that vote would have broken a deadlock.40 Nor did they oﬀer any evidence that

they would have capitulated had the Mavericks called for that vote.

[¶ 53] The only contract terms the Stars cited to support its argument

that only the partnership/general partner could redeem was “Relocation

Event” in COC Agreement § 4.8 and Center GP Agreement § 4.5.41

[¶ 54] COC Agreement §4.8 states:

(a) If a Relocation Event occurs for any reason, then the
Partnership may purchase and redeem the entire Partnership
Interest of the Relocation Partners for an aggregate amount equal
to $100. Any Partner that is not a Relocation Partner (referred to
herein as a “Remaining Partner”) may cause the partnership to
so purchase and redeem the Partnership Interests of the
Relocation Partners. After any such purchase and redemption,
the Partnership Interests of the Relocation Partners shall be
considered terminated, and no additional distributions or
payments shall be required or made with respect to such

39
Mar. 6, 2026, Tr. at 54:9-57:20, 89:20-90:11.
40
See Mavericks’ Declaratory Judgment MSJ at 44-45.
41
Stars’ Standing MSJ at 8.

Opinion and Order on Combined Summary Judgment Motions, Page 21
redeemed Partnership Interests (including, without limitation, if
applicable, any additional payments or distributions with respect
to the ADS Loan and/or ADS Note).

(b) The Partners further agree that in connection with any such
Relocation Event, the Partnership will recognize a built-in loss
equal to the amount by which the aggregate Capital Account
balances of the Relocation Partners at the time of such
redemption exceed $100 (the aggregate redemption price).
Notwithstanding anything to the contrary in this Agreement, this
built-in loss shall be speciﬁcally allocated to the Relocation
Partners in connection with the redemption of their Partnership
Interests in a manner that reduces their aggregate Capital
Account balances to $100.

(c) For Purposes of this Agreement, a “Relocation Event” means:
(1) with respect to [the Mavericks], a breach by [the Mavericks]
prior to the 30th anniversary of the Opening Date of: (A) . . .; or
(B) section 2.1, section 2.2, and/or section 2.3 of the Mavericks’
Franchise Agreement; and (ii) with respect to the Dallas Stars, a
breach by the Stars prior to the 30th anniversary of the Opening
Date of: (A) . . . ; or (B) section 2.1, section 2.2, and/or section
2.3 of the Stars Franchise Agreement.

(d) For purposes of this Agreement, the “Relocation Partners”
means the Limited Partners that are Aﬃliates of the Team that
cause the Relocation Event to occur.42

[¶ 55] And COC Agreement § 4.5 states:

(a) If a Relocation Event occurs for any reason, then the Company
may purchase and redeem the entire Partnership Interest of the
Relocation Members for an aggregate amount equal to $10. Any
Remaining Member may cause the Company to so purchase and
redeem the Company Interests of the Relocation Members. After
any such purchase and redemption, the Company Interests of the

42
Stars’ MSJ App., Vol. 1 at 77.

Opinion and Order on Combined Summary Judgment Motions, Page 22
Relocation Members shall be considered terminated, and no
additional distributions or payments shall be required or be made
with respect to such redeemed Company Interest (including,
without limitation, if applicable, any additional payments or
distributions with respect to the ADS Loan and/or the ADS
Note).

(b) The Members further acknowledge and agree that in
connection with any such Relocation Event, the Company will
probably recognize a built-in loss equal to the amount by which
the aggregate Capital Account balances of the Relocation
Members at the time of such redemption exceed $10 (the
aggregate redemption price). Notwithstanding anything to the
contrary in this Agreement, any such built-in loss shall be
specially allocated to the Relocation Members in connection with
the redemption of their Company Interests in a manner that
reduces their aggregate Capital Account balances to $10. 43

[¶ 56] However, those provisions do not specify any particular

procedures or methods a redeeming party must follow to cause redemptions.44

Nor do §§ 4.8(a) or 4.5(a) contain the word “only.”45 And the Stars did not

argue any reason or adduce evidence showing that the Mavericks’ redemption

letter was an unreasonable, alternative method for causing the redemptions.

43
Stars’ MSJ App., Vol. 1 at 155-56.
44
See Stars’ MSJ App., Vol. 1 at 77, 155-156.
45
See Stars’ MSJ App., Vol. 1 at 77, 155-156.

Opinion and Order on Combined Summary Judgment Motions, Page 23
[¶ 57] Thus, the Stars ask the court to add “only” to those sections so

that a formal entity action is the only way a redeeming party can accomplish a

redemption:

The Redemption provisions contained in the Agreements
expressly state that only the COC Partnership or Center GP may
effectuate a redemption after a relocation event.46

But the word “only” is not in the operative contract terms, and the court may

not add it to them. See URI, 543 S.W.3d at 767, 770.

[¶ 58] Nonetheless, the Stars oﬀered circular reasoning to address their

conundrum. 47 Speciﬁcally, they urged that no deadlock could occur because

partnerships and LLCs are bound by their partnership and company

agreements and the entities can then force the redemptions. 48

[¶ 59] But entities can only act through a governing body, which was

split ﬁfty-ﬁfty here. See City of Denton v. Grim, 694 S.W.3d 210, 216 (Tex.

2024) (corporations cannot act without human agents). Thus, the Stars’

“entity-only” argument oﬀers no solution to a deadlock blocking a successful

corporate vote to eﬀect the redemptions.

46
See Stars’ Standing MSJ at 8.
47
Stars’ Standing MSJ Reply at 6.
48
Stars’ Standing MSJ Reply at 6; see TEX. BUS. ORG. CODE §§ 101.052 and 154.105.

Opinion and Order on Combined Summary Judgment Motions, Page 24
[¶ 60] The Stars also point to COC Agreement § 4.8(b) and Center GP

Agreement §4.5(b), which require the partnership and the general partners to

reduce the non-redeeming party’s capital accounts to $100 and $10,

respectively, as part of the redemption process to support the Stars’ argument

that only the entities themselves can accomplish the redemptions. 49 However,

the contracts make those adjustments automatic and render their recording

ministerial.50 Thus, no formal corporate actions were needed to cause those

capital adjustments.

b. The Mavericks’ Arguments

[¶ 61] On the other hand, the Mavericks asked the court to construe the

§§ 4.5 and 4.8 redemption clauses in their entirety and in context with their

purpose, which is to provide a means for the ﬁfty-ﬁfty partners to break a

deadlock regarding the right to redeem the other side’s ownership interests

and management rights. 51

[¶ 62] Speciﬁcally, they argue that the second sentences in §§ 4.8(a)

and 4.5(a) providing that a Remaining Partner/Member may cause the entity

49
Stars’ Standing MSJ at 2-3, 8.
50
Stars’ MSJ App., Vol 1., App. at 77, 156; see discussion in part X(H) below.
51
Mavericks’ Standing MSJ Response at 21-25.

Opinion and Order on Combined Summary Judgment Motions, Page 25
to redeem the Relocating Partner/Member’s ownership interests give them the

ability to cause the redemptions without a formal vote.52

[¶ 63] Furthermore, the Mavericks argue that forcing a redemption

vote would have been futile because (i) the general partner’s voting power is

split 50-50; (ii) those agreements permit the Mavericks to cause the

redemption through a declaratory judgment action; and (iii) their letter and

declaratory judgment action are viable means for causing the redemptions. 53

c. Decision

[¶ 64] The court agrees with the Mavericks for several reasons. To

begin, the ﬁrst sentence of COC Agreement § 4.8(a) contemplates direct

action by the ﬁfty-ﬁfty split partnership, which, in turn, would require a vote

of the ﬁfty-ﬁfty split general partner’s board, to eﬀect a redemption.54 Center

GP Agreement § 4.5(a) is the same. 55 Thus, a Stars’ blocking vote would

produce a deadlock preventing the redemptions. Therefore, it was reasonable

for the parties to provide an alternative redemption method.

52
See Mavericks’ Standing MSJ Response at 24.
53
See Mavericks’ Standing MSJ Response at 21–25.
54
Stars’ Standing MSJ App. at 77.
55
Stars’ Standing MSJ App. at 155-56.

Opinion and Order on Combined Summary Judgment Motions, Page 26
[¶ 65] Next, the second sentences of §§ 4.8(a) and 4.5(a) exist and the

court is to give them meaning. See, e.g., Universal C.I.T Credit Corp., 243

S.W.2d at 157-58. To avoid deadlock, those sentences present a second

redemption path that contemplates a redeeming party’s indirect action that

causes the redemptions. If the Stars were correct that “only” the entities

could cause the redemptions, the second sentences would be meaningless. See

Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323,

333 (courts give eﬀect to all contractual provisions so that none will be

rendered meaningless).

[¶ 66] Furthermore, accepting the Stars’ arguments would lead to the

absurd result that the Agreements give the Mavericks the right to cause the

redemption without the Stars’ consent and simultaneously give the Stars the

power to block the Mavericks from exercising their redemption rights. So, as

a matter of contract construction, the Mavericks could have but were not

required to use a direct corporate vote to accomplish the redemptions.56

56
Footnote one on page one of the Stars’ “Mavericks’ Relocation Event” motion
says “[a]ccordingly, only the City has the legal right to claim that the Stars breached the
[Stars’] Franchise Agreement.” To the extent the Stars make that statement as part of a
standing or capacity argument, the court rejects that argument because the Mavericks’
declaratory judgment claim does not rest on a premise that a Stars’ Location Commitment
breach with Dallas also breaches a Stars’ contract with the Mavericks. That follows
because the Mavericks are not a party to that franchise agreement. Rather, their claim is

Opinion and Order on Combined Summary Judgment Motions, Page 27
[¶ 67] Additionally, the ordinary meaning of “Redeem” includes “to

exchange for money or goods” and “to buy.”57 That is the path the Mavericks

implemented when they delivered their redemption letter and tendered the

redemption price in exchange for the Stars’ COC and Center GP ownership

interests.

[¶ 68] Moreover, the Stars did not argue or adduce any evidence that

requiring the Mavericks to go through the formal steps of calling a board vote

would have been anything but a vain, useless, or futile act to accomplish the

redemptions—that is, that calling a board vote would have produced a

diﬀerent result.58 But “[t]he law does not require the doing of a vain and

useless thing[.]” Mackey v. Lucy Prods. Corp., 239 S.W.2d 607, 608 (Tex.

1951); McGehee v. Endeavor Acquisitions, LLC, 603 S.W.3d 515, 526 (Tex.

App.—8th Dist. 2020, no pet.) (quoting Mackey). Similarly, Texas law does

that the Stars’ Location Commitment breach with Dallas is instead a condition in the
Stars’-Mavericks’ COC and Center GP Agreements that triggers the Mavericks’ claimed
redemption rights.
57
Redeem, Dictionary.com (last visited March 29, 2026).
58
Additionally, Texas law contemplates partners or members in closely held
partnerships or LLCs acting in their own name to assert their entities’ rights. See generally,
TEX. BUS. ORG. CODE §§ 101.463 and 153.413 (permitting derivative actions to treated as
direct actions and providing direct recoveries in suits involving closely held limited liability
companies and limited partnerships).

Opinion and Order on Combined Summary Judgment Motions, Page 28
not require contracting parties to engage in futile acts. DiGiuseppe v. Lawler,

269 S.W.3d 588, 594-95 (Tex. 2008) (law does not require parties to perform

futile acts to enforce contract rights). 59

[¶ 69] Accordingly, the court denies the Stars’ Standing Motion. 60

VI. The Stars’ “Mavericks’ Relocation Event” MSJ

A. Introduction

[¶ 70] The Stars rely on government ﬁlings by Mavericks aﬃliates to

argue that the Mavericks’ redemption eﬀorts fail because the Mavericks are

not “Remaining Partners/Members” capable of redeeming the Stars’

59
Center GP Agreement § 7.2(e) (stripping a Relocating Partner’s members from the
general partnership board) does not change the result because the Stars either did not or
would not have recognized its effect given that they refused to recognize the legitimacy of
the redemption provisions.
60
The Stars’ original briefing did not cite COC Agreement § 1.7 to support their
argument. Section 1.7 provides that “[n]o partner acting alone, shall have any authority to
act for, or to undertake or assume any obligation, debt, duty, or responsibility on behalf of
any other Partner or the partnership except as otherwise expressly provided in this
Agreement.” Stars’ MSJ App., Vol. 1 at 38. They invoked § 1.7 for the first time in
response to the court’s request for supplemental briefing. See Stars’ Supplemental Brief at
5-6. Nonetheless, the court concludes that this provision does not affect the result for two
reasons. First, after considering the words taken as a whole and applying the noscitur a
sociis principle, this clause refers to acts with third parties and not partners among
themselves. See Primexx Energy Opp. Fund, LP v. Primexx Energy Corp., 2025 Tex. Bus.
9, ¶ 70, 709 S.W.3d 619, 638 (1st Div., appeal pending) (“[A] word or phrase’s meaning,
especially one in a list, should be known by the words immediately surrounding it.”).
Second, even if the clause applied to actions between the partners, (i) this clause excludes
exceptions provided for elsewhere in the agreement and (ii) as discussed in part V, the
redemption clauses are an exception that permits one partner to cause the redemption of
the other partners’/members’ interests without a formal action.

Opinion and Order on Combined Summary Judgment Motions, Page 29
interests. 61 According to the Stars, “the Mavericks changed the designated

location of their principal oﬃce (that is, the ʻplace of business for day to day

operations’) to Las Vegas in 2024, [thus] they are neither Remaining Partners

nor Remaining Members under the Agreements, and therefore have no right to

purchase or redeem based on any Relocation Event.”62

[¶ 71] The Mavericks responded that (i) the “Team’s” principal

corporate and executive oﬃces have always been located in Dallas and

(ii) governmental statements regarding their “Owner’s” principal and

corporate and executive oﬃces do not defeat their redemptions. 63

[¶ 72] The court denies the Stars’ motion because (i) the franchise

agreements distinguish between “Owners” and “Teams”; (ii) the “Location

Commitment” clauses provide that the Owners must designate Dallas as the

location of the “Team’s”—not the “Owner’s”—principal corporate and

executive oﬃces; (iii) the Location Commitments’ word “location” indicates

the parties’ agreements with Dallas focused on the “Team’s” visible presence

in Dallas; (iv) the ordinary meaning of “designate” includes conduct that

61
Stars’ Mavericks’ Relocation Event MSJ at 5-6.
62
Stars’ Mavericks’ Relocation Event MSJ at 2-3.
63
Mavericks’ Relocation Event MSJ Response at 5.

Opinion and Order on Combined Summary Judgment Motions, Page 30
indicates or sets apart an object; (v) the documents on which the Stars rely

refer to corporate entities, not the Team; (vi) the Mavericks adduced that they

at all relevant times physically designated and maintained the “Team’s”

principal corporate and executive oﬃces in Dallas.64

B. Analysis

1. Defined Terms

[¶ 73] The analysis starts with the franchise agreements’ “Location

Commitments” and their deﬁned terms. Both agreements include this

Location Commitment:

Section 2.1. Location Commitment. Subject to the rights of
termination set forth in Section 2.5, and to the exculpatory
provisions set forth in Section 2.3, throughout the Term, the
Owner shall continuously designate the City as the location (a)
in which the Home Games shall be played, and (b) in which the
principal corporate and executive oﬃce of the Team shall be
maintained.65

Absent a limiting clause, headings and titles provide context and can inform

the meaning of sections they label. Jones Constr. Grp. LLC v. Westlake Chem.

Corp., 650 S.W.3d. 392, 416 (Tex. 2022). The caption “Location

64
Appendix in Support of Plaintiffs’ Responses to Motions for Summary Judgment
(Mavericks’ MSJ App.) at 30-38 (Lewis Dec.).
65
Stars’ MSJ App., Vol. 1 at 14, 25.

Opinion and Order on Combined Summary Judgment Motions, Page 31
Commitment” together with the clauses’ terms suggest a commitment to a

physical location.

[¶ 74] Next the Stars’ franchise agreement deﬁnes “Owner” as the

“Dallas Stars, L.P. and any successor in interest to the ownership rights in the

Franchise and the Team including a purchaser or mortgagee (that acquires

such rights by foreclosure or otherwise) of such ownership rights.” 66 The

Mavericks’ agreement is identical except it substitutes “Dallas Basketball

Limited” for “Dallas Stars, L.P.”67

[¶ 75] Similarly, the Stars’ agreement deﬁnes “Team” as “collectively,

the players, coaches, trainers and administrative employees who represent the

Franchise from time to time in competitive ice hockey games in the League,

known as the ʻDallas Stars.’”68 The Mavericks’ agreement is identical, except

it substitutes basketball for ice hockey and “Dallas Mavericks” for the

“Dallas Stars.”69 Accordingly, “Team” is not deﬁned based on particular legal

66
Stars’ MSJ App., Vol. 1 at 13.
67
Stars’ MSJ App., Vol. 1 at 25.
68
Stars’ MSJ App., Vol. 1 at 14.
69
Stars’ MSJ App., Vol. 1 at 25.

Opinion and Order on Combined Summary Judgment Motions, Page 32
entities, but instead what the public knows and understands as the “Dallas

Stars” and “Dallas Mavericks.”

[¶ 76] Finally, both agreements deﬁne “Franchise” as “the rights of

the Owner that were issued, granted, and sanctioned to the Owner by the

League (as deﬁned herein) authorizing the Owner to ﬁeld and operate the Team

as competing member of the League.”70

[¶ 77] Thus, the franchise agreements mean that the Owners and their

Teams are to be considered separately. And in context the word “location”

refers to and is modiﬁed by both where the Teams play their Home Games (the

Arena) and where their players, coaches, trainers, and administrative

employees are located. Had Dallas and each organization, respectively, agreed

that “location” was intended to mean where the Teams played home games

and their Owners had their principal oﬃces, that is what the Location

Commitments would have said. But instead, they put the location emphasis

on where the Teams played their home games and where the Teams maintained

their principal oﬃces.

70
Stars’ MSJ App., Vol. 1 at 13, 24.

Opinion and Order on Combined Summary Judgment Motions, Page 33
2. The Parties’ Location Evidence

a. The Stars’ Evidence

[¶ 78] The Stars base their “Mavericks’ Relocation Event” evidence on

two government ﬁlings certain Mavericks aﬃliates made after the Mavericks

delivered their October 25, 2024, redemption letter. First, the Stars cite a

November 15, 2024, Texas Franchise Tax Public Information Report ﬁled by

DBL.71 That document states that DBL’s Principal Oﬃce and Principal Place

of Business are in Las Vegas, Nevada.72 It also states that (i) DBL’s general

partner, Dallas Sports Group Management, LLC and (ii) a subsidiary (EMAVS

LLC) and a parent entity (Radical Mavericks II, LTD) identify Texas as their

state of formation. 73

[¶ 79] Second, the Stars cite a March 18, 2025, Application for

Registration of a Foreign Limited Liability Company ﬁled by DSG. 74 That

document states that DSG’s principal oﬃce address is in Las Vegas, Nevada.75

71
Stars’ Mavericks Relocation Event MSJ at 9-10; Stars’ MSJ App., Vol. 2 at 515
(1015).
72
Stars’ MSJ App., Vol. 2 at 515 (1015).
73
Stars’ MSJ App., Vol. 2 at 515 (1015).
74
Stars’ Mavericks Relocation Event MSJ at 11-12; Stars’ MSJ App., Vol. 2 at 516-
517 (1016-1017).
75
Stars’ MSJ App., Vol. 2 at 516 (1016).

Opinion and Order on Combined Summary Judgment Motions, Page 34
It also identiﬁes Patrick Dumont and Steven Garﬁnkel as DSG’s governing

persons with the same Las Vegas, Nevada address.76

[¶ 80] Neither document says anything about where the Team plays its

home games or where its players, coaches, trainers, and administrative

employees are located.

[¶ 81] The Stars also included a Texas Franchise Tax Public

Information Report stating that as of November 2, 2023—before the

redemption letter was sent—DBL and Radical Mavericks Management listed

1229 Slocum Street, Dallas, Texas 75207 as their oﬃce and principal place of

business.77 So, if such ﬁlings were relevant, the Stars’ evidence would locate

the Mavericks in Dallas when they exercised their redemption rights.

b. The Mavericks’ Evidence

[¶ 82] The Mavericks submitted a declaration from Sekou Lewis, who

stated he is, and since July 2018 has been, “the General Counsel and Chief

Ethics Oﬃcer for the Dallas Mavericks.”78 He also said that throughout his

employment (i) his and the Dallas Mavericks’ CEO and CFO’s oﬃces have

76
Stars’ MSJ App., Vol. 2 at 517 (1017).
77
Stars’ MSJ App., Vol. 2 at 512 (1012).
78
Mavericks’ MSJ Response App. at 30-38.

Opinion and Order on Combined Summary Judgment Motions, Page 35
been located and maintained at 1333 N. Stemmons Freeway, Dallas, Texas;

(ii) “[t]he principal corporate and executive oﬃces and practice facilities

where all Mavericks players, coaches, trainers, and administrative employees

(collectively, the “Team”) work and practice are located in Dallas, Texas”;

(iii) “the Team’s only corporate and executive oﬃces have continually been

maintained at” that same address; (iv) and the Team’s practice facility has

continuously been in a building adjacent to that address.79

[¶ 83] Lewis also provided pictures of the Team’s corporate and

executive oﬃces at those Dallas locations.80

3. Analysis

a. Owners and Teams are different.

[¶ 84] Deﬁned terms in the Location Commitments distinguish

between the “Owners” and “Teams” as separate concepts with separate

meanings. Those distinctions establish that for Location Commitment

purposes the Owner designates where the Team’s principal corporate and

executive oﬃces are located, not where the Owner’s principal executive and

corporate oﬃces are located.

79
Mavericks’ MSJ Response App. at 30-38.
80
Mavericks’ MSJ Response App. at 32-38.

Opinion and Order on Combined Summary Judgment Motions, Page 36
[¶ 85] But the agreements do not require any particular form of

designation. So, the court refers to the common meanings of the words

“location” and “designate” to discern their meaning here.

b. “Location”

[¶ 86] The Merriam-Webster dictionary deﬁnes “location” as

1 a : a position or site occupied or available for occupancy or
marked by some distinguishing feature : situation/Much of the
charm of the house is in its location.

B (1) : a tract of land designated for a purpose/the location for a
mining claim 81

[¶ 87] Similarly, Dictionary.com deﬁnes “location” as

1. a place of settlement, activity, or residence./This town is a
good location for a young doctor.

2. a place or situation occupied./a house in a ﬁne location.

3. a tract of land of designated situation or limits./a mining
location. 82

c. “Designate”

[¶ 88] According to the Merriam-Webster dictionary, the common

deﬁnition of “designate” includes “1: to indicate and set apart for a speciﬁc

81
Location, Merriam-Webster.com (last visited March 28, 2026).
82
Location, Dictionary.com (last visited March 28, 2026).

Opinion and Order on Combined Summary Judgment Motions, Page 37
purpose, oﬃce, or duty [. . . ] land designated as a wildlife refuge”; 2a: to point

out the location of [] a marker designating the battle.83

[¶ 89] Similarly, Dictionary.com deﬁnes “Designate” to mean “1. To

mark or point out; indicate; show; specify[;] 2 to denote; indicate; signify; 3 to

name; entitle; style.” 84

[¶ 90] Neither deﬁnition requires that a designation happen only in

writing. Indeed, the word “written” in the common parlance “written

designation” is a limiting modiﬁer that does not appear in the Location

Commitments. So, it follows that Dallas and the parties agreed that the

Owners could designate their Teams’ location other than in writing, such as

by physical location and signage.

[¶ 91] The Stars correctly argue that Secretary of State ﬁlings are prima

facie evidence of facts stated in the document.85 See TEX. BUS. ORG. CODE

§ 4.005. However, neither document states where the Mavericks’ players,

coaches, trainers, and administrative employees who represent the Franchise

83
Designate, Merriam-Webster.com (last visited March 16, 2026) (emphasis in
original).
84
Designate, Dictionary.com (last visited March 16, 2026).
85
Stars’ Mavericks’ Relocation Event MSJ at 9.

Opinion and Order on Combined Summary Judgment Motions, Page 38
from time to time in competitive National Basketball Association games are

located; that is, where that Team plays its home games and has its principal

corporate and executive oﬃces. 86

a. Public perception of the Team’s local presence was important.

[¶ 92] In context with the ﬁnancing arrangements using bonds issued

by Dallas, these terms objectively indicate the parties’ intent that the public

perception of the Teams’ Dallas locations was more important than where

their ownership executives were located. In fact, “Team” is deﬁned in the

parties’ franchise agreements based on what the public “know[s] as” the

“Dallas Stars” and the “Dallas Mavericks,” i.e. collectively the players,

coaches, trainers, and administrative employees, not any particular entities.87

[¶ 93] Thus, the court accepts the Mavericks’ argument that the word

“location” in § 2.1’s caption and text indicate that the public’s perception of

where the Teams are physically located was more important to the overall

arrangement than where corporate entities listed their oﬃces on government

ﬁlings. See Jones Constr., 650 S.W.3d. at 416 (Absent a limiting clause,

86
Stars’ MSJ App., Vol. 2 at 515-516 (1015-1016).
87
Stars’ MSJ App., Vol. 1 at 14, 25.

Opinion and Order on Combined Summary Judgment Motions, Page 39
headings and titles provide context and can inform the meaning of sections

they label.).

b. Decision

[¶ 94] Based on construing the franchise agreements’ terms, the

common meanings of “location” and “designate,” and the Agreements’

overall purpose and context, the court concludes that the parties objectively

and unambiguously intended for the Commitment Location clauses to mean a

physical location in Dallas where (i) the fans would see the Stars and

Mavericks play their home games and (ii) the Teams’ oﬃces would have a

visible presence to the fans. That conclusion comports with the overall

purpose to support Dallas’s bond ﬁnancing by promoting the Teams in Dallas.

And it is the only reasonable interpretation that the contracts permit.

[¶ 95] So, Mr. Lewis’s declaration, and its attached pictures, evidence

that the Mavericks’ Team’s—as opposed to its Owner’s or aﬃliated entities’—

principal corporate and executive oﬃces have been consistently designated

and maintained in Dallas. The Stars did not conclusively prove otherwise.

[¶ 96] Accordingly, the court denies the Stars’ Relocation Event

summary judgment motion.

Opinion and Order on Combined Summary Judgment Motions, Page 40
VII. The Stars’ “Limitations” MSJ

A. Introduction

[¶ 97] The Mavericks assert two causes of action against the Stars: (i) a

requested declaratory judgment that as of October 25, 2024, the Mavericks

redeemed the Stars’ interests and gained the right to designate Center GP’s

board members and (ii) the Stars have since tortiously interfered with the

Mavericks’ right to manage Center GP, COC, and the arena.88

[¶ 98] The Stars’ “Limitations” motion argues that the four-year

limitations period, applicable to contract breach claims, bars the Mavericks’

declaratory judgment claim.89 According to the Stars, (i) the Mavericks’ cause

of action accrued no later than 2003 when the Stars moved to Frisco; (ii) the

Mavericks did not sue within four years of that date; and (iii) no tolling or

other doctrine prevents applying limitations to this suit ﬁled twenty-two years

later. 90

88
Plaintiffs’ Original Petition and Application for Injunctive Relief at 21-26;
Plaintiffs’ First Amended Petition and Application for Injunctive Relief at 29-36.
89
Stars’ Limitations MSJ at 1-2, 7-9. The Stars’ limitations motion also argues that
no exceptions to limitations apply. However, the court need not reach those issues because
it concludes that the Stars did not conclusively prove a prima facie limitations defense.
The Stars’ Limitations MSJ at 1-2, 10-19. The Stars’ motion does not appear to
90

independently challenge the Mavericks’ tortious interference claim. The Stars also
preemptively address a Mavericks’ continuing breach theory. Stars’ Limitations MSJ

Opinion and Order on Combined Summary Judgment Motions, Page 41
[¶ 99] The Mavericks respond that the Stars’ motion fails because

(i) the Stars’ did not articulate a start date for running limitations; (ii) the

Mavericks’ declaratory judgment cause of action accrued on November 1,

2024, when the Stars’ rejected the Mavericks’ week-earlier redemption letter,

and the Mavericks sued less than four years from that date; and (iii) the

continuing breach doctrine prevents the Stars’ limitations defense.91

B. Analysis and Decision

[¶ 100] Limitations is an aﬃrmative defense. TEX. R. CIV. P. 94. To

win summary judgment on that defense, the Stars had to conclusively

establish (i) when the cause of action accrued and (ii) the plaintiﬀ brought its

claim more than the applicable number of years thereafter. E.g., Riverside

Strategic Capital Fund I, L.P. v. CLG Invests., LLC, 2025 Tex. Bus. 35, ¶ 49,

722 S.W.3d 27, 35 (1st Div., appeal pending).

[¶ 101] Determining when a cause of action accrues is a legal question

for the court. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 274-75

(Tex. 2004).

at 12-19. The Mavericks’ response discussed a continuing breach theory. Mavericks’
Limitations MSJ Response at 19-27. But the court need not reach that issue.
91
Mavericks’ Limitations MSJ Response at 6-7, 12, 14-19.

Opinion and Order on Combined Summary Judgment Motions, Page 42
[¶ 102] A declaratory judgment cause of action does not accrue until

there is an actual, justiciable controversy between the parties. See e.g.,

Murphy v. Honeycutt, 199 S.W.2d 298, 299 (Tex. Civ. App.—6th Dist. 1946,

writ ref’d); In re Est. of Denman, 362 S.W.3d 134, 144 (Tex. App.—4th Dist.

2011, no pet.); see also, Bonham State Bank v. Beadle, 907 S.W.2d 465, 467

(Tex. 1995) (A declaratory judgment is appropriate only if real and substantial

controversy involving genuine conﬂict of tangible interest and not merely a

theoretical dispute exists.).

[¶ 103] Here, there is credible evidence that an actual, justiciable

controversy between the parties regarding the Mavericks’ claimed

redemptions did not arise until November 1, 2024, when the Stars rejected the

Mavericks’ redemption letter and refused to recognize their asserted

redemptions. 92 Accordingly, the court denies the Stars’ Limitations summary

judgment. 93

92
See Mavericks’ MSJ App. at 39-43. Given this ruling, the court need not address
the remaining limitations arguments.
93
The Mavericks also brought their tortious interference cause of action within two
years after the Stars rejected the Mavericks’ redemption letter. See Exxon Mobil Corp. v.
Rincones, 520 S.W.3d 572, 591 (Tex. 2017) (two-year statute of limitations period for
tortious interference cause of action accrues when a contracting party knows the nature of
the injury and damages). There could have been no tortious interference until that time.

Opinion and Order on Combined Summary Judgment Motions, Page 43
VIII. The Stars’ Original Impossibility Motion

A. Introduction

[¶ 104] The Stars posit that the original impossibility doctrine bars the

Mavericks’ declaratory judgment cause of action because that claim relies on

a contract term that was impossible to perform when the Stars signed its

contracts. 94 According to the Stars, original impossibility exists because they

have continuously violated their Location Commitment since they signed their

franchise agreement; thus, it was impossible for them to designate and

maintain their oﬃces in Dallas throughout their franchise agreement.95

[¶ 105] The Mavericks respond that (i) original impossibility is a

contract breach defense and they do not assert contract breach claims;

(ii) nothing prevented the Stars from maintaining their Team’s principal oﬃce

in Dallas had they wanted to; (iii) the Stars could have avoided the redemption

clauses by moving to Dallas before the redemption clauses came into

existence; and (iv) the defense does not apply because the Stars knew where

their oﬃces were located when they signed their agreements. 96

94
See Stars’ Original Impossibility MSJ at [4-6]. The court uses the bracketed
numbers as the actual page numbers since the motion begins with four number “1” pages.
95
Stars’ Original Impossibility MSJ at [5-6].
96
Mavericks’ Original Impossibility Response at 5-6, 9-21.

Opinion and Order on Combined Summary Judgment Motions, Page 44
B. Analysis and Decision

[¶ 106] Original impossibility is a contract breach defense that applies

where the promisor’s performance is impossible because of facts that existed

when the promise was made and about which the promisor did not know when

it made the promise. Janak v. FDIC, 586 S.W.2d 902, 906-07 (Tex. App.—

1st Dist. 1979, no writ).

[¶ 107] The Stars concede that they never maintained their oﬃce in

Dallas during a relevant time period, ﬁrst being in Irving and then moving to

Frisco in 2003—regardless of how one designates its principal corporate and

executive oﬃces.97 They also concede that they had at least a year between

when they signed their franchise agreement and the COC and Center GP

Agreements. 98 Thus, there is more than a scintilla of credible evidence that, if

their Location Commitment and redemption clause promises in the COC and

Center GP Agreements were objectively impossible when the Stars signed

those contracts, they had that knowledge before they made those promises.

[¶ 108] Additionally, and alternatively, the Stars oﬀered no evidence

that (i) they could never have located their Team’s oﬃces in Dallas or (ii) that

97
Stars’ Original Impossibility MSJ at [5-6]; Stars’ Waiver MSJ at 4.
98
Stars’ Original Impossibility MSJ at [9].

Opinion and Order on Combined Summary Judgment Motions, Page 45
they could not have moved their oﬃces to Dallas before the COC and Center

GP Agreements became eﬀective.

[¶ 109] Accordingly, the court denies the Stars’ Original Impossibility

summary judgment motion.99

IX. The Stars’ Waiver Summary Judgment Motion

A. Introduction

[¶ 110] Waiver is the voluntary relinquishment of a known right or

intentional conduct inconsistent with asserting that right. Tenneco Inc. v.

Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996). Its elements “are

(1) an existing right, beneﬁt, or advantage held by a party, (2) the party’s

actual knowledge of its existence, and (3) the party’s actual intent to

relinquish the right or intentional conduct inconsistent with the right.” Id. In

determining whether waiver occurred, courts must examine the parties’ words

and conduct, which “must unequivocally manifest an intent to no longer assert

the right being waived.” EWB-I, LLC v. PlazAmericas Mall Tex., LLC, 527

S.W.3d 447, 466 (Tex. App.—1st Dist. 2017, pet. denied).

99
Given these rulings, the court need not address the remaining arguments.

Opinion and Order on Combined Summary Judgment Motions, Page 46
[¶ 111] The Stars proﬀer three reasons why waiver defeats the

Mavericks’ redemption rights: (i) the Mavericks’ twenty-plus years’ of

inaction, despite knowing that the Stars’ oﬃces were not in Dallas, impliedly

waives those rights; (ii) designating Las Vegas as the Mavericks’ principal

oﬃce and place of business is inconsistent with their redemption eﬀorts; and

(iii) the Mavericks waived the Agreements’ nonwaiver clauses. 100

[¶ 112] The court denies the Stars’ waiver motion because (i) the

parties’ nonwaiver clauses preclude waiver-by-delay in exercising rights or

remedies arising from the other side’s breached covenants, duties,

agreements, or conditions and (ii) the Stars did not conclusively prove that the

Mavericks knowingly and intentionally waived their redemption rights by

aﬃrmatively designating Las Vegas as where their principal corporate and

executive oﬃces shall be maintained or otherwise engaged in conduct

manifestly inconsistent with exercising those rights.

[¶ 113] This waiver discussion should be read together with the court’s

part XI(B) waiver discussion and vice versa.

100
Stars’ Waiver MSJ at 1-2. The Stars’ response to the Mavericks’ Declaratory
Judgment motion more specifically argues that the Mavericks impliedly waived their
redemption rights by permitting the Stars to conduct financial transactions with COC. See
Stars’ Affirmative Defenses Response at 5-6, 15-16.

Opinion and Order on Combined Summary Judgment Motions, Page 47
B. The Stars’ Arguments

1. The Mavericks knew where the Stars maintained their offices.

[¶ 114] First, the Stars rely on Tenneco, 925 S.W.2d at 643, to argue

that the Mavericks’ decades-long failure to redeem despite knowing that the

Stars’ location was outside Dallas is intentional conduct inconsistent with

asserting their redemption.101 They base their argument on these undisputed

facts: (i) their oﬃce locations have always been public knowledge; (ii) notices

from the Stars’ 2011 bankruptcy sale gave the Mavericks actual knowledge of

the Stars’ oﬃce location; and (iii) the Mavericks’ Texas Legends basketball

team leased space in Stars’ facilities. 102

[¶ 115] Relying on Tenneco, the Stars argue that the Mavericks’ failure

to exercise their redemption rights for decades despite that knowledge proves

implied waiver as a matter of law. 103

2. Las Vegas

[¶ 116] Second, the Stars urged that the “the Mavericks acted wholly

inconsistent with the right to declare a ʻRelocation Event’ when they

101
This argument effectively concedes the Stars’ Location Commitment breach.
102
Stars’ Waiver MSJ at 10-13. Thus, the Stars acknowledge that unless a contract
provides otherwise, actual knowledge of facts is effective.
103
Stars’ Waiver MSJ at 10-13.

Opinion and Order on Combined Summary Judgment Motions, Page 48
designated Las Vegas, Nevada as the principal oﬃce and place of business.”104

The Stars rely on the same evidence for this argument that they relied on in

their “Mavericks’ Relocation Event” motion.105 Based on that evidence, they

argue that the same Mavericks’ action they claim violates the COC and Center

GP Agreements also waived their right to redeem the Stars’ interests.106

3. The Mavericks’ Nonwaiver Clauses

[¶ 117] Finally, the Stars acknowledge that the COC and Center GP

Agreements contain these identical nonwaiver clauses:

13.8 Waiver. No failure by any party to insist upon strict
performance of any covenant, duty, agreement, or condition of
this Agreement or to exercise any right or remedy consequent
upon a breach thereof shall constitute waiver of any such breach
or any other covenant, duty, agreement or condition.107

[¶ 118] They cite Shields, 526 S.W.3d at 474, for the point that “[t]o

waive a nonwaiver clause, ʻthere must be at a minimum, some act inconsistent

with its terms.’” 108

104
Stars’ Waiver MSJ at 14.
105
Stars’ Waiver MSJ at 1-8, 14.
106
Stars’ Waiver MSJ at 14.
107
Stars’ MSJ App., Vol. 1 at 106, 191 (emphasis in original).
108
Stars’ Waiver MSJ at 15.

Opinion and Order on Combined Summary Judgment Motions, Page 49
[¶ 119] From there, they cite EWB-I, 527 S.W.3d at 469, to argue that

a nonwaiver clause based on inaction does not apply to a waiver based on

aﬃrmative breaches. 109 They then argue that the Mavericks’ designation of

their principal oﬃce and place of business and location of DSRA’s controlling

person in Las Vegas, Nevada conclusively waives the nonwaiver clause and

thus permits waiver of the Mavericks’ redemption rights.110

C. The Mavericks’ Responses

[¶ 120] The Mavericks responded that (i) the nonwaiver clauses are

facially dispositive; (ii) their prior non-action of their redemption rights does

not waive the nonwaiver-by-inaction clauses; and (iii) the Stars did not

identify aﬃrmative conduct that waived (a) the nonwaiver clauses or (b) the

Mavericks’ redemption rights.111

[¶ 121] First, the Mavericks rely on Shields, 526 S.W.3d at 481-93, to

argue that to waive a nonwaiver clause a party must manifest clear intent to

do so; otherwise, the clause is facially dispositive that waiver cannot be based

109
Stars’ Waiver MSJ at 16.
110
Stars’ Waiver MSJ at 15-6. The Mavericks’ Original and First Amended Petitions
define “DSRA” as Dallas Sports Group, LLC and Radical Arena, Ltd, collectively the
Mavericks.
111
Mavericks’ Waiver Response, pp. 11-20.

Opinion and Order on Combined Summary Judgment Motions, Page 50
on the same nonaction protected by the clause.112 So, they argue that these

clauses unambiguously prevent waiver based on a delay in asserting their

rights and remedies regarding a Stars’ breach of their Location Commitment

conditions.113

[¶ 122] Second, they urge that the Stars “cherry-pick” Tenneco to

argue that the Mavericks’ delay in exercising their redemption rights waived

those rights.114 The Mavericks then cite Location, Location, Location, Ltd. v.

Home Depot USA, Inc., No. 07-21-00036-CV, 2022 WL 215131 (Tex. App.—

7th Dist. Jan. 25, 2022, no pet.) (mem. op.) as an example where an eleven-

year delay in asserting rights did not waive those rights due to an “inaction

nonwaiver clause.”115

[¶ 123] Finally, regarding the Stars’ “Las Vegas designation” theory,

the Mavericks argued that: (i) they have always maintained the “Team’s”

principal corporate and executive oﬃces in Dallas;116 and (ii) had the

112
Mavericks’ Waiver Response at 11.
113
Mavericks’ Waiver Response at 11-14.
114
Mavericks’ Waiver Response at 14-15.
115
Mavericks’ Waiver Response at 15-16.
116
Mavericks’ Waiver Response at 17.

Opinion and Order on Combined Summary Judgment Motions, Page 51
Mavericks relocated to Las Vegas, that would not be inconsistent with both

the nonwaiver clause or the right to redeem.117

D. Analysis and Decision

[¶ 124] For purposes of this discussion, the court assumes without

concluding that the Mavericks always knew where the Dallas Stars’ Team was

located.

1. The Stars’ Tenneco Argument

[¶ 125] To begin, although Tenneco upheld the principle of implied

waiver-by-inaction, it does not support the Stars’ waiver arguments for at least

these alternative, independent reasons. First, unlike the present case, Tenneco

does not involve a nonwaiver clause addressing conduct that the defendants

argued amounted to waiver. See Tenneco, 925 S.W.2d at 643-44.

[¶ 126] Second, the plaintiﬀ’s inaction in Tenneco was in the face of the

defendant’s direct breaches of contract duties owed to those plaintiﬀs.

Whereas the Stars’ Location Commitment promise was a covenant they made

to Dallas, not the Mavericks. Thus, the Stars’ breach vis-à-vis Dallas did not

117
Mavericks’ Waiver Response at 17-21.

Opinion and Order on Combined Summary Judgment Motions, Page 52
directly impact the Mavericks nor prompt a reason for them to respond

urgently.

[¶ 127] Third, Tenneco aﬃrms that “courts will not rewrite agreements

to insert provisions parties could have included or imply restraints for which

they have not bargained.” Id. at 646. Because the Stars’ breach of their

Location Commitment to Dallas merely triggers the Mavericks’ redemption

opportunity, accepting the Stars’ waiver-by-inaction premise would rewrite

the COC and Center GP Agreements to impose an aﬃrmative duty on the

Mavericks to redeem or lose their rights. Because these parties did not include

that duty in their contracts with each other, the court cannot insert that duty

for them. Id.

2. The Nonwaiver Clauses

a. Implied Waiver-by-Inaction

[¶ 128] The Mavericks’ response relies heavily on the nonwaiver

clauses to defeat the Stars’ waiver motion.118 Shields and Chalker Energy

Partners III, LLC v. Le Norman Operating LLC, 595 S.W.3d 668 (Tex. 2020),

provide the legal baseline for analyzing the parties’ arguments.

118
Mavericks’ Waiver Response, passim.

Opinion and Order on Combined Summary Judgment Motions, Page 53
[¶ 129] For starters, Chalker and Shields emphasize Texas’s strong

public policy favoring sophisticated parties’ freedom to order their

relationship through contract agreements, absent violation of law or public

policy. Chalker, 595 S.W.3d at 673; Shields, 526 S.W.3d at 481-82.

[¶ 130] Next, those cases hold that waiver is the intentional

relinquishment of a known right or intentional conduct inconsistent with

asserting that right. Chalker, 595 S.W.3d at 676; Shields, 526 S.W.3d at 474.

And “[w]hile ordinarily a fact question, when the facts and circumstances are

undisputed, waiver may be decided as a matter of law.” Chalker, 595 S.W.3d

at 676-77.

[¶ 131] Chalker and Shields also conﬁrm that establishing implied

waiver—waiver by conduct—requires intentional conduct that is

unequivocally inconsistent with the known right at issue:

There can be no waiver of a right if the person sought to be
charged with waiver says or does nothing inconsistent with an
intent to rely upon such right. In other words, to establish waiver
by conduct, that conduct must be unequivocally inconsistent
with claiming a known right.

Chalker, 595 S.W.3d at 677 (quoting Shields, 526 S.W.3d 485). Stated

diﬀerently, engaging in conduct that is the subject of the nonwaiver clause

does not constitute waiver based on that conduct.

Opinion and Order on Combined Summary Judgment Motions, Page 54
[¶ 132] More speciﬁcally, a nonwaiver-by-inaction clause is a

bargained-for agreement that the nonbreaching party can delay acting without

forfeiting its right to act later.

[¶ 133] So, the COC and Center GP Agreements’ nonwaiver clauses

negate the Stars’ argument that the Mavericks waived their redemption rights

by failing to exercise them earlier despite their knowledge that the Stars were

not located in Dallas:

[t]he Texas Supreme Court has held that waiver of a nonwaiver
provision cannot be “anchored in the same conduct the parties
speciﬁcally agreed would not give rise to a waiver of contract
rights.”

Location, 2022 WL 215131, *4 (quoting Shields, 526 S.W.3d at 474)

(nonwaiver-by-delay clause applied to thirteen-year delay in suing to enforce

restrictive covenant).

b. Implied Waiver by Affirmative Conduct

[¶ 134] Although the nonwaiver clauses negate the Stars’ waiver-by-

inaction argument, they do not bear on whether the Mavericks waived their

redemption rights by engaging in diﬀerent acts outside the nonwaiver clauses’

scope. See EWB-I, 527 S.W.3d at 467-69.

[¶ 135] Thus, the Stars again reference the same government ﬁlings

listing Las Vegas as the principal oﬃce, principal place of business, or mailing

Opinion and Order on Combined Summary Judgment Motions, Page 55
address for DBL; Dallas Sports Group Management, LLC; EMAVS, LLC;

Radical Mavericks II, LTD; DSG (or its Governing Person) that they relied on

for their earlier Mavericks’ Relocation Event arguments as independent,

aﬃrmative conduct impliedly waiving the Mavericks’ right to exercise their

redemption rights.119

[¶ 136] The court rejects the Stars’ argument for at least two

reasons.120 First, those ﬁlings say nothing about redemption rights, nor do

they involve the act of redeeming anything.

[¶ 137] Second, as with the Stars’ “Mavericks’ Relocation Event”

motion, those ﬁlings (all of which post-date the Mavericks’ redemption letter)

do not address where the “Team’s” principal oﬃces are designated or located.

Where the “Owner” or corporate aﬃliates list their oﬃces on government

ﬁlings does not represent where the Team’s public-facing oﬃces are located.

3. The Stars’ Replies

[¶ 138] The court rejects the Stars’ reply arguments for these reasons:

[¶ 139] First, the Stars’ argument that the Mavericks’ statement that

their ﬁrst principal and corporate oﬃces were on LBJ Freeway is unsupported

119
Stars’ Waiver MSJ at 14-16.
120
See part IV, above.

Opinion and Order on Combined Summary Judgment Motions, Page 56
in Mr. Lewis’s declaration is accurate. But the Stars’ point is irrelevant

because where the Mavericks’ ﬁrst oﬃces were located is not relevant to

deciding the current issues. 121

[¶ 140] Second, the Stars argue that Mr. Lewis’s statements about the

Team’s oﬃces cannot be squared with the corporate ﬁlings listing oﬃces and

mailing addresses in Las Vegas. 122 The court rejects that argument because

Mr. Lewis’s declaration refers to the “Team’s” oﬃces as the Mavericks’

franchise agreement deﬁnes that term 123 whereas the corporate ﬁlings do

not.124

[¶ 141] Third, the Stars argue that neither the Mavericks’ response nor

Mr. Lewis say anything about the Mavericks’ “designation” of Dallas as their

principal corporate and executive oﬃces, whereas the Texas Franchise Tax

Public Information Report “designated” Las Vegas as the relevant address.125

The court rejects that argument because that tax form does not use the verb

121
Stars’ Waiver Reply at 4.
122
Stars’ Waiver Reply at 4-5.
123
Compare Lewis Dec., ¶s 2-4 and attached exhibits with Stars’ MSJ App., Vol. 1
at 25.
124
Stars’ MSJ App., Vol. 2 at 515-518 (1015-1018).
125
Stars’ Waiver Reply at 5 (emphasis in original).

Opinion and Order on Combined Summary Judgment Motions, Page 57
“designate” either.126 More importantly, the franchise agreements do not

specify a required designation method, and the Mavericks’ evidence satisﬁed

the common, ordinary meaning of the verb as applied to the deﬁned term

“Team.” 127

[¶ 142] Finally, part II(B) of the Stars’ reply discusses the nonwaiver

clauses and their eﬀects.128 The court reviewed and rejects those arguments

for the reasons stated in part IV above and part XI below.

4. Conclusion

[¶ 143] Accordingly, the court denies the Stars’ Waiver summary

judgment motion.

X. The Mavericks’ Declaratory Judgment Motion

A. Introduction

[¶ 144] In broad strokes, the Mavericks’ Declaratory Judgment motion

argues that they are entitled to a judgment declaring that their redemptions

are valid and they are entitled to control the board because the Stars violated

126
Stars’ MSJ App., Vol, 2 at 515 (1015).
127
See part VI above.
128
Stars’ Waiver Reply at 6-12.

Opinion and Order on Combined Summary Judgment Motions, Page 58
their Location Commitment to Dallas, which triggered the Mavericks’

redemption rights under the COC and Center GP Agreements.

[¶ 145] The Mavericks also seek to enforce Section 7.2(e) of the Center

GP Agreement, which states that a Relocating Partner’s appointed board

members are deemed to have resigned upon relocation.

[¶ 146] The parties largely repeat arguments they made regarding the

Stars’ motions. So, the court endeavors to summarize those arguments and

focus on new points.

B. The Stars’ Principal Corporate and Executive Offices

[¶ 147] It is undisputed that at no relevant point before the Mavericks

sent their redemption letter did the Stars designate or maintain in any form—

physically, through signage, or in writing—their Team’s principal corporate

and executive oﬃces in Dallas. Indeed, Mr. Alberts, the Stars’ Chief Executive

Oﬃcer, conceded as much:129

129
Stars’ MSJ App., Vol. 1 at 7; see Mavericks’ MSJ App. at 229.

Opinion and Order on Combined Summary Judgment Motions, Page 59
[¶ 148] And the Mavericks submitted additional evidence of the Stars’

executive oﬃces being in Frisco.130

[¶ 149] So, as a matter of unambiguous contract construction, the

Stars’ failure to designate and maintain their Team’s principal and corporate

oﬃces in Dallas breached their Location Commitment to Dallas. 131 Equinor

Energy, 2026 WL 705761, *2; see discussion in part IV(B) above.

C. Prior Adjudication of Breach

[¶ 150] Anticipating that the Stars would respond with their November

1, 2024, argument that no redemption occurred because the Mavericks could

130
Mavericks’ MSJ App. at 188-191. The Mavericks also submitted evidence
regarding the Stars’ acts post-redemption letters to open offices in Dallas. Mavericks’ MSJ
App. at 188-195. In reaching its conclusions, the court need not and does not consider
those acts.
131
See Stars’ MSJ App., Vol. 1 at 14.

Opinion and Order on Combined Summary Judgment Motions, Page 60
not unilaterally declare a breach of the Stars’ Location Commitment, 132 the

Mavericks argued that the court is to give the word “breach” in COC

Agreement § 4.8(c) and Center GP Agreement § 4.5 133 its ordinary meaning.134

They then add that “breach’s” ordinary meaning is “[a] violation or infraction

of law, obligation or agreement, esp. of an oﬃcial duty or legal obligation,

whether by neglect, refusal, resistance, or inaction.”135

[¶ 151] Next, they assert that because those sections do not contain

prior adjudication requirements, no such requirement exists and the court may

not add them.136 As further support, they add that COC Agreement’s

indemnity clause does include a prior liability ﬁnding, thus applying the

exclusio unius est exclusio alterius canon reinforces the conclusion that §§ 4.8

132
See Mavericks’ MSJ Response App. at 39-43.
133
The term “breach” does not appear in the Center GP Agreement; however, the
definition is incorporated through the Center GP Agreement’s adoption of the COC
Agreement’s definition of Relocation Event. See Mavericks’ MSJ App. at 34.
134
Mavericks’ Declaratory Judgment MSJ at 38.
Mavericks’ Declaratory Judgment MSJ at 38-39 (citing Breach, BLACK’S LAW
135

DICTIONARY (12th ed. 2024)).
136
Mavericks’ Declaratory Judgment MSJ at 38-41.

Opinion and Order on Combined Summary Judgment Motions, Page 61
and 4.5 do not require a prior adjudication of breach to trigger their redemption

rights. 137

[¶ 152] The Stars did not challenge the Mavericks’ argument.

D. Consideration

[¶ 153] The Mavericks argued that the Stars received the $110

consideration required to exercise the redemption rights.138 The Stars do not

dispute that tender.

[¶ 154] Instead, the Stars urge that COC Agreement § 4.8(b) and

Center GP Agreement § 4.5(b) require prior bookkeeping entries adjusting the

capital accounts as conditions to exercising redemption rights and the

Mavericks admit that those entries have not been made. 139

[¶ 155] The Mavericks reply that the redemption occurred when they

exercised their contract right to cause it by sending their redemption letter,

and any follow-on accounting and payments are ministerial and do not alter

the redemption’s eﬀectiveness.140

137
Mavericks’ Declaratory Judgment MSJ at 40-41; see Primexx, 2025 Tex. Bus.
¶ 69.
138
Mavericks’ Declaratory Judgment MSJ, pp. 43-44; Mavericks MSJ App. at 189,
201-202.
139
Stars’ Declaratory Judgment Response at 21-22.
140
Mavericks’ Declaratory Judgment Reply at 18.

Opinion and Order on Combined Summary Judgment Motions, Page 62
[¶ 156] Neither § 4.8 nor § 4.5 contain words indicating that completed

bookkeeping entries are conditions precedent to eﬀective redemptions.141 See

Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976)

(“While no particular words are necessary for the existence of a condition,

such terms such as ʻif’, ʻprovided that’, ʻon condition that’, or some other

phrase that conditions performance, usually connate an intent for a condition

rather than a promise.”) And the court cannot impose a condition that the

parties omitted from their agreements under the guise of construing their

contracts. Sundown Energy LP v. HJSA No. 3 P’ship, 622 S.W.3d 884, 889

(Tex. 2021).

[¶ 157] Moreover, by their terms, §§ 4.8(b) and 4.5(b) provide that the

capital account adjustment is automatic and thus ministerial.142 See id.

(“Courts are obliged to enforce the parties’ bargain according to its terms.”).

141
See Stars’ MSJ App., Vol 1 at 77, 155-56.
142
See Stars’ MSJ App., Vol. 1, at 77, 155-56.

Opinion and Order on Combined Summary Judgment Motions, Page 63
[¶ 158] Accordingly, the court rejects the Stars’ argument that the

redemptions failed because the Mavericks did not ﬁrst cause the bookkeeping

entries’ correlation with the automatic capital account reductions.143

E. Causation

[¶ 159] The Mavericks argue that the Stars’ Location Commitment

breach with Dallas triggered the Mavericks’ right to cause the redemptions,

which they eﬀected with their October 25, 2024, letter and $110 cash

tender.144

[¶ 160] The Stars responded that the Mavericks could not unilaterally

redeem the Stars’ interests, rather only the entities themselves are capable of

completing the redemptions.145

[¶ 161] For the reasons explained in part V above regarding the Stars’

Standing MSJ, the court concludes that undisputed facts establish as a matter

of law that the Mavericks eﬀectively caused the redemptions.

143
The court also accepts the Mavericks’ argument that the Stars cannot prevent the
redemptions by not cooperating with those bookkeeping entries. See Mavericks’
Declaratory Judgment Reply at 14-18.
144
Mavericks’ Declaratory Judgment MSJ at 41-43.
145
Stars’ Declaratory Judgment Response at 17-19.

Opinion and Order on Combined Summary Judgment Motions, Page 64
[¶ 162] Moreover, the court concludes that the Mavericks’ declaratory

judgment action based on the Stars’ rejection of the Mavericks’ redemption

letter is a viable other or supplemental method for causing the redemption. 146

F. The Stars’ Las Vegas Arguments

[¶ 163] The Stars’ response largely repeats their “Mavericks’

Relocation Event” summary judgment arguments to argue that the Mavericks

are not a Remaining Partner/Member and thus legally incapable of eﬀecting

the redemptions.147 The Stars also argue that the Mavericks’ focus on the

Team’s physical location improperly renders “designate” in the Location

Commitments meaningless and asks the court to give that word a meaning

other than its common, ordinary meaning.148

[¶ 164] However, in making that argument, the Stars’ response used

ellipses to de-emphasize the phrase “of the Team” in the Location

Commitments’ location requirement:

. . . because the Mavericks’ Franchise Agreement requires that
ʻthe Owner shall continuously designate the City as the

146
See TEX. BUS. ORG. CODE § 101.463 (LLCs), § 153.413 (limited partnerships).
Partners/members in closely held entities may treat derivative suits as if they were direct
actions brought by the partner/member for their own benefit.
147
See Stars’ Declaratory Judgment Response at 11-17.
148
Stars’ Declaratory Judgment Response at 12-13.

Opinion and Order on Combined Summary Judgment Motions, Page 65
location . . . in which the principal corporate and executive
oﬃces shall be maintained’[.] 149

[¶ 165] That omission is telling because those omitted words connect

the designated location to the Team (meaning where the players, coaches,

trainers, and administrative employees have their principal oﬃce and they play

their home games) as opposed to the Owners’ principal oﬃce. Connecting the

designated location to the Team is consistent with requiring the Team’s public-

facing presence to be in Dallas, not any identiﬁed oﬃces for the Owners or

their aﬃliates. 150

[¶ 166] Thus, the court rejects the Stars’ Las Vegas arguments for

those reasons and the reasons discussed in part VI above.

G. Unilateral Redemption

[¶ 167] The Stars’ response urges the court to deny the Mavericks’

motion because the Mavericks cannot unilaterally redeem the Stars’ COC and

Center GP interests. 151 The court rejects the Stars’ arguments for the reasons

discussed in part V(B)(2)(a).

149
Stars’ Declaratory Judgment Response at 12 (ellipsis in original).
150
See part VI above.
151
Stars’ Declaratory Judgment Response at 17-20.

Opinion and Order on Combined Summary Judgment Motions, Page 66
H. Capital Account Adjustments

[¶ 168] The Stars respond that the Mavericks allegedly admit that the

redemption requirements have not been met.152 The Stars rest that argument

on the fact that actual bookkeeping entries to the Stars’ capital accounts to

reﬂect the adjustments needed to produce the $100 and $10 redemption tender

amounts have not occurred.153 The court rejects that argument as a matter of

law for the reasons discussed in part V(B)(2)(a) above.

I. Ambiguity

[¶ 169] The Stars’ response argues that the Stars’ franchise agreement

is ambiguous regarding the Location Commitment’s “principal oﬃce”

phrase. 154 The court rejects that argument for the reasons discussed in part VI

above.

J. Mavericks’ Remaining Partner/Member Status

[¶ 170] For the reasons discussed in this part X, the court concludes

that the Mavericks established as a matter of law that they are a Remaining

Partner/Member within the meaning of the COC and Center GP Agreements.

152
Stars’ Declaratory Judgment Response at 21-22.
153
Stars’ Declaratory Judgment Response at 21-22.
154
Stars’ Declaratory Judgment Response at 22-25.

Opinion and Order on Combined Summary Judgment Motions, Page 67
K. The Stars’ Affirmative Defenses

[¶ 171] Finally, the Stars adopted their ﬁve summary judgment

motions, related evidence, and arguments as suﬃcient to at least raise fact

issues on each aﬃrmative defense that is the subject of those motions.

[¶ 172] For the reasons discussed in parts V through IX above, the court

concludes that the Stars did not adduce evidence suﬃcient to raise a genuine

issue of material fact regarding all elements of those aﬃrmative defenses.

L. Conclusion

[¶ 173] Accordingly, the court grants the Mavericks’ request for a

declaration (i) that they eﬀectively caused a redemption of the Stars’ entire

interests in COC and Center GP on October 25, 2024, and (ii) Thomas

Gaglardi, Therese Baird, and Brad Alberts were terminated from the board of

directors of Center GP LLC on that date.

XI. The Mavericks’ Affirmative Defenses Motion

A. Introduction

[¶ 174] The Mavericks sought summary judgment dismissing the

Stars’ waiver and laches aﬃrmative defenses.155 First, the Stars’ waiver

response asserts implied waiver by aﬃrmative conduct.

155
Mavericks’ Affirmative Defenses Motion, passim.

Opinion and Order on Combined Summary Judgment Motions, Page 68
[¶ 175] Second, the court rejects the Stars’ laches defense for these

alternative reasons: (i) laches does not apply to purely legal causes of action;

(ii) the laches period does not extend beyond an applicable statute of

limitations; (iii) the nonwaiver clause applies to laches to the same extent it

applies to limitations; (iv) the Stars did not raise a genuine issue of material

fact that would support the laches defense if it did apply; and (v) the Stars did

not raise the defense in response to the Mavericks’ Declaratory Judgment

motion.

B. The Waiver Issue

1. Introduction

[¶ 176] The Mavericks argue that the COC and Center GP Agreements’

nonwaiver clauses negate the Stars’ waiver defense to the extent the Stars

assert waiver based on any Mavericks delay, tolerance, or forbearance in

asserting their redemption rights.156 This waiver discussion should be read

together with the court’s part IX waiver discussion and vice versa.

[¶ 177] The Stars respond that the court must determine whether

waiver can occur despite the nonwaiver clauses and that they adduced more

156
Mavericks’ Affirmative Defenses Motion at 2, 5-8.

Opinion and Order on Combined Summary Judgment Motions, Page 69
than a scintilla of evidence supporting their waiver defense.157 Those

arguments focus on the whether the Mavericks engaged in aﬃrmative acts

inconsistent with their nonwaiver clause right to delay taking action.158 They

also assert that the nonwaiver clauses are unenforceable as too broad. 159

2. Analysis

[¶ 178] At bottom, the Stars argue that the Mavericks waited too long

to exercise their redemption rights. But the parties agreed that the Mavericks

could wait to act until it suited their interests to act without losing those

rights:160

[¶ 179] The parties could have agreed to a time limit on the nonwaiver

rights; but they did not and the court cannot add one for them. E.g., Equinor,

2026 WL 705761 at *2.

157
Stars’ Affirmative Defenses Response at 1.
158
Stars’ Affirmative Defenses Response at 13-16.
159
Stars’ Affirmative Defenses Response at 1.
160
Stars’ MSJ App., Vol. 1 at 106, 191.

Opinion and Order on Combined Summary Judgment Motions, Page 70
[¶ 180] So, to avoid the nonwaiver clauses’ eﬀects, the Stars “must

show a clear intent to waive both the clause[s] and the underlying provision.”

Shields, 526 S.W.3d 475, n.6 (quoting 13 WILLISTON ON CONTRACTS § 39:36

(4th ed. 2013)). Stated diﬀerently, the Stars had to submit more than a

scintilla of evidence that the Mavericks’ aﬃrmative conduct demonstrates

(i) their manifest intent to waive their right to delay exercising their

redemption rights until it suited their interests and (ii) their intent to not

exercise their redemption rights.

[¶ 181] The court concludes that the Stars did not adduce evidence that

carries either burden. To begin, the Mavericks bargained for their right to

delay exercising redemption rights until it suited their interests to do so. And

it is undisputed that is what the Mavericks did. Thus, exercising that

bargained-for right to wait is no evidence of an intent to waive the nonwaiver

clauses or the Mavericks’ redemption rights.

3. Affirmative Acts

a. Las Vegas

[¶ 182] The Stars argue that the Mavericks’ alleged designations of Las

Vegas as their principal corporate and executive oﬃce were aﬃrmative acts

Opinion and Order on Combined Summary Judgment Motions, Page 71
suﬃcient to raise a fact issue regarding the Stars’ waiver defense. 161 These

arguments replicate their Mavericks’ Relocation Event summary judgment

arguments.162 The court rejects those arguments here for the same reasons it

denied that motion and concludes that the Stars did not raise a genuine dispute

of material fact on this issue.163

[¶ 183] Moreover, waiting until after the Mavericks exercised their

redemption rights to designate the location of their principal corporate and

executive oﬃces in Las Vegas (if that happened) would be consistent with

waiting to exercise those rights until it suited their interests.

[¶ 184] So, the court concludes that those post-redemption letter

corporate ﬁlings do not raise a fact issue supporting a conclusion that the

Mavericks intended to thereby waive their nonwaiver or redemption rights.

b. Consent to Distributions, Rent Payments, and Capital
Contributions

[¶ 185] The Stars also urge that the Mavericks—as a COC co-owner—

over two decades engaged in aﬃrmative conduct inconsistent with asserting

their redemption rights by (i) acquiescing in COC accepting rental payments

161
Stars’ Affirmative Defense Response at 14-15.
162
See parts VI and X(J) above.
163
See parts VI and X(J) above.

Opinion and Order on Combined Summary Judgment Motions, Page 72
and capital contributions and (ii) consenting to COC making distributions to

the partners.164

[¶ 186] The Stars rely on these statements from Mr. Alberts to support

those arguments: 165

[¶ 187] The court rejects the Stars’ arguments for several alternative

reasons. First, those events are the Stars’ direct transactions with COC (not

with the Mavericks). Regardless, those transactions are consistent with the

Mavericks exercising their right to wait until they deemed it in their interest

to exercise their redemption rights. That is, those events comport with the

164
Stars’ Affirmative Defenses MSJ Response at 15-16.
165
Stars’ MSJ App. Vol. 3 at 5 (1036).

Opinion and Order on Combined Summary Judgment Motions, Page 73
Mavericks choosing to rely on the nonwaiver clauses to preserve their

redemption rights until the time of their choosing. Thus, those acts are not

inconsistent with the nonwaiver clauses or the Mavericks reserving their

ability to exercise their redemption rights.

[¶ 188] Second, the Mavericks beneﬁtted from those transactions. The

Stars’ capital contributions meant the Mavericks spent less of their money on

those items. Likewise, the Stars’ rent payments meant there was more money

to support the arena and lighten the Mavericks’ burden. Partnership

distributions meant that the Mavericks were getting their share too. Nothing

about those events is inconsistent with the Mavericks’ right to delay

exercising their redemption rights until it was in their interests to do so. In

short, the Stars are eﬀectively asking the court to impose a duty on the

Mavericks to subvert their interest to the Stars’ interest. But there is nothing

in their relationship that would permit the court to imply that obligation into

the COC or Center GP Agreements. See, e.g., Crim Truck & Tractor Co. v.

Navistar Int'l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992).

[¶ 189] Third, the Stars’ Location Commitment was their contract

obligation to Dallas—not the Mavericks. The Stars oﬀered no evidence that

the Stars’ contract breach with Dallas was an issue for the Mavericks before

Opinion and Order on Combined Summary Judgment Motions, Page 74
the Mavericks exercised their redemption rights. If Dallas was not doing

something about it, why would the Mavericks want to “rock the boat”? The

Stars-Dallas breach was not a Mavericks issue until 2024 when that breach

created leverage the Mavericks could use to their advantage when negotiating

with the Stars about appropriate Arena repairs and improvements. That is, the

Stars oﬀered no evidence that the Mavericks had a reason to exercise their

rights until they did so. The situation here is like a landlord with a nonwaiver

clause choosing to wait until it suits its purposes to evict a tenant for late rent

payments despite the landlord previously accepting late payments. See

Shields, 526 S.W.3d at 480; Giller Indus., Inc. v. Hartley, 644 S.W.2d 183, 184

(Tex. App.—5th Dist., 1982, no writ).

[¶ 190] Finally, the Stars produced no evidence that the Mavericks said

anything to the Stars or did any aﬃrmative acts that misled the Stars into

believing that the Mavericks would not exercise their redemption rights

earlier. For example, the Stars adduced no evidence that the issue was ever

discussed between the parties before 2024.

[¶ 191] Accordingly, the court concludes that the Stars’ evidence did

not raise a genuine issue of material fact that would support a ﬁnding that the

Opinion and Order on Combined Summary Judgment Motions, Page 75
Mavericks engaged in aﬃrmative conduct manifestly inconsistent with their

intent to enforce their nonwaiver rights or their redemption rights.

4. Waiver Cases

a. Introduction

[¶ 192] The Stars’ response does not dispute the general premise that

nonwaiver clauses can be valid in some cases, but they argue that these

nonwaiver clauses are too broad to be enforceable.166 Speciﬁcally, they argue

that Shields and Giller, which the Mavericks cited,167 are distinguishable and

thus inapplicable. 168 The court concludes that the Stars are mistaken.

b. Shields

[¶ 193] In Shields, a commercial landlord sought to remove a long-term

tenant. The tenant frequently defaulted on its rent payments, which the

landlord regularly accepted when tendered. Nonetheless, the landlord relied

on a nonwaiver clause to support his right to evict the tenant despite his

practice of accepting late payments. After a bench trial, the trial judge entered

judgment for the tenant, which the court of appeals aﬃrmed. The supreme

166
See Stars’ Affirmative Defenses Response at 16-20.
167
Mavericks’ Affirmative Defenses MSJ at 6-7.
168
See Stars’ Affirmative Defenses Response at 16-20.

Opinion and Order on Combined Summary Judgment Motions, Page 76
court reversed, holding that as a matter of law the nonwaiver clause precluded

the tenant’s waiver defense based on the landlord’s prior acceptance of late

payments. 526 S.W.3d at 481-85.

[¶ 194] The Shields nonwaiver clause stated that,

All waivers must be in writing and signed by the waiving party.
Landlord’s failure to enforce any provisions of this Lease or its
acceptance of late installments of Rent shall not estop Landlord
from enforcing that provision or any other provision of this Lease
in the future.

Id. at 481.

[¶ 195] The court considered nonwaiver clauses’ force and eﬀect in

light of Texas’s public policy strongly favoring freedom of contract and held

that “there can be no doubt that, as a general proposition, nonwaiver

provisions are binding and enforceable.” Id. So, the issue was not whether the

nonwaiver clause was enforceable, but whether it was waivable and, if so, the

circumstances under which waiver could occur. Id. at 481-82.

[¶ 196] Regarding whether the clause was waivable, the court held

that, like all contract rights, that clause was waivable:

We agree a nonwaiver provision absolutely barring waiver in the
most general terms might be wholly ineﬀective. But we cannot
agree that a nonwaiver is wholly ineﬀective in preventing waiver
through conduct the parties explicitly agree will never give rise
to waiver. Such a contract-enforcement principle would be
“illogical, since the very conduct which the clause is designed to

Opinion and Order on Combined Summary Judgment Motions, Page 77
permit [without eﬀecting a waiver would be] turned around to
constitute waiver of the clause permitting [a party to engage in]
the conduct [without eﬀecting a waiver].”

Id. at 484 (quoting Van Bibber v. Norris, 275 Ind. 555, 419 N.E.2d 115, 121

(1981) (alterations in original).

[¶ 197] Thereafter, the supreme court observed that the tenant had not

asserted there was an express written waiver. Thus, it analyzed whether

implied waiver supported the trial court’s judgment based on the landlord’s

conduct in accepting late rent payments. See id. at 484-86. In that regard, the

supreme court held that, “[w]hile waiver may sometimes be established by

conduct, that conduct must be unequivocally inconsistent with claiming a

known right.” Id. at 485 (quoting Van Indep. Sch. Dist. v. McCarty, 165

S.W.3d 351, 353 (Tex. 2005) (alterations in original). More precisely, the

court held “that engaging in the very conduct disclaimed as a basis for waiver

is insuﬃcient as a matter of law to nullify the nonwaiver provisions the

parties’ [contract].” Id. at 484-85 (alteration added).

[¶ 198] Nonetheless, to argue that the present clauses are

unenforceable, the Stars identify textual diﬀerences between the Shields

Opinion and Order on Combined Summary Judgment Motions, Page 78
clause and the present clauses.169 First, they note that unlike the Shields

clause, the clauses at bar do not require a signed, written waiver to exist.170

But they do not explain why that diﬀerence matters.171

[¶ 199] The court concludes that the distinction does not matter

because (i) it did not factor into the supreme court’s reasoning in Shields,

(ii) the Stars oﬀered no explanation why that absence here matters, and

(iii) the court does not see how that absence alters the outcome.

[¶ 200] Second, the Stars posit that the present nonwaiver clauses

impermissibly attempt to exclude waiver entirely. 172 But nothing in those

clauses purport to do any such thing.173 Moreover, the present clauses identify

speciﬁc conduct that does not waive the rights under those Agreements. 174

[¶ 201] Accordingly, the court concludes that nothing in Shields

renders the Mavericks’ nonwaiver clauses unenforceable.175

169
Stars’ Affirmative Defenses MSJ Response at 17-18.
170
Stars’ Affirmative Defenses MSJ Response at 17.
171
Stars’ Affirmative Defenses MSJ Response at 17-18.
172
Stars’ Affirmative Defenses MSJ Response at 18
173
See Stars’ MSJ App., Vol. 1 at 106, 191.
174
See Stars’ MSJ App., Vol. 1 at 106, 191.
175
Although the issue was whether the landlord’s acquiescence in the tenant’s
capital improvements estopped the landlord from terminating the lease, the supreme
court’s reasoning applies equally to whether the Mavericks’ acquiescence in the Stars’

Opinion and Order on Combined Summary Judgment Motions, Page 79
c. Giller

[¶ 202] The Stars’ arguments regarding Giller are even less availing

than their Shields arguments. Like Shields, Giller addressed whether a

landlord’s consistent acceptance of late rent payments waived his ability to

terminate the lease. See Giller, 644 S.W.2d at 183-84. And the Giller

nonwaiver clause was more similar to the one at bar:

No waiver by the parties hereto of any default or breach of any
term, condition, or covenant of this lease shall be deemed to be a
waiver of any subsequent default or breach of the same or any
other term, condition, or covenant contained herein.

Giller, 644 S.W.2d at 184.

[¶ 203] Based on those terms, the court held that as a matter of law the

landlord’s acceptance of the tenant’s consistently late rent payments did not

terminate the landlord’s right to terminate the lease for late rent payments. Id.

[¶ 204] Accordingly, the court concludes that Giller does not support

the Stars’ premise that the COC and Center GP Agreements’ nonwaiver

clauses are unenforceable.

transactions with COC (i) “manifest[s] a clear intent to waive the nonwaiver” clauses or
(ii) was “unequivocally inconsistent with claiming a known right [to redeem the Stars’
interests].” See Shields, 526 S.W.3d at 481, 485. The court concludes that they do not.

Opinion and Order on Combined Summary Judgment Motions, Page 80
C. Laches

1. The Mavericks’ Arguments

[¶ 205] The Mavericks’ Aﬃrmative Defenses motion asserts that

laches is an equitable defense that does not apply to this breach of contract

case. 176 They relied on Johns Law Firm, LLC v. Pawlik, No. 24-20147, 2024

WL 4835239, *5 (5th Cir. Nov. 24, 2024) (citing Texas law); Caldwell v.

Barnes, 975 S.W.2d 535, 538 (Tex. 1998); and Wayne v. A.V.A. Vending, Inc.,

52 S.W.3d 412, 415 (Tex. App.—13th Dist. 2001, pet. denied) for that

premise.177

2. The Stars’ Response

[¶ 206] The Stars rely heavily on City of Fort Worth v. Johnson, 388

S.W.2d 400, 403 (Tex. 1964) for the premise that since 1964 the Texas

Supreme Court has consistently held that laches applies as a defense to legal

and equitable claims. 178 Next, the Stars argue against Johns Law and urge that

Caldwell supports the Stars.179 Finally, the Stars cite Regent Hotels, Ltd. v. Las

Colinas Hotels Corp., 704 S.W.2d 101, 106 (Tex. App.—5th Dist. 1985, no

176
Mavericks’ Affirmative Defenses Motion at 4-5.
177
Mavericks’ Affirmative Defenses Motion at 5.
178
Stars’ Affirmative Defenses Motion Response at 10-13 (emphasis in original).
179
Stars’ Affirmative Defenses motion Response at 10-11.

Opinion and Order on Combined Summary Judgment Motions, Page 81
writ); C.A. Dwyer 1962 Tr. v. Taub, No. 01-86-00826-CV, 1988 WL 2392, *7

(Tex. App.—1st Dist. Jan.7, 1988, no writ); Peterson, Goldman, & Villani, Inc.

Ancor Holdings, LP, 584 S.W.3d 556, 568 n.8 (Tex. App.—2nd Dist. 2019,

pet. denied); and other cases for the premise that since Johnson’s 1964

decision, Texas courts have recognized laches as a potential defense in cases

where a party asserts legal or equitable rights.180

3. The Mavericks’ Reply

[¶ 207] The Mavericks’ reply relies on Houston Lighting & Power Co. v.

City of Wharton, 101 S.W.3d 633, 638 (Tex. App.—1st Dist. 2003, pet.

denied) for the premise that laches is not available to resist a purely legal right.

They further cite Bookout v. Shelley, No. 02-22-00055-CV, 2022 WL

17173526, *27 (Tex. App.—2nd Dist. 2022, no pet.) for the argument that

laches does not apply to declaratory judgment claims.181 They then address

the Stars’ arguments regarding Caldwell, Johnson, and Regent Int’l. Finally,

the Mavericks urge that (a) laches does not apply to their tortious interference

claim and (b) the Stars “admittedly” did not change their position because of

the Mavericks’ allegedly unreasonable delay.

180
Stars’ Affirmative Defenses Response at 10-13.
181
Mavericks’ Affirmative Defenses Reply at 15.

Opinion and Order on Combined Summary Judgment Motions, Page 82
4. Analysis and Decision

a. Preface

[¶ 208] The court did not address the parties’ laches arguments in part

X above because the Stars did not raise laches as an aﬃrmative defense in

response to the Mavericks’ Declaratory judgment motion.182 Regardless, the

Stars’ laches defense fails as a matter of law because they did not adduce

evidence that would raise a genuine issue of material fact showing a good faith

change in their position to their detriment because of the Mavericks’ alleged

delay. Moreover, the Stars did not carry their burden, under these

circumstances, to raise a genuine issue of material fact that the Mavericks’

delay was unreasonable.

b. The Mavericks’ Declaratory Judgment Motion

[¶ 209] The Mavericks’ Declaratory Judgment motion asserts that the

Mavericks are entitled to declaratory judgment rulings (i) enforcing the

provisions of the COC and Center GP Agreements at issue and (ii) holding that

the Stars have no interest in either the COC or Center GP. 183

182
See generally, Stars’ Declaratory Judgment Response.
183
Mavericks’ Declaratory Judgment Motion at 29.

Opinion and Order on Combined Summary Judgment Motions, Page 83
[¶ 210] The Stars’ response contains several substantive legal

arguments as to why declaratory relief should be denied, but they did not raise

the laches aﬃrmative defense as a basis for denial. 184 Because the Stars did

not comply with Rule 166a(c), laches is not an available ground for opposing

the Mavericks’ Declaratory Judgment motion. Thus, the court did not

consider laches when deciding that motion. See McConnell v. Southside Ind.

Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (citing City of Houston v. Clear

Creek Ban Auth., 589 S.W.2d 671, 678 (Tex. 1979) (nonmovant must

expressly present issues it contends avoids movant’s entitlement to summary

judgment).

[¶ 211] In McConnell, the supreme court held that although Rule

166a(c) can be a rigorous rule, there are several public policy goals for

upholding Rule 166a(c)’s requirements that parties state the bases for their

motion or opposition. See 858 S.W.2d at 341. For starters, having the parties

provide adequate information gives all parties notice of matters expected to be

argued. Id. (citing Weaver v. Stewart, 825 S.W.2d 183, 184-85 (Tex. App.—

14th Dist. 1992, writ denied)). Second, if courts were to allow exceptions it

184
See generally Stars’ Declaratory Judgment Response.

Opinion and Order on Combined Summary Judgment Motions, Page 84
would inject uncertainty into summary judgment proceedings concerning

what issues were being presented for consideration. 858 S.W.2d at 341.

Third, it is not unduly burdensome on the parties. Id. Finally, it prevents

controversies at the appellate level concerning what issues were actually

presented to the trial court. Id. at 344.

[¶ 212] Because the Stars did not satisfy Rule 166a(c)’s requirements,

the court need not and does not consider their laches defense to the Mavericks’

Declaratory Judgment motion.185

[¶ 213] Regardless, and alternatively, the court grants the Mavericks’

Aﬃrmative Defenses motion as applied to the Stars’ laches defense.

c. Laches Analysis

[¶ 214] Although the Stars rely heavily on Johnson to support their

laches defense, for several reasons their response does not meet the standards

the supreme court established in that case (and other cases). 186

The supreme court has determined declaratory relief is neither legal nor equitable
185

in nature, but sui generis. Allstate Ins. Co. v. Irwin, 627 S.W.3d 263, 269 (Tex. 2021).
Given laches is generally only available as a defense against equitable claims, it is uncertain
whether the Stars’ laches defense would even apply to the Mavericks’ declaratory judgment
motion had it been properly raised. See Shelley, 2022 WL 17173526, at *27 (highlighting
ongoing dispute concerning applicability of laches to actions seeking declaratory relief).
186
Because the Mavericks’ original and amended petitions sought permanent
injunctions, they assert claims seeking equitable remedies. So, in relation to this motion

Opinion and Order on Combined Summary Judgment Motions, Page 85
[¶ 215] In Johnson, the City of Fort Worth sued to enjoin the

defendants from using a building as a six-unit apartment house in violation of

a city zoning ordinance that limited the property to no more than two family

units. The ordinance became eﬀective in 1953. In 1958, the city granted a

permit to construct a two-family dwelling in the property. Contrary to the

permit, in 1959 the then owner constructed a six-unit apartment house.

Following completion of the building, the city issued a ten-day notice to the

owner to discontinue use of all but two units.

[¶ 216] Sometime later, Johnson acquired the property and then sold it

to Hurt in July 1961. Within a week, the city notiﬁed Hurt that she and her

tenants were using the property in violation of the zoning ordinance. In

October 1961, the city sued to enjoin Johnson, Hurt, and Hurt’s tenants from

using the building in violation of the ordinance. The defendants urged a laches

defense (among others).

[¶ 217] The trial court denied the injunction, and the court of appeals

aﬃrmed based on (i) a lack of injury to the city or the residents and (ii) undue

delay in bringing the action. Johnson, 388 S.W.2d at 402. The supreme court

(the Mavericks’ Affirmative Defenses MSJ) the court need not address whether laches is
an available defense where the claimant seeks only declaratory relief or monetary damages.

Opinion and Order on Combined Summary Judgment Motions, Page 86
rejected both grounds, reversed the judgment, and remanded the case to the

trial court with direction to a enter a permanent injunction restraining use of

the property in violation of the ordinance. Id. at 404.

[¶ 218] As relevant here, the supreme court held that laches is an

aﬃrmative defense for which defendants must prove its essential elements. Id.

at 403. The supreme court then held that:

The defense of laches is akin to that of estoppel. Humble Oil &
Reﬁning Co. v. Trapp, Tex.Civ.App., 194 S.W.2d 781, 786, writ
refused. Two of the essential elements of laches are (1)
unreasonable delay by one having legal or equitable rights in
asserting them, and (2) a good faith change of position by another
to his detriment because of the delay. Culver v. Pickens, 142 Tex.
87, 176 S.W.2d 167, 170-171; 19 Am.Jur. 343, Equity, s 498.
The Respondents thus had the burden of proving not only
unreasonable delay and lack of diligence by the City of Fort
Worth in asserting its right to have the use of the structure
brought into compliance with its ordinance, but also that their
position had, in good faith, been changed because of the delay.
They oﬀered no evidence to prove either.

Id. (emphasis added). 187

[¶ 219] Importantly, as applied here, Johnson rejected the defendants’

laches defense as a matter of law—despite Hurt having paid valid

187
Because Johnson involved a single cause of action seeking only a permanent
injunction—an equitable remedy—it is not useful guidance regarding whether laches is an
available defense where the claimant is asserting legal rights. Culver v. Pickens, 176
S.W.2d 167, 170-71 (Tex. 1942), cited by Johnson, recognized laches as a defense where
the claimants sued for fraud and sought a constructive trust, which is an equitable remedy.

Opinion and Order on Combined Summary Judgment Motions, Page 87
consideration for the property—because she at all relevant times knew the

facts regarding the ordinance breach and thus could not be said to have

changed her position to her detriment in good faith:

There is, likewise, an absence of proof in the record that because
of the City’s delay Mrs. Hurt changed her position in good faith.
The deed from Johnson to Mrs. Hurt reﬂects a valuable
consideration, but that fact alone does not import a good faith
change of position. Mrs. Hurt was charged in law with
knowledge of the City’s zoning ordinance and that the structure
she purchased was in a ʻB’ Two-Family District. * * * She did not
even prove that she had no actual notice of those facts. She knew
that she was purchasing a six-unit apartment house, and she did
not prove lack of knowledge that it was erected in violation of the
building permit. It simply cannot be said that there is evidence
in the record before us that Mrs. Hurt changed her position to her
detriment in good faith.

Id. at 404 (citations omitted).

[¶ 220] Similarly, the undisputed facts here are that at all relevant

times: (i) the Stars knew their Location Commitment’s terms, because they

signed their franchise agreement containing that commitment; (ii) they knew

of the Mavericks’ redemption rights if the Stars violated their Location

Commitment to Dallas, because they signed the COC and Center GP

Agreements giving the Mavericks those rights;188 and (iii) they knew the

188
Stars’ MSJ App., Vol. 1 at 77, 155-56.

Opinion and Order on Combined Summary Judgment Motions, Page 88
nonwaiver clauses gave the Mavericks the right to wait to exercise their

redemption rights until it suited their interest to exercise them because the

Stars signed contracts containing those clauses. 189

[¶ 221] Furthermore, as the Mavericks assert,190 the Stars oﬀered no

evidence that they changed their position based on the Mavericks’ inaction,

meaning there was no detrimental change in position because of the

Mavericks’ allegedly unreasonable delay.191 Indeed, the Stars’ CEO veriﬁed

that fact.192 Like Hurt’s paying for the apartment house in Johnson, that the

Stars fulﬁlled other contract obligations to COC is not evidence. See id.

[¶ 222] Moreover, “[a]s a rule of equity follows the law and generally

in the absence of some element of estoppel or something akin thereto, the

doctrine of laches will not bar suit short of the period set forth in the

limitations statutes.” K&G Oil Tool & Serv. Co. v. G&G Fishing Tool Serv., 314

S.W.2d 782, 791 (Tex. 1958).

189
Stars’ MSJ App., Vol. 1 at 19, 106.
190
Mavericks’ Affirmative Defenses Reply at 18-19.
191
See Stars. MSJ App., Vol. 1 at 7.
192
Stars’ MSJ App., Vol. 1 at 7.

Opinion and Order on Combined Summary Judgment Motions, Page 89
[¶ 223] Here, the Mavericks sued less than one year after the Stars

rejected the Mavericks’ redemption letter and the Mavericks’ declaratory

judgment cause of action accrued.193 Additionally, the Stars proﬀered no

evidence of any aﬃrmative act by the Mavericks since, or before, that time that

misled the Stars to their detriment. 194 That is, the Stars oﬀered no evidence

that the Mavericks did anything contrary to what they had contract rights to

do, including their right to rely on the parties’ nonwaiver clauses.

XII. Disposition

[¶ 224] For the reasons stated above, the court:

a. Grants the Mavericks’ Declaratory Judgment and Aﬃrmative
Defenses Motions for Partial Summary Judgment; and

b. Denies the Stars’ Amended Standing, Mavericks’ Relocation
Event, Limitations, Original Impossibility, and Waiver Motions for Partial
Summary Judgment;

[¶ 225] Remaining to be decided are:

a. Whether DSELP is bound by these rulings;

b. All other pending motions not expressly resolved by this Opinion
and Order; and

c. Trial on the Mavericks’ tortious interference claim and the parties’
attorneys’ fees claims.

193
See part VII above.
194
See Mavericks’ Affirmative Defenses Reply at 14-15; Stars’ MSJ App., Vol. 1 at 7.

Opinion and Order on Combined Summary Judgment Motions, Page 90
It is so ORDERED.

BILL WHITEHILL
Judge of the Texas Business Court,
First Division

SIGNED: April 2, 2026

Opinion and Order on Combined Summary Judgment Motions, Page 91
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