FILED: NEW YORK COUNTY CLERK 11/18/2011 INDEX NO /2011 NYSCEF DOC. NO. 4-8 RECEIVED NYSCEF: 11/18/2011 EXHIBIT G

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1 FILED: NEW YORK COUNTY CLERK 11/18/2011 INDEX NO /2011 NYSCEF DOC. NO. 4-8 RECEIVED NYSCEF: 11/18/2011 EXHIBIT G

2 CAUSE NO. CC-I E SUN WER ENERGY, INC., FTP OIL AND GAS LP, DONAL R. SCHMIDT, R., THIMOTBY WAFFORD, and ROBERT B. 6 FIELDS 5 0 Plaintiffs, 3 VS. BG OIL AND GAS, LLC, FTL OIL AND GAS, LLC, and BCK OIL AND GAS, LLC Defendant. 6 3 IN THE COUNTY COURT AT LAW N0.5 DALLAS COUNTY, TEXAS JOHN i.'. -&sfi[{~~ COUtcT'i' FLESfi DALLAS COUhTY, TEXAS 8011 OCT 31 AMIO: 01.. DEFENDANTS' ORIGINAL ANSWER, ICEQUEST FOR LEVEL 3 SCHEDULING ORDER AND REQUEST FOR DISCLOSURE Defendants BG Oil and Gas, LLC ("w), FLT Oil and Gas, LLC ("FLT"), and BCK Oil and Gas, LLC ("BCK") (individually, a "Defendant" and collectively, the "Defendants ") file this -their Original Answer, and in support thereof would respectfully show the Court as f~llows: GENERAL DENIAL 1. Without waiving any other defenses Defendants may have or hereafter come to have or urge, Defendants deny each and every material allegation contained in the Plaintiffs' Original Petition (the "Petition") pursuant to TEXAS RULE OF CIVIL PROCEDURE 92, and demand strict proof thereof by a preponderance of the evidence or by clear and convincing evidence as the law requires. SPECIFIC DENIALS 2. Defendants specifically deny that they "anticipatorily breached the contract with FTP by threatening to file the lawsuit in New York" as alleged by Plaintiffs Sun fiver Energy, Inc. ("Sun River"), FTP Oil and Gas LP ("FTP"), Dona1 R. Schmidt, Jr. ("Schmidt"), nmothy DEF~ANTS' ORIGMAL ANSWER, ]REQUEST FOR SC~DULMG ORDER, AND REQUEST FOR DISCLOSURE PAGE 1

3 WaSord ("Wafford''), and Robert B. Fields ("Fields") (individually, a "Plaintiff' and.. collectively, the "Plaintiffst') in paragraph 17 of the Petition. 3. Defendants specifically deny that they "breached paragraph 10 of the Participation Agreements" as alleged by Plaintiffs in paragraph 18 of the Petition. 4. Defendants specifically deny that "Plaintiffs are entitled to indemnification from Defendants under lparagraph 101 of the Participation Agreement" as alleged by Plaintiffs in paragraph 8 of the Petition. SPECIAL EXCEPTIONS 5. Defendants specially except to paragraph 11 of the Petition on the grounds that the relief sought by Plaintiffs is alleged to be "within the jurisdictional limits of this Court." More specifically, Defendants request that Plaintiffs be required to state the maximum amount of their damages pursuant to TEXAS RULE OF CIVIL PROCEDURE 47. Accordingly, Defendants request that this Court enter an order sustaining this special exception and requiring Plaintiffs to replead within 14 days, if they can, in accordance with Texas law. If Plaintiffs fail or refuse to replead within such time, Defendants request that the Court strike Plaintiffs' pleading. Plaintiffs have failed to allege necessary facts to support the elements of a claim for breach of contract. Plaintiffs' allegation is vague, conclusory and incomplete and does not comply with TEXAS RULE OF CIVIL PROCEDURE 47 in that it fails to give Defendants fair notice of the claims asserted against it. Moreover, Plaintiffs' allegation fails to state a cause of action for which relief can be granted. Accordingly, Defendants request that this Court enter an order sustaining this special exception and requiring Plaintiffs to replead within 14 days, if they can, in accordance DEFENDANTS' ORIGINAL ANSWER, REQUESTFOR SCHEDUL~NG ORDER, AND REQUEST FOR DISCLOSURE PAGE 2

4 with Texas law. If Plaintiffs fail or refuse to replead within such time, Defendants request that the Court strike Plaintiffs' pleading. 7. Defendantsspeciallyexcepttotheportionofparagraph18afthePetitionin which Plaintiffs state that "Defendants also breached paragraph 10 of the Participation Agreements regarding representations, warranties and covenants made by the Defendants" on the grounds that Plaintiffs have failed to allege necessary facts to support the elements of a claim for breach of contract. Plaintiffs' allegation is vague, conclusory and incomplete because it does not state the specific representation, warranties and/or covenants made by Defendants that Plaintiffs allege have been breached and, therefore, does not comply with TEXAS RULE OF CNIL PROCEDURE 47 in that it fails to give Defendants fair notice of the claims asserted against it. Moreover, Plaintiffs' allegation fails to state a cause of action for which relief can be granted. Accordingly, Defendants request that this Court enter an order sustaining this special exception and requiring Plaintiffs to replead within 14 days, if they can, in accordance with Texas law. If Plaintiffs fail or refuse to replead within such time, Defendants request that the Court strike Plaintiffs' pleading, 8. Defendants specially except to the portion of paragraph 18 of the Petition in which Plaintiffs state that "Defendants agreed to indemnify FTP... from and against all loss, claim, damage, liability, expense, and attorneys' fees, regarding a breach by the Defendants of paragraph 10'' on the grounds that Plaintiffs have failed to properly assert a claim for indemnification. Plaintiffs' claim is vague, conclusory, incomplete and overbroad and does not comply with TEXAS RULE OF CIVIL PROCEDURE 47 in that it fails to give Defendants fair notice of the claims asserted against it. Moreover, Plaintiffs' allegation fails to state a cause of action for which relief can be granted, as Defendants cannot be required to indemnify Plaintiffs for DEFENDANTS' ORIGINAL ANSWER, &QUEST FOR SCHEDULMG ORDER, AND WQWEST FOR DISC~SURE PAGE 3

5 Plaintiffs' own wrongfbl acts. Accordingly, Defendants request that this Court enter an order sustaining this special exception and requiring Plaintiffs to replead within 14 days, if they can, in accordance with Texas law. If Plaintiffs fail or refuse to replead within such time, Defendants request that the Court strike Plaintiffs' pleading. 9. Defendants specially except to paragraph 20(a) of the Petition on the grounds that it is not the proper subject of a declaratory judgment action; rather, Plaintiffs are simply attempting to avoid judicial process by having this Court determine another court's jurisdiction and without adhering to proper procedure for such a challenge to j urisdiction/venue. Accordingly, Defendants request that this Court enter an order sustaining this special exception and requiring Plaintiffs to replead within 14 days, if they can, in accordance with Texas law. If Plaintiffs fail or refuse to replead within such time, Defendants request that the Court strike Plaintiffs' pleading. 10. Defendants specially except to paragraph 20(b) of the Petition on the grounds that it is not the proper subject of a declaratory judgment action; rather Plaintiffs have essentially stated a hypothetical defense as an affirmative cause of action. Accordingly, Plaintiffs' request for declaratory judgment fails to give Defendants fair notice to prepare their defense and Defendants request that this Court enter an order sustaining this special exception and requiring Plaintiffs to replead within 14 days, if they can, in accordance with Texas law. If Plaintiffs fail or refuse to replead within such time, Defendants request that the Court strike Plaintiffs' pleading. 11; Defendants specially except to paragraph 20(c) of the Petition on the grounds that it is not the proper subject of a declaratory judgment action; rather, a question of fact clearly lies as to whether Plaintiffs breached the assignment provision in the Participation Agreement. DEFENDANTS' ORIGTNAL ANSWER, &QUEST FOR SCHEDULING ORDER, AND REQUEST FOR DISCLOSURE PAGE 4

6 Accordingly, Defendants request that this Court enter an order sustaining this special exception and requiring Plaintiffs to replead within 1 4 days, if they can, in accordance with Texas law. If Plaintiffs fail or refuse to replead within such time, Defendants request that the Court strike Plaintiffs' pleading. AFFIRMATIVE DEFENSES 12. Defendants affirmatively plead that Plaintiffs have failed to state a claim upon which relief can be granted. 13. Defendants affirmatively plead that Plaintiffs' claims are barred, in whole or in part, due to Plaintiffs' own fraudulent acts. 14. Defendants plead that Plaintiffs' claims for breach of contract are barred, in whole or in part, due to the fact that Plaintiffs have failed to satisfy all conditions. precedent. 15. Defendants affirmatively plead that Plaintiffs' claims are barred, in whole or in part, by the doctrines of unclean hands, waiver and estoppel. REQUEST FOR LEVEL 3 SCHEDULING ORDER 1 6. Defendants affirmatively deny this case is appropriate for a Level 2 scheduling order as pled by Plaintiffs in paragraph 1. Defendants, therefore, request that this matter be governed by a Level 3 scheduling order pursuant to Texas Rule of Civil Procedure REQUEST FOR ATTORNEYS' FEES 17. As a direct result of Plaintiffs' institution of this proceeding and request for declaratory judgment, Defendants have been compelled to retain the undersigned counsel to protect their rights. Pursuant to Section of the TEXAS CIVIL PRACTICE AND REMEDIES CODE, Defendants are entitled to recover their reasonable attorneys' fees and costs incurred in the DEFENDANTS' ORIGMAL ANSWER, REQUEST FOR SCHEDULMG ORDER, AND REQUEST FOR DJSCIXISURE PAGE 5

7 defense of the claims contained in the Petition and seeks a judgment from the Court for such attorneys1 fees and costs in an amount to be established at trial. REQUEST FOR DISCLOSURE 18. Each Plaintiff is requested to disclose, within thirty (30) days of the service of this request, the information or materials described in TEXAS RULE OF CWIL PROCEDURE PRAYER 19. Defendants respectfully request that Plaintiffs take nothing against them, that they be dismissed from this action, that they recover all of its costs, expenses and attorneys' fees incurred in the defense of the claims contained in the Petition, and that they have such other and furfher relief, at law and in equity, to which they may show themselves to be justly entitled. Respectfully submitted, Jamie Lavergne Bryan State Bar No WINSTEAD PC 777 Main Street, Suite 100 Fort Worth, Texas (214) (Phone) (214) (Fax) ATTORNEYS POR DEFENDANTS BG OIL AND GAS, LLC, KT ODL AND GAS,LLC, AND BCKUIL AND GAS, LLC DEFENDANTS' ORIGINAL ANSWER, REQUEST FOR SCHEDULMG ORDER, AND REQUEST FOR ]DISCLOSURE PAGE 6 >

8 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served upon the following counsel of record via facsimile on the3\ *ay of October, James E. Pedngton GENERAL COUNSEL, 5950 Berkshire Lane, Suite 1650 Dallas, Texas (214) (Fax) SUN RIVER ENERGY, XNC. ATTORNEYS FOR PLAMT~FFS SUN RIVER ENERGY, INC., FTP OIL AND GAS LP, DONAL R. SCHMIDT, JR., THIMOTHY WAFFORD, AND ROBERT B. FIELDS DEFENDANTS' ORIGINAL ANSWER, REQUEST FOR SCHEDULING ORDER, AND REQUEST FOR DISCLOSURE PAGE 7 DALLAS-] b v