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FILED
5/19/2023 1:42 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
CAROLYN SELLERS DEPUTY
CAUSE NO. DC-21-17748
PEPCO SALES OF DALLAS, INC. § IN THE DISTRICT COURT 0F
Plaintiff/Counter—Defendant, §
§
v. §
§ DALLAS COUNTY, TEXAS
§
ROBERT D. HARDAGE, individually, and §
HARDAGE AND ASSOCIATES, INC. § 1921‘“ JUDICIAL DISTRICT
Defendants/Counter-Plaintiff §
PEPCO’S OBJECTIONs To, AND MOTION To STRIKE PORTIONS OF,
ROBERT D. HARDAGE AND JULIE DECKER DECLARATIONS
Plaintiff/Counter-Defendant Pepco Sales of Dallas, Inc. (“PEPCO”), files this its
Objections To, And Motion to Strike portions of, the Declarations of Robert D. Hardage
(“Hardage”) and Julie Decker (“Decker”) filed by Defendants in Response to PEPCO’S Motion
for Summary Judgment and in support thereof respectfully shows the Court as follows:
I. OBJECTIONS TO HARDAGE DECLARATION
1. PEPCO objects to, and hereby moves to strike, the following portions of Hardage’s
declaration which is attached as Exhibit A to Defendant/Counter—Plaintiffs Response Brief.
o Paragraph 19---“It is my understanding that ATCO learned. . ..”
The testimony is hearsay and lacks foundation. Hardage cannot testify from his personal
knowledge about what ATCO learned. Without an explanation of how Hardage came to have his
“understanding of what ATCO learned”, the testimony lacks foundation. Either someone from
ATCO told Hardage (which is hearsay) or Hardage told ATCO (which may be admissible and is
likely the case, but which Hardage is afraid to admit). As phrased, the testimony is inadmissible.
PLAINTIFF’s MOTION To STRIKE DEFENDANTs’ UNSWORN DECLARATIONS PAGE 1
HB:4888-0938-3781.1
o Paragraph 20---“In or about July 2021, I learned that ATCO decided to end its
relationship with PEPCO due to concerns of...”
The testimony is hearsay and lacks foundation. Without an explanation of how Hardage
alleged “learned” the information, it lacks foundation and is inadmissible. If the information was
communicated by Decker to Hardage, it is hearsay. And, where Hardage was not yet working for
ATCO, he cannot have personal knowledge about why ATCO quit doing business with PEPCO.
So, again the testimony lacks foundation and is hearsay.
PEPCO asks the Court to strike these paragraphs and to disregard them for purposes of
ruling on PEPCO’s Motion for Summary Judgment.
II. OBJECTIONS TO DECKER DECLARATION
2. PEPCO objects to, and hereby moves to strike, the following portions of Decker’s
declaration which is attached as Exhibit B to Defendant/Counter-Plaintiff’ s Response Brief.
o Paragraph 7---“Atco did not have a contractual relationship with Pepco until
approximately 2018”
The testimony calls for a legal conclusion. Decker does not explain what she means by a
“contractual relationship”. Contracts need not be in writing to be enforceable. The testimony fails
to set forth any facts from which the legal conclusion that no “contractual relationship” existed can
be determined. For example, Decker does not testify whether Atco did any business with PEPCO
and, if so, what were the terms. The testimony is an inadmissible legal conclusion without
evidentiary support.
o Paragraph 8---“. . .Pepco lost an account in Louisiana due to Pepco’s poor
service. . .Pepco lost Atco’s largest account because the customer no longer wanted
to work with Pepco,. . .a customer has expressed a desire to work with Atco again,
PLAINTIFF’S MOTION To STRIKE DEFENDANTS’ UNSWORN DECLARATIONS PAGE 2
HB: 4888-0938-3781.1
but does not want to work with Pepco.”
The testimony incorporates inadmissible hearsay and lacks foundation. Decker cannot
testify why a third-party customer quit doing business with ATCO. That testimony would have to
come from the third-party customer directly. Decker’s testimony, if true, is based on what third
parties told her and is, therefore, inadmissible hearsay.
o Paragraph 9---“Sales data for Pepco showed. . ..”
The testimony violates the best evidence rule and lacks foundation. The sales data would
have to be admitted into evidence before conclusions about it would be admissible. Decker’s
unsupported testimony is inadmissible.
o Paragraph 10---“In mid-2021, Atco learned that PEPCO was planning to ask Bob
Hardage to retire. ...I then became aware...”
Decker’s statements lack foundation and are inadmissible hearsay. Without an explanation
of how Decker allegedly “learned” the information, it is inadmissible. Decker is not an employee
of PEPCO so she cannot have personal knowledge of what PEPCO’S plans were with Hardage.
The information must be based on hearsay. If the information was communicated to Decker by
Hardage (likely the case, but a fact Decker and Hardage are loathe to admit), it is inadmissible
hearsay.
PEPCO respectfully asks the Court to strike these paragraphs and to disregard them for
purposes of ruling on PECO’s Motion for Summary Judgment.
III. CONCLUSION
For the foregoing reasons, PEPCO asks the Court to strike fiom the record the testimony
identified above and to disregard it when ruling on PEPCO’s Motion for Summary Judgment.
PLAINTIFF’s MOTION To STRIKE DEFENDANTS’ UNSWORN DECLARATIONS PAGE 3
HB: 4888-0938-3781.1
Respectfully submitted,
By: /s/ Richard A. Illmer
Richard A. Illmer
State Bar No. 10388350
Rick.Illmer@huschb1ackwell.com
Andrew Katon
State Bar No. 24101992
Andrew.Katon@huschblackwell.com
HUSCH BLACKWELL LLP
1900 N. Pearl Street, Suite 1800
Dallas, Texas 75201
Telephone: 214.999.6100
Fax: 214.999.6170
ATTORNEYS FOR PLAINTIFF/COUNTER-
DEFENDANT PEPCO SALES OF DALLAS,
INC.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing instrument
was served upon all attorneys of record in this matter in accordance with the TRCP Via electronic
service through E-File Texas. gov on May 19, 2023.
Bryan Collins
collins@roggedunngroup.com
Rogge Dunn
dunn@trialtested.com
ROGGE DUNN GROUP, PC
500 N. Akard Street, Suite 1900
Dallas, Texas 75201
ATTORNEYS FOR DEFENDANTS/
COUNTER-PLAINTIFFS
/ s / Richard A. Illmer
Richard A. Illmer
PLAINTIFF’S MOTION To STRIKE DEFENDANTS’ UNSWORN DECLARATIONS PAGE 4
HB: 4888-0938-3781.1
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Karen Massey on behalf of Rick lllmer
Bar No. 10388350
karen.massey@huschblackwell.com
Envelope ID: 75820128
Filing Code Description: Objection
Filing Description: PEPCO’S OBJ - MOTION TO STRIKE PORTIONS -
ROBERT D. HARDAGE AND JULIE DECKER DECLARATIONS
Status as of 5/22/2023 8:46 AM CST
Associated Case Party: PEPCO SALES OF DALLAS, INC.
Name BarNumber Email TimestampSubmitted Status
Richard Alllmer Rick.|llmer@HuschBlackwell.com 5/19/2023 1:42:24 PM SENT
Andrew Katon andrew.katon@huschblackwell.com 5/19/2023 1:42:24 PM SENT
Associated Case Party: ROBERTD.HARDAGE
Name BarNumber Email TimestampSubmitted Status
Bryan CCollins Collins@RoggeDunnGroup.com 5/19/2023 1:42:24 PM SENT
Gregory Clift clift@roggedunngroup.com 5/19/2023 1:42:24 PM SENT
Anna ORichardson richardson@roggedunngroup.com 5/19/2023 1:42:24 PM SENT
YuDaina Taylor taylor@roggedunngroup.com 5/19/2023 1:42:24 PM SENT
Associated Case Party: HARDAGE AND ASSOCIATES, lNC.,
Name BarNumber Email TimestampSubmitted Status
R. Rogge Dunn 6249500 efiling@roggedunngroup.com 5/19/2023 1:42:24 PM SENT
Rogge Dunn dunn@trialtested.com 5/19/2023 1:42:24 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
RICHARD |LLMER rick.illmer@huschblackwell.com 5/19/2023 1:42:24 PM SENT
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FILED 5/19/2023 1:42 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS CAROLYN SELLERS DEPUTY CAUSE NO. DC-21-17748 PEPCO SALES OF DALLAS, INC. § IN THE DISTRICT COURT 0F Plaintiff/Counter—Defendant, § § v. § § DALLAS COUNTY, TEXAS § ROBERT D. HARDAGE, individually, and § HARDAGE AND ASSOCIATES, INC. § 1921‘“ JUDICIAL DISTRICT Defendants/Counter-Plaintiff § PEPCO’S OBJECTIONs To, AND MOTION To STRIKE PORTIONS OF, ROBERT D. HARDAGE AND JULIE DECKER DECLARATIONS Plaintiff/Counter-Defendant Pepco Sales of Dallas, Inc. (“PEPCO”), files this its Objections To, And Motion to Strike portions of, the Declarations of Robert D. Hardage (“Hardage”) and Julie Decker (“Decker”) filed by Defendants in Response to PEPCO’S Motion for Summary Judgment and in support thereof respectfully shows the Court as follows: I. OBJECTIONS TO HARDAGE DECLARATION 1. PEPCO objects to, and hereby moves to strike, the following portions of Hardage’s declaration which is attached as Exhibit A to Defendant/Counter—Plaintiffs Response Brief. o Paragraph 19---“It is my understanding that ATCO learned. . ..” The testimony is hearsay and lacks foundation. Hardage cannot testify from his personal knowledge about what ATCO learned. Without an explanation of how Hardage came to have his “understanding of what ATCO learned”, the testimony lacks foundation. Either someone from ATCO told Hardage (which is hearsay) or Hardage told ATCO (which may be admissible and is likely the case, but which Hardage is afraid to admit). As phrased, the testimony is inadmissible. PLAINTIFF’s MOTION To STRIKE DEFENDANTs’ UNSWORN DECLARATIONS PAGE 1 HB:4888-0938-3781.1 o Paragraph 20---“In or about July 2021, I learned that ATCO decided to end its relationship with PEPCO due to concerns of...” The testimony is hearsay and lacks foundation. Without an explanation of how Hardage alleged “learned” the information, it lacks foundation and is inadmissible. If the information was communicated by Decker to Hardage, it is hearsay. And, where Hardage was not yet working for ATCO, he cannot have personal knowledge about why ATCO quit doing business with PEPCO. So, again the testimony lacks foundation and is hearsay. PEPCO asks the Court to strike these paragraphs and to disregard them for purposes of ruling on PEPCO’s Motion for Summary Judgment. II. OBJECTIONS TO DECKER DECLARATION 2. PEPCO objects to, and hereby moves to strike, the following portions of Decker’s declaration which is attached as Exhibit B to Defendant/Counter-Plaintiff’ s Response Brief. o Paragraph 7---“Atco did not have a contractual relationship with Pepco until approximately 2018” The testimony calls for a legal conclusion. Decker does not explain what she means by a “contractual relationship”. Contracts need not be in writing to be enforceable. The testimony fails to set forth any facts from which the legal conclusion that no “contractual relationship” existed can be determined. For example, Decker does not testify whether Atco did any business with PEPCO and, if so, what were the terms. The testimony is an inadmissible legal conclusion without evidentiary support. o Paragraph 8---“. . .Pepco lost an account in Louisiana due to Pepco’s poor service. . .Pepco lost Atco’s largest account because the customer no longer wanted to work with Pepco,. . .a customer has expressed a desire to work with Atco again, PLAINTIFF’S MOTION To STRIKE DEFENDANTS’ UNSWORN DECLARATIONS PAGE 2 HB: 4888-0938-3781.1 but does not want to work with Pepco.” The testimony incorporates inadmissible hearsay and lacks foundation. Decker cannot testify why a third-party customer quit doing business with ATCO. That testimony would have to come from the third-party customer directly. Decker’s testimony, if true, is based on what third parties told her and is, therefore, inadmissible hearsay. o Paragraph 9---“Sales data for Pepco showed. . ..” The testimony violates the best evidence rule and lacks foundation. The sales data would have to be admitted into evidence before conclusions about it would be admissible. Decker’s unsupported testimony is inadmissible. o Paragraph 10---“In mid-2021, Atco learned that PEPCO was planning to ask Bob Hardage to retire. ...I then became aware...” Decker’s statements lack foundation and are inadmissible hearsay. Without an explanation of how Decker allegedly “learned” the information, it is inadmissible. Decker is not an employee of PEPCO so she cannot have personal knowledge of what PEPCO’S plans were with Hardage. The information must be based on hearsay. If the information was communicated to Decker by Hardage (likely the case, but a fact Decker and Hardage are loathe to admit), it is inadmissible hearsay. PEPCO respectfully asks the Court to strike these paragraphs and to disregard them for purposes of ruling on PECO’s Motion for Summary Judgment. III. CONCLUSION For the foregoing reasons, PEPCO asks the Court to strike fiom the record the testimony identified above and to disregard it when ruling on PEPCO’s Motion for Summary Judgment. PLAINTIFF’s MOTION To STRIKE DEFENDANTS’ UNSWORN DECLARATIONS PAGE 3 HB: 4888-0938-3781.1 Respectfully submitted, By: /s/ Richard A. Illmer Richard A. Illmer State Bar No. 10388350 Rick.Illmer@huschb1ackwell.com Andrew Katon State Bar No. 24101992 Andrew.Katon@huschblackwell.com HUSCH BLACKWELL LLP 1900 N. Pearl Street, Suite 1800 Dallas, Texas 75201 Telephone: 214.999.6100 Fax: 214.999.6170 ATTORNEYS FOR PLAINTIFF/COUNTER- DEFENDANT PEPCO SALES OF DALLAS, INC. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing instrument was served upon all attorneys of record in this matter in accordance with the TRCP Via electronic service through E-File Texas. gov on May 19, 2023. Bryan Collins collins@roggedunngroup.com Rogge Dunn dunn@trialtested.com ROGGE DUNN GROUP, PC 500 N. Akard Street, Suite 1900 Dallas, Texas 75201 ATTORNEYS FOR DEFENDANTS/ COUNTER-PLAINTIFFS / s / Richard A. Illmer Richard A. Illmer PLAINTIFF’S MOTION To STRIKE DEFENDANTS’ UNSWORN DECLARATIONS PAGE 4 HB: 4888-0938-3781.1 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Karen Massey on behalf of Rick lllmer Bar No. 10388350 karen.massey@huschblackwell.com Envelope ID: 75820128 Filing Code Description: Objection Filing Description: PEPCO’S OBJ - MOTION TO STRIKE PORTIONS - ROBERT D. HARDAGE AND JULIE DECKER DECLARATIONS Status as of 5/22/2023 8:46 AM CST Associated Case Party: PEPCO SALES OF DALLAS, INC. Name BarNumber Email TimestampSubmitted Status Richard Alllmer Rick.|llmer@HuschBlackwell.com 5/19/2023 1:42:24 PM SENT Andrew Katon andrew.katon@huschblackwell.com 5/19/2023 1:42:24 PM SENT Associated Case Party: ROBERTD.HARDAGE Name BarNumber Email TimestampSubmitted Status Bryan CCollins Collins@RoggeDunnGroup.com 5/19/2023 1:42:24 PM SENT Gregory Clift clift@roggedunngroup.com 5/19/2023 1:42:24 PM SENT Anna ORichardson richardson@roggedunngroup.com 5/19/2023 1:42:24 PM SENT YuDaina Taylor taylor@roggedunngroup.com 5/19/2023 1:42:24 PM SENT Associated Case Party: HARDAGE AND ASSOCIATES, lNC., Name BarNumber Email TimestampSubmitted Status R. Rogge Dunn 6249500 efiling@roggedunngroup.com 5/19/2023 1:42:24 PM SENT Rogge Dunn dunn@trialtested.com 5/19/2023 1:42:24 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status RICHARD |LLMER rick.illmer@huschblackwell.com 5/19/2023 1:42:24 PM SENT