Preview
FILED
DALLAS COUNTY
3/4/2019 10:31 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-17-10592
MARTY MURPHY, IN THE DISTRICT COURT
Plaintiff and Counterclaim—
Defendant
V.
PAVECON HOLDING CO., INC.,
PAVECON LTD. CO., WWWWWWWWWWWWWWWW
192nd JUDICIAL DISTRICT
PAVECON PUBLIC WORKS LP,
PAVECON PUBLIC WORKS GP
LLC, LABCON, INC., DAVID
WALKER,
Defendants and Counterclaim-
Plaintiffs, DALLAS COUNTY, TEXAS
DEFENDANTS’ REPLY IN SUPPORT OF THEIR TRADITIONAL AND
NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT
N0 one disputes that Murphy signed the Stock Purchase Agreement 0r that it
contains a release of claims (“the Release”). No one disputes that Murphy refused to
sign the Membership and Profit/Loss Sharing Agreement for Pavecon Ltd. C0., and
the Limited Partnership Agreement and Profit/Loss Sharing Agreement for Pavecon
Public Works, LP (“Public Works”). Accordingly, the sole question presented in
Defendants’ Motion for Partial Summary Judgment is What the legal effect is 0f
these undisputed facts. In his response, Murphy’s only answer t0 that basic
question is denial and obfuscation. Contrary t0 Murphy’s assertions in his response,
the Release is not limited t0 a sale 0f stock. The Release’s own plain language
makes that fact pellucidly clear. And the fact that Murphy refused t0 sign the
founding agreements 0f Pavecon Ltd. Co. and Public Works is not a fact in Murphy’s
favor as he suggests in his response. T0 the contrary, the legal effect 0f that
undisputed fact forecloses a1] of Murphy’s frivolous claims about his being owed an
equity interest in either entity. The Court should therefore grant Defendants’
motion. Doing s0 Will simplify the case and moot other issues now pending before
the Court 0n other issues, such as the admissibility 0f certain expert testimony.
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 1
ARGUMENT
I. Murphy’s Tortured Construction of the Release Violates Basic Rules
of Contract Interpretation and Does Not Square With the Release’s
Plain Language.
Even though it is well established that courts “Will not change the contract
merely because . . . one of the parties comes to dislike its provisions or thinks that
something else is needed,” Calpine Producer Servs., LP v. Wiser Oil C0,, 169 S.W.3d
783, 787 (TeX. App.—Dallas 2005, n0 pet.), that is exactly What Murphy asks the
Court to do in his response: change the Release in the Stock Purchase Agreement to
mean something it clearly does not mean because, With his $300,000 payment now
secure, he is dissatisfied with the Release’s impact 0n his lawsuit. Murphy attempts
t0 justify his Wholesale misconstruction 0f the Release with three meritless
arguments: (1) the subject matter 0f the agreement—re-purchase 0f stock—
precludes application 0f the Release t0 his causes 0f action in this case because the
Release is not part of a settlement agreement;1 (2) if it applies to his claims in this
case, the Release must be ambiguous (and thus a fact issue)? and (3) if the Release
is not ambiguous, it must be the result of a mutual mistake of fact—a counter-
defense that Murphy never pleaded and certainly has not proven.3 None of these
arguments can Withstand scrutiny 0r defeat Defendants’ entitlement t0 judgment
that the Release precludes a1] claims that accrued before prior t0 December 20,
2016—the Effective Date of the Release.
A. The Release’s Application Does Not Hinge on the Larger Agreement’s
Purposes or Whether It Is a Settlement Agreement.
Born of convenience, Murphy’s contrived argument that the Release does not
include his causes of action—even though the Release expressly lists those claims
within its scope—is at odds With the Release’s plain language and the law. As a
1 P1.’s Resp. at 52—59.
2 P1.’s Resp. at 59—60.
3 P1.’s Resp. at 60—61.
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 2
threshold matter, Murphy takes no issue in his response with Defendants’
arguments that if the Release applies, the plain meaning 0f its language would bar
his claims. He does not even make that assertion. A11 that Murphy argues is that
the Release is inapplicable because the underlying agreement’s purpose was t0
transfer ownership of stock and not to settle litigation. In other words, if Murphy is
wrong about Whether the Release applies, he has n0 argument against its disposing
of his claims. And Murphy is wrong about whether the Release applies.
At no point in his response, does Murphy ever cite a case even suggesting
that a release containing the sort 0f broad language his Release contains may not be
applied to preclude subsequent claims that fall Within the scope 0f that release. A11
that Murphy does is attempt t0 distinguish the cases Defendants cited in their
response—Memorial Medical Center 0f East Texas v. Keszler, 943 S.W.2d 433
(TeX. 1997) and Anheuser-Busch v. Summit Coffee Co., 858 S.W.2d 928 (TeX. App.—
Dallas 1993, writ refd)—arguing that these cases are inapplicable merely because
they concerned releases Within settlement agreements. But that is a distinction
Without a difference: in each case each court merely applied the same kind 0f
unambiguous contractual language at issue here and held that the plaintiffs’
respective claims were barred as a matter 0f law under such releases.
That said, Defendants would be just as satisfied if the Court relied on cases
Murphy cites in his own response—cases that fall outside the settlement agreement
context. Take for example Murphy’s citation t0 Sydlik v. REEIII, Ina, 195 S.W.3d
329 (TeX. App.—H0uston [14th Dist.] 2006, no pet.).4 There the court held that a
pre-suit, pre-injury release in a fitness club’s contract barred a customer’s
subsequent personal injury claims against the fitness club because the release was
conspicuous and specifically listed both the kinds of claims being released and the
4 P1.’s Resp. at 50.
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 3
parties to Whom the release applied. Id. at 332—35. So too here: printed in all caps,
and specifically listing the particular kinds of claims being released (e.g.,
“INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF
ONE OR MORE FIDUCIARY DUTIES . . . .”), the Release is more conspicuous than
the one applied in Sydlik and lists more claims being released. Accordingly, under
even Murphy’s cases, Defendants should prevail.
Murphy’s argument about his claims being protected by other provisions 0f
the contract (such as section 6.2)5 violates the principles 0f contract construction
that he pretends t0 espouse elsewhere in his response.6 When construing contracts,
courts must construe them as a whole and in harmony, such that n0 other provision
is nullified. See, e.g., Calpine Producer Servs., 169 S.W.3d at 787. And Murphy’s
interpretation would nullify the Release. Under Murphy’s interpretation the
Release provides nothing, despite expressly acknowledging that the money Pavecon
Holding paid Murphy under the Stock Purchase Agreement hinged in part on
Murphy’s signing the Release (“FOR . . . THE CONSIDERATION SET FORTH
HEREIN”).7
Defendants’ interpretation, 0n the other hand, would not nullify section 6.2.
Under the plain meaning 0f its terms, section 6.2 is merely a representation from
Pavecon Holding Inc. that paying Murphy for his shares and executing the
Agreement (i.e. “consummati[ng] . . . the transaction contemplated hereby”), Will not
result in a Violation 0f law, 0r in Pavecon Holding breaching 0r defaulting 0n some
other obligation, or in creating some other encumbrance to the transaction (i.e. one
that would “result in the creation of any encumbrance upon, or create any rights 0f
termination, cancellation, acceleration . . . With respect t0 any agreement,
5 P1.’s Resp. at 52—53.
6 P1.’s Resp. at 49—50.
7 Defs.’ Mot. for Partial Summ. J. at 242.
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 4
contract, [etc.]”).8 Placed in context, section 6.2’s only import is to communicate to
Murphy that the stock re-purchase is legal and Will not be interfered With by some
other party. Murphy made this same representation t0 Pavecon H01ding.9 And both
parties made these representations to create the essential contractual predicate for
two later provisions—section 8.1 and 8.2—Which provide that each party Will
indemnify the other if the representations made in their respective warranties
proved untrue (and then result in the kind of dispute the warranties were supposed
t0 avoid). 10 There is simply no basis for Murphy’s assertion that these
representations about the nature 0f the transaction nullifies the Release—not in the
Stock Purchase Agreement itself and not in the law. See, e.g., GPA Holding, Inc. v.
Baylor Health Care Sys., 344 S.W.3d 467, 471 (TeX. App.—Da11as 2011, pet. filed).
The Release therefore applies, and, as Murphy tacitly concedes, bars his claims.
B. The Release and the Stock Purchase Agreement Are Unambiguous.
The only stated basis for Murphy’s previously undisclosed theory that the
Release is ambiguous is his bare assertion about “a significant disagreement among
the parties regarding the intent 0f the Stock Purchase Agreement . . .
.”11 But courts
have been clear for decades that mere disagreement does not an ambiguity make.
“Neither conflicting interpretations nor conflicting expectations create contractual
ambiguities.” Treadway v. Shanks, 110 S.W.3d 1, 6 (TeX. App.—Da11as 2000), aff’d,
110 S.W.3d 444 (TeX. 2003). Ambiguities exist only Where contractual language
lacks “a certain 0r definite legal meaning 0r interpretation.” Calpine Producer
Servs., 169 S.W.3d at 787. That is simply not the case here, as confirmed by
Murphy’s conspicuous failure to provide any alternative construction of the
8 Defs.’ Mot. for Partial Summ. J. at 241.
9 Defs.’ Mot. for Partial Summ. J. at 240.
10 Defs.’ Mot. for Partial Summ. J. at 243—44.
11 P1.’s Resp. at 60.
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 5
Release’s terms (other than to object to its mere applicability). The Release’s
meaning is certain, definite, and thus dispositive of nearly all 0f Murphy’s claims.
C. Murphy’s Unilateral Failure to Anticipate the Future Consequences
of the Release Is Not, as a Matter of Law, a Mistake of Fact.
Murphy’s decision t0 resort t0 an unpleaded theory 0f mutual mistake should
be seen for what it is: a concession that the Release bars nearly all of his claims.
But Murphy’s failure to plead or prove this theory precludes him from using it as a
basis for opposing Defendants’ entitlement t0 summary judgment.
As a threshold matter, as Defendants have argued in their objections,”
Plaintiff cannot use a counter-defense t0 Defendants’ affirmative defense of release
that he never pleaded. See, e.g., Peregrine Oil & Gas, LP v. HRB Oil & Gas, Ltd.,
01-17-00180-CV, 2018 WL 4137026, at *8 (TeX. App.—Houst0n [1st Dist] Aug. 30,
2018, no pet. h.) (citing Barker v. Eckman, 213 S.W.3d 306, 311—12 (TeX. 2006));
Nelson v. Gulf Coast Cancer & Diagnostic Ctr. at Se., Inc., 529 S.W.3d 545, 548
(TeX. App.—Houston [14th Dist.] 2017, n0 pet.); see also Woods v. William M.
Mercer, Inc., 769 S.W.2d 515, 518 (TeX. 1988) (“A matter in avoidance of the statute
0f limitations that is not raised affirmatively by the pleadings Will, therefore, be
deemed waived”).
Moreover, even if the Court were to entertain the argument, Murphy would
bear the burden 0f showing he can raise a fact issue 0n each element 0f his counter-
defense 0f mutual mistake. See, e.g., Ryland Grp. v. Hood, 924 S.W.2d 120, 121
(TeX. 1996). Here, however, not only has Murphy failed to meet this burden in his
response, Murphy has yet again affirmatively disproved his own claim. As Murphy
acknowledges in his response, a showing of mutual mistake requires, as its name
implies, a mutual mistake (i.e.,
“a mistake of fact . . . held mutually by the
12 Defs.’ Obj. to Pl.’s Summ. J. Resp. (filed March 4, 2019).
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 6
parties.”).13 And in his response, Murphy included several pages 0f deposition
testimony from Pavecon Holding’s CEO, David Walker, showing that he clearly
understood the Release t0 include any and every claim that had accrued prior t0
Murphy’s execution 0f the Stock Purchase Agreement: “I'm not a lawyer. I mean, I --
I assumed it was --it was for everything prior to him signing.”14 Accordingly,
n0 matter What Murphy may now say, the Release applies, Murphy’s claims are
barred, and Defendants’ are entitled t0 judgment 0n this issue.
II. Because Murphy Concedes that He Failed to Meet the Conditions
Precedent to Obtaining an Interest in Pavecon Ltd. Co. and Public
Works, All Claims Arising Out of His Failed Ownership Interest in
Those Entities Also Fail.
At no point in his response does Murphy cite any law indicating that a person
may own an interest in a limited partnership or a limited liability company Without
being a partner or member of that company. Nor does Murphy cite any law
indicating that a person may become be a limited partner 0f a limited partnership
or a member 0f a limited liability company Without first satisfying the conditions for
becoming a limited partner or member. And Murphy again concedes in his response
that he never satisfied the conditions 0f becoming a limited partner 0f Public Works
or a member 0f Pavecon Ltd. Co. So there is n0 legal basis for those of Murphy’s
claims that rest of his having an interest in Public Works and Pavecon Ltd. Co:
breach 0f contract, breach 0f fiduciary duty, all fraud claims, claims 0f “bad faith”
(assuming that is a claim at all), “aiding and abetting,” conspiracy, conversion, and
“breach of partnership.”
Trying t0 salvage these moribund claims, Murphy makes two futile
assertions in his response: “Texas law does not require a formal partnership
agreement,” which says nothing about his purported interest in Pavecon Ltd. Co.
13 P1.’s Resp. at 60 & n.113 (citing Thompson v. Taeda Inv., LLC, 2018 WL
3196628, *3 (TeX. App.—
Tyler 2018, pet. denied).
14 Pl.’s Resp. at 64
(quoting David Walker Dep., 141225—145210) (emphasis added).
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 7
(an LLC);15 and that “all 0f the matters that are the subject of Mr. Murphy’s claims
are squarely contained within the terms 0f the [2012] Employment Agreement and
d0 not rely 0n any 0f the documents Pavecon attaches t0 its m0tion.”16 Neither 0f
these arguments defeats Defendants’ entitlement t0 summary judgment 0n
Murphy’s claims.
First, Murphy’s assertions about “Texas law” betrays his lack 0f
understanding about Texas law 0n partnerships. There is more than one kind 0f
partnership under Texas law. The “law” that Murphy alludes in his response to
concerns the formation 0f general partnerships. Indeed, the only case Murphy
cites in support 0f his assertion—Garcia v. Lucero, 366 S.W.3d 275, 278 (TeX. App.—
El Paso 2012, no pet.)—concerned the court’s construction of Chapter 152 0f the
Texas Business Organizations Code: the General Partnership statute. Id. at 278
(construing TeX. Bus. Orgs. Code § 152.052). But n0 general partnership is at issue
here. Murphy cites the wrong law.
Pavecon Ltd. C0. is an LLC. Chapter 152 is therefore inapplicable 0n its own
terms because LLC’s are governed by Chapter 101. See, e.g., TeX. Bus. Orgs. Code
§ 152.051(c) (“An association 0r organization is not a partnership if it was created
under a statute other than . . . this title . . . .”). Moreover, Chapter 152 “g0vern[s]
limited partnerships only to the extent provided by Sections 153.003 and 153.152
and Subchapter H, Chapter 153.” Id. § 152.0151(d). But none 0f these other sections
provide What Murphy must prove here: that persons Who, like Murphy, admit they
d0 not meet the preconditions 0f becoming a limited partner may still obtain all of
the benefits of being a limited partner. The very idea is nonsense. Such a rule would
nullify the other sections 0f the code that expressly require limited partners t0
comply With the limited partnership agreement along With the parties’ partnership
15 P1.’s Resp. at 46.
16 P1.’s Resp. at 46.
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 8
agreement itself. TeX. Bus. Orgs. Code § 153.101(b)(1) (“After a limited partnership
is formed, a person Who acquires a partnership interest directly from the
partnership becomes a new limited partner 0n . . . compliance With the provisions 0f
the partnership agreement governing admission 0f new limited partners[.]”).
Murphy’s second argument—that his 2012 Employment Agreement must
have made him a partner and a member 0f companies that did not exist in 2012—is
as meritless as his first. Defendants’ decision to ignore Murphy’s 2012 Employment
Agreement was not “convenient,” as Murphy’s asserts (repeatedly) in his response.
It was entirely deliberate. That Agreement is irrelevant and therefore not worth
mentioning.
As a threshold matter, t0 conclude that the 2012 Employment Agreement
entitled Murphy t0 obtain the benefits 0f being a limited partner 0r LLC member
Without meeting the preconditions 0f such partnership or membership interests, as
Murphy argues, would Violate basic rules of contract construction. See, e.g.,
Sonwalkar v. St. Luke's Sugar Land P’ship, LLP, 394 S.W.3d 186, 202 (TeX. App.—
Houston [lst Dist.] 2012, n0 pet.) (holding that partnership agreements are
construed like contracts, and citing Park Cities Corp. v. Byrd, 534 S.W.2d 668, 672
(Tex.1976)); White v. Pottorff, 479 S.W.3d 409, 414 (Tex. App.—Da11as 2015, pet.
denied) (holding that limited liability company agreements are construed like
contracts). Embedded in Murphy’s argument is the tacit assertion—Without any
support in law—that the promise 0f Stock Bonus Equity in his 2012 Employment
Agreement should be construed mean “Stock Bonus Equity in Public Works and
Pavecon Ltd. Co.,” two entities that did not exist until December of 2014. However,
separate contracts 0r instruments may be construed together, as Murphy’s
argument requires, only if those separate contracts were “executed at the
same time, for the same purpose, and in the course of the same
transaction.” Abdullatif v. Choudhri, 561 S.W.3d 590, 613 (TeX. App.—Houst0n
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 9
[14th Dist] 2018, no pet. h.), reh’g denied (Dec. 6, 2018). That rule has no
application here, however. Murphy cannot credibly contend that in 2012 the parties
contemplated making him a partner 0r a member 0f entities that did not exist and
that were not even contemplated in his 2012 Employment Agreement.
Moreover, under Texas’s right-to-work laws, Murphy’s 2012 Employment
Agreement was a nullity the moment Pavecon Holding Inc. introduced its
restructuring plan (e.g. to create Public Works and Pavecon Ltd. Co. and t0 phase
out Pavecon Ltd., a limited partnership), and then offered Murphy a chance to
participate in that new structure. Such actions superseded all prior agreements.
There is no dispute that Murphy’s employment with Pavecon was anything
other than at-Will. In employment—at-Will relationships either party may impose
modifications t0 the employment terms as a condition 0f continued employment.
See, e.g., Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (TeX. 1986); White v.
Aguirre, Ina, No. 05-00-00593-CV, 2002 WL 987930 at *3 (TeX. App.—Dallas
May 15, 2002, n0 pet.). Accordingly, When the employer notifies the employee 0f
changes in employment terms, the employee must accept the new terms or quit.
Hathaway, 711 S.W.2d at 229; White, 2002 WL 987930 at *3. If the employee
continues working With knowledge 0f the changes, he has accepted the changes as a
matter 0f law. Hathaway, 711 S.W.2d at 229; White, 2002 WL 987930 at *3.
Accordingly, the partnership and company agreements superseded Murphy’s 2012
Employment Agreement by operation 0f law, and Murphy’s admitted refusal t0 sign
those agreements precludes him from obtaining any benefits from them.
This same law also disposes of Murphy’s baseless argument that Pavecon
Holding Company was required t0 issue him stock despite announcing the end 0f
the stock program,” despite paying him more than a quarter 0f a million dollars for
17 Defs.’ Mot. for Partial Summ. J. at 235 (Shareholder Information Sheet).
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 10
his prior shares in Pavecon Holding Inc.,18 and despite his signing a release—in
2016—0f all such claims against all Defendants.” When Pavecon Holding offered
Murphy a new source 0f an “Equity Bonus,” and paid Murphy for his return of
Pavecon Holding’s shares, Murphy’s 2012 Employment Agreement became a nullity
as t0 his purported right to Pavecon Holding stock. Accordingly, Defendants are
entitled t0 judgment 0n Murphy’s claims for breach 0f contract, breach 0f fiduciary
duty, all fraud claims, claims of “bad faith” (assuming that is a claim at all), “aiding
and abetting,” conspiracy, conversion, and “breach of partnership,” because all 0f
those claims rest 0n an unprovable assumption that Murphy was entitled t0 the
benefits of being a partner 0r member of Public Works 0r Pavecon Ltd. Co. Without
actually being a partner or member.
III. Through His Silence, Murphy Concedes Defendants’ No-Evidence
Points.
In asserting that “Pavecon has utterly failed t0 meet its burden t0 state the
elements as to Which Pavecon claims there is n0 evidence,”20 Murphy apparently
failed to read Defendants’ entire motion. For, on page 17 of Defendants’ motion,
Defendants specifically challenged Murphy’s assertion 0f “waiver,” 0n grounds that
Murphy had n0 evidence of a written waiver as the agreements required, 0r of any
other evidence that Defendants had knowingly relinquished a known right.”
Rather than actually coming forward With evidence 0f waiver, Murphy limited his
response t0 make bald and incorrect assertions about Defendants’ arguments.
In fact, the word “waiver” does not even appear in Murphy’s response. Defendants
are therefore entitled t0 summary judgment 0n Murphy’s counter-defense 0f waiver
of conditions precedent.
18 Mot. for Partial Summ. J. at 237 (Purchase price was $298,028.70).
Defs.’
19 Mot. for Partial Summ. J. at 242—43.
Defs.’
20 P1.’s Resp. at 37—38.
21 Defs.’ Mot. for Partial Summ. J. at 1'7
(citing Enter. Prods. Partners, LP v. Energy Transfer
Partners, LP, 529 S.W.3d 531, 543 (Tex. App.—Da11as 2017, pet. filed».
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 11
IV. The Court Should Overrule Murphy’s Meritless Challenges to the
Heierman Declaration.
In their response, Murphy included objections t0 paragraphs 5—7, and 10—11
0f the Heierman Declaration. These objections lack merit. There are n0 “legal
opinions” in this declaration.22 Heierman merely explains background facts and
authenticates documents essential to understanding that background, and qualifies
them for admission under the business records exception. 23 Moreover, as
background facts, none 0f facts Within these paragraphs are material t0 resolving
the issues in Defendants’ motion. Murphy’s objections should therefore be
overruled.
V. Granting Defendants’ Motion Will Simplify the Case.
Murphy is wrong to assert in his response that granting Defendants’ motion
Will not simplify the case.24 Besides eliminating claims (and thus addressing issues
raised in recently filed summary judgment motions), granting Defendants’ motion
Will also reduce the Court’s workload. Currently pending before the Court is
Defendant’s Motion t0 Strike and t0 Exclude the Testimony of Plaintiffs’ Experts
(filed Feb. 15, 2019), which is set for hearing on March 28, 2019. Granting
Defendants’ motion will moot large portions 0f that motion, since most of Murphy’s
experts were retained t0 opine 0n (legal) issues about how the various agreements
at issue in this case should be interpreted. But by holding that Murphy has n0 claim
t0 any equity interest in Public Works or Pavecon Ltd. Co., all of these experts’
opinions will become irrelevant, thus mooting Defendants’ motion as t0 those
aspects of expert testimony. Defendants’ motion should therefore be granted.
22 P1.’s Resp. at 3.
23 Defs.’ Mot. for Partial Summ. J. at 21—22.
24 P1.’s Resp. at 2.
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 12
CONCLUSION
Construing the three unambiguous agreements identified in this motion—the
Stock Purchase Agreement, the Partnership Agreement, and the Company
Agreement—will streamline the case and enable the parties to focus better on
Murphy’s other (meritless) claims, and 0n Defendants’ own claims against Murphy.
The plain meaning of these three agreements, coupled with Murphy’s own
admissions, disposes of substantial portions of Murphy’s claims. The Court should
therefore grant Defendants’ motion and enter an order providing for each 0f the
following conclusions:
1. A11 claims related t0 Murphy’s relationship With Pavecon Holding and
Pavecon Holding’s officers and affiliates, are barred up to and through
December 20, 2016 because each claim falls Within the scope of the Stock
Purchase Agreement’s release provisions, Which includes all 0f Murphy’s
claims for breach of contract, fraud, breach 0f fiduciary duty, conspiracy,
conversion, and “aiding and abetting”;
2. A11 claims related to Murphy’s purported partnership interest in Public
Works LP are barred as a matter of law because Murphy is not a limited
partner under the Partnership Agreement; and
3. A11 claims related t0 Murphy’s purported membership interest in Pavecon
Ltd. C0. are barred as a matter 0f law because Murphy is not a member 0f
Pavecon Ltd. Co. under the Company Agreement.
Date: March 4, 2019 Respectfully submitted,
/s/J. Robert Arnett II
J.Robert Arnett II
Texas Bar N0. 01332900
barnett@carterarnett.com
Stacey Cho Hernandez
Texas Bar N0. 24063953
shernandez@carterarnett.com
Joshua J. Bennett
Texas Bar No. 24059444
jbennett@carterarnett.com
CARTER ARNETT PLLC
8150 N. Central EXpy, Ste. 500
Dallas, Texas 75206
Telephone: (214) 550-8188
Facsimile: (214) 550-8185
ATTORNEYS FOR DEFENDANTS
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 13
CERTIFICATE OF SERVICE
I hereby certify that, 0n March 4, 2019, all counsel 0f record were served with
this instrument through the Court’s electronic filing system.
/s/ J. Robert Arnett II
J.Robert Arnett II
DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 14
Preview
FILED DALLAS COUNTY 3/4/2019 10:31 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-17-10592 MARTY MURPHY, IN THE DISTRICT COURT Plaintiff and Counterclaim— Defendant V. PAVECON HOLDING CO., INC., PAVECON LTD. CO., WWWWWWWWWWWWWWWW 192nd JUDICIAL DISTRICT PAVECON PUBLIC WORKS LP, PAVECON PUBLIC WORKS GP LLC, LABCON, INC., DAVID WALKER, Defendants and Counterclaim- Plaintiffs, DALLAS COUNTY, TEXAS DEFENDANTS’ REPLY IN SUPPORT OF THEIR TRADITIONAL AND NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT N0 one disputes that Murphy signed the Stock Purchase Agreement 0r that it contains a release of claims (“the Release”). No one disputes that Murphy refused to sign the Membership and Profit/Loss Sharing Agreement for Pavecon Ltd. C0., and the Limited Partnership Agreement and Profit/Loss Sharing Agreement for Pavecon Public Works, LP (“Public Works”). Accordingly, the sole question presented in Defendants’ Motion for Partial Summary Judgment is What the legal effect is 0f these undisputed facts. In his response, Murphy’s only answer t0 that basic question is denial and obfuscation. Contrary t0 Murphy’s assertions in his response, the Release is not limited t0 a sale 0f stock. The Release’s own plain language makes that fact pellucidly clear. And the fact that Murphy refused t0 sign the founding agreements 0f Pavecon Ltd. Co. and Public Works is not a fact in Murphy’s favor as he suggests in his response. T0 the contrary, the legal effect 0f that undisputed fact forecloses a1] of Murphy’s frivolous claims about his being owed an equity interest in either entity. The Court should therefore grant Defendants’ motion. Doing s0 Will simplify the case and moot other issues now pending before the Court 0n other issues, such as the admissibility 0f certain expert testimony. DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 1 ARGUMENT I. Murphy’s Tortured Construction of the Release Violates Basic Rules of Contract Interpretation and Does Not Square With the Release’s Plain Language. Even though it is well established that courts “Will not change the contract merely because . . . one of the parties comes to dislike its provisions or thinks that something else is needed,” Calpine Producer Servs., LP v. Wiser Oil C0,, 169 S.W.3d 783, 787 (TeX. App.—Dallas 2005, n0 pet.), that is exactly What Murphy asks the Court to do in his response: change the Release in the Stock Purchase Agreement to mean something it clearly does not mean because, With his $300,000 payment now secure, he is dissatisfied with the Release’s impact 0n his lawsuit. Murphy attempts t0 justify his Wholesale misconstruction 0f the Release with three meritless arguments: (1) the subject matter 0f the agreement—re-purchase 0f stock— precludes application 0f the Release t0 his causes 0f action in this case because the Release is not part of a settlement agreement;1 (2) if it applies to his claims in this case, the Release must be ambiguous (and thus a fact issue)? and (3) if the Release is not ambiguous, it must be the result of a mutual mistake of fact—a counter- defense that Murphy never pleaded and certainly has not proven.3 None of these arguments can Withstand scrutiny 0r defeat Defendants’ entitlement t0 judgment that the Release precludes a1] claims that accrued before prior t0 December 20, 2016—the Effective Date of the Release. A. The Release’s Application Does Not Hinge on the Larger Agreement’s Purposes or Whether It Is a Settlement Agreement. Born of convenience, Murphy’s contrived argument that the Release does not include his causes of action—even though the Release expressly lists those claims within its scope—is at odds With the Release’s plain language and the law. As a 1 P1.’s Resp. at 52—59. 2 P1.’s Resp. at 59—60. 3 P1.’s Resp. at 60—61. DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 2 threshold matter, Murphy takes no issue in his response with Defendants’ arguments that if the Release applies, the plain meaning 0f its language would bar his claims. He does not even make that assertion. A11 that Murphy argues is that the Release is inapplicable because the underlying agreement’s purpose was t0 transfer ownership of stock and not to settle litigation. In other words, if Murphy is wrong about Whether the Release applies, he has n0 argument against its disposing of his claims. And Murphy is wrong about whether the Release applies. At no point in his response, does Murphy ever cite a case even suggesting that a release containing the sort 0f broad language his Release contains may not be applied to preclude subsequent claims that fall Within the scope 0f that release. A11 that Murphy does is attempt t0 distinguish the cases Defendants cited in their response—Memorial Medical Center 0f East Texas v. Keszler, 943 S.W.2d 433 (TeX. 1997) and Anheuser-Busch v. Summit Coffee Co., 858 S.W.2d 928 (TeX. App.— Dallas 1993, writ refd)—arguing that these cases are inapplicable merely because they concerned releases Within settlement agreements. But that is a distinction Without a difference: in each case each court merely applied the same kind 0f unambiguous contractual language at issue here and held that the plaintiffs’ respective claims were barred as a matter 0f law under such releases. That said, Defendants would be just as satisfied if the Court relied on cases Murphy cites in his own response—cases that fall outside the settlement agreement context. Take for example Murphy’s citation t0 Sydlik v. REEIII, Ina, 195 S.W.3d 329 (TeX. App.—H0uston [14th Dist.] 2006, no pet.).4 There the court held that a pre-suit, pre-injury release in a fitness club’s contract barred a customer’s subsequent personal injury claims against the fitness club because the release was conspicuous and specifically listed both the kinds of claims being released and the 4 P1.’s Resp. at 50. DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 3 parties to Whom the release applied. Id. at 332—35. So too here: printed in all caps, and specifically listing the particular kinds of claims being released (e.g., “INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF ONE OR MORE FIDUCIARY DUTIES . . . .”), the Release is more conspicuous than the one applied in Sydlik and lists more claims being released. Accordingly, under even Murphy’s cases, Defendants should prevail. Murphy’s argument about his claims being protected by other provisions 0f the contract (such as section 6.2)5 violates the principles 0f contract construction that he pretends t0 espouse elsewhere in his response.6 When construing contracts, courts must construe them as a whole and in harmony, such that n0 other provision is nullified. See, e.g., Calpine Producer Servs., 169 S.W.3d at 787. And Murphy’s interpretation would nullify the Release. Under Murphy’s interpretation the Release provides nothing, despite expressly acknowledging that the money Pavecon Holding paid Murphy under the Stock Purchase Agreement hinged in part on Murphy’s signing the Release (“FOR . . . THE CONSIDERATION SET FORTH HEREIN”).7 Defendants’ interpretation, 0n the other hand, would not nullify section 6.2. Under the plain meaning 0f its terms, section 6.2 is merely a representation from Pavecon Holding Inc. that paying Murphy for his shares and executing the Agreement (i.e. “consummati[ng] . . . the transaction contemplated hereby”), Will not result in a Violation 0f law, 0r in Pavecon Holding breaching 0r defaulting 0n some other obligation, or in creating some other encumbrance to the transaction (i.e. one that would “result in the creation of any encumbrance upon, or create any rights 0f termination, cancellation, acceleration . . . With respect t0 any agreement, 5 P1.’s Resp. at 52—53. 6 P1.’s Resp. at 49—50. 7 Defs.’ Mot. for Partial Summ. J. at 242. DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 4 contract, [etc.]”).8 Placed in context, section 6.2’s only import is to communicate to Murphy that the stock re-purchase is legal and Will not be interfered With by some other party. Murphy made this same representation t0 Pavecon H01ding.9 And both parties made these representations to create the essential contractual predicate for two later provisions—section 8.1 and 8.2—Which provide that each party Will indemnify the other if the representations made in their respective warranties proved untrue (and then result in the kind of dispute the warranties were supposed t0 avoid). 10 There is simply no basis for Murphy’s assertion that these representations about the nature 0f the transaction nullifies the Release—not in the Stock Purchase Agreement itself and not in the law. See, e.g., GPA Holding, Inc. v. Baylor Health Care Sys., 344 S.W.3d 467, 471 (TeX. App.—Da11as 2011, pet. filed). The Release therefore applies, and, as Murphy tacitly concedes, bars his claims. B. The Release and the Stock Purchase Agreement Are Unambiguous. The only stated basis for Murphy’s previously undisclosed theory that the Release is ambiguous is his bare assertion about “a significant disagreement among the parties regarding the intent 0f the Stock Purchase Agreement . . . .”11 But courts have been clear for decades that mere disagreement does not an ambiguity make. “Neither conflicting interpretations nor conflicting expectations create contractual ambiguities.” Treadway v. Shanks, 110 S.W.3d 1, 6 (TeX. App.—Da11as 2000), aff’d, 110 S.W.3d 444 (TeX. 2003). Ambiguities exist only Where contractual language lacks “a certain 0r definite legal meaning 0r interpretation.” Calpine Producer Servs., 169 S.W.3d at 787. That is simply not the case here, as confirmed by Murphy’s conspicuous failure to provide any alternative construction of the 8 Defs.’ Mot. for Partial Summ. J. at 241. 9 Defs.’ Mot. for Partial Summ. J. at 240. 10 Defs.’ Mot. for Partial Summ. J. at 243—44. 11 P1.’s Resp. at 60. DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 5 Release’s terms (other than to object to its mere applicability). The Release’s meaning is certain, definite, and thus dispositive of nearly all 0f Murphy’s claims. C. Murphy’s Unilateral Failure to Anticipate the Future Consequences of the Release Is Not, as a Matter of Law, a Mistake of Fact. Murphy’s decision t0 resort t0 an unpleaded theory 0f mutual mistake should be seen for what it is: a concession that the Release bars nearly all of his claims. But Murphy’s failure to plead or prove this theory precludes him from using it as a basis for opposing Defendants’ entitlement t0 summary judgment. As a threshold matter, as Defendants have argued in their objections,” Plaintiff cannot use a counter-defense t0 Defendants’ affirmative defense of release that he never pleaded. See, e.g., Peregrine Oil & Gas, LP v. HRB Oil & Gas, Ltd., 01-17-00180-CV, 2018 WL 4137026, at *8 (TeX. App.—Houst0n [1st Dist] Aug. 30, 2018, no pet. h.) (citing Barker v. Eckman, 213 S.W.3d 306, 311—12 (TeX. 2006)); Nelson v. Gulf Coast Cancer & Diagnostic Ctr. at Se., Inc., 529 S.W.3d 545, 548 (TeX. App.—Houston [14th Dist.] 2017, n0 pet.); see also Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (TeX. 1988) (“A matter in avoidance of the statute 0f limitations that is not raised affirmatively by the pleadings Will, therefore, be deemed waived”). Moreover, even if the Court were to entertain the argument, Murphy would bear the burden 0f showing he can raise a fact issue 0n each element 0f his counter- defense 0f mutual mistake. See, e.g., Ryland Grp. v. Hood, 924 S.W.2d 120, 121 (TeX. 1996). Here, however, not only has Murphy failed to meet this burden in his response, Murphy has yet again affirmatively disproved his own claim. As Murphy acknowledges in his response, a showing of mutual mistake requires, as its name implies, a mutual mistake (i.e., “a mistake of fact . . . held mutually by the 12 Defs.’ Obj. to Pl.’s Summ. J. Resp. (filed March 4, 2019). DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 6 parties.”).13 And in his response, Murphy included several pages 0f deposition testimony from Pavecon Holding’s CEO, David Walker, showing that he clearly understood the Release t0 include any and every claim that had accrued prior t0 Murphy’s execution 0f the Stock Purchase Agreement: “I'm not a lawyer. I mean, I -- I assumed it was --it was for everything prior to him signing.”14 Accordingly, n0 matter What Murphy may now say, the Release applies, Murphy’s claims are barred, and Defendants’ are entitled t0 judgment 0n this issue. II. Because Murphy Concedes that He Failed to Meet the Conditions Precedent to Obtaining an Interest in Pavecon Ltd. Co. and Public Works, All Claims Arising Out of His Failed Ownership Interest in Those Entities Also Fail. At no point in his response does Murphy cite any law indicating that a person may own an interest in a limited partnership or a limited liability company Without being a partner or member of that company. Nor does Murphy cite any law indicating that a person may become be a limited partner 0f a limited partnership or a member 0f a limited liability company Without first satisfying the conditions for becoming a limited partner or member. And Murphy again concedes in his response that he never satisfied the conditions 0f becoming a limited partner 0f Public Works or a member 0f Pavecon Ltd. Co. So there is n0 legal basis for those of Murphy’s claims that rest of his having an interest in Public Works and Pavecon Ltd. Co: breach 0f contract, breach 0f fiduciary duty, all fraud claims, claims 0f “bad faith” (assuming that is a claim at all), “aiding and abetting,” conspiracy, conversion, and “breach of partnership.” Trying t0 salvage these moribund claims, Murphy makes two futile assertions in his response: “Texas law does not require a formal partnership agreement,” which says nothing about his purported interest in Pavecon Ltd. Co. 13 P1.’s Resp. at 60 & n.113 (citing Thompson v. Taeda Inv., LLC, 2018 WL 3196628, *3 (TeX. App.— Tyler 2018, pet. denied). 14 Pl.’s Resp. at 64 (quoting David Walker Dep., 141225—145210) (emphasis added). DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 7 (an LLC);15 and that “all 0f the matters that are the subject of Mr. Murphy’s claims are squarely contained within the terms 0f the [2012] Employment Agreement and d0 not rely 0n any 0f the documents Pavecon attaches t0 its m0tion.”16 Neither 0f these arguments defeats Defendants’ entitlement t0 summary judgment 0n Murphy’s claims. First, Murphy’s assertions about “Texas law” betrays his lack 0f understanding about Texas law 0n partnerships. There is more than one kind 0f partnership under Texas law. The “law” that Murphy alludes in his response to concerns the formation 0f general partnerships. Indeed, the only case Murphy cites in support 0f his assertion—Garcia v. Lucero, 366 S.W.3d 275, 278 (TeX. App.— El Paso 2012, no pet.)—concerned the court’s construction of Chapter 152 0f the Texas Business Organizations Code: the General Partnership statute. Id. at 278 (construing TeX. Bus. Orgs. Code § 152.052). But n0 general partnership is at issue here. Murphy cites the wrong law. Pavecon Ltd. C0. is an LLC. Chapter 152 is therefore inapplicable 0n its own terms because LLC’s are governed by Chapter 101. See, e.g., TeX. Bus. Orgs. Code § 152.051(c) (“An association 0r organization is not a partnership if it was created under a statute other than . . . this title . . . .”). Moreover, Chapter 152 “g0vern[s] limited partnerships only to the extent provided by Sections 153.003 and 153.152 and Subchapter H, Chapter 153.” Id. § 152.0151(d). But none 0f these other sections provide What Murphy must prove here: that persons Who, like Murphy, admit they d0 not meet the preconditions 0f becoming a limited partner may still obtain all of the benefits of being a limited partner. The very idea is nonsense. Such a rule would nullify the other sections 0f the code that expressly require limited partners t0 comply With the limited partnership agreement along With the parties’ partnership 15 P1.’s Resp. at 46. 16 P1.’s Resp. at 46. DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 8 agreement itself. TeX. Bus. Orgs. Code § 153.101(b)(1) (“After a limited partnership is formed, a person Who acquires a partnership interest directly from the partnership becomes a new limited partner 0n . . . compliance With the provisions 0f the partnership agreement governing admission 0f new limited partners[.]”). Murphy’s second argument—that his 2012 Employment Agreement must have made him a partner and a member 0f companies that did not exist in 2012—is as meritless as his first. Defendants’ decision to ignore Murphy’s 2012 Employment Agreement was not “convenient,” as Murphy’s asserts (repeatedly) in his response. It was entirely deliberate. That Agreement is irrelevant and therefore not worth mentioning. As a threshold matter, t0 conclude that the 2012 Employment Agreement entitled Murphy t0 obtain the benefits 0f being a limited partner 0r LLC member Without meeting the preconditions 0f such partnership or membership interests, as Murphy argues, would Violate basic rules of contract construction. See, e.g., Sonwalkar v. St. Luke's Sugar Land P’ship, LLP, 394 S.W.3d 186, 202 (TeX. App.— Houston [lst Dist.] 2012, n0 pet.) (holding that partnership agreements are construed like contracts, and citing Park Cities Corp. v. Byrd, 534 S.W.2d 668, 672 (Tex.1976)); White v. Pottorff, 479 S.W.3d 409, 414 (Tex. App.—Da11as 2015, pet. denied) (holding that limited liability company agreements are construed like contracts). Embedded in Murphy’s argument is the tacit assertion—Without any support in law—that the promise 0f Stock Bonus Equity in his 2012 Employment Agreement should be construed mean “Stock Bonus Equity in Public Works and Pavecon Ltd. Co.,” two entities that did not exist until December of 2014. However, separate contracts 0r instruments may be construed together, as Murphy’s argument requires, only if those separate contracts were “executed at the same time, for the same purpose, and in the course of the same transaction.” Abdullatif v. Choudhri, 561 S.W.3d 590, 613 (TeX. App.—Houst0n DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 9 [14th Dist] 2018, no pet. h.), reh’g denied (Dec. 6, 2018). That rule has no application here, however. Murphy cannot credibly contend that in 2012 the parties contemplated making him a partner 0r a member 0f entities that did not exist and that were not even contemplated in his 2012 Employment Agreement. Moreover, under Texas’s right-to-work laws, Murphy’s 2012 Employment Agreement was a nullity the moment Pavecon Holding Inc. introduced its restructuring plan (e.g. to create Public Works and Pavecon Ltd. Co. and t0 phase out Pavecon Ltd., a limited partnership), and then offered Murphy a chance to participate in that new structure. Such actions superseded all prior agreements. There is no dispute that Murphy’s employment with Pavecon was anything other than at-Will. In employment—at-Will relationships either party may impose modifications t0 the employment terms as a condition 0f continued employment. See, e.g., Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (TeX. 1986); White v. Aguirre, Ina, No. 05-00-00593-CV, 2002 WL 987930 at *3 (TeX. App.—Dallas May 15, 2002, n0 pet.). Accordingly, When the employer notifies the employee 0f changes in employment terms, the employee must accept the new terms or quit. Hathaway, 711 S.W.2d at 229; White, 2002 WL 987930 at *3. If the employee continues working With knowledge 0f the changes, he has accepted the changes as a matter 0f law. Hathaway, 711 S.W.2d at 229; White, 2002 WL 987930 at *3. Accordingly, the partnership and company agreements superseded Murphy’s 2012 Employment Agreement by operation 0f law, and Murphy’s admitted refusal t0 sign those agreements precludes him from obtaining any benefits from them. This same law also disposes of Murphy’s baseless argument that Pavecon Holding Company was required t0 issue him stock despite announcing the end 0f the stock program,” despite paying him more than a quarter 0f a million dollars for 17 Defs.’ Mot. for Partial Summ. J. at 235 (Shareholder Information Sheet). DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 10 his prior shares in Pavecon Holding Inc.,18 and despite his signing a release—in 2016—0f all such claims against all Defendants.” When Pavecon Holding offered Murphy a new source 0f an “Equity Bonus,” and paid Murphy for his return of Pavecon Holding’s shares, Murphy’s 2012 Employment Agreement became a nullity as t0 his purported right to Pavecon Holding stock. Accordingly, Defendants are entitled t0 judgment 0n Murphy’s claims for breach 0f contract, breach 0f fiduciary duty, all fraud claims, claims of “bad faith” (assuming that is a claim at all), “aiding and abetting,” conspiracy, conversion, and “breach of partnership,” because all 0f those claims rest 0n an unprovable assumption that Murphy was entitled t0 the benefits of being a partner 0r member of Public Works 0r Pavecon Ltd. Co. Without actually being a partner or member. III. Through His Silence, Murphy Concedes Defendants’ No-Evidence Points. In asserting that “Pavecon has utterly failed t0 meet its burden t0 state the elements as to Which Pavecon claims there is n0 evidence,”20 Murphy apparently failed to read Defendants’ entire motion. For, on page 17 of Defendants’ motion, Defendants specifically challenged Murphy’s assertion 0f “waiver,” 0n grounds that Murphy had n0 evidence of a written waiver as the agreements required, 0r of any other evidence that Defendants had knowingly relinquished a known right.” Rather than actually coming forward With evidence 0f waiver, Murphy limited his response t0 make bald and incorrect assertions about Defendants’ arguments. In fact, the word “waiver” does not even appear in Murphy’s response. Defendants are therefore entitled t0 summary judgment 0n Murphy’s counter-defense 0f waiver of conditions precedent. 18 Mot. for Partial Summ. J. at 237 (Purchase price was $298,028.70). Defs.’ 19 Mot. for Partial Summ. J. at 242—43. Defs.’ 20 P1.’s Resp. at 37—38. 21 Defs.’ Mot. for Partial Summ. J. at 1'7 (citing Enter. Prods. Partners, LP v. Energy Transfer Partners, LP, 529 S.W.3d 531, 543 (Tex. App.—Da11as 2017, pet. filed». DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 11 IV. The Court Should Overrule Murphy’s Meritless Challenges to the Heierman Declaration. In their response, Murphy included objections t0 paragraphs 5—7, and 10—11 0f the Heierman Declaration. These objections lack merit. There are n0 “legal opinions” in this declaration.22 Heierman merely explains background facts and authenticates documents essential to understanding that background, and qualifies them for admission under the business records exception. 23 Moreover, as background facts, none 0f facts Within these paragraphs are material t0 resolving the issues in Defendants’ motion. Murphy’s objections should therefore be overruled. V. Granting Defendants’ Motion Will Simplify the Case. Murphy is wrong to assert in his response that granting Defendants’ motion Will not simplify the case.24 Besides eliminating claims (and thus addressing issues raised in recently filed summary judgment motions), granting Defendants’ motion Will also reduce the Court’s workload. Currently pending before the Court is Defendant’s Motion t0 Strike and t0 Exclude the Testimony of Plaintiffs’ Experts (filed Feb. 15, 2019), which is set for hearing on March 28, 2019. Granting Defendants’ motion will moot large portions 0f that motion, since most of Murphy’s experts were retained t0 opine 0n (legal) issues about how the various agreements at issue in this case should be interpreted. But by holding that Murphy has n0 claim t0 any equity interest in Public Works or Pavecon Ltd. Co., all of these experts’ opinions will become irrelevant, thus mooting Defendants’ motion as t0 those aspects of expert testimony. Defendants’ motion should therefore be granted. 22 P1.’s Resp. at 3. 23 Defs.’ Mot. for Partial Summ. J. at 21—22. 24 P1.’s Resp. at 2. DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 12 CONCLUSION Construing the three unambiguous agreements identified in this motion—the Stock Purchase Agreement, the Partnership Agreement, and the Company Agreement—will streamline the case and enable the parties to focus better on Murphy’s other (meritless) claims, and 0n Defendants’ own claims against Murphy. The plain meaning of these three agreements, coupled with Murphy’s own admissions, disposes of substantial portions of Murphy’s claims. The Court should therefore grant Defendants’ motion and enter an order providing for each 0f the following conclusions: 1. A11 claims related t0 Murphy’s relationship With Pavecon Holding and Pavecon Holding’s officers and affiliates, are barred up to and through December 20, 2016 because each claim falls Within the scope of the Stock Purchase Agreement’s release provisions, Which includes all 0f Murphy’s claims for breach of contract, fraud, breach 0f fiduciary duty, conspiracy, conversion, and “aiding and abetting”; 2. A11 claims related to Murphy’s purported partnership interest in Public Works LP are barred as a matter of law because Murphy is not a limited partner under the Partnership Agreement; and 3. A11 claims related t0 Murphy’s purported membership interest in Pavecon Ltd. C0. are barred as a matter 0f law because Murphy is not a member 0f Pavecon Ltd. Co. under the Company Agreement. Date: March 4, 2019 Respectfully submitted, /s/J. Robert Arnett II J.Robert Arnett II Texas Bar N0. 01332900 barnett@carterarnett.com Stacey Cho Hernandez Texas Bar N0. 24063953 shernandez@carterarnett.com Joshua J. Bennett Texas Bar No. 24059444 jbennett@carterarnett.com CARTER ARNETT PLLC 8150 N. Central EXpy, Ste. 500 Dallas, Texas 75206 Telephone: (214) 550-8188 Facsimile: (214) 550-8185 ATTORNEYS FOR DEFENDANTS DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 13 CERTIFICATE OF SERVICE I hereby certify that, 0n March 4, 2019, all counsel 0f record were served with this instrument through the Court’s electronic filing system. /s/ J. Robert Arnett II J.Robert Arnett II DEFS.’ REPLY IN SUPP. 0F THEIR MOT. FOR PARTIAL SUMM. J. Page 14