Preview
FILED
DALLAS COUNTY
5/15/2019 10:20 PM
FELICIA PITRE
DISTRICT CLERK
Cassandra Walker
CAUSE NO. DC-17-10592
MARTY MURPHY, § IN THE DISTRICT COURT
§
Plaintiff and Counterclaim- §
Defendant §
§
v. §
§
PAVECON HOLDING CO., INC., §
PAVECON LTD. CO., § 192nd JUDICIAL DISTRICT
PAVECON PUBLIC WORKS LP, §
PAVECON PUBLIC WORKS GP §
LLC, LABCON, INC., DAVID §
WALKER, §
§
Defendants and Counterclaim- §
Plaintiffs, § DALLAS COUNTY, TEXAS
DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO STRIKE
RON VERNON’S AND RUDY ROBINSON’S EXPERT OPINIONS
There is no merit to Murphy’s motions to exclude highly relevant testimony
from Ron Vernon and Rudy Robinson about the Pavecon Defendants’ (Counter-
Plaintiffs’) damages. Vernon examined a set of cost figures that Pavecon obtained
in discovery, and provided highly relevant opinions and conclusions about the value
of the work that Pavecon involuntarily performed on Murphy’s property using
Pavecon’s resources.1 Robinson in turn relied on Vernon’s opinions in reaching
opinions and conclusions about the cost-valuation of Murphy’s property,2 all of
which are part of Counter-Plaintiffs’ damage theories. Each of these opinions are
admissible because besides being highly relevant, these opinions are based on each
expert’s training and experience and on the evidence in the record. Accordingly,
there is no basis for striking either expert’s testimony. The Court should
therefore deny Murphy’s motions.
1 See, e.g., Pl.’s Mot. to Exclude Ron Vernon, Ex. 1, at pages 15 to 30 of the PDF. The pages are not
individually numbered.
2 See, e.g., Pl.’s Mot. to Exclude Rudy Robinson, Ex. 1, at pages 67 to 70 of the PDF (page 50–53 of
Robinson’s report).
DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 1
ARGUMENT
Rule 702 contains three requirements for the admission of expert testimony:
(1) the witness must be qualified, (2) the proposed testimony must be scientific,
technical, or other specialized knowledge, and (3) the testimony must assist the trier
of fact to understand the evidence or to determine a fact in issue. Tex. R. Evid. 702.
Here, Murphy raises no challenges to Vernon’s or Robinson’s qualifications. Murphy
challenges only whether Vernon’s opinions are the result of specialized knowledge
and are reliable,3 and thus whether Robinson’s opinions are reliable given Robinson’s
reliance on Vernon’s opinions.4
In arguing that Vernon’s opinions (and thus Robinson’s) are inadmissible,
Murphy initially applies the wrong law. The reliability of opinions from non-scientist
experts like Vernon and Robinson are not based on the six Robinson factors that
Murphy quotes in his motion (e.g., peer review testing, non-judicial uses of the theory,
etc.).5 There is instead a clear distinction between scientific and non-scientific (or
experiential) expert testimony. See, e.g., Gammill v. Jack Williams Chevrolet, Inc.,
972 S.W.2d 713, 726 (Tex. 1998); Burns v. Baylor Health Care Sys., 125 S.W.3d 589,
596–97 (Tex. App.—El Paso 2003, no pet.). The former is subject to the six Robinson
reliability factors, the latter is governed by the “analytical gap” test. Gammill,
972 S.W.2d at 726; Burns, 125 S.W.3d at 596–97. Here, as experience-based experts,
Vernon and Robinson fall under the analytical gap test, and easily meet the
requirements of that test as shown below.
3 Pl.’s Mot. to Exclude Vernon at 5–8.
4 Pl.’s Mot. to Exclude Robinson at 4–7.
5 Pl.’s Mot. to Exclude Vernon at 4–5; Pl.’s Mot. to Exclude Robinson at 3–4.
DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 2
I. Vernon’s Opinions and Conclusions Are Admissible Because They Are
Guided by His Years’ of Experience in the Paving Industry and Are
Based on Evidence in the Record.
Despite Murphy’s contrary assertions, Vernon’s opinions satisfy Rule 702’s
requirements. First, Vernon’s opinions are not merely the product of data entry, as
Murphy argues,6 but instead require specialized knowledge about the concrete and
paving industry—knowledge well beyond what average jurors know. Burns,
125 S.W.3d at 593. Second, although based on data provided by Pavecon’s Chief
Financial Officer, Don Heierman, which he obtained from the discovery in this case,7
Vernon’s opinions and conclusions remain valid because they are supported by the
(disputed) evidence. See, e.g., Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 144 (Tex. 2016)
(“When an expert’s opinion is predicated on a particular set of facts, those facts need
not be undisputed.”).
A. Vernon’s Opinions Required the Application of Specialized
Knowledge.
There is no merit to Murphy’s argument that Vernon’s testimony is not the
product of expertise—and thus does not assist the jury under Rule 702—since
“Mr. Vernon’s only function was to input the information into a computer program.”8
Indeed, such an argument cannot withstand scrutiny.
“Expert testimony assists the trier of fact when the expert’s knowledge and
experience on a relevant issue are beyond that of the average juror and the testimony
helps the trier of fact understand the evidence or determine a fact issue.” Burns,
125 S.W.3d at 593. And, here, it is plain on the face of the record that, in reaching his
opinions and conclusions, Vernon relied on his extensive knowledge and experience
in the construction and paving industry, which the average juror simply lacks.
6 Pl.’s Mot. to Exclude Vernon at 5–7.
7 Infra at 13–15.
8 Pl.’s Mot. to Exclude Vernon at 7.
DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 3
During his deposition, Vernon testified, for example, that to arrive at an
accurate number, Vernon included sales taxes that would be paid for any materials
in Murphy’s work because “[t]axes are part of work” and are a cost of Pavecon’s work
product.9 More importantly, upon questioning from Murphy, Vernon also explained
how he used his experience and knowledge to prevent him from overestimating the
costs associated with the work.
When Murphy’s counsel confronted Vernon with an estimate prepared by
another individual (“Brian Cottle”), Vernon explained that he had not relied on that
estimate to form his opinions but had reviewed it to see if his numbers differed from
the other estimate.10 And, in applying his own experience and knowledge, Vernon’s
number was “substantially lower” than the prior estimate. This was so because
Vernon knew to select better and cheaper rates for such items as equipment rentals:
whereas the other estimate billed equipment at a daily rate for, say, 27 days, Vernon’s
knowledge and experience led him to select the cheaper monthly rate.11
True, some of what Vernon did to reach his opinions and conclusions involved
entering into the estimating software the actual costs that Pavecon’s CFO provided.12
But even that exercise required more knowledge experience than an average juror
has. Vernon testified unequivocally that several cost categories required him to use
his knowledge and experience to ensure an accurate “consolidation of costs.”13 For
example, Vernon had to rely on his undisputed knowledge and experience in the
construction and paving industry to account for “the 80 percent factor” with fuel
usage costs.14 Vernon had to apply that same knowledge and experience to account
9 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 87:22–89:04.
10 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 90:8–90:18.
11 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 90:23–91:10.
12 See, e.g., Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 40:05–41:15; see also infra at 12–15,
18–58.
13 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 82:13–82:14.
14 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 41:01–41:15.
DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 4
for certain “indirect costs,”15 to account for costs associated with Murphy’s use of
foremen,16 and to account for changes (if any) in material costs between the time of
his report (2018) and the time such materials were purchased (2016)17—among
others.18 This is hardly the rote, clerical work that Murphy portrays in his motion.
It is instead the product of Vernon’s years of experience and knowledge—his
expertise.
B. Vernon’s Opinions Are Reliable Because They Are Based in the Record
Evidence, Even If that Evidence Is Disputed.
No analytical gap exists here because Vernon’s conclusions and opinions are
adequately supported by the record. See, e.g., Gammill, 972 S.W.2d at 726;
Burns, 125 S.W.3d at 596–97. As indicated in Pavecon’s interrogatory answers,19
Vernon’s cost estimates are based on evidence that pervades this record. This is all
Defendants are required to show to satisfy Rule 702’s reliability requirement.
See, e.g., Burns, 125 S.W.3d at 593–94 (reversing trial court’s order striking plaintiff’s
expert affidavit where record showed that the expert’s testimony was based on
evidence in the record coupled with the expert’s experience and knowledge); Mitchell,
109 S.W.3d at 842 (same).
Despite what Murphy argues, Vernon was not required to thoroughly and
independently investigate the facts that Pavecon’s CFO provided. Experts like
Vernon are permitted to assume facts are true in reaching their opinions and
conclusions provided that such assumptions are based in evidence, which may be
disputed. See, e.g., Caffe Ribs, 487 S.W.3d at 144; E.I. du Pont de Nemours & Co. v.
Hood, 05-16-00609-CV, 2018 WL 2126935, at 6 (Tex. App.—Dallas May 8, 2018, no
15 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 51:18–52:08.
16 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 59:06–59:18, 72:02–72:05.
17 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 84:01–84:08.
18 Vernon also accounted for crew sizes and associated costs based on his experience given
Murphy’s lack of adequate records, id. at Vernon Dep. 33:13–33:19, along with rates for
“mobilization,” id. at Vernon Dep. 35:17–36:02. There are still others that could be cited from
the deposition.
19 Infra at 12–18.
DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 5
pet.); Creech v. Columbia Med. Ctr. of Las Colinas Subsidiary, LP, 411 S.W.3d 1, 13
(Tex. App.—Dallas 2013, no pet.). Indeed, it is only when an expert’s assumptions
contradict the actual undisputed facts that opinions arising from those assumptions
may be excluded. See, e.g., Caffe Ribs, 487 S.W.3d at 144. Here, however, Murphy has
made no such argument about Vernon’s assumptions, and the record itself shows
otherwise.20 Accordingly, there is no basis for excluding Vernon’s testimony. See, e.g.,
State Office of Risk Mgmt. v. Escalante, 162 S.W.3d 619, 625 (Tex. App.—El Paso
2005, pet. dism’d) (holding that expert’s opinions were admissible where there was
evidence to support the expert’s assumptions and the moving party failed to argue
that the expert’s assumptions were contradicted the actual undisputed facts).
Furthermore, no matter what Murphy argues, the fact that Vernon relied on
actual, albeit disputed, cost amounts rather than “an actual estimate”21 cannot—as
a matter of law—serve as a basis for excluding Vernon’s testimony. Indeed, as the
Texas Supreme Court recently held, when an expert is faced with an estimate or
average on the one hand, and objective evidence by which to measure damages on the
other, it is incumbent on the plaintiff to rely on that objective evidence. Sw. Energy
Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 720 (Tex. 2016) (holding that although
the expert’s estimate was sufficient to show the fact of damage, the estimate was not
sufficient to support a specific award of damages in a case for trade secret
misappropriation because the estimate did not incorporate the objective evidence
from the exemplary transaction). And, here, Vernon used the objective evidence about
costs where such evidence was available,22 and used his extensive knowledge and
experience to account for additional costs when necessary (such as for labor and “burn
20 See, for example, Defendants’ interrogatory answers, which list the costs Defendants’ seek as
damages and the many documents in the record that support those calculations. Infra at 12–15.
21 Pl.’s Mot. to Exclude Vernon at 7.
22 See Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 59:06–59:18, 72:02–72:05; see also infra at 28–
58.
DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 6
rates”) and produce his opinions and conclusions from all of that evidence.23 This is
exactly what Vernon was supposed to do, and all that Rule 702 requires him to do.
Murphy’s motion should therefore be denied.
The parties may disagree about the number of hours that a foreman was
present at the job site, or the number of bags of cement Murphy used while
misappropriating his former employers’ assets. But those disagreements are for the
jury to resolve. More importantly, however, these disputes go only to the weight of
Vernon’s testimony, not its admissibility. See, e.g., Ford Motor Co. v. Ledesma, 242
S.W.3d 32, 40–41 (Tex. 2007) (holding that defendant’s criticisms of the factual basis
of an expert’s testimony went only to its weight); Creech, 411 S.W.3d at 13 (same).
The Court should therefore deny Murphy’s motion to exclude Vernon’s opinions and
conclusions.
II. Robinson’s Cost Approach Is Admissible Because Vernon’s Testimony
Is Admissible.
Because Vernon’s opinions are admissible, disposing of Murphy’s motion to
exclude “Mr. Robinson’s cost approach opinions”24 is easy. Experts may rely on the
opinions of other experts in informing their own opinions. See, e.g., Rio Grande Reg’l
Hosp. v. Ayala, 13-11-00686-CV, 2012 WL 3637368, at *25 (Tex. App.—Corpus
Christi Aug. 24, 2012, pet. denied) (holding that experts are allowed to review the
reports of the other experts, rely on them, and incorporate the opinions of the other
experts into their reports) (collecting cases). To form part of his cost approach,
Robison permissibly relied on Vernon’s opinions and conclusions. The only argument
Murphy raised against admitting Robinson’s cost approach is Murphy’s erroneous
assertion that Vernon’s opinions are inadmissible. Accordingly, Robinson’s opinions
23 See, e.g., Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 87:22–89:04.
24 Pl.’s Mot. to Exclude Opinions of Rudy Robinson at 6–7.
DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 7
about the cost approach are admissible because Vernon’s opinions are admissible.
This motion should also be denied.
CONCLUSION
Vernon’s opinions and conclusions are based on assumptions based in the
evidence and based on years of knowledge and experience that no average juror
possesses. Vernon’s opinions and conclusions are therefore admissible. That, of
course, means that Robinson’s opinions about the cost approach are also admissible
since they rest in part on Vernon’s opinions and conclusions—the only opinions and
conclusions of Robinson’s that Murphy has challenged. Murphy’s motion is therefore
without merit and should be denied.
Date: May 15, 2019 Respectfully submitted,
/s/J. Robert Arnett II
J. Robert Arnett II
Texas Bar No. 01332900
barnett@carterarnett.com
Stacey Cho Hernandez
Texas Bar No. 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
CERTIFICATE OF SERVICE
I hereby certify that, on May 15, 2019, all counsel of record were served with
this instrument through the Court’s electronic filing system.
/s/ J. Robert Arnett II
J. Robert Arnett II
DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 8
CAUSE NO. DC-17-10592
MARTY MURPHY, § IN THE DISTRICT COURT
§
" Plaintiff, §
§
v. §
§ 192nd DISTRICT COURT
PAVECON HOLDING CO., INC.; §
PAVECON LTD. CO.; and §
PAVECON PUBLIC WORKS LP; §
§
Defendants. § DALLAS COUNTY, TEXAS
DEFENDANTS' FIRST AMENDED OBJECTIONS AND RESPONSES TO
PLAINTIFF'S FIRST SET OF INTERROGATORIES
TO: Plaintiff Marty Murphy, by and through his counsel of record, Charles H.
Smith, David Denny, Cantey Hanger LLP, 1999 Bryan Street, Suite 3300,
Dallas, Texas 75201
Pursuant to Rule 197 of the Texas Rules of Civil Procedure, Defendants
Pavecon Holding Co., Inc., Pavecon Ltd. Co., and Pavecon Public Works LP
(collectively "Defendants" or "Pavecon") serve their First Amended Objections and
Responses to Plaintiffs First Set ofinterrogatories.
Date: October 1, 2018 Respectfully submitted,
Is I Stacey_ Cho Hernandez
J. Robert Arnett II
Texas Bar No. 01332900
barnett@carterarnett.com
Joshua J. Bennett
Texas Bar No. 24059444
jbennet@carterarnett.com
Stacey Cho Hernandez
Texas Bar No. 24063953 EXHIBIT
shernandez@carterarnett.com
CARTER ARNETT PLLC
DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF INTERROGS. PAGE 1
9
8150 N. Central Expressway
Suite 500
Dallas, Texas 75206
Telephone: (214) 550-8188
Facsimile: (214) 550-8185
ATTORNEYS FOR DEFENDANTS
AND COUNTER-PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that, on October 1, 2018, all counsel of record were served
with this instrument through the Court's electronic filing system.
Is I Stacey_ Cho Hernandez
Stacey Cho Hernandez
DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE2
10
I. GENERAL OBJECTIONS
The following objections and conditions qualify Defendants' responses below
to Plaintiffs requests and interrogatories, and are incorporated by this reference
into each and every one of those responses as if set forth fully herein.
1. Pursuant to Texas Rule of Civil Procedure 193.2(f), Defendants
preserve all objections to the requests and interrogatories that call for the disclosure
of information and production of documents which are protected from discovery and
privileged for any of the following reasons: (a) the information is subject to the
attorney-client privilege; (b) the information is covered by the "work product"
immunity; (c) the information was generated in anticipation of litigation or for trial
by or for Defendants or their representatives; and (d) the information relates to the
identity or opinions of consulting experts who have been retained or employed in
anticipation of litigation, are not expected to be called as witnesses at trial, and
whose mental impressions and opinions will not be reviewed by a testifying expert.
Defendants will not provide such information and their responses should be read
accordingly. Defendants further object to having to produce a privilege log for
privileged information after May 9, 2017, the time when the parties anticipated
litigation.
2. By responding to the requests and interrogatories, Defendants do not
concede the relevancy or the admissibility of any information provided. Defendants'
production of information or documents in response to a specific request do not
DEFS.' FIRST fuVI. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE3
11
constitute an admission that such information is probative of any particular issue in
this case.
3. Defendants object to the requests and interrogatories that seek
electronic information that may not be reasonahly accessible or available to it in the
ordinary course of business or without undue burden or cost, including electronic
information stored in backup or archived media. See In re State Farm Lloyds, 520
S.W.3d 595 (Tex. 2017). Additionally, Defendants will produce emails after the
parties have agreed to and the Court has entered an electronic discovery order in
this case.
4. These responses are based on information presently available to
Defendants. Defendants reserve the right to supplement or revise their responses to
the requests and interrogatories to the extent required by the applicable procedural
rules.
5. Subject to the foregoing General Objections, and subject to any specific
objections made with respect to the requests and interrogatories, Defendants
respond as follows:
II. RESPONSES TO INTERROGATORIES
INTERROGATORY NO. 1 [1-5]: If you contend that Plaintiff owes any amounts
to any Defendant (whether by way of offset or otherwise), please identify the
amounts, including without limitation, 1) the amounts allegedly owed and their
calculation, 2) why the amounts are allegedly owed, 3) any documentation related to
the amounts, 4) to whom the amounts are owed, and 5) the individuals who were
witnesses with know ledge regarding each amount allegedly owed.
DEFS.' FIRST A.i\'1. 0BJS. AND RES.PS. TO PL.'S FIRST SET OF lNTERROGS. PAGE4
12
RESPONSE:
Defendants object because, counting discrete subparts, this interrogatory is at least
five interrogatories and not merely one as the interrogatory implies. The
interrogatories should therefore count as at least five separate interrogatories.
Defendants object to and answer each interrogatory as follows:
INTERROGATORY NO. 1: If you contend that Plaintiff owes any amounts
to any Defendant (whether by way of offset or otherwise), please identify the
amounts, including without limitation, 1) the amounts allegedly owed and
their calculation.
AMENDED RESPONSE:
Defendants are still investigating and determining the full scope of Plaintiffs
misappropriation.
Subject to the limitations imposed by the objections above, Defendants
answer as follows: Defendants estimate that Plaintiff owes the following
amounts as a result of his misappropriation of company assets used for the
improvement of Plaintiffs personally owned real estate properties
("Plaintiffs Land"):
Plaintiff owes $8,186.93 for unpaid fuel arising from the equipment that was
used to perform work on Plaintiffs Land.
Plaintiff owes $66,784.17 in unpaid invoices for rental equipment used, rental
equipment repaired, and rental equipment hauled to Plaintiffs land
involving the following equipment: (1) John Deere 120C Excavator; (2) Sany
215 Excavator; (3) TA300 Dump Truck; (4) Backhoe; (5) Rhino Concrete
Pump; (6) Motograders; (7) Skid Steer; (8) CAT 336 Excavator; (9) CAT 335
Excavator; (10) D8 Dozer; (11) Smooth Drum Rollers; (12) 730C ADT; (13)
725C ADT Truck; and (14) John Deere 750 Dozer.
Plaintiff also owes $35,938.23 for the unpaid invoices he referenced in his
letter to David Walker as produced in PAVE000439-000441. Plaintiff
provided a check in this amount on or about May 24, 2017 but it was never
processed for payment by Pavecon.
Plaintiff owes $131.021.80 for Pavecon equipment hauled to and used on
Plaintiffs Land involving the following equipment: (1) Trackloader 963; (2)
Skid Steer; (3) Motograder: (4) Mixers; (5) Barber Green Paver; (6) 3-5 ton
Steel Wheel Roller; (7) 10 ton Steel Wheel Roller; (8) Tandem Truck; (9) Crew
Truck; and (10) Foremen Trucks.
DEFS.' FIRST ALW. 0BJS. AND RESPS. TO PL.'S FIRST SET OF INTERROGS. PAGE5
13
Plaintm owes $148,127.00 in equipment repairs that had to be made on the
'01 CAT 963C Track Loader that was used on Plaintiffs Land.
Plaintm owes $16,990.00 for the lost opportunity of driver laborers that
hauled equipment to Plaintiffs Land.
Plaintm owes $9,240.00 for lost opportunity of mechanics laborers. Plaintm
had Jeff Burns, a Pavecon mechanic, work a total of 384 hours on Plaintiffs
Land.
Plaintm owes $82,210.10 for lost opportunity of operations including foremen
and crew members.
Plaintm owes $32,098.18 for the unpaid wages of the following foremen:
Ismael Ortega, Ricardo Gomez, Kenneth Brookshire, Shane Boydston, and
Ricky Boydston.
Plaintiffs owes $1.665.00 for 9 super bags of concrete taked from Pavercon's
inventory and used at Plaintiffs Land.
Plaintm owes $7,590.00 for 132 tons of asphalt used on Plaintiffs Land at a
cost of $57 .50/ton for asphalt.
Plaintm owes $328,000.00 for replacement of the CAT 963C Track Loader
that was extensively damaged while being used on Plaintiffs Land.
Plaintm owes the following amounts fcir the time spent by the following
laborers and employees on activity related to Plaintiffs misappropriation of
company assets:
• Marty Murphy: $12,356.00 for 120 hours
• Dean Dumke: $8,076.00 for 80 hours
• Ricky Boydston: $9,708.00 for 160 hours
• Shane Korn: $1,556.00 for 40 hours
• Kelsey Green: $1,077.00 for 40 hours
• Flor Cantu: $1,077.00 for 40 hours
• Stephanie Thompson: $2,197.00 for 40 hours
Plaintm owes the following amounts for the time spent by the following
employees investigating Plaintiffs misappropriation of company assets:
• Veronica Moreno: $10,770.00 for 200 hours
• Don Heierman: $48,462.00 for 480 hours
DEFS.' FIRST fu\1. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE 6
14
Plaintiff owes $5,370.00 for personal medical care he received from Cooper
Clinic that he charged to his company credit card as referenced in
PAVE000813-000815.
Plaintiff owes undetermined amounts payable to the foremen, project
managers, and estimators for commissions related to charges deliberately
coded to existing Pavecon jobs that remain unreimbursed. Plaintiff furthers
owes undetermined amounts for cash bonuses that would have been earned
by Dean Dumke, Brian Cottle, Don Heierman, and David Boyd related to
charges deliberately coded to existing Pavecon jobs that remain
unreimbursed.
Defendants also refer to the following documents: PAVE000316-000429,
· PAVE000430-000509, PAVE000510-000535, PAVE000539-000570,
PAVE0004 71-0004 71B, P AVE00057 4-000585, PAVE000586-000590,
PAVE000591-000654, P AVE000655-000812, PAVE000816-000830,
PAVE000854-000897, PAVE000902-000920, P AVE000921-000966,
PAVE001021, PAVE001024-001026, PAVE001275-001460, PAVE001473-
001571, PAVE0001572, and PAVE001573-001576. Defendants will further
supplement its production with additional documents regarding Murphy's
misappropriation it uncovers if any. Defendants further refer to any expert
report it may produce regarding their damages against Murphy.
INTERROGATORY NO. 1 [2]: If you contend that Plaintiff owes any
amounts to any Defendant (whether by way of offset or otherwise), please
identify why the amounts are allegedly owed.
AlVIENDED RESPONSE:
Defendants are still investigating and determining the full extent of
Plaintiffs misappropriation.
Subject to the limitations imposed by the objections above, Defendants
answer as follows: Plaintiff misappropriated Defendants' company assets
when he used Defendants' equipment, materials, and personnel to make
extensive improvements on Plaintiffs Land located in Terrell, Texas.
Plaintiff initiated four projects to improve certain parcels on properties he
owned at the time located in Terrell, TX. Plaintiff owes amounts related to
any profits he incurred from these projects to the extent he did not
adequately charge costs relating to any work performed including but not
limited to equipment, materials or employees used on these projects. These
four jobs include:
DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE7
15
(1) 15-01-502, Powell Residence Pad, 10538 CR 2400, Terrell - upon
information and believe this project was for Plaintill's neighbor
(2) 15-01-504, Powell Residence Demo, 10538 CR 2400, Terrell- upon
information and believe this project was for Plaintill's neighbor
(3) 17-01-501, Bill Carter House Pad, CR2400 Poetry - upon
information and believe this property was a part ofPlaintill's parcel
of properties that was sold to Bill Carter.
(4) 17-01-502, Bruce Carter House Pad, CR2400 Poetry- upon
information and believe this property was a part of Plaintill's parcel
of properties that was sold to Bruce Carter.
Plaintiff misappropriated company assets to make the following
improvements to Plaintill's Land: .
1) built and constructed various house pads in 2017;
2) excavated ponds from February through March 2017;
3) built and constructed roads inSeptember 2016;
4) cleared trees from June 29, 2015 through July 18, 2015;
5) cleaned up excavated areas in February through March 2017;
6) conducted dirt work in January 2016 and September 2016;
7) poured slab and performed other cement work;
· 8) perform equipment repairs; and
9) built and installed perimeter fencing in Oct. 2015 and Feb. 2017.
Plaintiff also improperly used Pavecon equipment to make these
improvements including but not limited to:
1) paver
2) skid steer
3) barber green paver;
4) · asphalt double rollers
5) rubber tire roller
6) motorgrader
7) track loader
Plaintiff did not pay for any costs related to haul trucks being used to deliver
equipment or materials to Plaintill's Land.
Plaintiff also improperly used rental equipment to make the above identified
improvements including but not limited to:
1) ricochet fuel tank
2) holt CAT
3) Rhino Pump
4) mixer truck
DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST. SET OF lNTERROGS. PAGES
16
5) backhoe
6) skid steer loader
7) excavators
8) off road dump trucks
9) dirt hauler
10) dozer
11) motorgraders
Plaintiff also improperly used Defendants' laborers and repairmen and failed
to pay some of them properly. Plaintiff failed to pay overtime wages and/or
improperly reduced wages allegedly due to payroll taxes to many crew
members. Plaintiff also did not pay any compensation to the foremen, crew
leaders, or mechanics who were salaried employees of Pavecon. These
individuals and the work they performed include:
(1) On or about February 2016 and September 2016, the following
laborers were used to set up and prepare a garage pad for concrete
slab and pour concrete: Foreman Ricardo Gomez and his crew
members: Arnold Gomez, Jesus Garza, Jesus Garza, Israel Monroy,
Ignacio Carrera, Jose DelaRosa, Rigoberto Pineda, Joe Meza, Jose
Oros, Bernardo Saucedo, Fernando Canalas, Mario Alvarez, and/or
Juan Perez.
(2) On or about December 2015 and February 2017, the following were
used to build a perimeter steel fence: Foreman Ismael Ortega and
his crew members Trinidad Peres and Fermin Carrizales. Hector
Torres also performed work in December 2015.
(3) On or about October 2016, the following were used to finish laying
Vine Street and move to Plaintiff's house: Mike Jeter, Jesus
Montemayor, Alberto Vega, Refugio Reyes, George Troploc, and
Mark Watkins, Oscar Cruz, and Edgar Numo.
(4) On or about February and March 2017, the following were used to
perform excavation work for dirt and ponds: Kenneth Brookshire,
Shayne Boydston, Luis M. Guzman, Rogelio Almanza, Carlos
Ayala, Rosendo Almanza, Laurencio Ruiz Sotelo, David Sanchez,
Juan Parada, Trinidad Peres, Miguel Gomez, Juan Carlos Puente,
and Braulio Parada.
(5) On or about June, September, October, November, and December
2016, Les Dolph, Shop Mechanic, made repairs on equipment used
on Plaintiff's. personal property. Jeff Burns, Shop Mechanic, also
made repairs for equipment being used on Plaintiff's personal
properties twice a week for six months.
(6) Dirt/EQ Supervisor Ricky Boydston and his crew members: Douglas
Gravy, Jose Ricardo Perez, Felix Paz, Miguel Angel Gomez, Juan
Carlos Puente, Jeffrey Holmes, Vicente Arrellano Polo performed
DEFS.' FIRST At'\1. 0BJS. AND RESPS. TO PL.'S FIRST SET OF INTERROGS. PAGE9
17
various jobs on Plaintiffs properties including clearing trees and .
building roads that required extensive use of the haul truck.
Plaintiff also failed to pay for equipment repairs and fuel needed for the
equipment used on Plaintiffs Land. Plaintiff also improperly used concrete,
asphalt, rebar, and fuel belonging to and paid by Defendants to make the
above identified improvements.
Defendants further refer to any expert report it may produce regarding their
damages against Murphy.
INTERROGATORY NO. 1 [3]: If you contend that Plaintiff owes any
amounts to any Defendant (whether by way of offset or otherwise), please
identify any documentation related to the amounts.
AMENDED RESPONSE:
Defendants object that this interrogatory is overly broad and unduly
burdensome because it seeks the identification of "any" documentation
"related to" a large number of specific dollars amounts set forth above.
Defendants are still investigating and determining the full extent of
Plaintiffs misappropriation.
Subject to the limitations imposed by the objections above, Defendants refer
to its response to Interrogatory No. 1. Defendants will further supplement its
production with additional documents regarding Murphy's misappropriation
they uncover as they'continue to investigate if any. Defendants further refer
to any expert report it may produce regarding their damages against
Murphy. ·
INTERROGATORY NO. 1 [4]: If you contend that Plaintiff owes any
amounts to any Defendant (whether by way of offset or otherwise), please
identify to whom the amounts are owed.
AlVIENDED RESPONSE:
Defendants are still investigating and determining the full extent of
Plaintiffs misappropriation.
Subject to the limitations imposed by the objections above, Defendants refer
to its response to Interrogatory No. 1. Defendants will further supplement its
production with additional documents regarding Murphy's misappropriation
they uncover as they continue to investigate if any. Defendants further refer
DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE 10
18
to any expert report it may produce regarding their damages against
Murphy.
INTERROGATORY NO. 1 [5]: If you contend that Plaintiff owes any
amounts to any Defendant (whether by way of offset or otherwise), please
identify the individuals who were witnesses with knowledge regarding each
amount allegedly owed.
AMENDED RESPONSE:
Defendants are still investigating and determining the. full extent of
Plaintiff's misappropriation. Defendants object that this interrogatory is
overly broad and unduly burdensome because it seeks the identification of
witnesses with respect to each of the many dollar amounts set forth above.
Subject to the limitations imposed by the objections above, Defendants
answer as follows: Marty Murphy; Stephanie Thompson; C. David Walker;
Jim Thomas; Don Heierman; Dean Dumke; Ricky Boydston; Chris Segerl
Mike Jeter; Ricardo Gomez; Arnoldo Gomez; Jesus Garza; Isais Barrera;
Ignacio Carrera; Jose Dela Rosa; Rigberto Pineda; Jose Martinez; Gerardo
Reyes; Fernando Canalas; Mario Alvarez;. Juan Perez; Marc Machique;
Ismael Ortega; Trinidad Peres; Fermin Carrizales; Ricky Boydston; Michael
Beattie; David Jeter; Jesus Montemayor; Alberto- Vega; Refugio Reyes;
George Tropoloc; Mark Watkins; Kenneth Brookshire; Shayne Boydston; Luis
M. Guzman; Rogelio Almanza; Carlos Ayala; Rosendo Almanza; Laurencio
Ruiz Sotelo; David Sanchez; Juan Parada; Brulio Parada; Shane Korn; Chris
Seger; Chris Ferguson; Jeff Burns; Les Dolph; Terry Gillett; Jeff Middleton;
Douglas Crazy; Jose Ricardo Perez; Felix Paz; Miguel Angel Gomez; Juan
Carlos Puente; Jeffrey Holmes; Vicente Arellano; Polo; Fred Wolfson; and
Hector Torez. Defendants further incorporate their answers to interrogatories
· 1 and [2]. Defendants further reference any individual reflected in any of the
parties' responses to · written discovery and deposition testimony and
individuals reflected in the documents produced in this litigation by any
party.
INTERROGATORY NO. 2 [6-8]: For each Defendant, please identify each term of
employment for Plaintiff from the time of employment to the time of termination.
As part of the identification, please identify any document that contains, reflects, or
states such term. If the terms have changed, then please identify the change, when
it occurred, any documents that contains, reflects, or states the term or change.
RESPONSE:
Defendants object because, counting discrete subparts, this interrogatory is at least
three interrogatories and not merely one as the interrogatory implies. For example,
DEFS.' FIRST AiY.l. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE 11 .
19
Pavecon Holding Co., Inc. can answer about the time of employment and time of
termination for Murphy without answering about Murphy's time of employment for
Pavecon Ltd. Co. The interrogatories should therefore count as at least three
separate interrogatories.
Defendants object to and answer each interrogatory as follows:
INTERROGATORY NO. [6]: For Pavecon Holding Co., Inc., please identify
each term of employment for Plaintiff from the time of employment to the
time of termination. As part of the identification, please identify any
document that contains, reflects, or states such term. If the terms have
changed, then please identify the change, when it occurred, any documents
that contains, reflects, or states the term or change.
RESPONSE:
Defendants object that this interrogatory is vague and ambiguous because
the phrase "term of employment" is susceptible of multiple meanings.
Defendants object that this interrogatory is overly broad and unduly
burdensome and seeks information that is not relevant and not reasonably
calculated to lead to the discovery of admissible evidence because relatively
few "terms of employment" between Plaintiff and Defendants are at issue in
this action.
Subject to the limitations imposed by the objections above, Defendants
answer as follows: Plaintiff was not a direct e~ployee of Pavecon Holding Co., .
. Inc. ("Pavecon Holding"). Labcon, Inc. was Plaintiff's formal employer and
leased Plaintiff as an employee to at Pavecon Ltd. Co. ("Pavecon Ltd.") and
Pavecon Public Works LP ("Public Works"). Plaintiff was awarded stock from
Pavecon Holding, which is the majority owner of Pavecon Ltd. and Public
Works, for the work Plaintiff performed at Pavecon Ltd. and Public Works in
Stock Bonus Agreements. Plaintiff was employed from August 13, 2012 until
May 9, 2017. Plaintiff was awarded the following stock in Pavecon Holding:
(1) 116 shares in 2013; (2) 746 shares in 2014; and (3) 1,433 shares in 2015.
Pavecon Holding repurchased all 2,295 shares of stock from Plaintiff in 2016
after Plaintiff entered into a Stock Purchase Agreement with Pavecon
Holding. The "terms" of Plaintiff's employment are contained in the Labcon,
Inc. employee manual, Plaintiff's employment agreement, Plaintiff's
personnel file, the Stock Bonus Agreements, the Stock Purchase Agreement,
the Public Works agreement of limited partnership (as amended and
restated), the Pavecon Ltd. limited liability company agreement, policies and
procedures, and instructions provided to Plaintiff.
DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE 12
20
INTERROGATORY NO. [7]: For Pavecon Ltd. Co., please identify each
term of employment for Plaintiff from the time of employment to the time of
termination. As part of the identification, please identify any document that
contains, reflects, or states such term. If the terms have changed, then please
identify the change, when it occurred, any documents that contains, reflects,
or states the term or change.
RESPONSE:
Defendants object that this interrogatory is vague and ambiguous because
the phrase "term' of employment" is susceptible of multiple meanings.
Defendants object that this interrogatory is overly broad and unduly
burdensome and seeks information that is not relevant and not reasonably
calculated to lead to the discovery of admissible evidence because relatively
few "terms of employment" between Plaintiff and Defendants are at issue in
this action.
Subject to the limitations imposed by the objections above, Defendants
answer as follows: Plaintiff was employed from August 13, 2012 as the
President of the "Dallas/Fort Worth Division" of Pavecon Ltd. and later in
2012 became the President of the "Public Works Division" of Pavecon Ltd.
The Public Works Division subsequently became a separate company
effective January 1, 2014. The "terms" of Plaintiffs employment are
contained in the Labcon, Inc. employee manual, Plaintiff's employment
agreement, Plaintiff's personnel file, the Stock Bonus Agreements, the Stock
Purchase Agreement, the Public Works agreement of limited partnership (as
amended and restated), the Pavecon Ltd. limited liability company
agreement, policies and procedures, and instructions provided to Plaintiff.
INTERROGATORY NO. [8]: For Pavecon Public Work LP, please identify
each term of employment for Plaintiff from the time of employment to the
time of termination. As part of the identification, please identify any
document that contains, reflects, or states such term. If the terms have
changed, then please identify the change, when it occurred, any documents
that contains, reflects, or states the term or change.
RESPONSE:
Defendants object that this interrogatory is vague and ambiguous because
the phrase "term of employment" is susceptible of multiple meanings.
Defendants object that this interrogatory is overly broad and unduly
burdensome and seeks information that is not relevant and not reasonably
calculated to lead to the discovery of admissible evidence because relatively
few "terms of employment" between Plaintiff and Defendants are at issue in
this action.
DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE 13
21
Subject to the limitations imposed by the objections above, Defendants
answer as follows: Effective January 1, 2014 Pavecon Ltd. transferred the
"Public Works Division" to Pavecon Public Works, a new Texas limited
partnership formed by Pavecon Ltd. for the purpose of continuing the
business of the Public Works Division in a legal entity separate from Pavecon
Ltd. The "terms" of Plaintiffs employment are contained in
Preview
FILED DALLAS COUNTY 5/15/2019 10:20 PM FELICIA PITRE DISTRICT CLERK Cassandra Walker CAUSE NO. DC-17-10592 MARTY MURPHY, § IN THE DISTRICT COURT § Plaintiff and Counterclaim- § Defendant § § v. § § PAVECON HOLDING CO., INC., § PAVECON LTD. CO., § 192nd JUDICIAL DISTRICT PAVECON PUBLIC WORKS LP, § PAVECON PUBLIC WORKS GP § LLC, LABCON, INC., DAVID § WALKER, § § Defendants and Counterclaim- § Plaintiffs, § DALLAS COUNTY, TEXAS DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO STRIKE RON VERNON’S AND RUDY ROBINSON’S EXPERT OPINIONS There is no merit to Murphy’s motions to exclude highly relevant testimony from Ron Vernon and Rudy Robinson about the Pavecon Defendants’ (Counter- Plaintiffs’) damages. Vernon examined a set of cost figures that Pavecon obtained in discovery, and provided highly relevant opinions and conclusions about the value of the work that Pavecon involuntarily performed on Murphy’s property using Pavecon’s resources.1 Robinson in turn relied on Vernon’s opinions in reaching opinions and conclusions about the cost-valuation of Murphy’s property,2 all of which are part of Counter-Plaintiffs’ damage theories. Each of these opinions are admissible because besides being highly relevant, these opinions are based on each expert’s training and experience and on the evidence in the record. Accordingly, there is no basis for striking either expert’s testimony. The Court should therefore deny Murphy’s motions. 1 See, e.g., Pl.’s Mot. to Exclude Ron Vernon, Ex. 1, at pages 15 to 30 of the PDF. The pages are not individually numbered. 2 See, e.g., Pl.’s Mot. to Exclude Rudy Robinson, Ex. 1, at pages 67 to 70 of the PDF (page 50–53 of Robinson’s report). DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 1 ARGUMENT Rule 702 contains three requirements for the admission of expert testimony: (1) the witness must be qualified, (2) the proposed testimony must be scientific, technical, or other specialized knowledge, and (3) the testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. Tex. R. Evid. 702. Here, Murphy raises no challenges to Vernon’s or Robinson’s qualifications. Murphy challenges only whether Vernon’s opinions are the result of specialized knowledge and are reliable,3 and thus whether Robinson’s opinions are reliable given Robinson’s reliance on Vernon’s opinions.4 In arguing that Vernon’s opinions (and thus Robinson’s) are inadmissible, Murphy initially applies the wrong law. The reliability of opinions from non-scientist experts like Vernon and Robinson are not based on the six Robinson factors that Murphy quotes in his motion (e.g., peer review testing, non-judicial uses of the theory, etc.).5 There is instead a clear distinction between scientific and non-scientific (or experiential) expert testimony. See, e.g., Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998); Burns v. Baylor Health Care Sys., 125 S.W.3d 589, 596–97 (Tex. App.—El Paso 2003, no pet.). The former is subject to the six Robinson reliability factors, the latter is governed by the “analytical gap” test. Gammill, 972 S.W.2d at 726; Burns, 125 S.W.3d at 596–97. Here, as experience-based experts, Vernon and Robinson fall under the analytical gap test, and easily meet the requirements of that test as shown below. 3 Pl.’s Mot. to Exclude Vernon at 5–8. 4 Pl.’s Mot. to Exclude Robinson at 4–7. 5 Pl.’s Mot. to Exclude Vernon at 4–5; Pl.’s Mot. to Exclude Robinson at 3–4. DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 2 I. Vernon’s Opinions and Conclusions Are Admissible Because They Are Guided by His Years’ of Experience in the Paving Industry and Are Based on Evidence in the Record. Despite Murphy’s contrary assertions, Vernon’s opinions satisfy Rule 702’s requirements. First, Vernon’s opinions are not merely the product of data entry, as Murphy argues,6 but instead require specialized knowledge about the concrete and paving industry—knowledge well beyond what average jurors know. Burns, 125 S.W.3d at 593. Second, although based on data provided by Pavecon’s Chief Financial Officer, Don Heierman, which he obtained from the discovery in this case,7 Vernon’s opinions and conclusions remain valid because they are supported by the (disputed) evidence. See, e.g., Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 144 (Tex. 2016) (“When an expert’s opinion is predicated on a particular set of facts, those facts need not be undisputed.”). A. Vernon’s Opinions Required the Application of Specialized Knowledge. There is no merit to Murphy’s argument that Vernon’s testimony is not the product of expertise—and thus does not assist the jury under Rule 702—since “Mr. Vernon’s only function was to input the information into a computer program.”8 Indeed, such an argument cannot withstand scrutiny. “Expert testimony assists the trier of fact when the expert’s knowledge and experience on a relevant issue are beyond that of the average juror and the testimony helps the trier of fact understand the evidence or determine a fact issue.” Burns, 125 S.W.3d at 593. And, here, it is plain on the face of the record that, in reaching his opinions and conclusions, Vernon relied on his extensive knowledge and experience in the construction and paving industry, which the average juror simply lacks. 6 Pl.’s Mot. to Exclude Vernon at 5–7. 7 Infra at 13–15. 8 Pl.’s Mot. to Exclude Vernon at 7. DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 3 During his deposition, Vernon testified, for example, that to arrive at an accurate number, Vernon included sales taxes that would be paid for any materials in Murphy’s work because “[t]axes are part of work” and are a cost of Pavecon’s work product.9 More importantly, upon questioning from Murphy, Vernon also explained how he used his experience and knowledge to prevent him from overestimating the costs associated with the work. When Murphy’s counsel confronted Vernon with an estimate prepared by another individual (“Brian Cottle”), Vernon explained that he had not relied on that estimate to form his opinions but had reviewed it to see if his numbers differed from the other estimate.10 And, in applying his own experience and knowledge, Vernon’s number was “substantially lower” than the prior estimate. This was so because Vernon knew to select better and cheaper rates for such items as equipment rentals: whereas the other estimate billed equipment at a daily rate for, say, 27 days, Vernon’s knowledge and experience led him to select the cheaper monthly rate.11 True, some of what Vernon did to reach his opinions and conclusions involved entering into the estimating software the actual costs that Pavecon’s CFO provided.12 But even that exercise required more knowledge experience than an average juror has. Vernon testified unequivocally that several cost categories required him to use his knowledge and experience to ensure an accurate “consolidation of costs.”13 For example, Vernon had to rely on his undisputed knowledge and experience in the construction and paving industry to account for “the 80 percent factor” with fuel usage costs.14 Vernon had to apply that same knowledge and experience to account 9 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 87:22–89:04. 10 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 90:8–90:18. 11 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 90:23–91:10. 12 See, e.g., Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 40:05–41:15; see also infra at 12–15, 18–58. 13 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 82:13–82:14. 14 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 41:01–41:15. DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 4 for certain “indirect costs,”15 to account for costs associated with Murphy’s use of foremen,16 and to account for changes (if any) in material costs between the time of his report (2018) and the time such materials were purchased (2016)17—among others.18 This is hardly the rote, clerical work that Murphy portrays in his motion. It is instead the product of Vernon’s years of experience and knowledge—his expertise. B. Vernon’s Opinions Are Reliable Because They Are Based in the Record Evidence, Even If that Evidence Is Disputed. No analytical gap exists here because Vernon’s conclusions and opinions are adequately supported by the record. See, e.g., Gammill, 972 S.W.2d at 726; Burns, 125 S.W.3d at 596–97. As indicated in Pavecon’s interrogatory answers,19 Vernon’s cost estimates are based on evidence that pervades this record. This is all Defendants are required to show to satisfy Rule 702’s reliability requirement. See, e.g., Burns, 125 S.W.3d at 593–94 (reversing trial court’s order striking plaintiff’s expert affidavit where record showed that the expert’s testimony was based on evidence in the record coupled with the expert’s experience and knowledge); Mitchell, 109 S.W.3d at 842 (same). Despite what Murphy argues, Vernon was not required to thoroughly and independently investigate the facts that Pavecon’s CFO provided. Experts like Vernon are permitted to assume facts are true in reaching their opinions and conclusions provided that such assumptions are based in evidence, which may be disputed. See, e.g., Caffe Ribs, 487 S.W.3d at 144; E.I. du Pont de Nemours & Co. v. Hood, 05-16-00609-CV, 2018 WL 2126935, at 6 (Tex. App.—Dallas May 8, 2018, no 15 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 51:18–52:08. 16 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 59:06–59:18, 72:02–72:05. 17 Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 84:01–84:08. 18 Vernon also accounted for crew sizes and associated costs based on his experience given Murphy’s lack of adequate records, id. at Vernon Dep. 33:13–33:19, along with rates for “mobilization,” id. at Vernon Dep. 35:17–36:02. There are still others that could be cited from the deposition. 19 Infra at 12–18. DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 5 pet.); Creech v. Columbia Med. Ctr. of Las Colinas Subsidiary, LP, 411 S.W.3d 1, 13 (Tex. App.—Dallas 2013, no pet.). Indeed, it is only when an expert’s assumptions contradict the actual undisputed facts that opinions arising from those assumptions may be excluded. See, e.g., Caffe Ribs, 487 S.W.3d at 144. Here, however, Murphy has made no such argument about Vernon’s assumptions, and the record itself shows otherwise.20 Accordingly, there is no basis for excluding Vernon’s testimony. See, e.g., State Office of Risk Mgmt. v. Escalante, 162 S.W.3d 619, 625 (Tex. App.—El Paso 2005, pet. dism’d) (holding that expert’s opinions were admissible where there was evidence to support the expert’s assumptions and the moving party failed to argue that the expert’s assumptions were contradicted the actual undisputed facts). Furthermore, no matter what Murphy argues, the fact that Vernon relied on actual, albeit disputed, cost amounts rather than “an actual estimate”21 cannot—as a matter of law—serve as a basis for excluding Vernon’s testimony. Indeed, as the Texas Supreme Court recently held, when an expert is faced with an estimate or average on the one hand, and objective evidence by which to measure damages on the other, it is incumbent on the plaintiff to rely on that objective evidence. Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 720 (Tex. 2016) (holding that although the expert’s estimate was sufficient to show the fact of damage, the estimate was not sufficient to support a specific award of damages in a case for trade secret misappropriation because the estimate did not incorporate the objective evidence from the exemplary transaction). And, here, Vernon used the objective evidence about costs where such evidence was available,22 and used his extensive knowledge and experience to account for additional costs when necessary (such as for labor and “burn 20 See, for example, Defendants’ interrogatory answers, which list the costs Defendants’ seek as damages and the many documents in the record that support those calculations. Infra at 12–15. 21 Pl.’s Mot. to Exclude Vernon at 7. 22 See Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 59:06–59:18, 72:02–72:05; see also infra at 28– 58. DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 6 rates”) and produce his opinions and conclusions from all of that evidence.23 This is exactly what Vernon was supposed to do, and all that Rule 702 requires him to do. Murphy’s motion should therefore be denied. The parties may disagree about the number of hours that a foreman was present at the job site, or the number of bags of cement Murphy used while misappropriating his former employers’ assets. But those disagreements are for the jury to resolve. More importantly, however, these disputes go only to the weight of Vernon’s testimony, not its admissibility. See, e.g., Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 40–41 (Tex. 2007) (holding that defendant’s criticisms of the factual basis of an expert’s testimony went only to its weight); Creech, 411 S.W.3d at 13 (same). The Court should therefore deny Murphy’s motion to exclude Vernon’s opinions and conclusions. II. Robinson’s Cost Approach Is Admissible Because Vernon’s Testimony Is Admissible. Because Vernon’s opinions are admissible, disposing of Murphy’s motion to exclude “Mr. Robinson’s cost approach opinions”24 is easy. Experts may rely on the opinions of other experts in informing their own opinions. See, e.g., Rio Grande Reg’l Hosp. v. Ayala, 13-11-00686-CV, 2012 WL 3637368, at *25 (Tex. App.—Corpus Christi Aug. 24, 2012, pet. denied) (holding that experts are allowed to review the reports of the other experts, rely on them, and incorporate the opinions of the other experts into their reports) (collecting cases). To form part of his cost approach, Robison permissibly relied on Vernon’s opinions and conclusions. The only argument Murphy raised against admitting Robinson’s cost approach is Murphy’s erroneous assertion that Vernon’s opinions are inadmissible. Accordingly, Robinson’s opinions 23 See, e.g., Pl.’s Mot. to Exclude Vernon at Ex. 2, Vernon Dep. 87:22–89:04. 24 Pl.’s Mot. to Exclude Opinions of Rudy Robinson at 6–7. DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 7 about the cost approach are admissible because Vernon’s opinions are admissible. This motion should also be denied. CONCLUSION Vernon’s opinions and conclusions are based on assumptions based in the evidence and based on years of knowledge and experience that no average juror possesses. Vernon’s opinions and conclusions are therefore admissible. That, of course, means that Robinson’s opinions about the cost approach are also admissible since they rest in part on Vernon’s opinions and conclusions—the only opinions and conclusions of Robinson’s that Murphy has challenged. Murphy’s motion is therefore without merit and should be denied. Date: May 15, 2019 Respectfully submitted, /s/J. Robert Arnett II J. Robert Arnett II Texas Bar No. 01332900 barnett@carterarnett.com Stacey Cho Hernandez Texas Bar No. 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 CERTIFICATE OF SERVICE I hereby certify that, on May 15, 2019, all counsel of record were served with this instrument through the Court’s electronic filing system. /s/ J. Robert Arnett II J. Robert Arnett II DEFS.’ RESP. TO PL.’S MOT. TO EXCLUDE VERNON AND ROBINSON PAGE 8 CAUSE NO. DC-17-10592 MARTY MURPHY, § IN THE DISTRICT COURT § " Plaintiff, § § v. § § 192nd DISTRICT COURT PAVECON HOLDING CO., INC.; § PAVECON LTD. CO.; and § PAVECON PUBLIC WORKS LP; § § Defendants. § DALLAS COUNTY, TEXAS DEFENDANTS' FIRST AMENDED OBJECTIONS AND RESPONSES TO PLAINTIFF'S FIRST SET OF INTERROGATORIES TO: Plaintiff Marty Murphy, by and through his counsel of record, Charles H. Smith, David Denny, Cantey Hanger LLP, 1999 Bryan Street, Suite 3300, Dallas, Texas 75201 Pursuant to Rule 197 of the Texas Rules of Civil Procedure, Defendants Pavecon Holding Co., Inc., Pavecon Ltd. Co., and Pavecon Public Works LP (collectively "Defendants" or "Pavecon") serve their First Amended Objections and Responses to Plaintiffs First Set ofinterrogatories. Date: October 1, 2018 Respectfully submitted, Is I Stacey_ Cho Hernandez J. Robert Arnett II Texas Bar No. 01332900 barnett@carterarnett.com Joshua J. Bennett Texas Bar No. 24059444 jbennet@carterarnett.com Stacey Cho Hernandez Texas Bar No. 24063953 EXHIBIT shernandez@carterarnett.com CARTER ARNETT PLLC DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF INTERROGS. PAGE 1 9 8150 N. Central Expressway Suite 500 Dallas, Texas 75206 Telephone: (214) 550-8188 Facsimile: (214) 550-8185 ATTORNEYS FOR DEFENDANTS AND COUNTER-PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that, on October 1, 2018, all counsel of record were served with this instrument through the Court's electronic filing system. Is I Stacey_ Cho Hernandez Stacey Cho Hernandez DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE2 10 I. GENERAL OBJECTIONS The following objections and conditions qualify Defendants' responses below to Plaintiffs requests and interrogatories, and are incorporated by this reference into each and every one of those responses as if set forth fully herein. 1. Pursuant to Texas Rule of Civil Procedure 193.2(f), Defendants preserve all objections to the requests and interrogatories that call for the disclosure of information and production of documents which are protected from discovery and privileged for any of the following reasons: (a) the information is subject to the attorney-client privilege; (b) the information is covered by the "work product" immunity; (c) the information was generated in anticipation of litigation or for trial by or for Defendants or their representatives; and (d) the information relates to the identity or opinions of consulting experts who have been retained or employed in anticipation of litigation, are not expected to be called as witnesses at trial, and whose mental impressions and opinions will not be reviewed by a testifying expert. Defendants will not provide such information and their responses should be read accordingly. Defendants further object to having to produce a privilege log for privileged information after May 9, 2017, the time when the parties anticipated litigation. 2. By responding to the requests and interrogatories, Defendants do not concede the relevancy or the admissibility of any information provided. Defendants' production of information or documents in response to a specific request do not DEFS.' FIRST fuVI. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE3 11 constitute an admission that such information is probative of any particular issue in this case. 3. Defendants object to the requests and interrogatories that seek electronic information that may not be reasonahly accessible or available to it in the ordinary course of business or without undue burden or cost, including electronic information stored in backup or archived media. See In re State Farm Lloyds, 520 S.W.3d 595 (Tex. 2017). Additionally, Defendants will produce emails after the parties have agreed to and the Court has entered an electronic discovery order in this case. 4. These responses are based on information presently available to Defendants. Defendants reserve the right to supplement or revise their responses to the requests and interrogatories to the extent required by the applicable procedural rules. 5. Subject to the foregoing General Objections, and subject to any specific objections made with respect to the requests and interrogatories, Defendants respond as follows: II. RESPONSES TO INTERROGATORIES INTERROGATORY NO. 1 [1-5]: If you contend that Plaintiff owes any amounts to any Defendant (whether by way of offset or otherwise), please identify the amounts, including without limitation, 1) the amounts allegedly owed and their calculation, 2) why the amounts are allegedly owed, 3) any documentation related to the amounts, 4) to whom the amounts are owed, and 5) the individuals who were witnesses with know ledge regarding each amount allegedly owed. DEFS.' FIRST A.i\'1. 0BJS. AND RES.PS. TO PL.'S FIRST SET OF lNTERROGS. PAGE4 12 RESPONSE: Defendants object because, counting discrete subparts, this interrogatory is at least five interrogatories and not merely one as the interrogatory implies. The interrogatories should therefore count as at least five separate interrogatories. Defendants object to and answer each interrogatory as follows: INTERROGATORY NO. 1: If you contend that Plaintiff owes any amounts to any Defendant (whether by way of offset or otherwise), please identify the amounts, including without limitation, 1) the amounts allegedly owed and their calculation. AMENDED RESPONSE: Defendants are still investigating and determining the full scope of Plaintiffs misappropriation. Subject to the limitations imposed by the objections above, Defendants answer as follows: Defendants estimate that Plaintiff owes the following amounts as a result of his misappropriation of company assets used for the improvement of Plaintiffs personally owned real estate properties ("Plaintiffs Land"): Plaintiff owes $8,186.93 for unpaid fuel arising from the equipment that was used to perform work on Plaintiffs Land. Plaintiff owes $66,784.17 in unpaid invoices for rental equipment used, rental equipment repaired, and rental equipment hauled to Plaintiffs land involving the following equipment: (1) John Deere 120C Excavator; (2) Sany 215 Excavator; (3) TA300 Dump Truck; (4) Backhoe; (5) Rhino Concrete Pump; (6) Motograders; (7) Skid Steer; (8) CAT 336 Excavator; (9) CAT 335 Excavator; (10) D8 Dozer; (11) Smooth Drum Rollers; (12) 730C ADT; (13) 725C ADT Truck; and (14) John Deere 750 Dozer. Plaintiff also owes $35,938.23 for the unpaid invoices he referenced in his letter to David Walker as produced in PAVE000439-000441. Plaintiff provided a check in this amount on or about May 24, 2017 but it was never processed for payment by Pavecon. Plaintiff owes $131.021.80 for Pavecon equipment hauled to and used on Plaintiffs Land involving the following equipment: (1) Trackloader 963; (2) Skid Steer; (3) Motograder: (4) Mixers; (5) Barber Green Paver; (6) 3-5 ton Steel Wheel Roller; (7) 10 ton Steel Wheel Roller; (8) Tandem Truck; (9) Crew Truck; and (10) Foremen Trucks. DEFS.' FIRST ALW. 0BJS. AND RESPS. TO PL.'S FIRST SET OF INTERROGS. PAGE5 13 Plaintm owes $148,127.00 in equipment repairs that had to be made on the '01 CAT 963C Track Loader that was used on Plaintiffs Land. Plaintm owes $16,990.00 for the lost opportunity of driver laborers that hauled equipment to Plaintiffs Land. Plaintm owes $9,240.00 for lost opportunity of mechanics laborers. Plaintm had Jeff Burns, a Pavecon mechanic, work a total of 384 hours on Plaintiffs Land. Plaintm owes $82,210.10 for lost opportunity of operations including foremen and crew members. Plaintm owes $32,098.18 for the unpaid wages of the following foremen: Ismael Ortega, Ricardo Gomez, Kenneth Brookshire, Shane Boydston, and Ricky Boydston. Plaintiffs owes $1.665.00 for 9 super bags of concrete taked from Pavercon's inventory and used at Plaintiffs Land. Plaintm owes $7,590.00 for 132 tons of asphalt used on Plaintiffs Land at a cost of $57 .50/ton for asphalt. Plaintm owes $328,000.00 for replacement of the CAT 963C Track Loader that was extensively damaged while being used on Plaintiffs Land. Plaintm owes the following amounts fcir the time spent by the following laborers and employees on activity related to Plaintiffs misappropriation of company assets: • Marty Murphy: $12,356.00 for 120 hours • Dean Dumke: $8,076.00 for 80 hours • Ricky Boydston: $9,708.00 for 160 hours • Shane Korn: $1,556.00 for 40 hours • Kelsey Green: $1,077.00 for 40 hours • Flor Cantu: $1,077.00 for 40 hours • Stephanie Thompson: $2,197.00 for 40 hours Plaintm owes the following amounts for the time spent by the following employees investigating Plaintiffs misappropriation of company assets: • Veronica Moreno: $10,770.00 for 200 hours • Don Heierman: $48,462.00 for 480 hours DEFS.' FIRST fu\1. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE 6 14 Plaintiff owes $5,370.00 for personal medical care he received from Cooper Clinic that he charged to his company credit card as referenced in PAVE000813-000815. Plaintiff owes undetermined amounts payable to the foremen, project managers, and estimators for commissions related to charges deliberately coded to existing Pavecon jobs that remain unreimbursed. Plaintiff furthers owes undetermined amounts for cash bonuses that would have been earned by Dean Dumke, Brian Cottle, Don Heierman, and David Boyd related to charges deliberately coded to existing Pavecon jobs that remain unreimbursed. Defendants also refer to the following documents: PAVE000316-000429, · PAVE000430-000509, PAVE000510-000535, PAVE000539-000570, PAVE0004 71-0004 71B, P AVE00057 4-000585, PAVE000586-000590, PAVE000591-000654, P AVE000655-000812, PAVE000816-000830, PAVE000854-000897, PAVE000902-000920, P AVE000921-000966, PAVE001021, PAVE001024-001026, PAVE001275-001460, PAVE001473- 001571, PAVE0001572, and PAVE001573-001576. Defendants will further supplement its production with additional documents regarding Murphy's misappropriation it uncovers if any. Defendants further refer to any expert report it may produce regarding their damages against Murphy. INTERROGATORY NO. 1 [2]: If you contend that Plaintiff owes any amounts to any Defendant (whether by way of offset or otherwise), please identify why the amounts are allegedly owed. AlVIENDED RESPONSE: Defendants are still investigating and determining the full extent of Plaintiffs misappropriation. Subject to the limitations imposed by the objections above, Defendants answer as follows: Plaintiff misappropriated Defendants' company assets when he used Defendants' equipment, materials, and personnel to make extensive improvements on Plaintiffs Land located in Terrell, Texas. Plaintiff initiated four projects to improve certain parcels on properties he owned at the time located in Terrell, TX. Plaintiff owes amounts related to any profits he incurred from these projects to the extent he did not adequately charge costs relating to any work performed including but not limited to equipment, materials or employees used on these projects. These four jobs include: DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE7 15 (1) 15-01-502, Powell Residence Pad, 10538 CR 2400, Terrell - upon information and believe this project was for Plaintill's neighbor (2) 15-01-504, Powell Residence Demo, 10538 CR 2400, Terrell- upon information and believe this project was for Plaintill's neighbor (3) 17-01-501, Bill Carter House Pad, CR2400 Poetry - upon information and believe this property was a part ofPlaintill's parcel of properties that was sold to Bill Carter. (4) 17-01-502, Bruce Carter House Pad, CR2400 Poetry- upon information and believe this property was a part of Plaintill's parcel of properties that was sold to Bruce Carter. Plaintiff misappropriated company assets to make the following improvements to Plaintill's Land: . 1) built and constructed various house pads in 2017; 2) excavated ponds from February through March 2017; 3) built and constructed roads inSeptember 2016; 4) cleared trees from June 29, 2015 through July 18, 2015; 5) cleaned up excavated areas in February through March 2017; 6) conducted dirt work in January 2016 and September 2016; 7) poured slab and performed other cement work; · 8) perform equipment repairs; and 9) built and installed perimeter fencing in Oct. 2015 and Feb. 2017. Plaintiff also improperly used Pavecon equipment to make these improvements including but not limited to: 1) paver 2) skid steer 3) barber green paver; 4) · asphalt double rollers 5) rubber tire roller 6) motorgrader 7) track loader Plaintiff did not pay for any costs related to haul trucks being used to deliver equipment or materials to Plaintill's Land. Plaintiff also improperly used rental equipment to make the above identified improvements including but not limited to: 1) ricochet fuel tank 2) holt CAT 3) Rhino Pump 4) mixer truck DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST. SET OF lNTERROGS. PAGES 16 5) backhoe 6) skid steer loader 7) excavators 8) off road dump trucks 9) dirt hauler 10) dozer 11) motorgraders Plaintiff also improperly used Defendants' laborers and repairmen and failed to pay some of them properly. Plaintiff failed to pay overtime wages and/or improperly reduced wages allegedly due to payroll taxes to many crew members. Plaintiff also did not pay any compensation to the foremen, crew leaders, or mechanics who were salaried employees of Pavecon. These individuals and the work they performed include: (1) On or about February 2016 and September 2016, the following laborers were used to set up and prepare a garage pad for concrete slab and pour concrete: Foreman Ricardo Gomez and his crew members: Arnold Gomez, Jesus Garza, Jesus Garza, Israel Monroy, Ignacio Carrera, Jose DelaRosa, Rigoberto Pineda, Joe Meza, Jose Oros, Bernardo Saucedo, Fernando Canalas, Mario Alvarez, and/or Juan Perez. (2) On or about December 2015 and February 2017, the following were used to build a perimeter steel fence: Foreman Ismael Ortega and his crew members Trinidad Peres and Fermin Carrizales. Hector Torres also performed work in December 2015. (3) On or about October 2016, the following were used to finish laying Vine Street and move to Plaintiff's house: Mike Jeter, Jesus Montemayor, Alberto Vega, Refugio Reyes, George Troploc, and Mark Watkins, Oscar Cruz, and Edgar Numo. (4) On or about February and March 2017, the following were used to perform excavation work for dirt and ponds: Kenneth Brookshire, Shayne Boydston, Luis M. Guzman, Rogelio Almanza, Carlos Ayala, Rosendo Almanza, Laurencio Ruiz Sotelo, David Sanchez, Juan Parada, Trinidad Peres, Miguel Gomez, Juan Carlos Puente, and Braulio Parada. (5) On or about June, September, October, November, and December 2016, Les Dolph, Shop Mechanic, made repairs on equipment used on Plaintiff's. personal property. Jeff Burns, Shop Mechanic, also made repairs for equipment being used on Plaintiff's personal properties twice a week for six months. (6) Dirt/EQ Supervisor Ricky Boydston and his crew members: Douglas Gravy, Jose Ricardo Perez, Felix Paz, Miguel Angel Gomez, Juan Carlos Puente, Jeffrey Holmes, Vicente Arrellano Polo performed DEFS.' FIRST At'\1. 0BJS. AND RESPS. TO PL.'S FIRST SET OF INTERROGS. PAGE9 17 various jobs on Plaintiffs properties including clearing trees and . building roads that required extensive use of the haul truck. Plaintiff also failed to pay for equipment repairs and fuel needed for the equipment used on Plaintiffs Land. Plaintiff also improperly used concrete, asphalt, rebar, and fuel belonging to and paid by Defendants to make the above identified improvements. Defendants further refer to any expert report it may produce regarding their damages against Murphy. INTERROGATORY NO. 1 [3]: If you contend that Plaintiff owes any amounts to any Defendant (whether by way of offset or otherwise), please identify any documentation related to the amounts. AMENDED RESPONSE: Defendants object that this interrogatory is overly broad and unduly burdensome because it seeks the identification of "any" documentation "related to" a large number of specific dollars amounts set forth above. Defendants are still investigating and determining the full extent of Plaintiffs misappropriation. Subject to the limitations imposed by the objections above, Defendants refer to its response to Interrogatory No. 1. Defendants will further supplement its production with additional documents regarding Murphy's misappropriation they uncover as they'continue to investigate if any. Defendants further refer to any expert report it may produce regarding their damages against Murphy. · INTERROGATORY NO. 1 [4]: If you contend that Plaintiff owes any amounts to any Defendant (whether by way of offset or otherwise), please identify to whom the amounts are owed. AlVIENDED RESPONSE: Defendants are still investigating and determining the full extent of Plaintiffs misappropriation. Subject to the limitations imposed by the objections above, Defendants refer to its response to Interrogatory No. 1. Defendants will further supplement its production with additional documents regarding Murphy's misappropriation they uncover as they continue to investigate if any. Defendants further refer DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE 10 18 to any expert report it may produce regarding their damages against Murphy. INTERROGATORY NO. 1 [5]: If you contend that Plaintiff owes any amounts to any Defendant (whether by way of offset or otherwise), please identify the individuals who were witnesses with knowledge regarding each amount allegedly owed. AMENDED RESPONSE: Defendants are still investigating and determining the. full extent of Plaintiff's misappropriation. Defendants object that this interrogatory is overly broad and unduly burdensome because it seeks the identification of witnesses with respect to each of the many dollar amounts set forth above. Subject to the limitations imposed by the objections above, Defendants answer as follows: Marty Murphy; Stephanie Thompson; C. David Walker; Jim Thomas; Don Heierman; Dean Dumke; Ricky Boydston; Chris Segerl Mike Jeter; Ricardo Gomez; Arnoldo Gomez; Jesus Garza; Isais Barrera; Ignacio Carrera; Jose Dela Rosa; Rigberto Pineda; Jose Martinez; Gerardo Reyes; Fernando Canalas; Mario Alvarez;. Juan Perez; Marc Machique; Ismael Ortega; Trinidad Peres; Fermin Carrizales; Ricky Boydston; Michael Beattie; David Jeter; Jesus Montemayor; Alberto- Vega; Refugio Reyes; George Tropoloc; Mark Watkins; Kenneth Brookshire; Shayne Boydston; Luis M. Guzman; Rogelio Almanza; Carlos Ayala; Rosendo Almanza; Laurencio Ruiz Sotelo; David Sanchez; Juan Parada; Brulio Parada; Shane Korn; Chris Seger; Chris Ferguson; Jeff Burns; Les Dolph; Terry Gillett; Jeff Middleton; Douglas Crazy; Jose Ricardo Perez; Felix Paz; Miguel Angel Gomez; Juan Carlos Puente; Jeffrey Holmes; Vicente Arellano; Polo; Fred Wolfson; and Hector Torez. Defendants further incorporate their answers to interrogatories · 1 and [2]. Defendants further reference any individual reflected in any of the parties' responses to · written discovery and deposition testimony and individuals reflected in the documents produced in this litigation by any party. INTERROGATORY NO. 2 [6-8]: For each Defendant, please identify each term of employment for Plaintiff from the time of employment to the time of termination. As part of the identification, please identify any document that contains, reflects, or states such term. If the terms have changed, then please identify the change, when it occurred, any documents that contains, reflects, or states the term or change. RESPONSE: Defendants object because, counting discrete subparts, this interrogatory is at least three interrogatories and not merely one as the interrogatory implies. For example, DEFS.' FIRST AiY.l. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE 11 . 19 Pavecon Holding Co., Inc. can answer about the time of employment and time of termination for Murphy without answering about Murphy's time of employment for Pavecon Ltd. Co. The interrogatories should therefore count as at least three separate interrogatories. Defendants object to and answer each interrogatory as follows: INTERROGATORY NO. [6]: For Pavecon Holding Co., Inc., please identify each term of employment for Plaintiff from the time of employment to the time of termination. As part of the identification, please identify any document that contains, reflects, or states such term. If the terms have changed, then please identify the change, when it occurred, any documents that contains, reflects, or states the term or change. RESPONSE: Defendants object that this interrogatory is vague and ambiguous because the phrase "term of employment" is susceptible of multiple meanings. Defendants object that this interrogatory is overly broad and unduly burdensome and seeks information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence because relatively few "terms of employment" between Plaintiff and Defendants are at issue in this action. Subject to the limitations imposed by the objections above, Defendants answer as follows: Plaintiff was not a direct e~ployee of Pavecon Holding Co., . . Inc. ("Pavecon Holding"). Labcon, Inc. was Plaintiff's formal employer and leased Plaintiff as an employee to at Pavecon Ltd. Co. ("Pavecon Ltd.") and Pavecon Public Works LP ("Public Works"). Plaintiff was awarded stock from Pavecon Holding, which is the majority owner of Pavecon Ltd. and Public Works, for the work Plaintiff performed at Pavecon Ltd. and Public Works in Stock Bonus Agreements. Plaintiff was employed from August 13, 2012 until May 9, 2017. Plaintiff was awarded the following stock in Pavecon Holding: (1) 116 shares in 2013; (2) 746 shares in 2014; and (3) 1,433 shares in 2015. Pavecon Holding repurchased all 2,295 shares of stock from Plaintiff in 2016 after Plaintiff entered into a Stock Purchase Agreement with Pavecon Holding. The "terms" of Plaintiff's employment are contained in the Labcon, Inc. employee manual, Plaintiff's employment agreement, Plaintiff's personnel file, the Stock Bonus Agreements, the Stock Purchase Agreement, the Public Works agreement of limited partnership (as amended and restated), the Pavecon Ltd. limited liability company agreement, policies and procedures, and instructions provided to Plaintiff. DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE 12 20 INTERROGATORY NO. [7]: For Pavecon Ltd. Co., please identify each term of employment for Plaintiff from the time of employment to the time of termination. As part of the identification, please identify any document that contains, reflects, or states such term. If the terms have changed, then please identify the change, when it occurred, any documents that contains, reflects, or states the term or change. RESPONSE: Defendants object that this interrogatory is vague and ambiguous because the phrase "term' of employment" is susceptible of multiple meanings. Defendants object that this interrogatory is overly broad and unduly burdensome and seeks information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence because relatively few "terms of employment" between Plaintiff and Defendants are at issue in this action. Subject to the limitations imposed by the objections above, Defendants answer as follows: Plaintiff was employed from August 13, 2012 as the President of the "Dallas/Fort Worth Division" of Pavecon Ltd. and later in 2012 became the President of the "Public Works Division" of Pavecon Ltd. The Public Works Division subsequently became a separate company effective January 1, 2014. The "terms" of Plaintiffs employment are contained in the Labcon, Inc. employee manual, Plaintiff's employment agreement, Plaintiff's personnel file, the Stock Bonus Agreements, the Stock Purchase Agreement, the Public Works agreement of limited partnership (as amended and restated), the Pavecon Ltd. limited liability company agreement, policies and procedures, and instructions provided to Plaintiff. INTERROGATORY NO. [8]: For Pavecon Public Work LP, please identify each term of employment for Plaintiff from the time of employment to the time of termination. As part of the identification, please identify any document that contains, reflects, or states such term. If the terms have changed, then please identify the change, when it occurred, any documents that contains, reflects, or states the term or change. RESPONSE: Defendants object that this interrogatory is vague and ambiguous because the phrase "term of employment" is susceptible of multiple meanings. Defendants object that this interrogatory is overly broad and unduly burdensome and seeks information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence because relatively few "terms of employment" between Plaintiff and Defendants are at issue in this action. DEFS.' FIRST AM. 0BJS. AND RESPS. TO PL.'S FIRST SET OF lNTERROGS. PAGE 13 21 Subject to the limitations imposed by the objections above, Defendants answer as follows: Effective January 1, 2014 Pavecon Ltd. transferred the "Public Works Division" to Pavecon Public Works, a new Texas limited partnership formed by Pavecon Ltd. for the purpose of continuing the business of the Public Works Division in a legal entity separate from Pavecon Ltd. The "terms" of Plaintiffs employment are contained in