Preview
FILED
DALLAS COUNTY
9/1 6/2019 8:43 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-17-10592 Cassandra Walker
MARTY MURPHY, IN THE DISTRICT COURT
Plaintiff and Counterclaim—
Defendant,
V.
PAVECON HOLDING CO., INC., mmmmmmmmmmmmmmm
PAVECON LTD. CO., PAVECON 192nd DISTRICT COURT
PUBLIC WORKS LP, PAVECON
PUBLIC WORKS GP, LLC, DAVID
WALKER,
Defendants and
Counterclaim—Plaintiffs DALLAS COUNTY, TEXAS
DEFENDANTS’ PROPOSED JURY CHARGE
(submitted Without waiver or prejudice)
Defendants and Counterclaim-Plaintiffs Pavecon Holding CO., Inc., Pavecon
Ltd. C0. (“Pavecon Ltd.”), Pavecon Public Works LP (“Pavecon Public Works”),
Pavecon Public Works GP, LLC, (collectively “Pavecon”) and David Walker
(collectively “Defendants”) respectfully submit for the Court’s consideration the
following proposed jury charge materials in accordance With the Court’s directives.
Defendants submit these materials expressly subject t0, and Without waiver of, any
and all rights, remedies, positions, objections and challenges. Defendants in no way
concede or admit that there exists legally sufficient evidence or legally cognizable
claims to support any other party’s submission 0f jury questions, instructions, 0r
definitions on any factual or legal theory.1
1
(Please note: bracketed text and citations infra are for the Court’s convenience and reference.)
Date: September 16, 2019 Respectfully submitted,
/s /J. Robert Arnett II
J. Robert Arnett II
Texas Bar No. 01332900
barnett@carterarnett.com
Joshua J. Bennett
Texas Bar No. 24059444
jbennett@carterarnett.com
Stacey Cho Hernandez
Texas Bar No. 24063953
shernandez@carterarnett.com
Carter Arnett PLLC
8150 N. Central Expressway
Suite 500
Dallas, Texas 75206
Telephone: (214) 550-8188
Facsimile: (214) 550-8185
ATTORNEYS FOR DEFENDANTS AND
COUNTERCLAIM-PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that, on September 16, 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
CAUSE NO. DC-17-10592
MARTY MURPHY, IN THE DISTRICT COURT
Plaintiff and Counterclaim—
Defendant,
V.
PAVECON HOLDING CO., INC., mmmmmmmmmmmmmmm
PAVECON LTD. CO., PAVECON 192nd DISTRICT COURT
PUBLIC WORKS LP, PAVECON
PUBLIC WORKS GP, LLC, DAVID
WALKER
Defendants and
Counterclaim—Plaintiffs DALLAS COUNTY, TEXAS
CHARGE OF THE COURT
MEMBERS OF THE JURY:
After the closing arguments, you Will g0 t0 the jury room to decide the case,
answer the questions that are attached, and reach a verdict. You may discuss the
case With other jurors only When you are all together in the jury room.
Remember my previous Do not discuss the case With anyone else,
instructions:
either in person 0r by any other means. Do not do any independent investigation
about the case 0r conduct any research. D0 not 100k up any words in dictionaries 0r
0n the Internet. D0 not post information about the case on the Internet. D0 not share
any special knowledge or experiences With the other jurors. D0 not use your phone 0r
any other electronic device during your deliberations for any reason.
Any notes you have taken are for your own personal use. You may take your
notes back into the jury room and consult them during deliberations, but do not show
0r read your notes t0 your fellow jurors during your deliberations. Your notes are not
evidence. Each of you should rely 0n your independent recollection of the evidence
and not be influenced by the fact that another juror has or has not taken notes.
You must leave your notes with the bailiff When you are not deliberating. The
bailiff Will give your notes to me promptly after collecting them from you. I Will make
sure your notes are kept in a safe, secure location and not disclosed to anyone. After
you complete your deliberations, the bailiff Will collect your notes. When you are
released from jury duty, the bailiff Will promptly destroy your notes so that nobody
can read What you wrote.
Here are the instructions for answering the questions.
1. Do not let bias, prejudice, or sympathy play any part in your decision.
2. Base your answers only on the evidence admitted in court and 0n the
law that is and questions. Do not consider 01‘ discuss any
in these instructions
evidence that was not admitted in the courtroom.
3. You are t0 make up your own minds about the facts. You are the sole
judges of the credibility 0f the witnesses and the weight t0 give their testimony. But
0n matters 0f law, you must follow all of my instructions.
4. If my instructions use a word in a way that is different from its ordinary
meaning, use the meaning I give you, Which Will be a proper legal definition.
5. A11 the questions and answers are important. N0 one should say that
any question or answer is not important.
6. Answer “yes” 0r “n0” t0 all questions unless you are told otherwise. A
“yes” answer must be based on a preponderance 0f the evidence unless you are told
otherwise. Whenever a question requires an answer other than “yes” 0r “n0,” your
answer must be based 0n a preponderance 0f the evidence unless you are told
otherwise.
The term “preponderance 0f the evidence” means the greater weight of credible
evidence presented in this case. If you d0 not find that a preponderance of the
evidence supports a “yes” answer, then answer “n0.” A preponderance 0f the evidence
is not measured by the number 0f Witnesses or by the number of documents admitted
in evidence. For a fact t0 be proved by a preponderance 0f the evidence, you must find
that the fact is more likely true than not true.
7. Do not decide Who you think should Win before you answer the questions
and then just answer the questions to match your decision. Answer each question
carefully without considering Who Will win. Do not discuss or consider the effect your
answers Will have.
8. Do not answer questions by drawing straws or by any method 0f chance.
9. questions might ask you for a dollar amount. Do not agree in
Some
advance t0 decide on a dollar amount by adding up each juror’s amount and then
figuring the average.
10. Do not trade your answers. For example, do not say, “I Will answer this
question your way if you answer another question my way.”
11. The answers t0 the questions must be based on the decision of at least
ten of the twelve jurors. The same ten jurors must agree on every answer. D0 not
agree t0 be bound by a vote of anything less than ten jurors, even if it would be a
majority.
As have said before, if you d0 not follow these instructions, you will be guilty
I
0f juror misconduct, and I might have t0 order a new trial and start this process over
again. This would waste your time and the parties’ money, and would require the
taxpayers 0f this county t0 pay for another trial. If a juror breaks any 0f these rules,
tell that person to stop and report it t0 me immediately?
Granted:
Refused:
Modified:
JUDGE PRESIDING
2
State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
100.3A at 9-13 (2018 ed.).
PRELIMINARY INSTRUCTIONS
INSTRUCTION NO. 1 — Reference to Parties.
The following has the meaning ascribed t0 it for purposes of these, instructions,
definitions, and questions:
1. “Murphy” means Marty Murphy.
2. “Pavecon Holding” means Pavecon Holding Co., Inc.
“Pavecon Ltd.” means Pavecon Ltd. Co.
“Pavecon Public Works” means Pavecon Public Works LP.
“Pavecon Public Works GP, LLC” means Pavecon Public Works GP,
LLC.
“Walker” means David Walker.
Granted:
Refused:
Modified:
JUDGE PRESIDING
INSTRUCTION NO. 2 — Preponderance of the Evidence.
The term “preponderance 0f the evidence” means the greater weight of credible
evidence presented in this case. If you d0 not find that a preponderance of the
evidence supports a “yes” answer, then answer “n0.” A preponderance 0f the evidence
is not measured by the number of Witnesses 0r by the number of documents admitted
in evidence. For a fact t0 be proved by a preponderance of the evidence, you must find
that the fact is more likely true than not true.3
Granted:
Refused:
Modified:
JUDGE PRESIDING
3 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
100.3 at 10 1] 6 (2018 ed.).
INSTRUCTION NO. 3 — Circumstantial Evidence.
A fact may be established by direct evidence 0r by circumstantial evidence 0r
by both. A fact is established by direct evidence When proved by documentary
evidence or by witnesses Who saw the act done 0r heard the words spoken. A fact is
established by circumstantial evidence When it may be fairly and reasonably inferred
from the other facts proved.4
Granted:
Refused:
Modified:
JUDGE PRESIDING
4 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
100.8 at 26 (2018 ed.).
INSTRUCTION NO. 4 — Proximate Cause.
“Proximate cause” means a cause that was a substantial factor in bringing
about an event, and Without Which cause such event would not have occurred. In
order t0 be a proximate cause, the act 0r omission complained 0f must be such that a
person using the degree of care required 0f him would have foreseen that the event,
0r some similar event, might reasonably result therefrom. There may be more than
one proximate cause 0f an event.5
Granted:
Refused:
Modified:
JUDGE PRESIDING
5State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
100.13 at 31 (2018 ed.).
INSTRUCTION NO. 5 — Parallel Theories on Damages.
In answering questions about damages, answer each question separately. Do
not increase or reduce the amount in one answer because 0f your answer to any other
question about damages. Do not speculate about What any party’s ultimate recovery
may or may not be. Any recovery will be determined by the court when it applies the
law t0 your answers at the time 0f judgment.6
Granted:
Refused:
Modified:
JUDGE PRESIDING
6State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
100.12 at 30 (2018 ed.).
10
INSTRUCTION NO. 6 — Actual Damages.
“Actual Damages” include “direct” damages and “consequential” damages.
Direct damages compensate for the loss, damage, 0r injury that is conclusively
presumed to have been foreseen 0r contemplated by a party as a consequence 0f his
breach of contract or wrongful act. Consequential damages are those damages which
result naturally, but not necessarily, from the acts complained 0f and are recoverable
if the defendant had notice that the plaintiff would suffer such damages.7
Granted:
Refused:
Modified:
JUDGE PRESIDING
7
Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 163 (TeX. 1992) (Phillips, C.J., concurring); Motiva
Enterprises, LLC v. McCrabb, 248 S.W.3d 211, 216 (TeX. App.—H0ust0n [lst Dist] 2007, pet.
denied).
11
INSTRUCTION NO. 7 — Breach of Murphy’s Emplovment Agreement.
Generally, if a party materially fails t0 perform its obligations according to the
terms of the contract, the party has breached the contract. You must decide Whether
Pavecon Holding, Pavecon Ltd., and Pavecon Public Works failed to d0 What they
were required t0 d0 under the employment agreement.
Murphy must prove that Pavecon Holding, Pavecon Ltd., and Pavecon Public
Works breached the employment agreement. To recover 0n his claim, Murphy has the
burden to prove that Pavecon Holding, Pavecon Ltd., and Pavecon Public Works
failed t0 do something the contract required them to d0.
Murphy alleges and has the burden 0f proving that under his employment
agreement Pavecon Holding, Pavecon Ltd., and Pavecon Public Works were required
to provide him a stock equity bonus in 2015, 2016, and 2017.
Pavecon Holding, Pavecon Ltd., and Pavecon Public Works claim they did not
breach the employment agreement because they were not required t0 provide a stock
equity bonus to Murphy in 2015, 2016, and 2017.
Pavecon Holding, Pavecon Ltd., and Pavecon Public Works also raise the
affirmative defenses 0f modification, accord and satisfaction, estoppel, waiver, release
and ratification. These affirmative defenses Will be explained in detail in later
instructions.
Granted:
Refused:
Modified:
JUDGE PRESIDING
12
Murphv’s Breach of Contract Claim
QUESTION NO. 1 — Failure of Compliance.
Do you find by a preponderance of the evidence that Pavecon Holding, Pavecon
Ltd.,Pavecon Public Works, and Pavecon Public Works GP, LLC failed t0 comply
with the employment agreement?8
Answer ‘Yes” or “N0” separately for each:
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
you answered “N0” t0 any part 0f Question 1, then as t0 that listed party for
If
Whom you answered “N0” d0 not answer Questions 2 through 7 as t0 that particular
party.
Granted:
Refused:
Modified:
JUDGE PRESIDING
8 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.2 at 42 (2018 ed.).
13
INSTRUCTION NO. 8 — Defenses — Modification.
In this case, Pavecon Holding, Pavecon Ltd., Pavecon Public Works, and
Pavecon Public Works GP, LLC have asserted the affirmative defense 0f modification.
Failure t0 comply With an agreement is excused if a different performance was
accepted as full satisfaction 0f performance of the original obligations 0f the
agreement.9
Granted:
Refused:
Modified:
JUDGE PRESIDING
9State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.31 at 73 (2018 ed.).
14
QUESTION NO. 2 — Defenses — Modification.
you answered “Yes” t0 Question 1 for any one 0r more of the listed parties,
If
then answer the following question as to each 0f the listed parties for Whom you
answered “Yes” in Question 1. Otherwise, d0 not answer the following question.
Was the failure to comply excused by modification? 10
Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in
Question 1:
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
Granted:
Refused:
Modified:
10State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.21 at 59 (2018 ed.).
15
INSTRUCTION NO. 9 — Defenses — Accord and Satisfaction.
In this case, Pavecon Holding, Pavecon Ltd., Pavecon Public Works, and
Pavecon Public Works GP, LLC have asserted the affirmative defense 0f accord and
satisfaction.
Failure t0 comply With an agreement is excused if a different performance was
accepted as full satisfaction 0f performance of the original obligations 0f the
agreement.11
Accord and satisfaction is a contractual method of discharging a claim. Accord
isbased on evidence that the parties have agreed to discharge an existing obligation.
Satisfaction is the performance 0f that new contract. To prove the defense of accord
and satisfaction, the party claiming it must establish the following:
1. The parties had a legitimate dispute about the underlying obligation.
2. The parties specifically and intentionally agreed t0 discharge the
obligation.
3. The amount paid was in full satisfaction of the entire claim.
4. The parties had a shared and mutual intent t0 compromise the claim; and
5. Performance 0f the accord agreement.”
Granted:
Refused:
Modified:
JUDGE PRESIDING
11
State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.32 at 74 (2018 ed.).
12 Harris v.
Rowe, 593 S.W.2d 303, 306 (Tex. 1979); Honeycutt v. Billingsley, 992 S.W.2d 570, 576-77
(Tex. App.—H0ust0n [lst Dist] 1996, n0 writ); Hycarbex, Inc. v. Anglo-Suisse, Ina, 927 S.W.2d 103,
108 (TeX. App.—H0ust0n [14th Dist.] 1996, n0 writ).
16
QUESTION NO. 3 — Defenses — Accord and Satisfaction.
you answered “Yes” t0 Question 1 for any one 0r more of the listed parties,
If
then answer the following question as to each 0f the listed parties for Whom you
answered “Yes” in Question 1. Otherwise, d0 not answer the following question.
Was failure t0 comply excused by accord and satisfaction? 13
Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in
Question 1:
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
Granted:
Refused:
Modified:
13State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.21 at 59 (2018 ed.).
17
INSTRUCTION NO. 10 — Defenses — Equitable Estopnel.
Failure t0 comply is excused if the following circumstances occurred:
1. Murphy
a. by words 0r conduct made a false representation or concealed
material facts, and
b. with knowledge of the facts or with knowledge 0r information that
would lead a reasonable person t0 discover the facts, and
c. with the intention that the pertinent defendants would rely 0n the
false representation 0rconcealment in acting or deciding not t0 act;
and
2. The pertinent defendants
a. did not know and had n0 means 0f knowing the real facts and
b. relied t0 their detriment 0n the false representation 0r concealment
of material facts.”
Granted:
Refused:
Modified:
JUDGE PRESIDING
14State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.25 at 65 (2018 ed.).
18
QUESTION NO. 4 — Defenses — Equitable Estonnel.
you answered “Yes” t0 Question 1 for any one 0r more of the listed parties,
If
then answer the following question as to each 0f the listed parties for Whom you
answered “Yes” in Question 1. Otherwise, d0 not answer the following question.
Is Murphy estopped from asserting the claim you have found against the
party(ies) for Whom you answered “Yes” in Question N0. 1? 15
Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in
Question 1:
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
Granted:
Refused:
Modified:
JUDGE PRESIDING
15State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.25 at 65 (2018 ed.).
19
INSTRUCTION NO. 11 — Defenses — Waiver.
Failure t0 comply by a party is excused if compliance is waived by Murphy.
Waiver is an intentional surrender 0f a known right or intentional conduct
inconsistent With claiming the right.16
Granted:
Refused:
Modified:
JUDGE PRESIDING
16State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.24 at 63 (2018 ed.).
20
QUESTION NO. 5 — Defenses — Waiver.
you answered “Yes” t0 Question 1 for any one 0r more of the listed parties,
If
then answer the following question as to each 0f the listed parties for Whom you
answered “Yes” in Question 1. Otherwise, d0 not answer the following question.
Was the failure to comply you found in Question No. 1 excused by waiver? 17
Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in
Question 1:
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
Granted:
Refused:
Modified:
JUDGE PRESIDING
17State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.21 at 59 (2018 ed.).
21
INSTRUCTION NO. 12 — Defenses — Release.
A release is
a contract 0r an agreement whereby one party gives up a right 0r
a claim has against another in exchange for something 0f value. If a party
it
establishes the existence 0f a release that Murphy entered into, any cause 0f action
covered by that release is barred.18
Granted:
Refused:
Modified:
JUDGE PRESIDING
18
Keck, Mahin & Cate v. National Union Fire Ins., 20 S.W.3d 692, 696-98 (TeX. 2000).
22
QUESTION NO. 6 — Defenses — Release.
you answered “Yes” t0 Question 1 for any one 0r more of the listed parties,
If
then answer the following question as to each 0f the listed parties for Whom you
answered “Yes” in Question 1. Otherwise, d0 not answer the following question.
Was the failure to comply excused by a release? 19
Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in
Question 1:
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
Granted:
Refused:
Modified:
JUDGE PRESIDING
19State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.21 at 59 (2018 ed.).
23
INSTRUCTION NO. 13 — Defenses — Ratification.
A party’s conduct includes conduct 0f others that the party has ratified.
Ratification may
be express 0r implied.” Ratification occurs if Murphy, knowing 0f
the alleged misconduct by the pertinent defendants, confirms or adopts an earlier act
that did not then legally bind him and that he could have repudiated. Once Murphy
ratifies a contract, he may not later withdraw the ratification and seek t0 avoid the
contract.”
Failure t0 comply by the pertinent defendants is excused if the following
circumstances occurred:
1. Murphy approved the contract by his acts, words, or conduct.
2. Murphy fully knew of the facts of the earlier act.
3. Murphy intended to give validity t0 the earlier act.
Granted:
Refused:
Modified:
JUDGE PRESIDING
20 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.5 at 49 (2018 ed.).
21Petroleum Anchor Equip, Inc. v. Tyra, 419 S.W.2d 829, 834 (TeX. 1967); City 0f The Colony v. N.
Texas Mun. Water Dist, 272 S.W.3d 699, 732 (TeX. App.—Fort Worth 2008, pet. dism'd); Missouri
Pac. RR. v. Lely Dev. Corp, 86 S.W.3d 787, 792 (TeX. App.—Austin 2002, pet. dism’d).
24
QUESTION NO. 7 — Defenses — Ratification.
you answered “Yes” t0 Question 1 for any one 0r more of the listed parties,
If
then answer the following question as to each 0f the listed parties for Whom you
answered “Yes” in Question 1. Otherwise, do not answer the following question.
Was the failure to comply excused by ratification? 22
Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in
Question 1:
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
Granted:
Refused:
Modified:
JUDGE PRESIDING
22State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.21 at 59 (2018 ed.).
25
QUESTION NO. 8— Damages for Breach of Emplovment Agreement.
answered “Yes” t0 Question N0. 1 for any 0f the listed parties in Question
If you
N0. 1 and also answered “N0” to Question nos. 2, 3, 4, 5, 6, and 7 for all of the listed
parties for Whom you answered “Yes” to Question No. 1, then answer the following
question. Otherwise, do not answer the following question.
What sum 0f money, if any, if now paid in cash, would fairly and reasonably
compensate Murphy for his damages, if any that resulted from the failure t0 comply?
Do not add any amount for interest 0n damages, if any.
Answer in dollars and cents for damages, if any:
23
$
Granted:
Refused:
Modified:
JUDGE PRESIDING
23 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
115.3. at 425 (2018 ed.).
26
Pavecon Holding’s First Breach of Contract Claim
QUESTION NO. 9 — Breach of the Stock Purchase Agreement.
Did Murphy fail t0 comply With the Stock Purchase Agreement entered into
with Pavecon Holding?24
Answer ‘Yes” or “N0.”
Answer:
Granted:
Refused:
Modified:
JUDGE PRESIDING
24 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.2 at 42 (2018 ed.).
27
QUESTION NO. 10 — Damages for Breach of the Stock Purchase Agreement.
you answered “Yes” to Question no. 9, then answer the following question.
If
Otherwise, do not answer the following question.
What sum 0f money, if any, if now paid in cash, would fairly and reasonably
compensate Pavecon Holding for its damages, if any that resulted from Murphy’s
failure to comply? 25
Consider the following elements 0f damages, if any, and none other:
Lost profits that were a natural, probable, and foreseeable consequence of
Murphy’s failure to comply.
D0 not add any amount for interest 0n damages, if any.
Answer in dollars and cents for damages, if any:
$
Granted:
Refused:
Modified:
JUDGE PRESIDING
25 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
115.3 (2018 ed.).
28
Pavecon Holding’s Second Breach of Contract Claim
QUESTION NO. 11 — Breach of the Stock Bonus Agreements.
Did Murphy fail to comply With the Stock Bonus Agreements entered into With
Pavecon Holding?26
Answer ‘Yes” or “N0.”
Answer:
Granted:
Refused:
Modified:
JUDGE PRESIDING
26 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
101.2 at 42 (2018 ed.).
29
QUESTION NO. 12 — Damages for Breach of the Stock Bonus Agreements.
you answered “Yes” t0 Question n0. 11, then answer the following question.
If
Otherwise, do not answer the following question.
What sum 0f money, if any, if now paid in cash, would fairly and reasonably
compensate Pavecon Holding for its damages, if any that resulted from Murphy’s
failure to comply? 27
Consider the following elements 0f damages, if any, and none other:
Lost profits that were a natural, probable, and foreseeable consequence of
Murphy’s failure to comply.
D0 not add any amount for interest 0n damages, if any.
Answer in dollars and cents for damages, if any:
$
Granted:
Refused:
Modified:
JUDGE PRESIDING
27 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
115.3 (2018 ed.).
30
INSTRUCTION NO. 14 — Fiduciarv DutV.
A relationship 0f trust and confidence existed if Pavecon Holding, Pavecon
Ltd., Pavecon Public Works, and Pavecon Public Works GP, LLC, justifiably placed
trust and confidence in Murphy. Pavecon Holding, Pavecon Ltd., and Pavecon Public
Works’s subjective trust and feelings alone d0 not justify transforming arm’s-length
dealings into a relationship 0f trust and confidence.28
As a matter 0f law, corporate officers owe a fiduciary duty to the corporation
they serve. Informal fiduciary relationships exist Whenever one party trusts and
relies upon another. An informal fiduciary relationship applies to any person in a
position of peculiar confidence towards another, refers t0 integrity and fidelity, and
contemplates fair dealing and good faith. Employees have a fiduciary relationship to
their employers when they hold a position of trust and confidence, as when they have
access t0 their employers’ confidential information.”
Granted:
Refused:
Modified:
JUDGE PRESIDING
28 State Bar of TeX., Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
104.1 at 199 (2018 ed.).
29 Ritchie v.
Rupe, 443 S.W.3d 856 (TeX. 2014); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193,
199 (Tex. 2002); Inter’l Bankers Life Holloway, 368 S.W.Zd 567, 576 (TeX. 1963); Kinzbach
Ins. v.
Tool Co. v. Corbett-Wallace C0rp., 160 S.W.Zd 509, 512-13 (TeX. 1942); Cuidado Casero Home Health
of El Paso, Inc. v. Ayuda Home Health Care Servs., LLC, 404 S.W.3d 737, 753 (Tex. App.—E1 Paso
2013, n0 pet.); SP Midtown, Ltd. v. Urban Storage, L.P., N0. 14-07-00717-CV, 2008 WL
1991747 *12
(Tex. App.—H0ust0n [14th Dist] May 8, 2008, pet. denied).
31
QUESTION NO. 13 - Breach of Fiduciarv Dutv bV Murphv.
Did a relationship 0f trust and confidence exist between Murphy any one 0r
more 0f the entities listed below? 30
Answer ‘Yes” or “N0” separately for each:
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
Granted:
Refused:
Modified:
JUDGE PRESIDING
30 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
104.1 at 199 (2018 ed.).
32
QUESTION NO. 14 - Breach of Fiduciarv Dutv bV Murphv.
answer t0 Question N0. 13 you have answered “Yes” as t0 any of the listed
If in
parties, then answer the next question for each party for Whom you answered
Question N0. 13 “Yes.” Otherwise, d0 not answer the following question.
Did Murphy comply with his fiduciary duty?
To prove Murphy complied With his duty t0 each entity for whom you answered
‘Yes” in Question No. 13, Murphy has the burden of proof to show by a preponderance
0f the evidence each of the following:
1. the transaction[s] in question were fair and equitable t0 the entity; and
2. Murphy made reasonable use of the confidence that the entity placed in
him; and
3. Murphy acted in the utmost good faith 0r exercise the most scrupulous
honesty the entity; and
4. Murphy placed the interests 0f the entity before his own, did not use the
advantage 0f his position t0 gain a benefit for himself at the expense 0f the
entity, and did not place himself in any position Where his self—interest
might conflict With his obligations as a fiduciary; and
5. Murphy fully and fairly disclosed all important information t0 the entity
concerning the transaction[s] .31
Answer “Yes” 0r “N0” separately for each entity for Whom you answered “Yes”
in Question No. 13:
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
Granted: Refused: Modified:
JUDGE PRESIDING
31 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
104.2 at 202 (2018 ed.).
33
QUESTION NO. 15 - Damages for Breach of Fiduciarv DutV bV Murphv.
you answered “N0” t0 Question No. 14 as t0 any listed entity in Question N0.
If
14, then answer the following question. Otherwise, do not answer the following
question.32
What sum 0f money, if any, if now paid in cash, would fairly and reasonably
compensate for the damages, if any, that were proximately caused by such conduct?33
Consider the following elements 0f damages, if any, and none other:
a. The loss suffered as a result of the breach 0f fiduciary duty by Murphy.
b. The benefit conferred upon Murphy as a result of his breach of fiduciary duty.
D0 not add any amount for interest 0n damages, if any.
Answer in dollars and cents, if any, for each entity for Whom you answered
“N0” in Question N0. 14:
For the loss suffered as a result 0f the breach 0f fiduciary duty by Murphy.
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
For benefit conferred upon Murphy as a result of his breach of fiduciary duty.
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
Granted: Refused: . Modified:
JUDGE PRESIDING
32 State Bar of TeX., Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
115.1 at 423 (2018 ed.).
33 State Bar 0f Tex, Texas Pattern
Jury Charge, Business, Consumer, Insurance & Employment PJC
115.18 at 458 (2018 ed.).
34
INSTRUCTION NO. 15 —Exemplarv Damages.
“Exemplary damages” means any damages awarded as a penalty or by way 0f
punishment but not for compensatory purposes. Exemplary damages includes
punitive damages.
Factors t0 consider in awarding exemplary damages, if any, are—
1. The nature of the wrong.
2. The character 0f the conduct involved.
The degree 0f culpability 0f the wrongdoer.
The situation and sensibilities 0f the parties concerned.
The extent to Which such conduct contends a public sense of justice and
propriety.
The net worth 0f the particular entity or person against Whom you are
imposing exemplary damages, if any.34
Granted:
Refused:
Modified:
JUDGE PRESIDING
34State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
115.38 at 507 (2018 ed.).
35
INSTRUCTION NO. 16 — Predicate Instruction on Exemplary Damages.
“Clear and convincing evidence” means the measure 0r degree 0f proof that
produces a firm belief 0r conviction 0f the truth 0f the allegations sought t0 be
established.
“Malice” means a by Murphy t0 cause substantial injury t0 harm
specific intent
to Pavecon Holding, Pavecon Ltd, Pavecon Public Works, and/or Pavecon Public
Works GP, LLC.35
Granted:
Refused:
Modified:
JUDGE PRESIDING
35State Bar 0f TeX., Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
115.37B at 504 (2018 ed.).
36
QUESTION NO. 16 — Predicate Question for Exemplary Damages for Breach
of Fiduciarv Dutv
Answer the following question only if you unanimously answered “Yes” t0
Question 14 for any listed entity 0r person. Otherwise, do not answer the following
question.
T0 answer “Yes” t0 any part of the following question, your answer must be
unanimous. You may answer “No” t0 any part of the following question only upon a
vote of ten 0r more jurors. Otherwise you must not answer the following question.
For each entity or person for Whom you unanimously answered “Yes” in
Question 14, d0 you find by clear and convincing evidence that the harm t0 Pavecon
Holding, Pavecon Ltd., Pavecon Public Works, and/or Pavecon Public Works GP, LLC
resulted from breach 0f fiduciary duty by that Murphy?
Answer “Yes” 0r “N0” for entity 0r person for Whom you answered “Yes” in
Question 20:
Pavecon Holding Answer:
Pavecon Ltd. Answer:
Pavecon Public Works Answer:
Pavecon Public Works GP, LLC Answer:
You must unanimously agree 0n the amount 0f any award of exemplary
damages.36
Granted:
Refused:
Modified:
JUDGE PRESIDING
36State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
115.37B at 504 (2018 ed.).
37
QUESTION NO. 17 — Exemplary Damages for Breach of Fiduciarv DutV
following question only if you unanimously answered “Yes” t0
Answer the
Question 14 as t0 any listed entity 0r person. Otherwise, d0 not answer the following
question.
What sum of money, if any, if now paid and
in cash, should be assessed
awarded to Pavecon Holding, Pavecon Ltd., Pavecon Public Works, and/or Pavecon
PublicWorks GP, LLC as exemplary damages, if any, for the conduct found in
response to Question 23?37
You must unanimously agree 0n the amount 0f any award of exemplary
damages.38
D0 not add any amount for interest 0n damages, if any.
Answer in dollars and cents, if any, separately for eachz39
Pavecon Holding Answer: $
Pavecon Ltd. Answer: $
Pavecon Public Works Answer: $
Pavecon Public Works GP Answer: $
Granted:
Refused:
Modified:
JUDGE PRESIDING
37 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC
115.38 at 507 (2018 ed.).
38 State Bar of Tex., Texas Pattern
Jury Charge, Business, Consumer, Insurance & Employment PJC
115.37B at 504 (2018 ed.).
39 Id. at 508.
38
INSTRUCTION NO. 17 — Definition of Conversion.
“Conversion” means unlawfully taking property from another Without the owner’s
effective consent, and t0 the exclusion 0f the owner's right 0f possession and use.40
Granted:
Refused:
Modified:
JUDGE PRESIDING
40 Dolenz v. Continental Nat’l Bank, 620 S.W.2d 572, 576 n.2 (TeX. 1981).
39
INSTRUCTION NO. 18 - Conversion.
T0 find “conversion” you must find all of the following:
1. The plaintiff owned, possessed, 0r had the right to immediate possession 0f
property;
2. The property was personal property;
3. The defendant wrongfully exercised dominion or control over the property;
and
4. The plaintiff suffered injury.“
Granted:
Refused:
Modified:
JUDGE PRESIDING
41The elements can be found in the following: Green Int’l v. Solis, 951 S.W.2d 384, 391 (TeX. 1997)
(element 3); United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997) (element 4);
Bandy v. First State Bank, 835 S.W.2d 609, 622 (TeX. 1992) (element 3); Waisath v. Lack’s Stores,
474 S.W.2d 444, 447 (Tex. 1971) (element 3); Presley v. Cooper, 284 S.W.2d 138, 141 (Tex. 1955)
(element 3); Lawyers Title Co. v. J.G. Cooper Dev., Ina, 424 S.W.3d 713, 718 (Tex. App.—Da11as
2014, pet. denied) (elements 1-4); Cuidado Casero Home Health v. Ayuda Home Health Care Servs.,
404 S.W.3d 737, 748 (Tex. App.—E1 Paso 2013, n0 pet.) (elements 1-3); NXCESS Motor Cars, Inc. v.
JPMorgan Chase Bank, 317 S.W.3d 462, 470 (TeX. App.—Houst0n [lst Dist] 2010, pet. denied)
(elements 1, 3); J.P. Morgan C
Preview
FILED DALLAS COUNTY 9/1 6/2019 8:43 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-17-10592 Cassandra Walker MARTY MURPHY, IN THE DISTRICT COURT Plaintiff and Counterclaim— Defendant, V. PAVECON HOLDING CO., INC., mmmmmmmmmmmmmmm PAVECON LTD. CO., PAVECON 192nd DISTRICT COURT PUBLIC WORKS LP, PAVECON PUBLIC WORKS GP, LLC, DAVID WALKER, Defendants and Counterclaim—Plaintiffs DALLAS COUNTY, TEXAS DEFENDANTS’ PROPOSED JURY CHARGE (submitted Without waiver or prejudice) Defendants and Counterclaim-Plaintiffs Pavecon Holding CO., Inc., Pavecon Ltd. C0. (“Pavecon Ltd.”), Pavecon Public Works LP (“Pavecon Public Works”), Pavecon Public Works GP, LLC, (collectively “Pavecon”) and David Walker (collectively “Defendants”) respectfully submit for the Court’s consideration the following proposed jury charge materials in accordance With the Court’s directives. Defendants submit these materials expressly subject t0, and Without waiver of, any and all rights, remedies, positions, objections and challenges. Defendants in no way concede or admit that there exists legally sufficient evidence or legally cognizable claims to support any other party’s submission 0f jury questions, instructions, 0r definitions on any factual or legal theory.1 1 (Please note: bracketed text and citations infra are for the Court’s convenience and reference.) Date: September 16, 2019 Respectfully submitted, /s /J. Robert Arnett II J. Robert Arnett II Texas Bar No. 01332900 barnett@carterarnett.com Joshua J. Bennett Texas Bar No. 24059444 jbennett@carterarnett.com Stacey Cho Hernandez Texas Bar No. 24063953 shernandez@carterarnett.com Carter Arnett PLLC 8150 N. Central Expressway Suite 500 Dallas, Texas 75206 Telephone: (214) 550-8188 Facsimile: (214) 550-8185 ATTORNEYS FOR DEFENDANTS AND COUNTERCLAIM-PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that, on September 16, 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 CAUSE NO. DC-17-10592 MARTY MURPHY, IN THE DISTRICT COURT Plaintiff and Counterclaim— Defendant, V. PAVECON HOLDING CO., INC., mmmmmmmmmmmmmmm PAVECON LTD. CO., PAVECON 192nd DISTRICT COURT PUBLIC WORKS LP, PAVECON PUBLIC WORKS GP, LLC, DAVID WALKER Defendants and Counterclaim—Plaintiffs DALLAS COUNTY, TEXAS CHARGE OF THE COURT MEMBERS OF THE JURY: After the closing arguments, you Will g0 t0 the jury room to decide the case, answer the questions that are attached, and reach a verdict. You may discuss the case With other jurors only When you are all together in the jury room. Remember my previous Do not discuss the case With anyone else, instructions: either in person 0r by any other means. Do not do any independent investigation about the case 0r conduct any research. D0 not 100k up any words in dictionaries 0r 0n the Internet. D0 not post information about the case on the Internet. D0 not share any special knowledge or experiences With the other jurors. D0 not use your phone 0r any other electronic device during your deliberations for any reason. Any notes you have taken are for your own personal use. You may take your notes back into the jury room and consult them during deliberations, but do not show 0r read your notes t0 your fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely 0n your independent recollection of the evidence and not be influenced by the fact that another juror has or has not taken notes. You must leave your notes with the bailiff When you are not deliberating. The bailiff Will give your notes to me promptly after collecting them from you. I Will make sure your notes are kept in a safe, secure location and not disclosed to anyone. After you complete your deliberations, the bailiff Will collect your notes. When you are released from jury duty, the bailiff Will promptly destroy your notes so that nobody can read What you wrote. Here are the instructions for answering the questions. 1. Do not let bias, prejudice, or sympathy play any part in your decision. 2. Base your answers only on the evidence admitted in court and 0n the law that is and questions. Do not consider 01‘ discuss any in these instructions evidence that was not admitted in the courtroom. 3. You are t0 make up your own minds about the facts. You are the sole judges of the credibility 0f the witnesses and the weight t0 give their testimony. But 0n matters 0f law, you must follow all of my instructions. 4. If my instructions use a word in a way that is different from its ordinary meaning, use the meaning I give you, Which Will be a proper legal definition. 5. A11 the questions and answers are important. N0 one should say that any question or answer is not important. 6. Answer “yes” 0r “n0” t0 all questions unless you are told otherwise. A “yes” answer must be based on a preponderance 0f the evidence unless you are told otherwise. Whenever a question requires an answer other than “yes” 0r “n0,” your answer must be based 0n a preponderance 0f the evidence unless you are told otherwise. The term “preponderance 0f the evidence” means the greater weight of credible evidence presented in this case. If you d0 not find that a preponderance of the evidence supports a “yes” answer, then answer “n0.” A preponderance 0f the evidence is not measured by the number 0f Witnesses or by the number of documents admitted in evidence. For a fact t0 be proved by a preponderance 0f the evidence, you must find that the fact is more likely true than not true. 7. Do not decide Who you think should Win before you answer the questions and then just answer the questions to match your decision. Answer each question carefully without considering Who Will win. Do not discuss or consider the effect your answers Will have. 8. Do not answer questions by drawing straws or by any method 0f chance. 9. questions might ask you for a dollar amount. Do not agree in Some advance t0 decide on a dollar amount by adding up each juror’s amount and then figuring the average. 10. Do not trade your answers. For example, do not say, “I Will answer this question your way if you answer another question my way.” 11. The answers t0 the questions must be based on the decision of at least ten of the twelve jurors. The same ten jurors must agree on every answer. D0 not agree t0 be bound by a vote of anything less than ten jurors, even if it would be a majority. As have said before, if you d0 not follow these instructions, you will be guilty I 0f juror misconduct, and I might have t0 order a new trial and start this process over again. This would waste your time and the parties’ money, and would require the taxpayers 0f this county t0 pay for another trial. If a juror breaks any 0f these rules, tell that person to stop and report it t0 me immediately? Granted: Refused: Modified: JUDGE PRESIDING 2 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 100.3A at 9-13 (2018 ed.). PRELIMINARY INSTRUCTIONS INSTRUCTION NO. 1 — Reference to Parties. The following has the meaning ascribed t0 it for purposes of these, instructions, definitions, and questions: 1. “Murphy” means Marty Murphy. 2. “Pavecon Holding” means Pavecon Holding Co., Inc. “Pavecon Ltd.” means Pavecon Ltd. Co. “Pavecon Public Works” means Pavecon Public Works LP. “Pavecon Public Works GP, LLC” means Pavecon Public Works GP, LLC. “Walker” means David Walker. Granted: Refused: Modified: JUDGE PRESIDING INSTRUCTION NO. 2 — Preponderance of the Evidence. The term “preponderance 0f the evidence” means the greater weight of credible evidence presented in this case. If you d0 not find that a preponderance of the evidence supports a “yes” answer, then answer “n0.” A preponderance 0f the evidence is not measured by the number of Witnesses 0r by the number of documents admitted in evidence. For a fact t0 be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.3 Granted: Refused: Modified: JUDGE PRESIDING 3 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 100.3 at 10 1] 6 (2018 ed.). INSTRUCTION NO. 3 — Circumstantial Evidence. A fact may be established by direct evidence 0r by circumstantial evidence 0r by both. A fact is established by direct evidence When proved by documentary evidence or by witnesses Who saw the act done 0r heard the words spoken. A fact is established by circumstantial evidence When it may be fairly and reasonably inferred from the other facts proved.4 Granted: Refused: Modified: JUDGE PRESIDING 4 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 100.8 at 26 (2018 ed.). INSTRUCTION NO. 4 — Proximate Cause. “Proximate cause” means a cause that was a substantial factor in bringing about an event, and Without Which cause such event would not have occurred. In order t0 be a proximate cause, the act 0r omission complained 0f must be such that a person using the degree of care required 0f him would have foreseen that the event, 0r some similar event, might reasonably result therefrom. There may be more than one proximate cause 0f an event.5 Granted: Refused: Modified: JUDGE PRESIDING 5State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 100.13 at 31 (2018 ed.). INSTRUCTION NO. 5 — Parallel Theories on Damages. In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because 0f your answer to any other question about damages. Do not speculate about What any party’s ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law t0 your answers at the time 0f judgment.6 Granted: Refused: Modified: JUDGE PRESIDING 6State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 100.12 at 30 (2018 ed.). 10 INSTRUCTION NO. 6 — Actual Damages. “Actual Damages” include “direct” damages and “consequential” damages. Direct damages compensate for the loss, damage, 0r injury that is conclusively presumed to have been foreseen 0r contemplated by a party as a consequence 0f his breach of contract or wrongful act. Consequential damages are those damages which result naturally, but not necessarily, from the acts complained 0f and are recoverable if the defendant had notice that the plaintiff would suffer such damages.7 Granted: Refused: Modified: JUDGE PRESIDING 7 Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 163 (TeX. 1992) (Phillips, C.J., concurring); Motiva Enterprises, LLC v. McCrabb, 248 S.W.3d 211, 216 (TeX. App.—H0ust0n [lst Dist] 2007, pet. denied). 11 INSTRUCTION NO. 7 — Breach of Murphy’s Emplovment Agreement. Generally, if a party materially fails t0 perform its obligations according to the terms of the contract, the party has breached the contract. You must decide Whether Pavecon Holding, Pavecon Ltd., and Pavecon Public Works failed to d0 What they were required t0 d0 under the employment agreement. Murphy must prove that Pavecon Holding, Pavecon Ltd., and Pavecon Public Works breached the employment agreement. To recover 0n his claim, Murphy has the burden to prove that Pavecon Holding, Pavecon Ltd., and Pavecon Public Works failed t0 do something the contract required them to d0. Murphy alleges and has the burden 0f proving that under his employment agreement Pavecon Holding, Pavecon Ltd., and Pavecon Public Works were required to provide him a stock equity bonus in 2015, 2016, and 2017. Pavecon Holding, Pavecon Ltd., and Pavecon Public Works claim they did not breach the employment agreement because they were not required t0 provide a stock equity bonus to Murphy in 2015, 2016, and 2017. Pavecon Holding, Pavecon Ltd., and Pavecon Public Works also raise the affirmative defenses 0f modification, accord and satisfaction, estoppel, waiver, release and ratification. These affirmative defenses Will be explained in detail in later instructions. Granted: Refused: Modified: JUDGE PRESIDING 12 Murphv’s Breach of Contract Claim QUESTION NO. 1 — Failure of Compliance. Do you find by a preponderance of the evidence that Pavecon Holding, Pavecon Ltd.,Pavecon Public Works, and Pavecon Public Works GP, LLC failed t0 comply with the employment agreement?8 Answer ‘Yes” or “N0” separately for each: Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: you answered “N0” t0 any part 0f Question 1, then as t0 that listed party for If Whom you answered “N0” d0 not answer Questions 2 through 7 as t0 that particular party. Granted: Refused: Modified: JUDGE PRESIDING 8 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.2 at 42 (2018 ed.). 13 INSTRUCTION NO. 8 — Defenses — Modification. In this case, Pavecon Holding, Pavecon Ltd., Pavecon Public Works, and Pavecon Public Works GP, LLC have asserted the affirmative defense 0f modification. Failure t0 comply With an agreement is excused if a different performance was accepted as full satisfaction 0f performance of the original obligations 0f the agreement.9 Granted: Refused: Modified: JUDGE PRESIDING 9State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.31 at 73 (2018 ed.). 14 QUESTION NO. 2 — Defenses — Modification. you answered “Yes” t0 Question 1 for any one 0r more of the listed parties, If then answer the following question as to each 0f the listed parties for Whom you answered “Yes” in Question 1. Otherwise, d0 not answer the following question. Was the failure to comply excused by modification? 10 Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in Question 1: Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: Granted: Refused: Modified: 10State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.21 at 59 (2018 ed.). 15 INSTRUCTION NO. 9 — Defenses — Accord and Satisfaction. In this case, Pavecon Holding, Pavecon Ltd., Pavecon Public Works, and Pavecon Public Works GP, LLC have asserted the affirmative defense 0f accord and satisfaction. Failure t0 comply With an agreement is excused if a different performance was accepted as full satisfaction 0f performance of the original obligations 0f the agreement.11 Accord and satisfaction is a contractual method of discharging a claim. Accord isbased on evidence that the parties have agreed to discharge an existing obligation. Satisfaction is the performance 0f that new contract. To prove the defense of accord and satisfaction, the party claiming it must establish the following: 1. The parties had a legitimate dispute about the underlying obligation. 2. The parties specifically and intentionally agreed t0 discharge the obligation. 3. The amount paid was in full satisfaction of the entire claim. 4. The parties had a shared and mutual intent t0 compromise the claim; and 5. Performance 0f the accord agreement.” Granted: Refused: Modified: JUDGE PRESIDING 11 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.32 at 74 (2018 ed.). 12 Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979); Honeycutt v. Billingsley, 992 S.W.2d 570, 576-77 (Tex. App.—H0ust0n [lst Dist] 1996, n0 writ); Hycarbex, Inc. v. Anglo-Suisse, Ina, 927 S.W.2d 103, 108 (TeX. App.—H0ust0n [14th Dist.] 1996, n0 writ). 16 QUESTION NO. 3 — Defenses — Accord and Satisfaction. you answered “Yes” t0 Question 1 for any one 0r more of the listed parties, If then answer the following question as to each 0f the listed parties for Whom you answered “Yes” in Question 1. Otherwise, d0 not answer the following question. Was failure t0 comply excused by accord and satisfaction? 13 Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in Question 1: Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: Granted: Refused: Modified: 13State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.21 at 59 (2018 ed.). 17 INSTRUCTION NO. 10 — Defenses — Equitable Estopnel. Failure t0 comply is excused if the following circumstances occurred: 1. Murphy a. by words 0r conduct made a false representation or concealed material facts, and b. with knowledge of the facts or with knowledge 0r information that would lead a reasonable person t0 discover the facts, and c. with the intention that the pertinent defendants would rely 0n the false representation 0rconcealment in acting or deciding not t0 act; and 2. The pertinent defendants a. did not know and had n0 means 0f knowing the real facts and b. relied t0 their detriment 0n the false representation 0r concealment of material facts.” Granted: Refused: Modified: JUDGE PRESIDING 14State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.25 at 65 (2018 ed.). 18 QUESTION NO. 4 — Defenses — Equitable Estonnel. you answered “Yes” t0 Question 1 for any one 0r more of the listed parties, If then answer the following question as to each 0f the listed parties for Whom you answered “Yes” in Question 1. Otherwise, d0 not answer the following question. Is Murphy estopped from asserting the claim you have found against the party(ies) for Whom you answered “Yes” in Question N0. 1? 15 Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in Question 1: Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: Granted: Refused: Modified: JUDGE PRESIDING 15State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.25 at 65 (2018 ed.). 19 INSTRUCTION NO. 11 — Defenses — Waiver. Failure t0 comply by a party is excused if compliance is waived by Murphy. Waiver is an intentional surrender 0f a known right or intentional conduct inconsistent With claiming the right.16 Granted: Refused: Modified: JUDGE PRESIDING 16State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.24 at 63 (2018 ed.). 20 QUESTION NO. 5 — Defenses — Waiver. you answered “Yes” t0 Question 1 for any one 0r more of the listed parties, If then answer the following question as to each 0f the listed parties for Whom you answered “Yes” in Question 1. Otherwise, d0 not answer the following question. Was the failure to comply you found in Question No. 1 excused by waiver? 17 Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in Question 1: Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: Granted: Refused: Modified: JUDGE PRESIDING 17State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.21 at 59 (2018 ed.). 21 INSTRUCTION NO. 12 — Defenses — Release. A release is a contract 0r an agreement whereby one party gives up a right 0r a claim has against another in exchange for something 0f value. If a party it establishes the existence 0f a release that Murphy entered into, any cause 0f action covered by that release is barred.18 Granted: Refused: Modified: JUDGE PRESIDING 18 Keck, Mahin & Cate v. National Union Fire Ins., 20 S.W.3d 692, 696-98 (TeX. 2000). 22 QUESTION NO. 6 — Defenses — Release. you answered “Yes” t0 Question 1 for any one 0r more of the listed parties, If then answer the following question as to each 0f the listed parties for Whom you answered “Yes” in Question 1. Otherwise, d0 not answer the following question. Was the failure to comply excused by a release? 19 Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in Question 1: Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: Granted: Refused: Modified: JUDGE PRESIDING 19State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.21 at 59 (2018 ed.). 23 INSTRUCTION NO. 13 — Defenses — Ratification. A party’s conduct includes conduct 0f others that the party has ratified. Ratification may be express 0r implied.” Ratification occurs if Murphy, knowing 0f the alleged misconduct by the pertinent defendants, confirms or adopts an earlier act that did not then legally bind him and that he could have repudiated. Once Murphy ratifies a contract, he may not later withdraw the ratification and seek t0 avoid the contract.” Failure t0 comply by the pertinent defendants is excused if the following circumstances occurred: 1. Murphy approved the contract by his acts, words, or conduct. 2. Murphy fully knew of the facts of the earlier act. 3. Murphy intended to give validity t0 the earlier act. Granted: Refused: Modified: JUDGE PRESIDING 20 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.5 at 49 (2018 ed.). 21Petroleum Anchor Equip, Inc. v. Tyra, 419 S.W.2d 829, 834 (TeX. 1967); City 0f The Colony v. N. Texas Mun. Water Dist, 272 S.W.3d 699, 732 (TeX. App.—Fort Worth 2008, pet. dism'd); Missouri Pac. RR. v. Lely Dev. Corp, 86 S.W.3d 787, 792 (TeX. App.—Austin 2002, pet. dism’d). 24 QUESTION NO. 7 — Defenses — Ratification. you answered “Yes” t0 Question 1 for any one 0r more of the listed parties, If then answer the following question as to each 0f the listed parties for Whom you answered “Yes” in Question 1. Otherwise, do not answer the following question. Was the failure to comply excused by ratification? 22 Answer “Yes” 0r “No” separately for each for Whom you answered “Yes” in Question 1: Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: Granted: Refused: Modified: JUDGE PRESIDING 22State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.21 at 59 (2018 ed.). 25 QUESTION NO. 8— Damages for Breach of Emplovment Agreement. answered “Yes” t0 Question N0. 1 for any 0f the listed parties in Question If you N0. 1 and also answered “N0” to Question nos. 2, 3, 4, 5, 6, and 7 for all of the listed parties for Whom you answered “Yes” to Question No. 1, then answer the following question. Otherwise, do not answer the following question. What sum 0f money, if any, if now paid in cash, would fairly and reasonably compensate Murphy for his damages, if any that resulted from the failure t0 comply? Do not add any amount for interest 0n damages, if any. Answer in dollars and cents for damages, if any: 23 $ Granted: Refused: Modified: JUDGE PRESIDING 23 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 115.3. at 425 (2018 ed.). 26 Pavecon Holding’s First Breach of Contract Claim QUESTION NO. 9 — Breach of the Stock Purchase Agreement. Did Murphy fail t0 comply With the Stock Purchase Agreement entered into with Pavecon Holding?24 Answer ‘Yes” or “N0.” Answer: Granted: Refused: Modified: JUDGE PRESIDING 24 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.2 at 42 (2018 ed.). 27 QUESTION NO. 10 — Damages for Breach of the Stock Purchase Agreement. you answered “Yes” to Question no. 9, then answer the following question. If Otherwise, do not answer the following question. What sum 0f money, if any, if now paid in cash, would fairly and reasonably compensate Pavecon Holding for its damages, if any that resulted from Murphy’s failure to comply? 25 Consider the following elements 0f damages, if any, and none other: Lost profits that were a natural, probable, and foreseeable consequence of Murphy’s failure to comply. D0 not add any amount for interest 0n damages, if any. Answer in dollars and cents for damages, if any: $ Granted: Refused: Modified: JUDGE PRESIDING 25 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 115.3 (2018 ed.). 28 Pavecon Holding’s Second Breach of Contract Claim QUESTION NO. 11 — Breach of the Stock Bonus Agreements. Did Murphy fail to comply With the Stock Bonus Agreements entered into With Pavecon Holding?26 Answer ‘Yes” or “N0.” Answer: Granted: Refused: Modified: JUDGE PRESIDING 26 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 101.2 at 42 (2018 ed.). 29 QUESTION NO. 12 — Damages for Breach of the Stock Bonus Agreements. you answered “Yes” t0 Question n0. 11, then answer the following question. If Otherwise, do not answer the following question. What sum 0f money, if any, if now paid in cash, would fairly and reasonably compensate Pavecon Holding for its damages, if any that resulted from Murphy’s failure to comply? 27 Consider the following elements 0f damages, if any, and none other: Lost profits that were a natural, probable, and foreseeable consequence of Murphy’s failure to comply. D0 not add any amount for interest 0n damages, if any. Answer in dollars and cents for damages, if any: $ Granted: Refused: Modified: JUDGE PRESIDING 27 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 115.3 (2018 ed.). 30 INSTRUCTION NO. 14 — Fiduciarv DutV. A relationship 0f trust and confidence existed if Pavecon Holding, Pavecon Ltd., Pavecon Public Works, and Pavecon Public Works GP, LLC, justifiably placed trust and confidence in Murphy. Pavecon Holding, Pavecon Ltd., and Pavecon Public Works’s subjective trust and feelings alone d0 not justify transforming arm’s-length dealings into a relationship 0f trust and confidence.28 As a matter 0f law, corporate officers owe a fiduciary duty to the corporation they serve. Informal fiduciary relationships exist Whenever one party trusts and relies upon another. An informal fiduciary relationship applies to any person in a position of peculiar confidence towards another, refers t0 integrity and fidelity, and contemplates fair dealing and good faith. Employees have a fiduciary relationship to their employers when they hold a position of trust and confidence, as when they have access t0 their employers’ confidential information.” Granted: Refused: Modified: JUDGE PRESIDING 28 State Bar of TeX., Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 104.1 at 199 (2018 ed.). 29 Ritchie v. Rupe, 443 S.W.3d 856 (TeX. 2014); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 199 (Tex. 2002); Inter’l Bankers Life Holloway, 368 S.W.Zd 567, 576 (TeX. 1963); Kinzbach Ins. v. Tool Co. v. Corbett-Wallace C0rp., 160 S.W.Zd 509, 512-13 (TeX. 1942); Cuidado Casero Home Health of El Paso, Inc. v. Ayuda Home Health Care Servs., LLC, 404 S.W.3d 737, 753 (Tex. App.—E1 Paso 2013, n0 pet.); SP Midtown, Ltd. v. Urban Storage, L.P., N0. 14-07-00717-CV, 2008 WL 1991747 *12 (Tex. App.—H0ust0n [14th Dist] May 8, 2008, pet. denied). 31 QUESTION NO. 13 - Breach of Fiduciarv Dutv bV Murphv. Did a relationship 0f trust and confidence exist between Murphy any one 0r more 0f the entities listed below? 30 Answer ‘Yes” or “N0” separately for each: Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: Granted: Refused: Modified: JUDGE PRESIDING 30 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 104.1 at 199 (2018 ed.). 32 QUESTION NO. 14 - Breach of Fiduciarv Dutv bV Murphv. answer t0 Question N0. 13 you have answered “Yes” as t0 any of the listed If in parties, then answer the next question for each party for Whom you answered Question N0. 13 “Yes.” Otherwise, d0 not answer the following question. Did Murphy comply with his fiduciary duty? To prove Murphy complied With his duty t0 each entity for whom you answered ‘Yes” in Question No. 13, Murphy has the burden of proof to show by a preponderance 0f the evidence each of the following: 1. the transaction[s] in question were fair and equitable t0 the entity; and 2. Murphy made reasonable use of the confidence that the entity placed in him; and 3. Murphy acted in the utmost good faith 0r exercise the most scrupulous honesty the entity; and 4. Murphy placed the interests 0f the entity before his own, did not use the advantage 0f his position t0 gain a benefit for himself at the expense 0f the entity, and did not place himself in any position Where his self—interest might conflict With his obligations as a fiduciary; and 5. Murphy fully and fairly disclosed all important information t0 the entity concerning the transaction[s] .31 Answer “Yes” 0r “N0” separately for each entity for Whom you answered “Yes” in Question No. 13: Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: Granted: Refused: Modified: JUDGE PRESIDING 31 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 104.2 at 202 (2018 ed.). 33 QUESTION NO. 15 - Damages for Breach of Fiduciarv DutV bV Murphv. you answered “N0” t0 Question No. 14 as t0 any listed entity in Question N0. If 14, then answer the following question. Otherwise, do not answer the following question.32 What sum 0f money, if any, if now paid in cash, would fairly and reasonably compensate for the damages, if any, that were proximately caused by such conduct?33 Consider the following elements 0f damages, if any, and none other: a. The loss suffered as a result of the breach 0f fiduciary duty by Murphy. b. The benefit conferred upon Murphy as a result of his breach of fiduciary duty. D0 not add any amount for interest 0n damages, if any. Answer in dollars and cents, if any, for each entity for Whom you answered “N0” in Question N0. 14: For the loss suffered as a result 0f the breach 0f fiduciary duty by Murphy. Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: For benefit conferred upon Murphy as a result of his breach of fiduciary duty. Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: Granted: Refused: . Modified: JUDGE PRESIDING 32 State Bar of TeX., Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 115.1 at 423 (2018 ed.). 33 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 115.18 at 458 (2018 ed.). 34 INSTRUCTION NO. 15 —Exemplarv Damages. “Exemplary damages” means any damages awarded as a penalty or by way 0f punishment but not for compensatory purposes. Exemplary damages includes punitive damages. Factors t0 consider in awarding exemplary damages, if any, are— 1. The nature of the wrong. 2. The character 0f the conduct involved. The degree 0f culpability 0f the wrongdoer. The situation and sensibilities 0f the parties concerned. The extent to Which such conduct contends a public sense of justice and propriety. The net worth 0f the particular entity or person against Whom you are imposing exemplary damages, if any.34 Granted: Refused: Modified: JUDGE PRESIDING 34State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 115.38 at 507 (2018 ed.). 35 INSTRUCTION NO. 16 — Predicate Instruction on Exemplary Damages. “Clear and convincing evidence” means the measure 0r degree 0f proof that produces a firm belief 0r conviction 0f the truth 0f the allegations sought t0 be established. “Malice” means a by Murphy t0 cause substantial injury t0 harm specific intent to Pavecon Holding, Pavecon Ltd, Pavecon Public Works, and/or Pavecon Public Works GP, LLC.35 Granted: Refused: Modified: JUDGE PRESIDING 35State Bar 0f TeX., Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 115.37B at 504 (2018 ed.). 36 QUESTION NO. 16 — Predicate Question for Exemplary Damages for Breach of Fiduciarv Dutv Answer the following question only if you unanimously answered “Yes” t0 Question 14 for any listed entity 0r person. Otherwise, do not answer the following question. T0 answer “Yes” t0 any part of the following question, your answer must be unanimous. You may answer “No” t0 any part of the following question only upon a vote of ten 0r more jurors. Otherwise you must not answer the following question. For each entity or person for Whom you unanimously answered “Yes” in Question 14, d0 you find by clear and convincing evidence that the harm t0 Pavecon Holding, Pavecon Ltd., Pavecon Public Works, and/or Pavecon Public Works GP, LLC resulted from breach 0f fiduciary duty by that Murphy? Answer “Yes” 0r “N0” for entity 0r person for Whom you answered “Yes” in Question 20: Pavecon Holding Answer: Pavecon Ltd. Answer: Pavecon Public Works Answer: Pavecon Public Works GP, LLC Answer: You must unanimously agree 0n the amount 0f any award of exemplary damages.36 Granted: Refused: Modified: JUDGE PRESIDING 36State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 115.37B at 504 (2018 ed.). 37 QUESTION NO. 17 — Exemplary Damages for Breach of Fiduciarv DutV following question only if you unanimously answered “Yes” t0 Answer the Question 14 as t0 any listed entity 0r person. Otherwise, d0 not answer the following question. What sum of money, if any, if now paid and in cash, should be assessed awarded to Pavecon Holding, Pavecon Ltd., Pavecon Public Works, and/or Pavecon PublicWorks GP, LLC as exemplary damages, if any, for the conduct found in response to Question 23?37 You must unanimously agree 0n the amount 0f any award of exemplary damages.38 D0 not add any amount for interest 0n damages, if any. Answer in dollars and cents, if any, separately for eachz39 Pavecon Holding Answer: $ Pavecon Ltd. Answer: $ Pavecon Public Works Answer: $ Pavecon Public Works GP Answer: $ Granted: Refused: Modified: JUDGE PRESIDING 37 State Bar 0f Tex, Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 115.38 at 507 (2018 ed.). 38 State Bar of Tex., Texas Pattern Jury Charge, Business, Consumer, Insurance & Employment PJC 115.37B at 504 (2018 ed.). 39 Id. at 508. 38 INSTRUCTION NO. 17 — Definition of Conversion. “Conversion” means unlawfully taking property from another Without the owner’s effective consent, and t0 the exclusion 0f the owner's right 0f possession and use.40 Granted: Refused: Modified: JUDGE PRESIDING 40 Dolenz v. Continental Nat’l Bank, 620 S.W.2d 572, 576 n.2 (TeX. 1981). 39 INSTRUCTION NO. 18 - Conversion. T0 find “conversion” you must find all of the following: 1. The plaintiff owned, possessed, 0r had the right to immediate possession 0f property; 2. The property was personal property; 3. The defendant wrongfully exercised dominion or control over the property; and 4. The plaintiff suffered injury.“ Granted: Refused: Modified: JUDGE PRESIDING 41The elements can be found in the following: Green Int’l v. Solis, 951 S.W.2d 384, 391 (TeX. 1997) (element 3); United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997) (element 4); Bandy v. First State Bank, 835 S.W.2d 609, 622 (TeX. 1992) (element 3); Waisath v. Lack’s Stores, 474 S.W.2d 444, 447 (Tex. 1971) (element 3); Presley v. Cooper, 284 S.W.2d 138, 141 (Tex. 1955) (element 3); Lawyers Title Co. v. J.G. Cooper Dev., Ina, 424 S.W.3d 713, 718 (Tex. App.—Da11as 2014, pet. denied) (elements 1-4); Cuidado Casero Home Health v. Ayuda Home Health Care Servs., 404 S.W.3d 737, 748 (Tex. App.—E1 Paso 2013, n0 pet.) (elements 1-3); NXCESS Motor Cars, Inc. v. JPMorgan Chase Bank, 317 S.W.3d 462, 470 (TeX. App.—Houst0n [lst Dist] 2010, pet. denied) (elements 1, 3); J.P. Morgan C