Preview
FILED
DALLAS COUNTY
1/25/2018 3:06 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-17-10592
MARTY MURPHY, § IN THE DISTRICT COURT
§
Plaintiff and Counterclaim- §
Defendant §
§
§
§
v. §
§
PAVECON HOLDING CO., INC., §
PAVECON LTD. CO., AND § 192nd JUDICIAL DISTRICT
PAVECON PUBLIC WORKS LP, §
§
Defendants and Counterclaim- §
Plaintiffs, §
§
v. §
§
STEPHANIE THOMPSON §
§
Counterclaim-Defendant § DALLAS COUNTY, TEXAS
PLAINTIFF AND COUNTERCLAIM-DEFENDANT’S
OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL
PLAINTIFF AND COUNTERCLAIM-DEFENDANT MARTY MURPHY (hereinafter
“Murphy”), asks the Court to deny Defendants’ Motion to Compel Entry Upon Murphy’s Land
and Inspection (“Motion”).
INTRODUCTION
Plaintiff and Counterclaim-Defendant is Marty Murphy; Defendants and Counterclaim-
Plaintiffs are Pavecon Holding Co., Inc.; Pavecon Ltd. Co.; and Pavecon Public Works LP
(“Pavecon” or “Defendants”).
Murphy filed his original petition on August 23, 2017. Pavecon’s original answer was filed
on October 2, 2017. Pavecon filed and served its’ original counterclaim on November 7, 2017
against Murphy and joined Counterclaim Defendant Stephanie Johnson.
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 1
This case involves claims for breach of contract, breach of fiduciary duty, fraud,
conversion, quantum meruit, unjust enrichment, and assumpit based on an employment
relationship between Murphy and Pavecon.
BACKGROUND
On November 9, 2017, Pavecon served its Request for Entry Upon [Murphy’s] Property
and Inspection.1 Pavecon’s Request for Entry asks that Murphy allow Pavecon’s counsel, one or
more Pavecon employees, a land surveying crew, and a real estate appraiser to enter and inspect,
survey and photograph the “property and improvements” located at 9302 County Road 2426,
Terrell Texas 75160 (the “Property”) on December 21, 2017 commencing at 10:00am. 2 The
Property is the residence and rural homestead of Murphy and his family.3
On November 20, 2017, Counsel for Murphy sent a letter to Pavecon’s counsel raising
several issues with the Request for Entry including the lack of specificity of the request and
relevancy issues.4
In response to Counsel for Murphy’s raised issues and request for additional information,
Counsel for Pavecon, Mr. Arnett, provided an abrasive and insulting letter informing Counsel for
Murphy he was wrong about the specificity requirements, questioning Counsel for Murphy’s
“powers of comprehension” and stating that it was not worth Mr. Arnett’s time explaining or
answering any of the raised issues.5
1
See Exhibit 1-A, Defendants’ Request for Entry Upon Property and Inspection attached to Murphy’s Objections,
Response, and Motion for Protection.
2
See Id.
3
See Exhibit 2, Affidavit of Marty Murphy attached to Murphy’s Objections, Response, and Motion for Protection.
4
See Exhibit 1-B, November 20, 2017 correspondence from Charles H. Smith attached to Murphy’s Objections,
Response, and Motion for Protection.
5
See Exhibit 1-C, November 21, 2017 correspondence from J. Robert Arnett II attached to Murphy’s Objections,
Response, and Motion for Protection.
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 2
On December 8, 2017, Murphy filed Plaintiff and Counter-Claim Defendant’s Objections,
Response and Motion for Protection for Defendants’ Request for Entry Upon Property and
Inspection (“Motion for Protection”). The Motion for Protection included the affidavit of Charles
H. Smith as Exhibit 1 and the affidavit of Marty Murphy as Exhibit 2 to establish facts not apparent
from the record. Murphy incorporates the Motion for Protection and Exhibits herein by reference
as if set for in full.
On December 15, 2017, Defendants filed their Motion to Compel Entry Upon Murphy’s
Land and Inspection.
PAVECON’S CAMPAIGN OF MISINFORMATION AND FALSE ACCUSATIONS
Pavecon’s Motion to Compel is laden with misinformation and false accusations regarding
Murphy’s alleged misappropriation of Pavecon corporate resources and assets without the
authorization and knowledge of Pavecon. The documentary and testimony evidence in this case
will show that any Pavecon resource and/or asset utilized by Murphy on his personal property was
done so with the knowledge and authorization of Pavecon (by consent and course of dealing based
on that consent) and that Murphy personally paid for the use of such resource and/or asset. Further,
the evidence and testimony will show that on several occasions Murphy was asked by Pavecon’s
crew supervisors, since they were aware that Murphy was making improvements to his personal
real property, if a crew could perform work on Murphy’s property so that Pavecon would not lose
the crew members to other non-Pavecon jobs. Murphy agreed and would then pay for any
materials and labor.
More specifically, Pavecon’s Motion to Compel falsely asserts that Murphy
misappropriated Pavecon’s equipment, materials and personnel to improve his land by (1) erecting
two large steel fences; (2) building roads, driveways and sidewalks throughout the property; (3)
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 3
creating a pad/site and pouring concrete for a garage/barn; (4) constructing a long road extending
from the garage/barn to a driveway; (5) clearing the land of debris, stumps, brush and trees; and
(6) excavating the land to create two ponds and/or lakes.6 These are just their allegations and at
this time there has been no evidence provided in this case to support the entirety of such allegations.
When the evidence comes out it will show at best that Pavecon is incorrect in claiming that the
alleged improvements were created solely using Pavecon related resources and assets. For
example, the records show that Murphy has paid over $35,000 directly to the contract laborers, for
whom Pavecon had no work at the time the Pavecon supervisors came to Murphy to see if they
could work on Murphy’s property to avoid losing the hourly workers. Pavecon was fully aware
of this work by the laborers and the laborers did not charge Pavecon for the work they did on
Murphy’s property. Also, the claim in Pavecon’s Counterclaims that Murphy used in excess of
1200 TONS of asphalt to pave a road at his house is flat wrong. Pavecon knows or should know
because of their contract with the city of Terrell for street paving that Pavecon, because they were
paving streets in Terrell, Texas used in excess of 1100 TONS to pave the Terrell streets under
contract and not used on Murphy’s property. Murphy has similar responses to Pavecon’s claims
of using other Pavecon materials, Pavecon equipment and equipment rented from Pavecon vendors
for such work.
Pavecon’s campaign of misinformation and false accusations is all done in an attempt to
misdirect this litigation away from Murphy’s claims against Pavecon regarding what Pavecon
owes Murphy based on the employment contract and to disguise Pavecon’s original plot, after
forcing a repurchase of Pavecon Holding stock in 2015, to continue to employ Murphy only long
enough for Murphy to use his knowledge, business contacts, skills and abilities in the paving
6
These improvement allegations are more fully described in Defendants Counterclaim, page 13-14.
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 4
business, and his experience with paving projects for governmental entities to build up the profits
in Pavecon Public Works, refuse to pay the bonuses based upon those profits, and to keep
Murphy’s client list,customer information and processes to generate profits in Pavecon Public
Works for its owner, David Walker. During Murphy’s employment, the Public Works part of the
business grew from start-up in 2012 to an approximately $26 million gross annual sales in 2015,
and continued to grow to approximately $48 million in gross annual sales 2016, and $23 million
gross annual sales up through May 2017 when Murphy was terminated. Interestingly, Pavecon
Public Works generated approximately $2.9 million net income in 2016 and Murphy never
received the contracted for bonuses based on same.
ARGUMENTS AND AUTHORITIES
A. The Request for Entry Seeks Irrelevant Information and Provides No Assistance in
Resolving the Issues in the Case.
The purposes for which a person is permitted entry onto the property of an adversary are
limited. 7 Although a request for entry upon land must satisfy the general requirement of relevance,
mere relevance is not sufficient to justify a request for entry upon the property of another.8
Discovery involving entry onto the property of another involves unique burdens and risks.9 Thus,
the trial court should conduct a “greater inquiry into the necessity for the inspection, testing, or
sampling.”10 In conducting such an inquiry, the court must balance the degree to which the
7
In re The Goodyear Tire & Rubber Company, 437 S.W.3d 923, 928 (Tex.App.-Dallas 2014, orig. proceeding)(citing
In re Kimberly–Clark Corp., 228 S.W.3d 480, 487 (Tex.App.-Dallas 2014, original proceeding .).
8
In re The Goodyear Tire, 437 S.W.3d at 928 (citing In re Kimberly–Clark Corp., 228 S.W.3d at 487; Belcher v.
Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir.1978) (rejecting the contention that the requests for entry
onto land are governed by the general relevance standard)).
9
In re The Goodyear Tire, 437 S.W.3d at 928 (citing In re Kimberly–Clark Corp., 228 S.W.3d at 486 (citing Belcher,
588 F.2d at 910).
10
In re The Goodyear Tire, 437 S.W.3d at 928; In re Kimberly–Clark Corp., 228 S.W.3d at 487 (citing Belcher, 588
F.2d at 910).
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 5
proposed inspection will aid in the search for truth against the burdens and dangers created by the
inspection.11
Murphy’s Property made the subject of the Request for Entry is not the subject matter of
the litigation. This is not a dispute over real property, a condemnation action, or even a premises
case. The value of Murphy’s property, improved or not, is not a measure of damages in this case.
This is a commercial dispute involving an employment arrangement between Murphy and
Pavecon. A survey, appraisal and inspection of Murphy’s rural homestead will not aid in
addressing any case issues.
Defendants assert in their Motion to Compel that the inspection, survey and appraisal of
Murphy’s property and improvements are directly relevant to Pavecon’s claim for damages
(specifying disgorgement of profits) and that the evidence they will get from the inspection,
survey and appraisal is relevant in determining the “proper amount of disgorgement profits.” The
only way to get this evidence argues Pavecon is to enter and inspect the land on which the
improvements were made. These arguments are flawed and an inspection, survey and appraisal of
Murphy’s property will not provide evidence for the case.
Pavecon company records including the vendor records, pave site records, invoices, and
contract employee records, etc. will show the value of the assets that they allege Murphy
misappropriated. Pavecon is also in possession of funds received from Murphy to pay for the
allegedly misappropriated company assets. To the extent Pavecon has been damaged, which
Murphy denies, the damages it believes it suffered can be ascertained from documentary evidence
and deposition testimony. There is no need to inspect, survey and appraise Murphy’s property.
This includes any disgorgement claim.
11
In re The Goodyear Tire, 437 S.W.3d at 928; In re Kimberly–Clark Corp., 228 S.W.3d at 486 (citing Belcher, 588
F.2d at 910).
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 6
Inspecting, appraising and surveying Murphy’s property as it exists now will not show
whether or not there was a breach of the contractual issues in the case, show if there was any
breaches of fiduciary duty, or if there were any profits from any alleged misappropriation (there
will be no baseline to compare the survey and appraisal to in order to determine profits).12 Further,
as previously mentioned, the evidence will show that Pavecon is incorrect in claiming that the
alleged improvements they wish to inspect were created solely using Pavecon related resources
and assets. Looking at a fence, road, or pad site offers no relevant information to aid in determining
the outcome of this case, Pavecon’s alleged damages, or Pavecon’s alleged equitable disgorgement
claim.
Defendants’ assertion that they need to inspect, survey and appraise Murphy’s property
and alleged improvements to support their disgorgement claim is nonsensical. Disgorgement is
an equitable forfeiture of benefits wrongfully obtained.13 For example, a person who renders
service to another in a relationship of trust may be denied compensation for his service if he
breaches that trust14 The remedy essentially returns to the principal the value of what it paid for
because it did not receive the trust or loyalty.15 Similarly, disgorgement of profits requires the
fiduciary to yield to the beneficiary the profit or benefit gained during the time of the breach.16
The remedy of equitable disgorgement for a fiduciary’s breach is dependent upon the facts and
circumstances in each case.17
12
See In re Kimberly–Clark, 228 S.W.3d at 489 (noting that proposed environmental testing in 2007 would not prove
whether defendant knew of environmental contamination in 2006 when it entered into contract for sale of property).
13
In re Longview Energy Co., 464 S.W.3d 353, 360 (Tex. 2015).
14
Burrow v. Arce, 997 S.W.2d 229, 237 (Tex.1999).
15
Burrow, 997 S.W.2d at 237–38; McCullough v. Scarbrough, Medlin & Assoc., Inc., 435 S.W.3d 871, 904
(Tex.App.—Dallas 2014, pet. denied).
16
See Swinnea v. ERI Consulting Eng’ rs, Inc., 236 S.W.3d 825, 841 (Tex.App.—Tyler 2007) rev’d on other grounds,
318 S.W.3d 867 (Tex.2010) (“[A] fiduciary must account for, and yield to the beneficiary, any profit he makes as a
result of his breach of fiduciary duty[.]”)
17
See Burrow, 997 S.W.2d at 241–42.
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 7
Pavecon’s Counterclaim prays that the Court enter judgment for, among other remedies,
[d]isgorgement of compensation and any profits and/or gain obtained or procured by Murphy while
he worked for Pavecon and/or as a result of the unlawful actions described above, including but
not limited to salary, cash bonuses, stock bonuses, profit sharing, and the proceeds from the sale
of his Pavecon stock to Pavecon.18 Thus, Pavecon is seeking disgorgement of compensation and
disgorgement of profits/gain. In this case, inspecting, appraising, and surveying Murphy’s
property will not yield any information regarding any gains/benefits to be disgorged. Pavecon
pleads that it is seeking disgorgement of Murphy’s salary, cash bonuses, stock bonuses, profit
sharing, and the proceeds from the sale of his Pavecon stock to Pavecon. Inspecting, surveying,
and appraising Murphy’s property will provide no relevant information regarding the plea for
disgorgement remedy. To obtain the remedy of equitable disgorgement, proof of the fiduciary's
salary, profits, or other income during the time of his breach of fiduciary duty is required, as well
as proof of what he was actually entitled to receive.19 All of this information can be obtained
through documentary evidence and testimony. An inspection, survey and appraisal is not relevant
and will not aid in the resolution of this case.
In an attempt to support the Motion to Compel and to enter Murphy’s property, Pavecon
has asserted that the inspection, survey, and appraisal will assist in determining the proper amount
of disgorgement profits and that these disgorgement profits are to be determined by the increased
value of Murphy’s property from the alleged misappropriated improvements. The increased
value of Murphy’s property based on any alleged improvements, if any, is not a profit to be
18
Defendants’ Counterclaim, Pg. 28.
19
See McCullough, 435 S.W.3d at 904 (trial court signed final judgment for “equitable forfeiture and disgorgement
remedy” based on difference between jury's findings as to amount fiduciary received and amount he was entitled to
receive).
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 8
disgorged. Pavecon’s argument takes a legal measure of damages for tort cases involving real
property and tries to squeeze it into an equitable disgorgement claim for breach of fiduciary duty.
Disgorgement is the return of a benefit/gain/profit. With respect to the Murphy’s property (not the
sold property which is addressed below) there is no benefit, gain or profit to disgorge. The alleged
benefit Murphy received (the evidence will show that Murphy paid for the benefits and that
Pavecon’s allegedly misappropriated assets were not solely used on the improvements) would be
the fence posts (the fence was built by others for Murphy), a driveway (which Murphy paid for
labor and asphalt), a pad site, and areas on the property cleaned of debris. These alleged benefits
could not realistically be disgorged and viewing these alleged benefits does not aid in the resolution
of the parties claims. Further, Murphy has not received a profit (excess of revenue over
expenditures) related to his property20 and inspecting, appraising, and surveying Murphy’s
property will offer no evidence related to the disgorgement claim.
In addition, inspecting, surveying, and appraising Murphy’s property will not provide aid
in determining profits from the property that Murphy allegedly sold. Pavecon’s argument is based
on misinformation, the evidence will show that Murphy sold property to a future Pavecon customer
before any work was performed on the sold property. The work that was performed using Pavecon
resources on the sold property occurred after Murphy sold the property and such work was paid
for by the owners of the property and was paid directly to Pavecon. The new owners of the
property were Pavecon customers under a contract with Pavecon. Additionally, inspecting,
surveying, and appraising Murphy’s property after the sale of a portion of the property (sold
property) will not determine any alleged benefit/profit to be disgorged, if any. Again this
information if it exists will be obtained through documentary evidence and testimony, not by
20
Murphy owned the property before he was employed by Pavecon and he still owns the property.
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 9
looking at Murphy’s property. Additionally, since Murphy is no longer the owner of the sold
property and thus has no authority to allow Defendants to enter the sold property, Defendants
Request for Entry does not cover or have any relationship to the sold property. The Request for
Entry on Murphy’s property will not provide any evidence as to the property that was sold or any
alleged benefit received by Murphy. If there is any benefit that Murphy received that could be
disgorged, the benefit will be determined by documentary evidence and testimony.
Allowing Defendants to enter and inspect Murphy’s property will not aid in the search for
truth regarding this case but will instead burden Murphy’s family, allow Pavecon to invade
Murphy’s private personal property, and support Pavecon’s retaliating, harassing and bullying
practices.21
B. The Request for Entry is Unduly Burdensome and Harassing
The lack of specificity in the Request for Entry creates an undue burden on Murphy. The
Request for Entry seeks an unlimited inspection and surveying of Murphy’s homestead property
by unidentified people. This is Murphy’s private family home. It is not normally open to the
public like a business. It is not the subject of the litigation between Murphy and Pavecon and any
potential tie to this case is based solely on Pavecon’s unsupported allegations. Such request is
unduly burdensome and harassing. In addition, the information concerning Defendants’ claimed
misappropriation of company assets can be obtained in a more convenient, less burdensome and
non-harassing manner. Defendants have recently sent written discovery (responses are not due
until mid-February) nor have any depositions been requested or conducted in this case. Defendants
would be in possession of such company asset information in its company records including the
vendor records, pave site records, invoices, and contract employee records, etc. They are also in
21
In re The Goodyear Tire, 437 S.W.3d at 928; In re Kimberly–Clark Corp., 228 S.W.3d at 486 (citing Belcher, 588
F.2d at 910).
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 10
possession of funds received from Murphy for payment of various invoices belatedly provided to
Murphy. The substantial equivalent of the information relevant to the claims and alleged damages
of Pavecon’ can be obtained through other less intrusive means than inspecting, surveying, and
appraising Murphy’s homestead. Such invasive discovery should only be allowed for good cause
shown and Pavecon has failed to demonstrate good cause or even that the information to be
obtained is relevant or assist in the resolution of this case. The motion to compel should be denied.
C. The Request for Entry is Overbroad, Not Specific, and a Fishing Expedition
Defendants Request for Entry fails to satisfy Texas Rule of Civil Procedure 196.7. The
request is deficient under Texas Rule of Civil Procedure 196.7 because it is not specific regarding
the “time, place, manner, conditions, and scope” and regarding the “means, manner, and
procedure” involved:
“the time, place, manner conditions, and scope of the inspection, and
must specifically describe any desired means, manner, and
procedure for testing or sampling, and the person or persons by
22
whom the inspection, testing, or sampling is to be made.”
The Request for Entry is defective in that:
• It does not state what areas or aspects of the property or improvements will
be surveyed and appraised and how;
• It does not state what areas or aspects of the property or improvements will
be inspected and how;
• It does not state what areas or aspects of the property or improvements will
be photographed;
• It does not identify by name the individuals who will be present during the
inspection or even the total number of people who will be involved; and
• It does not identify the amount of time Pavecon wants to spend on the
property.
The Request for Entry lacks the required specificity/reasonable particularity and seeks to
enter Plaintiffs’ homestead property and wander around with whomever they choose, do whatever
22
Texas Rule of Civil Procedure 196.7.
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 11
they want and stay as long as they want.
Rule 196.7 “does not permit blanket discovery on a skeletal request when confronted with
an objection.” 23 Pavecon’s Request for Entry is a blanket request to enter and inspect anything
and everything on or related to Murphy’s rural homestead property. Pavecon’s counsel has refused
to cooperate and provide any specifics regarding the Request for Entry and has instead opted to
insult and belittle counsel for Murphy. In Belcher v. Bassett Furniture Indus., Inc., 24 the Fourth
Circuit Court described the plaintiffs' motion for entry and inspection in the following manner:
The plaintiffs' motion sought inspection of the five plants whose
operations are in issue. The motion broadly states that the inspection
is to be conducted over a five-day period by a designated expert.
While the expert is identified, his special expertise is not described.
Neither does the motion suggest the areas of inquiry to which his
inspection is to be directed. The expert is to have the right to roam
through the plants, to stop when he chooses, and to make such
inquiries as he deems appropriate of any supervisors or employees
in the plant. He is to be accompanied on his tour by a guide supplied
by the defendant and an entourage consisting of an unspecified
number of plaintiff's attorneys, a paralegal, and two plaintiffs. One
of the defendant's attorneys, if defendant so desires, might be
included in the party. 25
The Fourth Circuit found this to be a deficient request even though the name of the expert was
provided. In this case, Defendants refuse to provide any names of the people seeking entry onto
Murphy’s property much less what the expertise is of the no named individuals. Defendants refuse
to provide the number of individuals they intend to bring and refuse to describe the means and
manner any unidentified surveyor or appraiser may decide to use while on Murphy’s property.
The Court noted that most cases involving on-site inspections concern a given object on the
23
See In re The Goodyear Tire, 437 S.W.3d at 928 (citing In re Kimberly–Clark Corp., 228 S.W.3d at 487 (relying
on Belcher, 588 F.2d at 908)).
24
Belcher, 588 F.2d at 905–06.
25
Belcher, 588 F.2d at 906.
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 12
premises which is the subject matter of the action, as, for example, a particular machine in a
personal injury or patent infringement case.26 Defendants argue in their Motion to Compel that
their Request for Entry is limited to inspecting the improvements on the property and that they
reference these improvements in their Counterclaim Pleading. However, as served the Request
for Entry is not limited it seeks to inspect, survey, and photograph “the property and improvements
thereon.”27 In addition, Defendants Counterclaim Pleading also does not provide a limitation on
the improvements or areas because it has “including but not limited to” language28, thus leaving it
open as to what improvements and areas they wish to inspect. If there is specific areas and
improvements that Defendants seek to inspect, they are required to identify with specificity what
they seek to inspect. To the extent they want to perform surveying or appraisal activities, they
need to identify what they are having appraised and surveyed and the method to be used for the
surveying. In addition, the amount of time they want to spend on the property must be provided.
Further, Defendants should be required to identify who would be performing such inspection and
what means and methods they would use to perform such inspection. This is the Murphy Family
home and if Pavecon was granted entry to the property, which Murphy opposes, then the Court’s
require much more specificity and limitations than is in the Request for Entry.
CONCLUSION
Pavecon’s unsupported allegations in its Counterclaim do not support access to Murphy’s
private property. Murphy’s property is not the subject matter of the litigation and the value of
Murphy’s property, improved or not, is not a measure of damages in this case. This is a
26
See In re Fuljenz's Mktg. Corp., 2006 WL 3026821 at *4–5 (citing Belcher, 588 F.2d at 910 (footnotes omitted).
27
See Exhibit 1-A, Defendants’ Request for Entry Upon Property and Inspection attached to Murphy’s Objections,
Response, and Motion for Protection.
28
See Counterclaim Pleading, Page 12.
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 13
commercial dispute involving an employment arrangement between Murphy and Pavecon. A
survey, appraisal and inspection of Murphy’s property will not aid in addressing any case issues.
For the reasons set forth herein, Murphy asks the Court to deny Defendants’ Motion to
Compel Entry Upon Murphy’s Land.
Respectfully submitted,
CANTEY HANGER LLP
/s/ Charles H. Smith
Charles H. Smith – Attorney in Charge
State Bar No. 18550500
chsmith@canteyhanger.com
1999 Bryan Street, Suite 3300
Dallas, Texas 75201
(214) 740-4200
(214) 978-4140 - Telecopier
David Denny
State Bar No. 00787354
ddenny@canteyhanger.com
1999 Bryan Street, Suite 3300
Dallas, Texas 75201
(214) 740-4200
(214) 978-4140 - Telecopier
Stephanie L. Millett
State Bar No. 00797070
smillett@canteyhanger.com
1999 Bryan Street, Suite 3300
Dallas, Texas 75201
(214) 740-4200
(214) 978-4140 - Telecopier
ATTORNEYS FOR COUNTERCLAIM-
DEFENDANT MARTY MURPHY
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 14
CERTIFICATE OF SERVICE
I hereby certify that, on January 25th, 2018, all counsel of record were served with this
instrument through the Court’s electronic filing system.
/s/ Charles H. Smith
Charles H. Smith
MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 15
Preview
FILED DALLAS COUNTY 1/25/2018 3:06 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-17-10592 MARTY MURPHY, § IN THE DISTRICT COURT § Plaintiff and Counterclaim- § Defendant § § § § v. § § PAVECON HOLDING CO., INC., § PAVECON LTD. CO., AND § 192nd JUDICIAL DISTRICT PAVECON PUBLIC WORKS LP, § § Defendants and Counterclaim- § Plaintiffs, § § v. § § STEPHANIE THOMPSON § § Counterclaim-Defendant § DALLAS COUNTY, TEXAS PLAINTIFF AND COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL PLAINTIFF AND COUNTERCLAIM-DEFENDANT MARTY MURPHY (hereinafter “Murphy”), asks the Court to deny Defendants’ Motion to Compel Entry Upon Murphy’s Land and Inspection (“Motion”). INTRODUCTION Plaintiff and Counterclaim-Defendant is Marty Murphy; Defendants and Counterclaim- Plaintiffs are Pavecon Holding Co., Inc.; Pavecon Ltd. Co.; and Pavecon Public Works LP (“Pavecon” or “Defendants”). Murphy filed his original petition on August 23, 2017. Pavecon’s original answer was filed on October 2, 2017. Pavecon filed and served its’ original counterclaim on November 7, 2017 against Murphy and joined Counterclaim Defendant Stephanie Johnson. MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 1 This case involves claims for breach of contract, breach of fiduciary duty, fraud, conversion, quantum meruit, unjust enrichment, and assumpit based on an employment relationship between Murphy and Pavecon. BACKGROUND On November 9, 2017, Pavecon served its Request for Entry Upon [Murphy’s] Property and Inspection.1 Pavecon’s Request for Entry asks that Murphy allow Pavecon’s counsel, one or more Pavecon employees, a land surveying crew, and a real estate appraiser to enter and inspect, survey and photograph the “property and improvements” located at 9302 County Road 2426, Terrell Texas 75160 (the “Property”) on December 21, 2017 commencing at 10:00am. 2 The Property is the residence and rural homestead of Murphy and his family.3 On November 20, 2017, Counsel for Murphy sent a letter to Pavecon’s counsel raising several issues with the Request for Entry including the lack of specificity of the request and relevancy issues.4 In response to Counsel for Murphy’s raised issues and request for additional information, Counsel for Pavecon, Mr. Arnett, provided an abrasive and insulting letter informing Counsel for Murphy he was wrong about the specificity requirements, questioning Counsel for Murphy’s “powers of comprehension” and stating that it was not worth Mr. Arnett’s time explaining or answering any of the raised issues.5 1 See Exhibit 1-A, Defendants’ Request for Entry Upon Property and Inspection attached to Murphy’s Objections, Response, and Motion for Protection. 2 See Id. 3 See Exhibit 2, Affidavit of Marty Murphy attached to Murphy’s Objections, Response, and Motion for Protection. 4 See Exhibit 1-B, November 20, 2017 correspondence from Charles H. Smith attached to Murphy’s Objections, Response, and Motion for Protection. 5 See Exhibit 1-C, November 21, 2017 correspondence from J. Robert Arnett II attached to Murphy’s Objections, Response, and Motion for Protection. MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 2 On December 8, 2017, Murphy filed Plaintiff and Counter-Claim Defendant’s Objections, Response and Motion for Protection for Defendants’ Request for Entry Upon Property and Inspection (“Motion for Protection”). The Motion for Protection included the affidavit of Charles H. Smith as Exhibit 1 and the affidavit of Marty Murphy as Exhibit 2 to establish facts not apparent from the record. Murphy incorporates the Motion for Protection and Exhibits herein by reference as if set for in full. On December 15, 2017, Defendants filed their Motion to Compel Entry Upon Murphy’s Land and Inspection. PAVECON’S CAMPAIGN OF MISINFORMATION AND FALSE ACCUSATIONS Pavecon’s Motion to Compel is laden with misinformation and false accusations regarding Murphy’s alleged misappropriation of Pavecon corporate resources and assets without the authorization and knowledge of Pavecon. The documentary and testimony evidence in this case will show that any Pavecon resource and/or asset utilized by Murphy on his personal property was done so with the knowledge and authorization of Pavecon (by consent and course of dealing based on that consent) and that Murphy personally paid for the use of such resource and/or asset. Further, the evidence and testimony will show that on several occasions Murphy was asked by Pavecon’s crew supervisors, since they were aware that Murphy was making improvements to his personal real property, if a crew could perform work on Murphy’s property so that Pavecon would not lose the crew members to other non-Pavecon jobs. Murphy agreed and would then pay for any materials and labor. More specifically, Pavecon’s Motion to Compel falsely asserts that Murphy misappropriated Pavecon’s equipment, materials and personnel to improve his land by (1) erecting two large steel fences; (2) building roads, driveways and sidewalks throughout the property; (3) MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 3 creating a pad/site and pouring concrete for a garage/barn; (4) constructing a long road extending from the garage/barn to a driveway; (5) clearing the land of debris, stumps, brush and trees; and (6) excavating the land to create two ponds and/or lakes.6 These are just their allegations and at this time there has been no evidence provided in this case to support the entirety of such allegations. When the evidence comes out it will show at best that Pavecon is incorrect in claiming that the alleged improvements were created solely using Pavecon related resources and assets. For example, the records show that Murphy has paid over $35,000 directly to the contract laborers, for whom Pavecon had no work at the time the Pavecon supervisors came to Murphy to see if they could work on Murphy’s property to avoid losing the hourly workers. Pavecon was fully aware of this work by the laborers and the laborers did not charge Pavecon for the work they did on Murphy’s property. Also, the claim in Pavecon’s Counterclaims that Murphy used in excess of 1200 TONS of asphalt to pave a road at his house is flat wrong. Pavecon knows or should know because of their contract with the city of Terrell for street paving that Pavecon, because they were paving streets in Terrell, Texas used in excess of 1100 TONS to pave the Terrell streets under contract and not used on Murphy’s property. Murphy has similar responses to Pavecon’s claims of using other Pavecon materials, Pavecon equipment and equipment rented from Pavecon vendors for such work. Pavecon’s campaign of misinformation and false accusations is all done in an attempt to misdirect this litigation away from Murphy’s claims against Pavecon regarding what Pavecon owes Murphy based on the employment contract and to disguise Pavecon’s original plot, after forcing a repurchase of Pavecon Holding stock in 2015, to continue to employ Murphy only long enough for Murphy to use his knowledge, business contacts, skills and abilities in the paving 6 These improvement allegations are more fully described in Defendants Counterclaim, page 13-14. MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 4 business, and his experience with paving projects for governmental entities to build up the profits in Pavecon Public Works, refuse to pay the bonuses based upon those profits, and to keep Murphy’s client list,customer information and processes to generate profits in Pavecon Public Works for its owner, David Walker. During Murphy’s employment, the Public Works part of the business grew from start-up in 2012 to an approximately $26 million gross annual sales in 2015, and continued to grow to approximately $48 million in gross annual sales 2016, and $23 million gross annual sales up through May 2017 when Murphy was terminated. Interestingly, Pavecon Public Works generated approximately $2.9 million net income in 2016 and Murphy never received the contracted for bonuses based on same. ARGUMENTS AND AUTHORITIES A. The Request for Entry Seeks Irrelevant Information and Provides No Assistance in Resolving the Issues in the Case. The purposes for which a person is permitted entry onto the property of an adversary are limited. 7 Although a request for entry upon land must satisfy the general requirement of relevance, mere relevance is not sufficient to justify a request for entry upon the property of another.8 Discovery involving entry onto the property of another involves unique burdens and risks.9 Thus, the trial court should conduct a “greater inquiry into the necessity for the inspection, testing, or sampling.”10 In conducting such an inquiry, the court must balance the degree to which the 7 In re The Goodyear Tire & Rubber Company, 437 S.W.3d 923, 928 (Tex.App.-Dallas 2014, orig. proceeding)(citing In re Kimberly–Clark Corp., 228 S.W.3d 480, 487 (Tex.App.-Dallas 2014, original proceeding .). 8 In re The Goodyear Tire, 437 S.W.3d at 928 (citing In re Kimberly–Clark Corp., 228 S.W.3d at 487; Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir.1978) (rejecting the contention that the requests for entry onto land are governed by the general relevance standard)). 9 In re The Goodyear Tire, 437 S.W.3d at 928 (citing In re Kimberly–Clark Corp., 228 S.W.3d at 486 (citing Belcher, 588 F.2d at 910). 10 In re The Goodyear Tire, 437 S.W.3d at 928; In re Kimberly–Clark Corp., 228 S.W.3d at 487 (citing Belcher, 588 F.2d at 910). MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 5 proposed inspection will aid in the search for truth against the burdens and dangers created by the inspection.11 Murphy’s Property made the subject of the Request for Entry is not the subject matter of the litigation. This is not a dispute over real property, a condemnation action, or even a premises case. The value of Murphy’s property, improved or not, is not a measure of damages in this case. This is a commercial dispute involving an employment arrangement between Murphy and Pavecon. A survey, appraisal and inspection of Murphy’s rural homestead will not aid in addressing any case issues. Defendants assert in their Motion to Compel that the inspection, survey and appraisal of Murphy’s property and improvements are directly relevant to Pavecon’s claim for damages (specifying disgorgement of profits) and that the evidence they will get from the inspection, survey and appraisal is relevant in determining the “proper amount of disgorgement profits.” The only way to get this evidence argues Pavecon is to enter and inspect the land on which the improvements were made. These arguments are flawed and an inspection, survey and appraisal of Murphy’s property will not provide evidence for the case. Pavecon company records including the vendor records, pave site records, invoices, and contract employee records, etc. will show the value of the assets that they allege Murphy misappropriated. Pavecon is also in possession of funds received from Murphy to pay for the allegedly misappropriated company assets. To the extent Pavecon has been damaged, which Murphy denies, the damages it believes it suffered can be ascertained from documentary evidence and deposition testimony. There is no need to inspect, survey and appraise Murphy’s property. This includes any disgorgement claim. 11 In re The Goodyear Tire, 437 S.W.3d at 928; In re Kimberly–Clark Corp., 228 S.W.3d at 486 (citing Belcher, 588 F.2d at 910). MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 6 Inspecting, appraising and surveying Murphy’s property as it exists now will not show whether or not there was a breach of the contractual issues in the case, show if there was any breaches of fiduciary duty, or if there were any profits from any alleged misappropriation (there will be no baseline to compare the survey and appraisal to in order to determine profits).12 Further, as previously mentioned, the evidence will show that Pavecon is incorrect in claiming that the alleged improvements they wish to inspect were created solely using Pavecon related resources and assets. Looking at a fence, road, or pad site offers no relevant information to aid in determining the outcome of this case, Pavecon’s alleged damages, or Pavecon’s alleged equitable disgorgement claim. Defendants’ assertion that they need to inspect, survey and appraise Murphy’s property and alleged improvements to support their disgorgement claim is nonsensical. Disgorgement is an equitable forfeiture of benefits wrongfully obtained.13 For example, a person who renders service to another in a relationship of trust may be denied compensation for his service if he breaches that trust14 The remedy essentially returns to the principal the value of what it paid for because it did not receive the trust or loyalty.15 Similarly, disgorgement of profits requires the fiduciary to yield to the beneficiary the profit or benefit gained during the time of the breach.16 The remedy of equitable disgorgement for a fiduciary’s breach is dependent upon the facts and circumstances in each case.17 12 See In re Kimberly–Clark, 228 S.W.3d at 489 (noting that proposed environmental testing in 2007 would not prove whether defendant knew of environmental contamination in 2006 when it entered into contract for sale of property). 13 In re Longview Energy Co., 464 S.W.3d 353, 360 (Tex. 2015). 14 Burrow v. Arce, 997 S.W.2d 229, 237 (Tex.1999). 15 Burrow, 997 S.W.2d at 237–38; McCullough v. Scarbrough, Medlin & Assoc., Inc., 435 S.W.3d 871, 904 (Tex.App.—Dallas 2014, pet. denied). 16 See Swinnea v. ERI Consulting Eng’ rs, Inc., 236 S.W.3d 825, 841 (Tex.App.—Tyler 2007) rev’d on other grounds, 318 S.W.3d 867 (Tex.2010) (“[A] fiduciary must account for, and yield to the beneficiary, any profit he makes as a result of his breach of fiduciary duty[.]”) 17 See Burrow, 997 S.W.2d at 241–42. MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 7 Pavecon’s Counterclaim prays that the Court enter judgment for, among other remedies, [d]isgorgement of compensation and any profits and/or gain obtained or procured by Murphy while he worked for Pavecon and/or as a result of the unlawful actions described above, including but not limited to salary, cash bonuses, stock bonuses, profit sharing, and the proceeds from the sale of his Pavecon stock to Pavecon.18 Thus, Pavecon is seeking disgorgement of compensation and disgorgement of profits/gain. In this case, inspecting, appraising, and surveying Murphy’s property will not yield any information regarding any gains/benefits to be disgorged. Pavecon pleads that it is seeking disgorgement of Murphy’s salary, cash bonuses, stock bonuses, profit sharing, and the proceeds from the sale of his Pavecon stock to Pavecon. Inspecting, surveying, and appraising Murphy’s property will provide no relevant information regarding the plea for disgorgement remedy. To obtain the remedy of equitable disgorgement, proof of the fiduciary's salary, profits, or other income during the time of his breach of fiduciary duty is required, as well as proof of what he was actually entitled to receive.19 All of this information can be obtained through documentary evidence and testimony. An inspection, survey and appraisal is not relevant and will not aid in the resolution of this case. In an attempt to support the Motion to Compel and to enter Murphy’s property, Pavecon has asserted that the inspection, survey, and appraisal will assist in determining the proper amount of disgorgement profits and that these disgorgement profits are to be determined by the increased value of Murphy’s property from the alleged misappropriated improvements. The increased value of Murphy’s property based on any alleged improvements, if any, is not a profit to be 18 Defendants’ Counterclaim, Pg. 28. 19 See McCullough, 435 S.W.3d at 904 (trial court signed final judgment for “equitable forfeiture and disgorgement remedy” based on difference between jury's findings as to amount fiduciary received and amount he was entitled to receive). MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 8 disgorged. Pavecon’s argument takes a legal measure of damages for tort cases involving real property and tries to squeeze it into an equitable disgorgement claim for breach of fiduciary duty. Disgorgement is the return of a benefit/gain/profit. With respect to the Murphy’s property (not the sold property which is addressed below) there is no benefit, gain or profit to disgorge. The alleged benefit Murphy received (the evidence will show that Murphy paid for the benefits and that Pavecon’s allegedly misappropriated assets were not solely used on the improvements) would be the fence posts (the fence was built by others for Murphy), a driveway (which Murphy paid for labor and asphalt), a pad site, and areas on the property cleaned of debris. These alleged benefits could not realistically be disgorged and viewing these alleged benefits does not aid in the resolution of the parties claims. Further, Murphy has not received a profit (excess of revenue over expenditures) related to his property20 and inspecting, appraising, and surveying Murphy’s property will offer no evidence related to the disgorgement claim. In addition, inspecting, surveying, and appraising Murphy’s property will not provide aid in determining profits from the property that Murphy allegedly sold. Pavecon’s argument is based on misinformation, the evidence will show that Murphy sold property to a future Pavecon customer before any work was performed on the sold property. The work that was performed using Pavecon resources on the sold property occurred after Murphy sold the property and such work was paid for by the owners of the property and was paid directly to Pavecon. The new owners of the property were Pavecon customers under a contract with Pavecon. Additionally, inspecting, surveying, and appraising Murphy’s property after the sale of a portion of the property (sold property) will not determine any alleged benefit/profit to be disgorged, if any. Again this information if it exists will be obtained through documentary evidence and testimony, not by 20 Murphy owned the property before he was employed by Pavecon and he still owns the property. MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 9 looking at Murphy’s property. Additionally, since Murphy is no longer the owner of the sold property and thus has no authority to allow Defendants to enter the sold property, Defendants Request for Entry does not cover or have any relationship to the sold property. The Request for Entry on Murphy’s property will not provide any evidence as to the property that was sold or any alleged benefit received by Murphy. If there is any benefit that Murphy received that could be disgorged, the benefit will be determined by documentary evidence and testimony. Allowing Defendants to enter and inspect Murphy’s property will not aid in the search for truth regarding this case but will instead burden Murphy’s family, allow Pavecon to invade Murphy’s private personal property, and support Pavecon’s retaliating, harassing and bullying practices.21 B. The Request for Entry is Unduly Burdensome and Harassing The lack of specificity in the Request for Entry creates an undue burden on Murphy. The Request for Entry seeks an unlimited inspection and surveying of Murphy’s homestead property by unidentified people. This is Murphy’s private family home. It is not normally open to the public like a business. It is not the subject of the litigation between Murphy and Pavecon and any potential tie to this case is based solely on Pavecon’s unsupported allegations. Such request is unduly burdensome and harassing. In addition, the information concerning Defendants’ claimed misappropriation of company assets can be obtained in a more convenient, less burdensome and non-harassing manner. Defendants have recently sent written discovery (responses are not due until mid-February) nor have any depositions been requested or conducted in this case. Defendants would be in possession of such company asset information in its company records including the vendor records, pave site records, invoices, and contract employee records, etc. They are also in 21 In re The Goodyear Tire, 437 S.W.3d at 928; In re Kimberly–Clark Corp., 228 S.W.3d at 486 (citing Belcher, 588 F.2d at 910). MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 10 possession of funds received from Murphy for payment of various invoices belatedly provided to Murphy. The substantial equivalent of the information relevant to the claims and alleged damages of Pavecon’ can be obtained through other less intrusive means than inspecting, surveying, and appraising Murphy’s homestead. Such invasive discovery should only be allowed for good cause shown and Pavecon has failed to demonstrate good cause or even that the information to be obtained is relevant or assist in the resolution of this case. The motion to compel should be denied. C. The Request for Entry is Overbroad, Not Specific, and a Fishing Expedition Defendants Request for Entry fails to satisfy Texas Rule of Civil Procedure 196.7. The request is deficient under Texas Rule of Civil Procedure 196.7 because it is not specific regarding the “time, place, manner, conditions, and scope” and regarding the “means, manner, and procedure” involved: “the time, place, manner conditions, and scope of the inspection, and must specifically describe any desired means, manner, and procedure for testing or sampling, and the person or persons by 22 whom the inspection, testing, or sampling is to be made.” The Request for Entry is defective in that: • It does not state what areas or aspects of the property or improvements will be surveyed and appraised and how; • It does not state what areas or aspects of the property or improvements will be inspected and how; • It does not state what areas or aspects of the property or improvements will be photographed; • It does not identify by name the individuals who will be present during the inspection or even the total number of people who will be involved; and • It does not identify the amount of time Pavecon wants to spend on the property. The Request for Entry lacks the required specificity/reasonable particularity and seeks to enter Plaintiffs’ homestead property and wander around with whomever they choose, do whatever 22 Texas Rule of Civil Procedure 196.7. MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 11 they want and stay as long as they want. Rule 196.7 “does not permit blanket discovery on a skeletal request when confronted with an objection.” 23 Pavecon’s Request for Entry is a blanket request to enter and inspect anything and everything on or related to Murphy’s rural homestead property. Pavecon’s counsel has refused to cooperate and provide any specifics regarding the Request for Entry and has instead opted to insult and belittle counsel for Murphy. In Belcher v. Bassett Furniture Indus., Inc., 24 the Fourth Circuit Court described the plaintiffs' motion for entry and inspection in the following manner: The plaintiffs' motion sought inspection of the five plants whose operations are in issue. The motion broadly states that the inspection is to be conducted over a five-day period by a designated expert. While the expert is identified, his special expertise is not described. Neither does the motion suggest the areas of inquiry to which his inspection is to be directed. The expert is to have the right to roam through the plants, to stop when he chooses, and to make such inquiries as he deems appropriate of any supervisors or employees in the plant. He is to be accompanied on his tour by a guide supplied by the defendant and an entourage consisting of an unspecified number of plaintiff's attorneys, a paralegal, and two plaintiffs. One of the defendant's attorneys, if defendant so desires, might be included in the party. 25 The Fourth Circuit found this to be a deficient request even though the name of the expert was provided. In this case, Defendants refuse to provide any names of the people seeking entry onto Murphy’s property much less what the expertise is of the no named individuals. Defendants refuse to provide the number of individuals they intend to bring and refuse to describe the means and manner any unidentified surveyor or appraiser may decide to use while on Murphy’s property. The Court noted that most cases involving on-site inspections concern a given object on the 23 See In re The Goodyear Tire, 437 S.W.3d at 928 (citing In re Kimberly–Clark Corp., 228 S.W.3d at 487 (relying on Belcher, 588 F.2d at 908)). 24 Belcher, 588 F.2d at 905–06. 25 Belcher, 588 F.2d at 906. MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 12 premises which is the subject matter of the action, as, for example, a particular machine in a personal injury or patent infringement case.26 Defendants argue in their Motion to Compel that their Request for Entry is limited to inspecting the improvements on the property and that they reference these improvements in their Counterclaim Pleading. However, as served the Request for Entry is not limited it seeks to inspect, survey, and photograph “the property and improvements thereon.”27 In addition, Defendants Counterclaim Pleading also does not provide a limitation on the improvements or areas because it has “including but not limited to” language28, thus leaving it open as to what improvements and areas they wish to inspect. If there is specific areas and improvements that Defendants seek to inspect, they are required to identify with specificity what they seek to inspect. To the extent they want to perform surveying or appraisal activities, they need to identify what they are having appraised and surveyed and the method to be used for the surveying. In addition, the amount of time they want to spend on the property must be provided. Further, Defendants should be required to identify who would be performing such inspection and what means and methods they would use to perform such inspection. This is the Murphy Family home and if Pavecon was granted entry to the property, which Murphy opposes, then the Court’s require much more specificity and limitations than is in the Request for Entry. CONCLUSION Pavecon’s unsupported allegations in its Counterclaim do not support access to Murphy’s private property. Murphy’s property is not the subject matter of the litigation and the value of Murphy’s property, improved or not, is not a measure of damages in this case. This is a 26 See In re Fuljenz's Mktg. Corp., 2006 WL 3026821 at *4–5 (citing Belcher, 588 F.2d at 910 (footnotes omitted). 27 See Exhibit 1-A, Defendants’ Request for Entry Upon Property and Inspection attached to Murphy’s Objections, Response, and Motion for Protection. 28 See Counterclaim Pleading, Page 12. MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 13 commercial dispute involving an employment arrangement between Murphy and Pavecon. A survey, appraisal and inspection of Murphy’s property will not aid in addressing any case issues. For the reasons set forth herein, Murphy asks the Court to deny Defendants’ Motion to Compel Entry Upon Murphy’s Land. Respectfully submitted, CANTEY HANGER LLP /s/ Charles H. Smith Charles H. Smith – Attorney in Charge State Bar No. 18550500 chsmith@canteyhanger.com 1999 Bryan Street, Suite 3300 Dallas, Texas 75201 (214) 740-4200 (214) 978-4140 - Telecopier David Denny State Bar No. 00787354 ddenny@canteyhanger.com 1999 Bryan Street, Suite 3300 Dallas, Texas 75201 (214) 740-4200 (214) 978-4140 - Telecopier Stephanie L. Millett State Bar No. 00797070 smillett@canteyhanger.com 1999 Bryan Street, Suite 3300 Dallas, Texas 75201 (214) 740-4200 (214) 978-4140 - Telecopier ATTORNEYS FOR COUNTERCLAIM- DEFENDANT MARTY MURPHY MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 14 CERTIFICATE OF SERVICE I hereby certify that, on January 25th, 2018, all counsel of record were served with this instrument through the Court’s electronic filing system. /s/ Charles H. Smith Charles H. Smith MURPHY’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL Page 15