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FILED
DALLAS COUNTY
7/30/2018 2:01 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. et §
al., §
§ 192nd JUDICIAL DISTRICT
Defendants and §
Counterclaim-Plaintiffs, §
§
v. §
§
STEPHANIE THOMPSON, §
§
Additional Counterclaim- §
Defendant. § DALLAS COUNTY, TEXAS
DEFENDANTS’ APPEAL OF ASSOCIATE JUDGE’S
DECISION AND REQUEST FOR DE NOVO
HEARING ON PLAINTIFF’S MOTION TO COMPEL
Defendants Pavecon Holding Co., Inc., Pavecon Ltd. Co., and Pavecon Public
Works LP file this Notice of Appeal of Associate Judge’s Decision of July 24, 2018,
and Request for De Novo Hearing on Plaintiff’s Motion to Compel pursuant to
Sections 54A.111 and 54A.115 of the Texas Government Code, and in support of same
would respectfully show unto the Court as follows:
Attached hereto as Exhibit “A” is a true and correct copy of Associate Judge
Sheryl Day McFarlin’s decision in this cause. Defendants desire to appeal Associate
Judge McFarlin’s decision which granted Plaintiff’s Motion to Compel Discovery in
its entirety. The Associate Judge’s order did not provide any analysis or discussion
of the categories of documents that were the subject of the motion to compel, nor did
the Associate Judge’s oral ruling provide any reasons for ruling on the specific
categories (i.e., request numbers 25, 26, 50, 54, 55, 74, 75, 76, 77, 78, 79, 80, 81, 82,
DEFENDANTS’ APPEAL OF ASSOCIATE JUDGE’S DECISION AND PAGE 1
REQUEST FOR DE NOVO HEARING ON PLAINTIFF’S MOTION TO COMPEL
83, 84, 85, 89, 90, and 108). The Associate Judge erred in so ruling for multiple
reasons, including:
1. Pavecon has already produced the financial documents relevant and
necessary to calculating Murphy’s alleged damages. Accordingly, Murphy’s demands
for virtually all of Pavecon’s financial records are overly broad, seek documents that
are not relevant, and seek the unnecessary disclosure of confidential information.
2. Murphy’s demands for extensive financial and corporate records
predicated on his claim to be an equity owner are based on a claim that is legally
wrong because Murphy admittedly refused to sign partnership agreements and
limited liability company agreements he was required to sign in order to become a
partner or a member and the factors necessary to proving Murphy is a partner or
member do not exist. Murphy is required to prevail on his claim for an accounting
(Second Amended Petition, pp. 25-28) before he would be entitled to such broad
disclosure of confidential company information.
3. Murphy has released all claims against Defendants that existed as of
December 20, 2016, and his demands for financial and corporate documents predating
the effective date of his release seek irrelevant documents.
4. Murphy is not entitled to federal income tax returns and other tax
documents because Murphy has not proven that the relevant information (if any) in
the tax documents is not available elsewhere. Indeed, Murphy has not proven that
tax returns and other tax documents are even relevant to his claims.
DEFENDANTS’ APPEAL OF ASSOCIATE JUDGE’S DECISION AND PAGE 2
REQUEST FOR DE NOVO HEARING ON PLAINTIFF’S MOTION TO COMPEL
5. Murphy’s demands for confidential company records, financials and tax
records of Pavecon entities not party to this action that have no bearing on the claims
or defenses at issue in this action are overbroad, harassing, and irrelevant.
6. Murphy’s demands for production of internal corporate documents (e.g.,
organizational minutes, initial meeting of shareholder and directors, and minute
books including annual meetings, shareholder certificates, shareholder meeting
minutes, and director meeting minutes) are overly broad, seek information that has
no bearing on the claims or defenses in this action, are unduly burdensome, and
constitute an impermissible fishing expedition.
7. Murphy’s demands for all documents relating to all work for
municipalities and other governmental entities prior to Murphy’s employment (a 20-
year period) seek irrelevant material, are overly broad and unduly burdensome, and
constitute an impermissible fishing expedition.
WHEREFORE PREMISES CONSIDERED, Defendants pray that this appeal
be granted and upon de novo hearing that the Order granting Plaintiff’s Motion to
Compel Discovery be vacated and Plaintiff’s Motion to Compel be denied, and for such
other and further relief to which Defendants may be entitled.
Date: July 30, 2018 Respectfully submitted,
/s/J. Robert Arnett II
J. Robert Arnett II
Texas Bar No. 01332900
barnett@carterarnett.com
Stacey Cho Hernandez
Texas Bar No. 24063953
shernandez@carterarnett.com
CARTER ARNETT PLLC
8150 N. Central Expressway, Suite
500
DEFENDANTS’ APPEAL OF ASSOCIATE JUDGE’S DECISION AND PAGE 3
REQUEST FOR DE NOVO HEARING ON PLAINTIFF’S MOTION TO COMPEL
Dallas, Texas 75206
Telephone: (214) 550-8188
Facsimile: (214) 550-8185
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that, on July 30, 2018, all counsel of record were served with
this motion through the Court’s electronic filing system.
/s/ J. Robert Arnett II
J. Robert Arnett II
DEFENDANTS’ APPEAL OF ASSOCIATE JUDGE’S DECISION AND PAGE 4
REQUEST FOR DE NOVO HEARING ON PLAINTIFF’S MOTION TO COMPEL
CAUSE N0. NO. DC-l
DC-17-10592
7-1 0592
A
MARTY
MARTY MURPHY,
MURPHY, § IN THE
IN THE DISTRICT
DISTRICT COURTCOURT
§
Plllint(ff
Plaintiff lint!
am] Cou11terclllim-
Counterclaim- §
D~fe11dl111t
Defendant §
§
§
§
v.
V. §
§
PAVECON HOLDING
PAVECON HOLDING CO., CO., INC.,
INC., §
PAVECON LTD.
PAVECON LTD. CO.,
C0., AND § 192"
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FILED DALLAS COUNTY 7/30/2018 2:01 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. et § al., § § 192nd JUDICIAL DISTRICT Defendants and § Counterclaim-Plaintiffs, § § v. § § STEPHANIE THOMPSON, § § Additional Counterclaim- § Defendant. § DALLAS COUNTY, TEXAS DEFENDANTS’ APPEAL OF ASSOCIATE JUDGE’S DECISION AND REQUEST FOR DE NOVO HEARING ON PLAINTIFF’S MOTION TO COMPEL Defendants Pavecon Holding Co., Inc., Pavecon Ltd. Co., and Pavecon Public Works LP file this Notice of Appeal of Associate Judge’s Decision of July 24, 2018, and Request for De Novo Hearing on Plaintiff’s Motion to Compel pursuant to Sections 54A.111 and 54A.115 of the Texas Government Code, and in support of same would respectfully show unto the Court as follows: Attached hereto as Exhibit “A” is a true and correct copy of Associate Judge Sheryl Day McFarlin’s decision in this cause. Defendants desire to appeal Associate Judge McFarlin’s decision which granted Plaintiff’s Motion to Compel Discovery in its entirety. The Associate Judge’s order did not provide any analysis or discussion of the categories of documents that were the subject of the motion to compel, nor did the Associate Judge’s oral ruling provide any reasons for ruling on the specific categories (i.e., request numbers 25, 26, 50, 54, 55, 74, 75, 76, 77, 78, 79, 80, 81, 82, DEFENDANTS’ APPEAL OF ASSOCIATE JUDGE’S DECISION AND PAGE 1 REQUEST FOR DE NOVO HEARING ON PLAINTIFF’S MOTION TO COMPEL 83, 84, 85, 89, 90, and 108). The Associate Judge erred in so ruling for multiple reasons, including: 1. Pavecon has already produced the financial documents relevant and necessary to calculating Murphy’s alleged damages. Accordingly, Murphy’s demands for virtually all of Pavecon’s financial records are overly broad, seek documents that are not relevant, and seek the unnecessary disclosure of confidential information. 2. Murphy’s demands for extensive financial and corporate records predicated on his claim to be an equity owner are based on a claim that is legally wrong because Murphy admittedly refused to sign partnership agreements and limited liability company agreements he was required to sign in order to become a partner or a member and the factors necessary to proving Murphy is a partner or member do not exist. Murphy is required to prevail on his claim for an accounting (Second Amended Petition, pp. 25-28) before he would be entitled to such broad disclosure of confidential company information. 3. Murphy has released all claims against Defendants that existed as of December 20, 2016, and his demands for financial and corporate documents predating the effective date of his release seek irrelevant documents. 4. Murphy is not entitled to federal income tax returns and other tax documents because Murphy has not proven that the relevant information (if any) in the tax documents is not available elsewhere. Indeed, Murphy has not proven that tax returns and other tax documents are even relevant to his claims. DEFENDANTS’ APPEAL OF ASSOCIATE JUDGE’S DECISION AND PAGE 2 REQUEST FOR DE NOVO HEARING ON PLAINTIFF’S MOTION TO COMPEL 5. Murphy’s demands for confidential company records, financials and tax records of Pavecon entities not party to this action that have no bearing on the claims or defenses at issue in this action are overbroad, harassing, and irrelevant. 6. Murphy’s demands for production of internal corporate documents (e.g., organizational minutes, initial meeting of shareholder and directors, and minute books including annual meetings, shareholder certificates, shareholder meeting minutes, and director meeting minutes) are overly broad, seek information that has no bearing on the claims or defenses in this action, are unduly burdensome, and constitute an impermissible fishing expedition. 7. Murphy’s demands for all documents relating to all work for municipalities and other governmental entities prior to Murphy’s employment (a 20- year period) seek irrelevant material, are overly broad and unduly burdensome, and constitute an impermissible fishing expedition. WHEREFORE PREMISES CONSIDERED, Defendants pray that this appeal be granted and upon de novo hearing that the Order granting Plaintiff’s Motion to Compel Discovery be vacated and Plaintiff’s Motion to Compel be denied, and for such other and further relief to which Defendants may be entitled. Date: July 30, 2018 Respectfully submitted, /s/J. Robert Arnett II J. Robert Arnett II Texas Bar No. 01332900 barnett@carterarnett.com Stacey Cho Hernandez Texas Bar No. 24063953 shernandez@carterarnett.com CARTER ARNETT PLLC 8150 N. Central Expressway, Suite 500 DEFENDANTS’ APPEAL OF ASSOCIATE JUDGE’S DECISION AND PAGE 3 REQUEST FOR DE NOVO HEARING ON PLAINTIFF’S MOTION TO COMPEL Dallas, Texas 75206 Telephone: (214) 550-8188 Facsimile: (214) 550-8185 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that, on July 30, 2018, all counsel of record were served with this motion through the Court’s electronic filing system. /s/ J. Robert Arnett II J. Robert Arnett II DEFENDANTS’ APPEAL OF ASSOCIATE JUDGE’S DECISION AND PAGE 4 REQUEST FOR DE NOVO HEARING ON PLAINTIFF’S MOTION TO COMPEL CAUSE N0. NO. DC-l DC-17-10592 7-1 0592 A MARTY MARTY MURPHY, MURPHY, § IN THE IN THE DISTRICT DISTRICT COURTCOURT § Plllint(ff Plaintiff lint! am] Cou11terclllim- Counterclaim- § D~fe11dl111t Defendant § § § § v. V. § § PAVECON HOLDING PAVECON HOLDING CO., CO., INC., INC., § PAVECON LTD. PAVECON LTD. CO., C0., AND § 192"