Preview
FILED
DALLAS COUNTY
9/16/2019 4:58PM
FELICIA PITRE
DISTRICT CLERK
Cassandra Walker
CAUSE N0. DC-17-10592
MARTY MURPHY, IN THE DISTRICT COURT
Plaintiffand Counterclaim-
Defendant
V. 192““ JUDICIAL DISTRICT
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PAVECON HOLDING CO., INC.,
PAVECON LTD. CO.,
PAVECON PUBLIC WORKS LP,
PAVECON PUBLIC WORKS GP LLC,
LABCON, INC., DAVID WALKER,
Defendants and Counterclaim-
Plaintiffs. DALLAS COUNTY, TEXAS
MARTY MURPHY’S MOTION IN LIMINE
In accordance with the Amended Agreed Level Three Docket Control Order and Rule 11
Agreements, Marty Murphy, Plaintiff and Counterclaim-Defendant (“Murphy”) in the above-
entitled and numbered action, moves the Court t0 enter an order prior to the voir dire examination
of the jury panel, that opposing counsel, and any and all witnesses called on behalf of opposing
parties, be instructed to refrain from any mention, directly 0r indirectly the matters set forth herein.
The failure to enter such an order would lead t0 the unnecessary introduction of irrelevant
and highly—prejudicial material to the jury and would constitute irreparable harm t0 Murphy’s case,
as well as depriving it of a fair and impartial trial. Therefore, Murphy requests that this Court
instruct all counsel that failure to abide by such an order on this Motion in Limine may constitute
contempt.
MARTY MURPHY’S MOTION IN LIMINE 1
MOTION IN LIMINE
1. That Murphy has been involved in any lawsuit or settled any claim in which the
lawsuit 0r claim was unrelated t0 the subj ect matter of the present action. St. Paul Fire and Marine
Insurance Company v. Murphree, 357 S.W.2d 744, 747—48 (Tex. 1962);
Agreed: Granted: Denied:
Revised:
2. Any reference t0 the fact that Murphy may have claimed any privilege during the
discovery proceedings in the above-styled and numbered cause or that Murphy may have or may
not have marked any document as protected under the protective order that applies t0 this case.
T.R.C.E. 5 13;
Agreed: Granted: Denied:
Revised:
3. Any reference t0 offers of compromise and settlement, 0r the amounts thereof,
between and among the parties in relation t0 the above-styled and numbered cause. T.R.C.E. 408;
Agreed: Granted: Denied:
Revised:
4. The reading into evidence of any ofthe pleadings in the above-styled and numbered
cause, since pleadings are not evidence. David v. Spraggins, 449 S.W.2d 80, 83 (TeX.CiV.App.-
Amarillo 1969, writ ref‘d n.r.e.);
Agreed: Granted: Denied:
Revised:
5. Any reference to when, where and how Murphy hired his attorneys to represent him
in the above-entitled and numbered cause, for the same isnot relevant t0 any of the genuine issues
of law and fact in said cause. T.R.C.E. 402, 503;
Agreed: Granted: Denied:
Revised:
MARTY MURPHY’S MOTION IN LIMINE 2
6. Any reference to Murphy’s claim for pre-judgment interest on damages for the
reason that the matter of an award of prejudgment interest is a matter of law for the Court only.
Any reference as to same in the presence 0f the jury would have the effect of advising them of the
effect 0ftheir answers and tend to affect the amount of actual damages awarded. Cavnar v. Quality
Control Parking, Ina, 696 S.W.2d 549 (Tex. 1985);
Agreed: Granted: Denied:
Revised:
7. That Defendants’ counsel be instructed not to tender, read from, or refer to any ex
parte statement 0r report, not previously admitted in evidence by the Court, 0f any person not then
and there present in court to testify, and to be cross—examined by counsel for Murphy. Texas Power
& Light Company v. Walker, 559 S.W.2d 403 (Tex.CiV.App.-Texarkana 1977, n0 writ);
Agreed: Granted: Denied:
Revised:
8. That the Defendants and Defendants' attorneys be instructed not to make demands
0r requests in front of the jury for matters found 0r contained in the files of Murphy 0r Murphy’s
attorneys which would include statements, pleadings, photographs and other documents or tangible
things. Such matters are privileged 0r potentially privileged from disclosure to Defendant under
TRCP 166b 0f, and T.R.C.E 402-403 and 503;
Agreed: Granted: Denied:
Revised:
9. That Defendants not request Murphy’s attorney to stipulate to either the
admissibility of any evidence 0r stipulate to any facts 0r matters in front of the jury. T.R.C.E. 402-
403;
Agreed: Granted: Denied:
Revised:
10. That Defendants not present any argument or testimony that the K—ls 0r the capital
account relate solely to then—existing partners under a partnership agreement and are irrelevant 0r
inconsequential to Murphy because he was not a then-existing partner. This type of argument is
contrary to the evidence that those documents and those amounts were related to Murphy’s
compensation package. The evidence is that the K-ls were issued t0 Murphy as part of his
employment and the capital account was specifically related t0 what was owed to Murphy under
the stock equity bonus formula 0fthe employment agreement. Defendants’ argument is irrelevant,
MARTY MURPHY’S MOTION IN LIMINE 3
misleading, and unfairly prejudicial such that it would substantially outweigh any supposed
probative value that itmight have. T.R.C.E. 401, 403;
Agreed: Granted: Denied:
Revised:
11. That Defendants’ counsel not read 0r reference objections from, comments by, or
statements of attorneys, other than questions to witnesses, contained in any deposition taken in this
cause because such constitutes unsworn testimony 0r statements and legal matters related t0
admissibility. T.R.C.E. 402-403; T.R.C.E. 801, 802;
Agreed: Granted: Denied:
Revised:
12. That Defendants‘ counsel not read 0r reference any opinion evidence from lay
witnesses, 0r from experts in areas in Which they have no expertise, unless it is rationally based 0n
the perceptions of the Witness, and is helpful to clear understanding of his testimony or the
determination of a fact issue. T.R.C.E. 701;
Agreed: Granted: Denied:
Revised:
13. That Defendants‘ counsel not read 0r reference that Murphy, Murphy’s Witnesses,
or any ofthem, have been convicted of a felony or crime involving moral turpitude unless itresults
from a conviction Which has become final and Which occurred less than ten years ago, and the
Court first determines outside the presence of the jury that the probative value of the evidence
outweighs its prejudicial effect. T.R.C.E. Rule 609;
Agreed: Granted: Denied:
Revised:
14. That Defendants’ counsel not read 0r reference any claim that Murphy has not called
to testify any witness equally available to both Murphy and Defendants in this cause. In this
connection, that Defendants’ counsel filrther be instructed not t0 tender, read from, or refer t0 any
ex parte statement or report, not previously admitted in evidence by the Court, 0f any person not
then and there present in court to testify, and to be cross-examined by counsel for Murphy, and
that the Defendants' counsel be instructed not to suggest to the jury, by arguments or otherwise,
What would have been the testimony 0f any witness not actually called. Texas Power & Light
Company v. Walker, 559 S.W.2d 403 (Tex.Civ.App.-Texarkana 1977, no writ);
Agreed: Granted: Denied:
MARTY MURPHY’S MOTION IN LIMINE 4
Revised:
15. That Defendants‘ counsel not read 0r reference any action taken by the Court in
ruling upon any matter prior to the actual trial ofthis cause, including but not limited t0 the mention
of motions made or rulings made thereon concerning discovery disputes or summary-judgment
proceedings; T.R.C.P. 166b; T.R.C.E. 402-403;
Agreed: Granted: Denied:
Revised:
16. That Defendants‘ counsel not read or reference any ultimate opinions from expert
Witnesses on mixed questions of law and fact unless confined t0 relevant issues and based 0n
proper legal concepts. Birchfield v. Texarkana Memorial Hospital, 747 S.W.2d 361, 365 (Tex.-
1987);
Agreed: Granted: Denied:
Revised:
17. That Defendants' counsel not read 0r reference t0 the filing ofthis Motion in Limine
or t0 any ruling by the Court in response to this Motion. Such references are inherently unduly
prejudicial in that they suggest or infer that Murphy has sought t0 prohibit proof or that the Court
has excluded proof of matters damaging to Murphy’s case. Budrick v. York Oil C0., 364 S.W.2d
766, 769-770 (Tex.CiV.App.-San Antonio 1963, writ ref‘d n.r.e.);
Agreed: Granted: Denied:
Revised:
18. Calling any witness not timely designated and listed in response t0 discovery
propounded by Murphy. E.F. Button & Co. v, Youngblood, 741 S.W.2d 363 (Tex. 1987);
Agreed: Granted: Denied:
Revised:
19. That Defendants' counsel not refer t0 photographs or documents Which were not
timely produced by Defendants;
Agreed: Granted: Denied:
Revised:
MARTY MURPHY’S MOTION IN LIMINE 5
20. That Defendants' counsel not read or refer to testimony of Murphy pertaining to the
“accuracy” of the pleadings filed in this suit;
Agreed: Granted: Denied:
Revised:
21. Defendant should be prohibited from raising, commenting upon and/or asserting
any legal defense(s) t0 the allegations of Murphy which have not properly been pleaded by
Defendant. This prohibition includes claims for comparative 0r proportionate responsibility, theft
and all other defenses available at law, and not properly pleaded or asserted in response t0
propounded discovery, or for which there is n0 evidence;
Agreed: Granted: Denied:
Revised:
22. That Defendants' counsel not read, reference or request Murphy t0 provide
testimony responsive to questions including phrases like “you don't have any evidence of....”;
Agreed: Granted: Denied:
Revised:
23. A11 references, any arguments 0r attempts t0 put into evidence arguments about
rulings the Court has made regarding dismissal of any claims by summaryjudgment or suggestions
that claims have been “thrown out” 0r similar arguments. Tex. R. EVid. 401—403.
Agreed: Granted: Denied:
Revised:
24. Any mention or reference to the opinions of persons not previously and timely
designated by counsel for Defendant as experts. Tex.R.CiV.P. 166(b)(5)(b); Trubell v.Patten, 582
S.W.2d 606 (TeX.CiV.App.-Tyler 1979, no writ).;
Agreed: Granted: Denied:
Revised:
25. Any reference to whether 0r not there is a written contract or fee agreement between
the party and its counsel of record;
Agreed: Granted: Denied:
Revised:
MARTY MURPHY’S MOTION IN LIMINE 6
26. Any opinion and/or conclusion of a designated expert that is not contained in the
expert’s report, designation or testified to during the deposition when asked about by counsel;
Agreed: Granted: Denied:
Revised:
27. The court should exclude all references, any arguments 0r attempts to put into
evidence arguments about claims that are nonsuited or parties that are n0 longer in the case. Tex.
R. Evid. 401-403.
Agreed: Granted: Denied:
Revised:
28. Any reference t0 discussions between Murphy and Dean Dumke regarding topless
bars. T.R.C.E 402 and 403;
Agreed: Granted: Denied:
Revised:
29. Any reference to Murphy bullying and/or intimidating people and/or being
aggressive unless the proper predicate is established and that such is linked to a claim in the case
because such is irrelevant, inadmissible, and extremely prejudicial. This evidence or argument
would also be improper character evidence and would be improper evidence ofprior bad acts. For
the same reasons, Defendants should be precluded from introducing any evidence 0r argument
Agreed:
Revised:
_ Granted: _
related to prior bad acts or improprieties.
Denied: _
T.R.C.E 402, 403, 404, 608;
30. Any reference to Murphy firing people without cause from Pavecon or other places
Murphy has worked.
Agreed:
Revised:
_ Granted: _
T.R.C.E 402 and 403;
Denied: _
MARTY MURPHY’S MOTION IN LIMINE 7
3 1. Use 0f pej orative (and unduly prejudicial) terms such as theft, thief, steal, stealing,
stole, crook, and bully When referencing Murphy because such terms are highly prejudicial and
there are no claims in this case for theft. T.R.C.E 402 and 403;
Agreed: Granted: Denied:
Revised:
32. Any reference to the reputation of Murphy. French v. Brodsky, 521 S.W.2d 670
(Tex. Civ. App.— Houston 1975, writ rePd n.r.e.); Goodnight v. Phillips, 458 S.W.2d 196 (Tex.
CiV. App.— Houston 1970, writ refd n.r.e.).
Agreed: Granted: Denied:
Revised:
33. Any reference t0 any PowerPoint or similar presentation 0r any demonstrative
exhibit or presentation that has not previously been provided t0 Murphy’s counsel with a
reasonable opportunity for review, an opportunity for Murphy to obj ect, and an opportunity for the
Court t0 make rulings thereon.
Agreed: Granted: Denied:
Revised:
34. Any reference t0 Murphy claiming he was a partner 0f Pavecon Public Works LP.
or a member 0f Pavecon Ltd. Co. T.R.C.E 402 and 403;
Agreed: Granted: Denied:
Revised:
35. Any reference to Murphy’s fraud and fraudulent inducement claim being based 0n
an unsupported allegation that David Walker did not make him CEO of Pavecon Public Works
LP. and/or a Pavecon entities. T.R.C.E 402 and 403;
Agreed: Granted: Denied:
Revised:
MARTY MURPHY’S MOTION IN LIMINE 8
36. Any opinion and/or conclusion of a designated expert that the expert has not been
shown to be qualified to make through the proper predicate including but not limited to damage
estimate opinions from Ron Vernon and Rudy Robinson;
Agreed: Granted: Denied:
Revised:
37. Any reference to Murphy receiving life coaching from Jim Brewer. T.R.C.E 402
and 403;
Agreed: Granted: Denied:
Revised:
38. Any reference t0 Pavecon’s missing motorgrader. There is n0 claim that Murphy
is connected t0 the missing motorgrader and mentioning it ismisleading and prejudicial. T.R.C.E
402 and 403;
Agreed: Granted: Denied:
Revised:
39. Any reference to Murphy not paying the workers on his property overtime pay. The
overtime claim belongs to the worker not Pavecon 0r David Walker. T.R.C.E 402 and 403;
Agreed: Granted: Denied:
Revised:
40. That any recovery by Murphy would or would not be subj ect t0 federal income tax.
Turner v. General Motors Corporation, 584 S.W.2d 844, 853 (Tex. 1979);
Agreed: Granted: Denied:
Revised:
41. Reference to equitable issues, including equitable disgorgement before the jury.
Equitable issues are reserved for the court;
Agreed: Granted: Denied:
Revised:
MARTY MURPHY’S MOTION IN LIMINE 9
42. Mentioning the Sink v. Sink case in reference to Ken Sibley. That matter involved
a divorce in Which Mr. Sibley provided limited services tracing certain transactions between the
husband and wife. He was never officially hired as an expert witness, and Mr. Sibley did not
typically work 0n divorce matters as Mr. Sibley told the Court. Rather, Mr. Sibley was subpoenaed
to testify and produce documents a few days before trial. The Court did not allow Mr. Sibley to
testify under the circumstances. That decision had nothing t0 d0 With Mr. Sibley’s qualifications
to testify as an expert Witness as a CPA, as a Certified Fraud Examiner, or regarding Financial
Forensics. Reference to Sink v. Sink is prejudicial and misleading. T.R.C.E 402 and 403;
Agreed: Granted: Denied:
Revised:
Respectfully submitted,
CANTEY HANGER LLP
/s/ Charles H. Smith
Charles H. Smith — Attorney in Charge
State Bar N0. 18550500
chsmith@cantevhanger.com
Bryan S. David
State Bar No. 22403 1989
bdavid@cantevhanger.com
Stephanie Millett
State Bar N0. 00797070
smillett@cantevhanger.com
1999 Bryan Street, Suite 3300
Dallas, Texas 75201
(214) 740-4201
(214) 978-4140 -Telecopier
ATTORNEYS FOR PLAINTIFF
MARTY MURPHY’S MOTION IN LIMINE 10
CERTIFICATE OF SERVICE
I hereby certify that 0n September 16, 2019, all counsel 0f record were served with this
instrument through the Court’s electronic filing system.
/s/ Charles H. Smith
MARTY MURPHY’S MOTION IN LIMINE 11
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FILED DALLAS COUNTY 9/16/2019 4:58PM FELICIA PITRE DISTRICT CLERK Cassandra Walker CAUSE N0. DC-17-10592 MARTY MURPHY, IN THE DISTRICT COURT Plaintiffand Counterclaim- Defendant V. 192““ JUDICIAL DISTRICT mmwmmwmmmmmmmmmmm PAVECON HOLDING CO., INC., PAVECON LTD. CO., PAVECON PUBLIC WORKS LP, PAVECON PUBLIC WORKS GP LLC, LABCON, INC., DAVID WALKER, Defendants and Counterclaim- Plaintiffs. DALLAS COUNTY, TEXAS MARTY MURPHY’S MOTION IN LIMINE In accordance with the Amended Agreed Level Three Docket Control Order and Rule 11 Agreements, Marty Murphy, Plaintiff and Counterclaim-Defendant (“Murphy”) in the above- entitled and numbered action, moves the Court t0 enter an order prior to the voir dire examination of the jury panel, that opposing counsel, and any and all witnesses called on behalf of opposing parties, be instructed to refrain from any mention, directly 0r indirectly the matters set forth herein. The failure to enter such an order would lead t0 the unnecessary introduction of irrelevant and highly—prejudicial material to the jury and would constitute irreparable harm t0 Murphy’s case, as well as depriving it of a fair and impartial trial. Therefore, Murphy requests that this Court instruct all counsel that failure to abide by such an order on this Motion in Limine may constitute contempt. MARTY MURPHY’S MOTION IN LIMINE 1 MOTION IN LIMINE 1. That Murphy has been involved in any lawsuit or settled any claim in which the lawsuit 0r claim was unrelated t0 the subj ect matter of the present action. St. Paul Fire and Marine Insurance Company v. Murphree, 357 S.W.2d 744, 747—48 (Tex. 1962); Agreed: Granted: Denied: Revised: 2. Any reference t0 the fact that Murphy may have claimed any privilege during the discovery proceedings in the above-styled and numbered cause or that Murphy may have or may not have marked any document as protected under the protective order that applies t0 this case. T.R.C.E. 5 13; Agreed: Granted: Denied: Revised: 3. Any reference t0 offers of compromise and settlement, 0r the amounts thereof, between and among the parties in relation t0 the above-styled and numbered cause. T.R.C.E. 408; Agreed: Granted: Denied: Revised: 4. The reading into evidence of any ofthe pleadings in the above-styled and numbered cause, since pleadings are not evidence. David v. Spraggins, 449 S.W.2d 80, 83 (TeX.CiV.App.- Amarillo 1969, writ ref‘d n.r.e.); Agreed: Granted: Denied: Revised: 5. Any reference to when, where and how Murphy hired his attorneys to represent him in the above-entitled and numbered cause, for the same isnot relevant t0 any of the genuine issues of law and fact in said cause. T.R.C.E. 402, 503; Agreed: Granted: Denied: Revised: MARTY MURPHY’S MOTION IN LIMINE 2 6. Any reference to Murphy’s claim for pre-judgment interest on damages for the reason that the matter of an award of prejudgment interest is a matter of law for the Court only. Any reference as to same in the presence 0f the jury would have the effect of advising them of the effect 0ftheir answers and tend to affect the amount of actual damages awarded. Cavnar v. Quality Control Parking, Ina, 696 S.W.2d 549 (Tex. 1985); Agreed: Granted: Denied: Revised: 7. That Defendants’ counsel be instructed not to tender, read from, or refer to any ex parte statement 0r report, not previously admitted in evidence by the Court, 0f any person not then and there present in court to testify, and to be cross—examined by counsel for Murphy. Texas Power & Light Company v. Walker, 559 S.W.2d 403 (Tex.CiV.App.-Texarkana 1977, n0 writ); Agreed: Granted: Denied: Revised: 8. That the Defendants and Defendants' attorneys be instructed not to make demands 0r requests in front of the jury for matters found 0r contained in the files of Murphy 0r Murphy’s attorneys which would include statements, pleadings, photographs and other documents or tangible things. Such matters are privileged 0r potentially privileged from disclosure to Defendant under TRCP 166b 0f, and T.R.C.E 402-403 and 503; Agreed: Granted: Denied: Revised: 9. That Defendants not request Murphy’s attorney to stipulate to either the admissibility of any evidence 0r stipulate to any facts 0r matters in front of the jury. T.R.C.E. 402- 403; Agreed: Granted: Denied: Revised: 10. That Defendants not present any argument or testimony that the K—ls 0r the capital account relate solely to then—existing partners under a partnership agreement and are irrelevant 0r inconsequential to Murphy because he was not a then-existing partner. This type of argument is contrary to the evidence that those documents and those amounts were related to Murphy’s compensation package. The evidence is that the K-ls were issued t0 Murphy as part of his employment and the capital account was specifically related t0 what was owed to Murphy under the stock equity bonus formula 0fthe employment agreement. Defendants’ argument is irrelevant, MARTY MURPHY’S MOTION IN LIMINE 3 misleading, and unfairly prejudicial such that it would substantially outweigh any supposed probative value that itmight have. T.R.C.E. 401, 403; Agreed: Granted: Denied: Revised: 11. That Defendants’ counsel not read 0r reference objections from, comments by, or statements of attorneys, other than questions to witnesses, contained in any deposition taken in this cause because such constitutes unsworn testimony 0r statements and legal matters related t0 admissibility. T.R.C.E. 402-403; T.R.C.E. 801, 802; Agreed: Granted: Denied: Revised: 12. That Defendants‘ counsel not read 0r reference any opinion evidence from lay witnesses, 0r from experts in areas in Which they have no expertise, unless it is rationally based 0n the perceptions of the Witness, and is helpful to clear understanding of his testimony or the determination of a fact issue. T.R.C.E. 701; Agreed: Granted: Denied: Revised: 13. That Defendants‘ counsel not read 0r reference that Murphy, Murphy’s Witnesses, or any ofthem, have been convicted of a felony or crime involving moral turpitude unless itresults from a conviction Which has become final and Which occurred less than ten years ago, and the Court first determines outside the presence of the jury that the probative value of the evidence outweighs its prejudicial effect. T.R.C.E. Rule 609; Agreed: Granted: Denied: Revised: 14. That Defendants’ counsel not read 0r reference any claim that Murphy has not called to testify any witness equally available to both Murphy and Defendants in this cause. In this connection, that Defendants’ counsel filrther be instructed not t0 tender, read from, or refer t0 any ex parte statement or report, not previously admitted in evidence by the Court, 0f any person not then and there present in court to testify, and to be cross-examined by counsel for Murphy, and that the Defendants' counsel be instructed not to suggest to the jury, by arguments or otherwise, What would have been the testimony 0f any witness not actually called. Texas Power & Light Company v. Walker, 559 S.W.2d 403 (Tex.Civ.App.-Texarkana 1977, no writ); Agreed: Granted: Denied: MARTY MURPHY’S MOTION IN LIMINE 4 Revised: 15. That Defendants‘ counsel not read 0r reference any action taken by the Court in ruling upon any matter prior to the actual trial ofthis cause, including but not limited t0 the mention of motions made or rulings made thereon concerning discovery disputes or summary-judgment proceedings; T.R.C.P. 166b; T.R.C.E. 402-403; Agreed: Granted: Denied: Revised: 16. That Defendants‘ counsel not read or reference any ultimate opinions from expert Witnesses on mixed questions of law and fact unless confined t0 relevant issues and based 0n proper legal concepts. Birchfield v. Texarkana Memorial Hospital, 747 S.W.2d 361, 365 (Tex.- 1987); Agreed: Granted: Denied: Revised: 17. That Defendants' counsel not read 0r reference t0 the filing ofthis Motion in Limine or t0 any ruling by the Court in response to this Motion. Such references are inherently unduly prejudicial in that they suggest or infer that Murphy has sought t0 prohibit proof or that the Court has excluded proof of matters damaging to Murphy’s case. Budrick v. York Oil C0., 364 S.W.2d 766, 769-770 (Tex.CiV.App.-San Antonio 1963, writ ref‘d n.r.e.); Agreed: Granted: Denied: Revised: 18. Calling any witness not timely designated and listed in response t0 discovery propounded by Murphy. E.F. Button & Co. v, Youngblood, 741 S.W.2d 363 (Tex. 1987); Agreed: Granted: Denied: Revised: 19. That Defendants' counsel not refer t0 photographs or documents Which were not timely produced by Defendants; Agreed: Granted: Denied: Revised: MARTY MURPHY’S MOTION IN LIMINE 5 20. That Defendants' counsel not read or refer to testimony of Murphy pertaining to the “accuracy” of the pleadings filed in this suit; Agreed: Granted: Denied: Revised: 21. Defendant should be prohibited from raising, commenting upon and/or asserting any legal defense(s) t0 the allegations of Murphy which have not properly been pleaded by Defendant. This prohibition includes claims for comparative 0r proportionate responsibility, theft and all other defenses available at law, and not properly pleaded or asserted in response t0 propounded discovery, or for which there is n0 evidence; Agreed: Granted: Denied: Revised: 22. That Defendants' counsel not read, reference or request Murphy t0 provide testimony responsive to questions including phrases like “you don't have any evidence of....”; Agreed: Granted: Denied: Revised: 23. A11 references, any arguments 0r attempts t0 put into evidence arguments about rulings the Court has made regarding dismissal of any claims by summaryjudgment or suggestions that claims have been “thrown out” 0r similar arguments. Tex. R. EVid. 401—403. Agreed: Granted: Denied: Revised: 24. Any mention or reference to the opinions of persons not previously and timely designated by counsel for Defendant as experts. Tex.R.CiV.P. 166(b)(5)(b); Trubell v.Patten, 582 S.W.2d 606 (TeX.CiV.App.-Tyler 1979, no writ).; Agreed: Granted: Denied: Revised: 25. Any reference to whether 0r not there is a written contract or fee agreement between the party and its counsel of record; Agreed: Granted: Denied: Revised: MARTY MURPHY’S MOTION IN LIMINE 6 26. Any opinion and/or conclusion of a designated expert that is not contained in the expert’s report, designation or testified to during the deposition when asked about by counsel; Agreed: Granted: Denied: Revised: 27. The court should exclude all references, any arguments 0r attempts to put into evidence arguments about claims that are nonsuited or parties that are n0 longer in the case. Tex. R. Evid. 401-403. Agreed: Granted: Denied: Revised: 28. Any reference t0 discussions between Murphy and Dean Dumke regarding topless bars. T.R.C.E 402 and 403; Agreed: Granted: Denied: Revised: 29. Any reference to Murphy bullying and/or intimidating people and/or being aggressive unless the proper predicate is established and that such is linked to a claim in the case because such is irrelevant, inadmissible, and extremely prejudicial. This evidence or argument would also be improper character evidence and would be improper evidence ofprior bad acts. For the same reasons, Defendants should be precluded from introducing any evidence 0r argument Agreed: Revised: _ Granted: _ related to prior bad acts or improprieties. Denied: _ T.R.C.E 402, 403, 404, 608; 30. Any reference to Murphy firing people without cause from Pavecon or other places Murphy has worked. Agreed: Revised: _ Granted: _ T.R.C.E 402 and 403; Denied: _ MARTY MURPHY’S MOTION IN LIMINE 7 3 1. Use 0f pej orative (and unduly prejudicial) terms such as theft, thief, steal, stealing, stole, crook, and bully When referencing Murphy because such terms are highly prejudicial and there are no claims in this case for theft. T.R.C.E 402 and 403; Agreed: Granted: Denied: Revised: 32. Any reference to the reputation of Murphy. French v. Brodsky, 521 S.W.2d 670 (Tex. Civ. App.— Houston 1975, writ rePd n.r.e.); Goodnight v. Phillips, 458 S.W.2d 196 (Tex. CiV. App.— Houston 1970, writ refd n.r.e.). Agreed: Granted: Denied: Revised: 33. Any reference t0 any PowerPoint or similar presentation 0r any demonstrative exhibit or presentation that has not previously been provided t0 Murphy’s counsel with a reasonable opportunity for review, an opportunity for Murphy to obj ect, and an opportunity for the Court t0 make rulings thereon. Agreed: Granted: Denied: Revised: 34. Any reference t0 Murphy claiming he was a partner 0f Pavecon Public Works LP. or a member 0f Pavecon Ltd. Co. T.R.C.E 402 and 403; Agreed: Granted: Denied: Revised: 35. Any reference to Murphy’s fraud and fraudulent inducement claim being based 0n an unsupported allegation that David Walker did not make him CEO of Pavecon Public Works LP. and/or a Pavecon entities. T.R.C.E 402 and 403; Agreed: Granted: Denied: Revised: MARTY MURPHY’S MOTION IN LIMINE 8 36. Any opinion and/or conclusion of a designated expert that the expert has not been shown to be qualified to make through the proper predicate including but not limited to damage estimate opinions from Ron Vernon and Rudy Robinson; Agreed: Granted: Denied: Revised: 37. Any reference to Murphy receiving life coaching from Jim Brewer. T.R.C.E 402 and 403; Agreed: Granted: Denied: Revised: 38. Any reference t0 Pavecon’s missing motorgrader. There is n0 claim that Murphy is connected t0 the missing motorgrader and mentioning it ismisleading and prejudicial. T.R.C.E 402 and 403; Agreed: Granted: Denied: Revised: 39. Any reference to Murphy not paying the workers on his property overtime pay. The overtime claim belongs to the worker not Pavecon 0r David Walker. T.R.C.E 402 and 403; Agreed: Granted: Denied: Revised: 40. That any recovery by Murphy would or would not be subj ect t0 federal income tax. Turner v. General Motors Corporation, 584 S.W.2d 844, 853 (Tex. 1979); Agreed: Granted: Denied: Revised: 41. Reference to equitable issues, including equitable disgorgement before the jury. Equitable issues are reserved for the court; Agreed: Granted: Denied: Revised: MARTY MURPHY’S MOTION IN LIMINE 9 42. Mentioning the Sink v. Sink case in reference to Ken Sibley. That matter involved a divorce in Which Mr. Sibley provided limited services tracing certain transactions between the husband and wife. He was never officially hired as an expert witness, and Mr. Sibley did not typically work 0n divorce matters as Mr. Sibley told the Court. Rather, Mr. Sibley was subpoenaed to testify and produce documents a few days before trial. The Court did not allow Mr. Sibley to testify under the circumstances. That decision had nothing t0 d0 With Mr. Sibley’s qualifications to testify as an expert Witness as a CPA, as a Certified Fraud Examiner, or regarding Financial Forensics. Reference to Sink v. Sink is prejudicial and misleading. T.R.C.E 402 and 403; Agreed: Granted: Denied: Revised: Respectfully submitted, CANTEY HANGER LLP /s/ Charles H. Smith Charles H. Smith — Attorney in Charge State Bar N0. 18550500 chsmith@cantevhanger.com Bryan S. David State Bar No. 22403 1989 bdavid@cantevhanger.com Stephanie Millett State Bar N0. 00797070 smillett@cantevhanger.com 1999 Bryan Street, Suite 3300 Dallas, Texas 75201 (214) 740-4201 (214) 978-4140 -Telecopier ATTORNEYS FOR PLAINTIFF MARTY MURPHY’S MOTION IN LIMINE 10 CERTIFICATE OF SERVICE I hereby certify that 0n September 16, 2019, all counsel 0f record were served with this instrument through the Court’s electronic filing system. /s/ Charles H. Smith MARTY MURPHY’S MOTION IN LIMINE 11