Preview
FILED
DALLAS COUNTY
1/29/2020 11:40 AM
FELICIA PITRE
DISTRICT CLERK
Cassandra Walker
DC-17-10s92
CAUSE NO. DC-17-10592
MARTY MURPHY, s IN THE DISTRICT COURT
IN
$
Plaintiff C o unter cloim-
a n d Counterclaim—
Plaintifl”and s
Defendant
Defendant $
$
s
$
v
v. $
s
PAVECON HOLDINGHOLDTNG INC.,
CO., INC.,
CO., $
192“d
192Nd JUDICIAL DISTRICT
PAVECON LTD. CO.,
CO., s
PAVECON PUBLIC WORKS LP, LPo $
mmwmmmmwmmmmwwmwmmmmwmm
PAVECON
PAVECON PUBLIC
PUBLTC WORKS GP LLC, LLC, s
LABCON, INC., WALKER'
rNC., DAVID WALKER, s
s
Defendants Co unterclaim-
Defendants and Counterclaim- s
Plaintffi,
Plaintiffs, $
$
v
V. s
$
STEPHANIE THOMPSON s
$
C o u nt er cl aim- D efe n d a nt
Counterclaim-Defendant $ DALLAS
DALLAS COUNTY, TEXAS
MARTY MURPHY’S
MURPHY'S MOTION T0 TO DISREGARD
DISREGARD JURY FINDINGS
AND ENTER JUDGMENT ON REMAINING ISSUES
Plaintiff
Plaintiff Marty
Marty to disregard
the Court to
asks the
Murphy asks disregard the Jury's answers to
the Jury’s (b),
Questions 44 (b),
to Questions
5
5 (a), and
(a), (c) and
5 (c)
5 judgment
sign a judgment
sign on the
0n remaining Jury
the remaining findings in
Jury findings in favor
favor of Mr. Murphy
of Mr. as
attached
attached Exhibit 2.
as Exhibit
as 2.
I.
I. Brief Procedural Historv:
Brief Procedural Histog:
On August 23,23,2017, Plaintiff Marty
201 7, Plaintiff Marty Murphy
Murphy asserting
sued Defendants asserting of claims,
a range 0f claims,
including breach 0f
including of contract.
contract. November
On November 7,2017,
7, filed
201 7, Defendants filed countersuit
a countersuit against
against Marty
Marty
Murphy
Murphy asserting a range of
asserting of claims,
claims, including breach of
including of fiduciary
fiduciary duty,
duty, Defendants asserted
and Defendants asserted a
claim for exemplary
claim for exemplary damages.
MARTY MURPHY’S
MURPHY'S MOTION TO DISREGARD
DISREGARD JURY FINDINGS
AND ENTER
ENTER JUDGMENT
JUDGMENT ON REMAINING ISSUES PAGE 1
After a trial
Afier trial on the merits, the
the merits, Court submitted
the Court this case to
submitted this Jury. On December 12,
to a Jury. 12,2019,
2019,
the Jury
the Jury returned
returned a verdict
a in favor
finding in
verdict finding favor of Mr.
of Mr. Murphy on on breach of contract
breach of contract in favor
and in
and of
favor 0f
Defendant
Defendant Pavecon Public
Pavecon Public L.P. on breach
Works L.P. breach of fiduciary duty;
of fiduciary duty; however,
however, the Jury refused
the Jury refused to
to
exemplary
award exemplary damages.
damages. A copy of the
copy of verdict
the verdict is attached
is attached to this
t0 motion as
this motion Exhibit
as Exhibit l.
1. the
For the
reasons forth below,
set forth
set Mr.
below, Mr. Murphy asks the Court to
the Court to disregard certain
disregard certain Jury findings
Jury findings on breach
of fiduciary
of fiduciary duty
duty and
and render judgment
render judgment remaining
the remaining
on the findings
findings for Mr.
for Murphy.
Mr. Murphy. Mr. Murphy
Mr.
attaches judgment
proposed judgment
attaches a proposed to motion as
this motion
to this Exhibit 2.
as Exhibit 2.
n.
II. Motion to
Motion disreeard
to disrggard findings
findings 41b1, (a) and 55 1c):
4(b).55 gal (c):
Court may disregard
The Court Jury's answer
the Jury’s
disregard the answer to a question
to question if is
there is
if there no evidence
n0 evidence oror legally-
legally-
insufficient evidence
insufficient evidence to support
to support it.r
it.‘ Additionally,
Additionally, judgment
a judgment non obstante
non veredicto
obstante veredicto should be
should
granted
granted evidence is
the evidence
when the is conclusive
conclusive matter or
on a matter or when a legal principle precludes
legal principle precludes recovery.2
recovery.2
the reasons
For the reasons stated below, the
stated below, Court should
the Court should disregard
disregard the following:
the following:
a.
a. fle
The Court
Cogrt should disregard
should disregard the Juru's
the Jurv’s findins
finding on Breach
on Breach of Fiduciag
of Fiduciarv
Dutv.
Dug.
In response to
In to Question
Question 4,the
4, that
Jury found that
the Jury Mr. Murphy
Mr. Murphy diddid comply with his
comply with fiduciary
his fiduciary
duty to
duty Ltd.
to Pavecon Ltd. but did
Co but did not with his
not comply with fiduciary
his fiduciary duty to
duty Public Works
to Pavecon Public Works LP.3
LP.3
Mr. Murphy
Mr. Murphy Court to
the Court
moves the to disregard the Jury’s
disregard the finding in
Jury's finding Question 44 (b)
in Question regarding
(b) regarding Pavecon
Public
Public Works LP because therethere is legally-insufficient evidence
is legally-insufficient evidence to support
to it.
support it.
The evidence presented
evidence presented trial showed
at trial
at Mr. Murphy
that Mr.
showed that Murphy did not
did fiduciary
not breach aa fiduciary duty to
duty to
Pavecon
Pavecon Public Works or
Public any other
or any Defendant.
other Defendant. evidence showed
The evidence showed that Defendants allowed
the Defendants
that the allowed
employees
employees to
t0 utilize company resources
utilize resources for work on their
for private
their private property
property with the
with the understanding
understanding
1 See Tex. R. Civ.
Civ. P.301; Tillerv. McLure,l21 709,773 (Tex.2003).
1
SeeTex.R. P. 301; Tiller v.McLure, 121 S.W.3d 709, 713 (Tex. 2003).
2 Pitts
2
Pitts& Collard,
Collard, Schechter,369
LLP v. Schechter, 369 S.W.3d 301,301,320 (Tex. App.-Houston [15‘
320 (Tex. Dist.] 201
2011, no
1, n0
v. [1't Dist]
pet.).
pet).
3
3gxhibit
Exhibit I —-
1 of the Court,
Charge ofthe Court, p. 8.
p. 8.
MARTY MURPHY’S
MURPHYOS MOTION
MOTION T0
TO DISREGARD
DISREGARD JURY FINDINGS
AND ENTER
ENTER JUDGMENT
JUDGMENT ON REMAINING ISSUES ISSUES PAGE 2
that they
that they would the company
reimburse the at
at cost. Thus,
cost. Thus, itit was not violation of
not aa Violation the Defendants’
of the Defendants'
Mr. Murphy
for Mr.
trust for
trust Murphy to do the
to same. The evidence
the same. evidence showed that Mr. Murphy disclosed
that Mr. the work
disclosed the
to
to (including
Defendants (including Pavecon
Pavecon Public through scheduling
Public Works) through scheduling meetings, managerial
meetings, where managerial
employees of present
of Defendants were present participated in
and participated the scheduling
in the scheduling of the
of work. The work
the work.
schedules
schedules widely disseminated
were widely
were across the
across companies-it was
the companies—it was n0no secret. The
secret. The evidence
evidence
Mr. Murphy told
that Mr.
showed that told the
the employees that he
that he would pay
pay for
for labor, materials,
labor, materials, machinery,
machinery,
other costs
and other associated
costs associated with the
with the work at property, and that
his property,
at his they should
that they bring such
should bring invoices
such invoices
to
to him payment.
for payment.
for showed
The evidence showed that paid all
that he paid all such invoices
invoices that presented.
that were presented. He
even went searching
even went searching for invoices
for invoices that
that were due, and
were due, he admonished
and he employees for miscoding
for miscoding
for
invoices for
invoices payment
payment by the
by Defendants.
the Defendants. Thus,
Thus, the transactions
the transactions were not
were not unfair or inequitable.
unfair or inequitable.
The evidence showed that the work at
that the Mr. Murphy’s
at Mr. Murphy's property was
property was scheduled during
scheduled during lulls in
lulls the
in the
schedule, and
schedule, it was meant to
it to ensure that workers would continue
the workers
that the continue to be
to be available
available to work 0n
to on
Defendants'
Defendants’ projects.
projects. Although
Although it was meant
it meant t0 benefit
to benefit Defendants, Mr.
the Defendants,
the Mr. Murphy paidpaid for
for such
out ofhis
work out putting the
pocket, putting
of his own pocket, the interests
interests of the Defendants ahead 0f
ofthe of his own. The facts
his own. of
facts of
this case
this not rise
do not rise t0 the level
to the of a breach
level of breach 0fof fiduciary
fiduciary duty.
duty.
Accordingly,
Accordingly, Mr.
Mr. Murphy
Murphy respectfully requests
respectfully that the
requests that Court disregard
the Court the Jury's
disregard the finding
Jury’s finding
in
in response toto Question
Question (b) because there
4 (b)
4 there is legally-insufficient
is legally-insufficient evidence to
evidence to support finding
the finding
support the
that
that breached
he breached fiduciary
a fiduciary duty to Pavecon
duty t0 Pavecon Public Works LP.
Public LP.
b.
b. should disresard
The Court should disrggard the Jury's finding
the Jufl’s finding the aWard
on the of labor costs:
award of’labor costs:
In response to
In to Question (a), the
Question 55 (a), Jury
the Jury awarded
awarded Pavecon Public Works LP
Pavecon Public LP $30,000 in in labor
labor
costs.
costs.
MARTY MURPHY’S
MURPHY'S MOTION TO DISREGARD
DISREGARD JURY FINDINGS
AND ENTER
ENTER JUDGMENT ON REMAINING ISSUES PAGE 33
QUESTION
QUESTION NUMBER
NUMBERS5
What sum
What of money,
sum of money, if any,
if any. if paid now as
if paid as cash would fairly
cash would fairly and
and reasonably
reasonably
for the
compensale for the damages.
damages. if any,
if that were
any, that proximately caused by
werc proximately by such conduct?
conduct?
Consider the
Consider the following of damages,
following elements 0f damages, if
ifany, and
any, olher.
and none other. Do not
D0 not add
for interact
8ny amount for
any interest on damages, if
any.
if any.
Answer in dollars and cents,
in dollars cents,if any,
if for each entity
any, for you answered
for whom you
entity for ansvvered “No”
"No"
in
in Number
Question Number
Question 4.
4.
TT
fl l.
i
_
b. Equipment Use
b. $
S lcQ, O0 o
[00, 9
c.
c. Equipment
Equipment Repair
Repair s
$ lo,L5o
lo. EQ
d. Materials
d. Mrterirls S 5
Slowoo()
€. Lost
e. Pnofits
I-oot Profits S a
However,
However, Court
the Court
the should disregard
should finding
disregard finding 5 (a) because
5 (a)because a defect in Defendants’
defect in Defendants' pleading makes
pleading
it insufficient
itinsufficient to support
t0 a judgment on labor
support ajudgment labor costs, the evidence
costs, the evidence conclusively proves that
conclusively proves that Pavecon
Public
Public Work LP cannot recover labor
cannot recover labor costs, evidence is
the evidence
costs, and the is legallyinsufficient to
legally insufficient to raise
raise an issue
issue
of fact
0f Public Works LP’s
fact on Pavecon Public LP's entitlement
entitlement to an award of
t0 of labor
labor costs.
costs.
The evidence
The admiffed at
admitted at trial
trial established that
established that all labor
all labor costs
costs were paid by
were paid by Labcon Inc.
Inc.
Flor Jordan testified
Flor testified that paid for
that Labcon paid for the workers' time
the workers’ time on Pavecon
Pavecon jobs, and she testified
jobs, that
testified that
property.
Mr.
Mr. Murphy paid
Murphy
testified that
testified
and
that
staff.
for the
paid for
Labcon is
staff. Even the
the workers’
professional
is a professional
time
the time
time on
workers' time work at
on work
employment
employment
sheets repeatedly
sheets
his property.
at his
agency and that
referenced
repeatedly referenced
MFurthermore,
Furthermore,
by Defendants listed
Preview
FILED DALLAS COUNTY 1/29/2020 11:40 AM FELICIA PITRE DISTRICT CLERK Cassandra Walker DC-17-10s92 CAUSE NO. DC-17-10592 MARTY MURPHY, s IN THE DISTRICT COURT IN $ Plaintiff C o unter cloim- a n d Counterclaim— Plaintifl”and s Defendant Defendant $ $ s $ v v. $ s PAVECON HOLDINGHOLDTNG INC., CO., INC., CO., $ 192“d 192Nd JUDICIAL DISTRICT PAVECON LTD. CO., CO., s PAVECON PUBLIC WORKS LP, LPo $ mmwmmmmwmmmmwwmwmmmmwmm PAVECON PAVECON PUBLIC PUBLTC WORKS GP LLC, LLC, s LABCON, INC., WALKER' rNC., DAVID WALKER, s s Defendants Co unterclaim- Defendants and Counterclaim- s Plaintffi, Plaintiffs, $ $ v V. s $ STEPHANIE THOMPSON s $ C o u nt er cl aim- D efe n d a nt Counterclaim-Defendant $ DALLAS DALLAS COUNTY, TEXAS MARTY MURPHY’S MURPHY'S MOTION T0 TO DISREGARD DISREGARD JURY FINDINGS AND ENTER JUDGMENT ON REMAINING ISSUES Plaintiff Plaintiff Marty Marty to disregard the Court to asks the Murphy asks disregard the Jury's answers to the Jury’s (b), Questions 44 (b), to Questions 5 5 (a), and (a), (c) and 5 (c) 5 judgment sign a judgment sign on the 0n remaining Jury the remaining findings in Jury findings in favor favor of Mr. Murphy of Mr. as attached attached Exhibit 2. as Exhibit as 2. I. I. Brief Procedural Historv: Brief Procedural Histog: On August 23,23,2017, Plaintiff Marty 201 7, Plaintiff Marty Murphy Murphy asserting sued Defendants asserting of claims, a range 0f claims, including breach 0f including of contract. contract. November On November 7,2017, 7, filed 201 7, Defendants filed countersuit a countersuit against against Marty Marty Murphy Murphy asserting a range of asserting of claims, claims, including breach of including of fiduciary fiduciary duty, duty, Defendants asserted and Defendants asserted a claim for exemplary claim for exemplary damages. MARTY MURPHY’S MURPHY'S MOTION TO DISREGARD DISREGARD JURY FINDINGS AND ENTER ENTER JUDGMENT JUDGMENT ON REMAINING ISSUES PAGE 1 After a trial Afier trial on the merits, the the merits, Court submitted the Court this case to submitted this Jury. On December 12, to a Jury. 12,2019, 2019, the Jury the Jury returned returned a verdict a in favor finding in verdict finding favor of Mr. of Mr. Murphy on on breach of contract breach of contract in favor and in and of favor 0f Defendant Defendant Pavecon Public Pavecon Public L.P. on breach Works L.P. breach of fiduciary duty; of fiduciary duty; however, however, the Jury refused the Jury refused to to exemplary award exemplary damages. damages. A copy of the copy of verdict the verdict is attached is attached to this t0 motion as this motion Exhibit as Exhibit l. 1. the For the reasons forth below, set forth set Mr. below, Mr. Murphy asks the Court to the Court to disregard certain disregard certain Jury findings Jury findings on breach of fiduciary of fiduciary duty duty and and render judgment render judgment remaining the remaining on the findings findings for Mr. for Murphy. Mr. Murphy. Mr. Murphy Mr. attaches judgment proposed judgment attaches a proposed to motion as this motion to this Exhibit 2. as Exhibit 2. n. II. Motion to Motion disreeard to disrggard findings findings 41b1, (a) and 55 1c): 4(b).55 gal (c): Court may disregard The Court Jury's answer the Jury’s disregard the answer to a question to question if is there is if there no evidence n0 evidence oror legally- legally- insufficient evidence insufficient evidence to support to support it.r it.‘ Additionally, Additionally, judgment a judgment non obstante non veredicto obstante veredicto should be should granted granted evidence is the evidence when the is conclusive conclusive matter or on a matter or when a legal principle precludes legal principle precludes recovery.2 recovery.2 the reasons For the reasons stated below, the stated below, Court should the Court should disregard disregard the following: the following: a. a. fle The Court Cogrt should disregard should disregard the Juru's the Jurv’s findins finding on Breach on Breach of Fiduciag of Fiduciarv Dutv. Dug. In response to In to Question Question 4,the 4, that Jury found that the Jury Mr. Murphy Mr. Murphy diddid comply with his comply with fiduciary his fiduciary duty to duty Ltd. to Pavecon Ltd. but did Co but did not with his not comply with fiduciary his fiduciary duty to duty Public Works to Pavecon Public Works LP.3 LP.3 Mr. Murphy Mr. Murphy Court to the Court moves the to disregard the Jury’s disregard the finding in Jury's finding Question 44 (b) in Question regarding (b) regarding Pavecon Public Public Works LP because therethere is legally-insufficient evidence is legally-insufficient evidence to support to it. support it. The evidence presented evidence presented trial showed at trial at Mr. Murphy that Mr. showed that Murphy did not did fiduciary not breach aa fiduciary duty to duty to Pavecon Pavecon Public Works or Public any other or any Defendant. other Defendant. evidence showed The evidence showed that Defendants allowed the Defendants that the allowed employees employees to t0 utilize company resources utilize resources for work on their for private their private property property with the with the understanding understanding 1 See Tex. R. Civ. Civ. P.301; Tillerv. McLure,l21 709,773 (Tex.2003). 1 SeeTex.R. P. 301; Tiller v.McLure, 121 S.W.3d 709, 713 (Tex. 2003). 2 Pitts 2 Pitts& Collard, Collard, Schechter,369 LLP v. Schechter, 369 S.W.3d 301,301,320 (Tex. App.-Houston [15‘ 320 (Tex. Dist.] 201 2011, no 1, n0 v. [1't Dist] pet.). pet). 3 3gxhibit Exhibit I —- 1 of the Court, Charge ofthe Court, p. 8. p. 8. MARTY MURPHY’S MURPHYOS MOTION MOTION T0 TO DISREGARD DISREGARD JURY FINDINGS AND ENTER ENTER JUDGMENT JUDGMENT ON REMAINING ISSUES ISSUES PAGE 2 that they that they would the company reimburse the at at cost. Thus, cost. Thus, itit was not violation of not aa Violation the Defendants’ of the Defendants' Mr. Murphy for Mr. trust for trust Murphy to do the to same. The evidence the same. evidence showed that Mr. Murphy disclosed that Mr. the work disclosed the to to (including Defendants (including Pavecon Pavecon Public through scheduling Public Works) through scheduling meetings, managerial meetings, where managerial employees of present of Defendants were present participated in and participated the scheduling in the scheduling of the of work. The work the work. schedules schedules widely disseminated were widely were across the across companies-it was the companies—it was n0no secret. The secret. The evidence evidence Mr. Murphy told that Mr. showed that told the the employees that he that he would pay pay for for labor, materials, labor, materials, machinery, machinery, other costs and other associated costs associated with the with the work at property, and that his property, at his they should that they bring such should bring invoices such invoices to to him payment. for payment. for showed The evidence showed that paid all that he paid all such invoices invoices that presented. that were presented. He even went searching even went searching for invoices for invoices that that were due, and were due, he admonished and he employees for miscoding for miscoding for invoices for invoices payment payment by the by Defendants. the Defendants. Thus, Thus, the transactions the transactions were not were not unfair or inequitable. unfair or inequitable. The evidence showed that the work at that the Mr. Murphy’s at Mr. Murphy's property was property was scheduled during scheduled during lulls in lulls the in the schedule, and schedule, it was meant to it to ensure that workers would continue the workers that the continue to be to be available available to work 0n to on Defendants' Defendants’ projects. projects. Although Although it was meant it meant t0 benefit to benefit Defendants, Mr. the Defendants, the Mr. Murphy paidpaid for for such out ofhis work out putting the pocket, putting of his own pocket, the interests interests of the Defendants ahead 0f ofthe of his own. The facts his own. of facts of this case this not rise do not rise t0 the level to the of a breach level of breach 0fof fiduciary fiduciary duty. duty. Accordingly, Accordingly, Mr. Mr. Murphy Murphy respectfully requests respectfully that the requests that Court disregard the Court the Jury's disregard the finding Jury’s finding in in response toto Question Question (b) because there 4 (b) 4 there is legally-insufficient is legally-insufficient evidence to evidence to support finding the finding support the that that breached he breached fiduciary a fiduciary duty to Pavecon duty t0 Pavecon Public Works LP. Public LP. b. b. should disresard The Court should disrggard the Jury's finding the Jufl’s finding the aWard on the of labor costs: award of’labor costs: In response to In to Question (a), the Question 55 (a), Jury the Jury awarded awarded Pavecon Public Works LP Pavecon Public LP $30,000 in in labor labor costs. costs. MARTY MURPHY’S MURPHY'S MOTION TO DISREGARD DISREGARD JURY FINDINGS AND ENTER ENTER JUDGMENT ON REMAINING ISSUES PAGE 33 QUESTION QUESTION NUMBER NUMBERS5 What sum What of money, sum of money, if any, if any. if paid now as if paid as cash would fairly cash would fairly and and reasonably reasonably for the compensale for the damages. damages. if any, if that were any, that proximately caused by werc proximately by such conduct? conduct? Consider the Consider the following of damages, following elements 0f damages, if ifany, and any, olher. and none other. Do not D0 not add for interact 8ny amount for any interest on damages, if any. if any. Answer in dollars and cents, in dollars cents,if any, if for each entity any, for you answered for whom you entity for ansvvered “No” "No" in in Number Question Number Question 4. 4. TT fl l. i _ b. Equipment Use b. $ S lcQ, O0 o [00, 9 c. c. Equipment Equipment Repair Repair s $ lo,L5o lo. EQ d. Materials d. Mrterirls S 5 Slowoo() €. Lost e. Pnofits I-oot Profits S a However, However, Court the Court the should disregard should finding disregard finding 5 (a) because 5 (a)because a defect in Defendants’ defect in Defendants' pleading makes pleading it insufficient itinsufficient to support t0 a judgment on labor support ajudgment labor costs, the evidence costs, the evidence conclusively proves that conclusively proves that Pavecon Public Public Work LP cannot recover labor cannot recover labor costs, evidence is the evidence costs, and the is legallyinsufficient to legally insufficient to raise raise an issue issue of fact 0f Public Works LP’s fact on Pavecon Public LP's entitlement entitlement to an award of t0 of labor labor costs. costs. The evidence The admiffed at admitted at trial trial established that established that all labor all labor costs costs were paid by were paid by Labcon Inc. Inc. Flor Jordan testified Flor testified that paid for that Labcon paid for the workers' time the workers’ time on Pavecon Pavecon jobs, and she testified jobs, that testified that property. Mr. Mr. Murphy paid Murphy testified that testified and that staff. for the paid for Labcon is staff. Even the the workers’ professional is a professional time the time time on workers' time work at on work employment employment sheets repeatedly sheets his property. at his agency and that referenced repeatedly referenced MFurthermore, Furthermore, by Defendants listed