Motion for Judgment Notwithstanding the Verdict in EDUARDO DEL BOSQUE vs. JUAN BARBOSA| Trellis.Law

On December 18, 2018 a Motion,Ex Parte was filed involving a dispute between Del Bosque, Eduardo, and Barbosa, Juan, for OTHER (CIVIL) in the District Court of Dallas County.

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FILED
2/14/2022 7:18 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Dorothy Strogen DEPUTY

CAUSE NO. DC-18-18847

EDUARDO DEL BOSQUE IN THE DISTRICT COURT OF

Plaintith
DALLAS COUNTY, TEXAS
v.

JUAN BARBOSA,

Defendant. 192ND JUDICIAL DISTRICT

PLAINTIFF’S REPONSE TO DEFENDANT’S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT

Defendant’s Motion for Judgment Notwithstanding the Verdict must be denied because there

is more than a scintilla of evidence supporting the Jury’s verdict. Cont] Coffee Products Co. v. Cazarez,

937 S.W.2d 444, 450 (Tex. 1996) (“Anything more than a scintilla of evidence is legally sufficient to

support the finding.”). Defendants’ reliance on a body of case law that is either legally or factually

inapposite (or both) is unavailing. The Motion, therefore, should be denied.

RELEVANT FACTUAL BACKGROUND

1 On January 7, 2022, trial commenced in this matter. Plaintiff and his wife, Beatris

Del Bosque testified in Plaintiff's case and were subject to cross-examination.

2. Plaintiff testified that he has been in the construction business for 25 years.’ During

those 25 years, Plaintiff so many buildings he could not recall the number.”

3. Never once in 25 years was Plaintiff ever accused of being dishonest in a business

transaction, of defrauding a client, or of stealing funds from a client.

' Tr. at 63:21-23.
? Td. at 63:24-64:1.
3 Id. at 64:2-12.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR JNOV, PAGE 1
4. In fact, Plaintiff had never been sued in 25 years of construction work.*

5. After Plaintiff undertook to complete construction of the restaurant, he personally

visited the construction site.° Plaintiff testified that when he arrived, he encountered a scene of

disarray.° With the exception of some windows that had been installed, Plaintiff was unable to use

any work that Defendant had previously performed.”

6 Plaintiff personally supervised the entirety of the construction project.* And with a

few de minimum exceptions, Plaintiff incurred all costs and expenses related to the construction

project including the bulk of blueprints,” building permits," labor," and materials.’ Plaintiff testified

that he spent more than $430,000 in connection with construction of the restaurant.'?
7
Under cross examination, Defendant’s counsel raised Plaintiff's deposition

testimony, asking “how much it cost to construct the restaurant.”'* Defendant’s counsel reminded

Plaintiff that he testified construction costs were “approximately...390 something, like 400.”"*

Plaintiff recalled that his testimony involved “the construction and nothing else” and that since that

time “prices have increased a lot” and “everything’s more expensive now. 2916

8 Plaintiffs estimation of costs and expenses differed from Defendant’s estimation.

Duting his testimony, Defendant testified that costs and expenses required to complete construction

was “probably between 200 and $300,000."

4 Id. at 64:13-16,
5 Id. at 73:2-5.
6 Td.
7 Id. at 74:19-22,
8 Td. at 75:14-16.
° Id. at 75:21-22,
10 Td, at 75:23-25.
"Yd, at 75:19-20.
"2 Td. at 75:17-18.
'3 Td, at 76:1-4.
"4 Td. at 104:4-6.
'5 Td. at 104:16-18.
16 Td. at 104:19-21,
"7 Td, at 121:13-24,

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR JNOV, PAGE2
9. During trial Defendant’s counsel also examined Plaintiffs wife, Beatris Del Bosque,

regarding the propriety of certain payments. Specifically, Defendant’s counsel questioned Ms. Del

Bosque about whether certain payments Plaintiff claimed in his damages were related in any way to

construction of the restaurant based on the timing of certain invoices. For example, Defendant’s

counsel questioned Ms. Del Bosque about a $6,700 invoice from 2015,'* checks written to an

individual named Aurelio Gallegos from 2015." Ms. Del Bosque testified that all records of

payments submitted as evidence dated in 2015 were for the DeSoto restaurant because there was no

other construction during that time period. 20

10. On January 10, 2022, the Court issued the Charge of Court to the 12-member jury

empaneled in this case.”

11. The first question of the Charge of Court asked whether Defendant agreed to

“reimburse Plaintiff for his construction investment in the Pollo Regio Restaurant located in

DeSoto, Texas.” The Jury answered, “Yes.”

12. The second question of the Charge of Court asked whether Defendant failed to

comply with his agreement to reimburse Plaintiff's construction investment.” ‘The Jury found he

did.** The Jury found in response to third question of the Charge of Court that Defendant’s failure

to reimburse Plaintiff's investment was not excused.”

13, Finally, the Jury reached the fourth question of the Charge of Court which asked the

Jury to calculate the amount of money that would fairly compensate Plaintiff and further

18 Td. at 42:1
19 Td. at 42:21-43:14,
20 Td. at 57:24- 225,
2 Charge of Coutt filed January 10, 2022.
2 Charge of Court at 4.
3 Id
24Td. at 5.
2 id.
Z i. at 6.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR JNOV. PAGE3
admonished the Juty to consider only the reasonable and necessary expenses Plaintiff incurred to

construct the restaurant.” The Jury found that $117,182.97 was the appropriate number.”

APPLICABLE LEGAL STANDARD

“Anything more than a scintilla of evidence is legally sufficient to support” a Jury’s verdict at

trial. Cazarez, 937 S.W.2d at 450. Thus, under Texas law, Courts evaluating a no-evidence point

assesses “whether the proffered evidence as a whole rises to a level that would enable reasonable

and fair-minded people to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25

(Tex. 1994). Furthermore, courts “view the evidence in the light most favorable to the finding,

crediting favorable evidence if a reasonable fact-finds could and disregarding contrary evidence

unless a reasonable fact-finder could not.” Suston v. Ebby Halliday Real Estate, Inc., 279 SW.3d 418,

422 (Tex. App.—Daallas 2009, no pet.).

ARGUMENT AND AUTHORITIES

Defendant’s Motion for Judgment Notwithstanding the Verdict must be denied because

there is more than a scintilla of evidence supporting the Jury’s verdict. Cont’ Coffee Products Co. v.

Cazarez, 937 S.W.2d 444, 450 (Tex. 1996) (“Anything more than a scintilla of evidence is legally

sufficient to support the finding.”). In this case, the Jury was presented with substantial evidence

about Plaintiffs qualifications a builder, including his 25-year history in the construction of

buildings.”

The Jury was also provided with unrebutted evidence that Plaintiff has an unimpeachable

history of honesty and integrity regarding his business dealings, having never once been accused of

an act of dishonesty in 25 years of construction.”

27 Td. at 7.
28 Id,
29 Tr, at 63:21-23,
30 Td, at 64:2-16.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR JNOV, PAGE4
Plaintiff testified, and Defendant did not rebut, that he personally inspected the premises,”

evaluated the state of construction,” assessed whether prior work performed by Defendant could be

utilized,” and personally supervised the project using his 25 years of expetience.™' Based on his

experience and the needs of the project, Plaintiff testified that he spent more than $430,000 in

connection with construction of the restaurant.”

During cross examination, Plaintiffs deposition testimony was introduced. That testimony—

which remained unrebutted and unchallenged — established that Plaintiff had knowledge of the

market price of materials, noting the increase in materials and supplies in the months and years

following construction of the restaurant.’ At all times Defendant was free to challenge Plaintiff's

knowledge and assessment of the project and his knowledge and assessment of the cost of materials,

but never did.

Moreover, Defendant himself testified that he personally believed the costs and expenses

needed to complete construction of the restaurant to be between $200,000 and $300,000.°7 And

although Defendant’s counsel attempted to show that certain costs related to the construction of the

restaurant were not necessaty, Ms. Del Bosque presented unrefuted evidence that, apart from

construction of the restaurant, Plaintiff was not engaged in any other construction during the

relevant time period that could have accounted for the amounts claimed.**

Under Texas law, Courts evaluating a no-evidence point assesses “whether the proffered

evidence as a whole rises to a level that would enable reasonable and fait-minded people to differ in

their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). Furthermore, courts

3 Id, at 73:2-5,
22 Id.
33 Id. at 74:19-22.
34 Td. at 75:14-16.
33 Id. at 76:1
36 Td, at 104:19-21.
37 Td, at 121:13-24.
38 Id, at 57:24- 25.

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR JNOV, PAGE5
“view the evidence in the light most favorable to the finding, crediting favorable evidence if a

reasonable fact-finds could and disregarding contrary evidence unless a reasonable fact-finder could

not.” Sutton v. Ebby Halliday Real Estate, Inc., 279 SW.3d 418, 422 (Tex. App.—Dallas 2009, no pet.).

Here, there is a substantial amount of testimony from which the Jury was free to infer that the costs

and expenses incurred in connection with the restaurant were reasonably and necessarily incurred.

The cases on which Defendant relies are all entirely inapposite.

Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 $.W.3d 195 (Tex. 2004).

Defendant relies principally on Mustang. Mot. J 9. In Mustang, a customer and general contractor

entered into an agreement for construction of a pipeline from Month Belview to Longview, Texas.

Id. at 196, Ultimately, the general contractor failed to complete construction in a timely manner, so

the customer terminated the contract, hired a replacement contractor, and sued for remedial

damages, namely, the costs to complete the pipeline. Id. at 196-97. A jury found in favor of the

customer. Id. at 197. The trial court, however, granted the general contractor’s motion for judgment

notwithstanding the verdict, concluding that the customer failed to adduce any evidence that its

damages were reasonably incurred. Id. In reviewing the evidence, however, the Texas Supreme Court

noted that the sole evidence presented at trial regarding damages was expert testimony that the

customer paid out-of-pocket costs to address the general contractor’s failure to perform. Id. at 201.

Unlike the facts at trial in this case, in Mustang, the customer put on no evidence of the replacement

contractor’s experience, qualifications, knowledge of the project, knowledge of pricing of materials,

or any of the other myriad facts Plaintiff established. In fact, the only evidence presented at trial was

that the costs were vot reasonable based on a material change in the underlying circumstances.

McGinty v. Hennen, 372 $.W.3d 625 (Tex. 2012). Just as in Mustang, in McGinty the only

evidence of damages for home repairs related to a water leak presented at trial came from expert

testimony. Id. at 627 (“Hennen’s expert testimony was the only evidence offered on remedial

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR JNOV, PAGE6
damages.”). Specifically, the expert testified that the damage figure was calculated using a well-

known software program. Id. At trial, the expert merely testified that, based on the inputs to the

software, the amounts calculated for the damages claim were correct. Id. The Texas Supreme Court,

citing Mustang, stated that the expert’s testimony served only to illuminate how the damage figure

was calculated, but was not evidence that the numbers were reasonably or necessarily incurred. Id. at

628. Again, unlike in this case, McGinty contained no testimony that the expert had actually visited

the premises or supervised the work that was completed to ensure that the inputs into the software

were eithet reasonable or necessary.

Curtis v. AGF Spring Creek/Coit
II, Ltd., 410 $.W.3d 511 (Tex. App.—Dallas 2013, no

pet.). Curtis was a landlord-tenant dispute in which a landlord sued its tenant for breaching a lease

agreement after the tenant moved out prior to the end of the lease term. Id. at 513. During trial, the

sole evidence that landlord incurred damages “was a business records affidavit attaching a list of

expenditures made after the termination of the lease.” Id. at 518. The business records affidavit

purported that landlord lost $514,988.96 in income. Id. at 519. However, not a single witness

testified about the underlying conditions constituting the damages (¢,g. the amounts due either in

rent ot expenses). Id, Indeed, just one witness testified that the business records affidavits says “what

it says.” Id, at 519. Landlord instead spent trial testifying that it took steps to mitigate its damages,

never once touching on the fact that it lost rents or incurred expenses. Id.

After trial on the merits, a jury awarded the landlord $200,000 for costs and expenses the

landlord claimed it incurred as a result of the tenant’s breach. Id. at 517. The Dallas Court of

Appeals first noted that it does not “disregard a jury’s damage award merely because its reasoning in

reaching its figures is unclear >> €¢ as long as a rational basis exists for the jury’s damage.” Id. at 520. In

Curtis, however, the appellate court reversed the jury because there was simply no evidence

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR JNOV, PAGE7
whatsoever — either documentary or testimonial — that the landlord incurred the damages claimed,

much less that such amounts were reasonable and necessary.

701 Katy Bldg., L.P. v. John Wheat Gibson, P.C., No. 05-16-00193-CV, 2017 WL

3634335 (Tex. App.—Dallas Aug. 24, 2017, pet. denied). 701 Katy B/ag. is another landlord

tenant dispute. This case is the inverse of Curtis. In 701 Katy Bldg. the tenant sued the landlord for

breach of a lease agreement when the landlord allowed the premises to fall into disrepair, forcing the

tenant to relocate. Id. at *1-2. The tenant (a law firm) claimed that it incurred expenses to relocate as

a result of the breach and at trial its sole evidence of damages was an itemized list of its expenses. Id.

at *9. The law firm did not testify that its expenses were reasonable, nor did the law firm adduce

“any information to support a reasonableness finding.” Id. at *10. Instead, there was a “bare fact”

based on the itemized list that expenses were paid. Id.

Nu-Build & Associates, Inc. v. Sooners Group, L.P., No. 05-15-01303-CV, 2018 WL

2715290 (Tex. App.—Dallas June 6, 2018, no pet.). In this breach-of-construction-contract case,

the customer fired its general contractor and sued for remedial damages arising from the cost to

complete the project. Id. at *1. After a bench trial, the trial court awarded the customer $3.6 million

in remedial damages. Id. the Dallas Court of Appeals, however, reversed, reasoning that there was no

evidence that the $3.6 million required to complete the project following the general contractor’s

termination was reasonable and necessary. Id. Nu-Build & Associates, however, is not instructive

because the case provides no factual background regarding the Dallas Court of Appeals’ decision to

reverse the $3.6 million award. The appellate court, without explanation, simply concludes that the

appellee “adduced no evidence that the $3.6 million it paid to complete the project was reasonable.”

Id.

In sum, Defendant’s authorities stand for the unremarkable proposition that, at trial, Plaintiff

was tequited to adduce something more than a scintilla of evidence to “enable reasonable and fair-

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR JNOV, PAGE8
minded people to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d at 25. The

$117,000 award by the Jury was supported by evidence from which the jury was free to accept or

reject as reasonable and necessary construction costs Plaintiff incurred to build the restaurant based

on the testimony at trial. Unlike this case, none of Defendant’s authorities contained trial testimony

from any witness with personal knowledge about the costs and expenses incurred, with knowledge

about the pricing of materials in the market, or with 25 years of spotless relevant experience with the

subject matter in dispute. There is, therefore, more than a scintilla of evidence supporting the jury

awatd and Defendant’s cases offered in rebuttal are inapposite. The Motion, therefore, should be

denied.

CONCLUSION

Defendant’s Motion for Judgment Notwithstanding the Verdict should be denied, the Court

should proceed to enter judgment for Plaintiff, and Plaintiff should be awarded all other relief to

which it is entitled.

Dated February 14, 2022

Gregory A. Brassfield
Gregory A. Brassfield
Bar No. 24079900
gbrassfield@lynnllp.com

Lynn Pinker Hurst & Schwegmann LLP
2100 Ross Avenue
Suite 2700
Dallas, Texas 75201

214-981-3800

Certificate of Service

Thereby certify that the foregoing was served on all parties using the Texas eFile service in
accordance with the Texas Rules of Civil Procedure.

Dated February 14, 2021 /s/ Gregory A. Brassfield
Gregory A. Brassfield

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR JNOV PAGE9
CAUSE NO. DC-18-18847

EDUARDO DEL BOSQUE IN THE DISTRICT COURT OF

Plaintith
DALLAS COUNTY, TEXAS
v.

JUAN BARBOSA,

Defendant. 192ND JUDICIAL DISTRICT

DECLARATION OF GREGORY A. BRASSFIELD IN SUPPORT OF
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR JUDGMENT
NOTHWITHSTANDING THE VERDICT

My name is Gregory A. Brassfield. My date of birth is July 24, 2981. My address is 2100 Ross

Avenue, Suite 2700, Dallas, Texas 75201. I swear under the laws of the State of Texas that the

following is true and correct.

1 Tam an attorney for the law firm Lynn Pinker Hurst & Schwegmann, LLP in Dallas,

Texas. I have been involved in this matter from its inception through the present and am familiar with

all aspects of this case including communications, demands, pleadings, motions, discovery, and all

other work performed in support of this case. On January 7, 2022, 1 was the principal counsel for

Plaintiff who tried the matter to the twelve-member jury.

2. Attached as Exhibit A-1 ate true and correct excerpts from the trial transcript from

January 7, 2022. I received the trial transcript from the Court’s Official Court Reporter, Tenesa Shaw,

on February 9, 2022.

Signed in Dallas County, Texas February 14, 2022.

/s/ Gregory A. Brassfield
Gregory A. Brassfield
EXHIBIT A-1

REPORTER'S RECORD

VOLUME 2 OF 4 VOLUMES

TRIAL COURT CAUSE NO. DC-18-18814-K

EDUARDO DEL BOSQUE, IN THE DISTRICT COURT

Plaintiff

VERSUS DALLAS COUNTY, TEXAS

JUAN BARBOSA,

10 Defendant ) 192ND DISTRICT COURT

14 kA ee

> TRIAL ON THE MERITS

16 ee te Ak ke Ake A A ee

19 On the 7th day of January, 2022, the following

20 proceedings came on to be heard in the above-entitled

21 and numbered cause before the Honorable Kristina

22 Williams, Judge Presiding, and a Jury, in the 192nd

23 Judicial District Court of Dallas County, Texas.

24 Proceedings reported by machine shorthand

25 utilizing computer-aided transcription.

Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
APPEARANCES

GREGORY A. BRASSFIELD
Bar No. 24079900
gbrassfield@lynnllp.com
LYNN PINKER HURST & SCHWEGMANN
2100 Ross Avenue Suite 2700
Dallas, Texas 75201
Tel: 214-981-3827

Attorney for Plaintiff

DAVID M. O’ DENS
Texas Bar I.D. 15198100
odens@settlepou.com
SETTLEPOU
10 3333 Lee Parkway, Eighth Floor
Dallas, Texas 75219
11 (214) 520-3300
(214) 526-4145 (Facsimile)
12

13 Attorney for Defendant

Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
42

Q. And, in fact, if you look at the second page
of that exhibit, that's the same company, correct?
A, Correct.
And that invoice is for over $6,700. Does
‘that
invoice belong to DeSoto?
A, Yes, You see the date? It's 2015.
@ Okay.
“| And DeSoto was built on 2015, not 2017.
Q So, why is it not addressed to Axl Metal

10 Roofing, do you know?

11 A Because it's addressed to Pollo Regio.

12 Q Okay. Well, but El Pollo Regio was your

13 company for Waxahachie store, correct?

14 A For Waxahachie, yes.

eS Q Because the company that owned the DeSoto

16 store was DeSoto Regio, Ley correct?

17 A Correct.

18 Q Bue Vour Fecrimony, is chat ena. tivoteo ls

19 for DeSoto?

20 A The 2015, yes.

21 Q. All right. Would you turn to Exhibit P35,
22 please?
23 A, Mmmm.
24 Q. Would you turn to the third page?
25 AL Mm-hmm.
Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
43

Q. Those are checks that were written by Axl

A. Correct.
Q. To an individual -- assume those are payroll

‘I'm
sorry.
Is that a yes?

All right. And what is the Waxahachie Ranch?
10

12 ~~ But, the date, I didn't build nothing at
13 my house on 2015, So all the checks for this person
14 were for DeSoto Regio.
eS Q But you wrote the check to Waxahachie Ranch,

16 correct?

17 A Right.

18 Q And that's a property that you and your

19 husband own, correct?

20 A Correct.

21 Q And if you look at the QuickBooks ledger,

22 Which ds) Ene last page of thar exhib die, when it says

23 memo, the last two entries say Waxahachie, don't they?

24 A Mm-hmm.

25 Q And they don't say DeSoto, do they?

Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
57

correct that you testified that you sign checks for --

and leave them at the store?

A Correct.

7 And one of the reasons you do that is because

sometimes -- didn't you testify that sometimes the

management needs a check to pay a vendor?

MR. O'DENS: Objection, leading, and

asked and answered.

MR. BRASSFIELD: I just asked --

10 THE COURT: Okay. pete es OVC iaanc cle

11 Q (By Mr. Brassfield) So, you can answer the

12 question, if the reason that you did that, as you

13 testi ritcd: is because sometimes management needs a

14 check to pay vendors?

eS A Correct. Yes.

16 Q Okay Sie 1S) Choe ao Matron OF Convenience

17 for the store?

18 A Yes.

19 Q Okay And this isn't your writing here?

20 A No.

21 Q Okay. So you don't have any idea what this

22 is for, do you?

23 A No.

24 Q. All right. Ms. Del Bosque, let's talk about
25 ‘the time period that Mr. O'Dens was asking you about.
Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
58

A, 2015 -- "14, "15.
Q. Okay. Were
constructing
you any other Pollo

AL Nore
Q. Were
constructing
you your Waxahachie store

AL Now
10 Q. Had you even acquired franchise rights for
11

12 oe a=
13 @. Were
constructing
you your Glenn Heights
14

18 Okay. What was at Glenn Heights?
19

20 Okay. Your home was in Glenn Heights.
21

23 I think it was two years before DeSoto Regio.
24 Q. So, that would make it what year,
25 approximately?
Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
59

Q. Can you think of any other construction

J. Well, our businesses is making buildings.
Q. Which business?
© asl
Q. Axl
buildings.
makes
10 Okay. So, how did you ensure that the
11

14 We don't work in Texas. Axl doesn't work in’
eS

16 listed
here. We only -—
17 Q. So -- pardon me. TI didn't mean to interrupt.
18

20 A, We do metal. We only buy metal for roofs.
21 “So, of all of the invoices that Mr. O'Dens
22

25 se &
Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
63

Yes.

How many companies do you have?

Two.

What are the names of the two companies you

have?

It's Axl Metal Roofing and Del Z Enterprise.

All right. Is that Del Z Enterprise?

A Yes.

Q Mr. Del Bosque, what type of construction

10 does Axl Metal Roofing do?

11 A We paint metal roofs and also metal

12 warehouses.

13 Q Do you -- does Axl operate in the state of

14 Texas?

eS A Very little.

16 Q Why is that?

17 A Because the company that provides me with

18 work is out of state.

19 Q What does Del Z do?

20 A Warehouses for rent.

21 ‘| Mr. Del Bosque, how long have you been in the
22 construction business?
23 A, Abou: 25 years.
24 Q. In those 25 years, how many buildings have
25 you built?
Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
64

A, =remember.
don't Many.
Q In those 25 years of building buildings, has

any client ever accused you of being dishonest?

MR. O'DENS: Objection, coHels fo.

hearsay.

He COURT. That's overruled.

A No.

Q (By Mr. Brassfield) Has any client accused

you of committing a fraud?

10 A No.

11 Q Accused you of stealing funds?

12 A No.

13 @. In 25 years, have you ever been sued at all.
14 related to the performance of your construction work in.
eS either company?
16 AL Now
17 Can you tell me what Pollo Regio is?

18 A Mexican restaurant.

19 What type of food does it serve?

20 Chicken, en che: 2. LOost: 4. Toasted chicken.

21 Do you own a Pollo Regio in DeSoto, Texas?

22 Yes.

23 Are you the sole owner of that restaurant?

24 No.

25 Who are the other owners?

Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
713

strike that.

‘Tell me the first time you remember visiting
‘the
location
actual in DeSoto?
Well, everything looked laying around. After
‘they had destroyed or demolished part of it.
Q So, you didn't -- did you build the

restaurant from the ground up?

A No.

Q Did Mr. Barbosa build the restaurant from the

10 ground up?

11 A No.

12 Q Was there an existing building on the

13 property?

14 A Yes.

> Q So, was it your job to upgrade the property

16 for the new Pollo Regio location?

17 MR. O'DENS: Objection, leading.

18 THE COURT: Overruled.

19 A Yes.

20 Q (By Mr. Brassfield) Now, earlier you

21 mentioned that Mr Barbosa had done some work on the

22 PuellaGh, is that eee) iver

23 A Yes.

24 Q Can you tell me what was done when you took

25 over the project?

Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
74

A One wall where the grill was going to go and

it was badly done, so we had to rebuild it.

Q What do you mean it was badly done?

A Because at that time the City came and

stopped everything -- the building because the wall

wasn't done correctly.

MR. O'DENS: Objection, he's now

testifying to hearsay.

THE COURT: That's sustained.

10 Why don't you ask another question.

11 MR. BRASSFIELD: Sure.

12 Q (By Mr. Brassfield) Sir, did you personally

13 see the work that Mr. Juan Barbosa had done at the

14 site?

eS A Yes.

16 Q And were you able to pick up where Juan had

17 left off?

18 A Yes.

19 Q. Okay. How much work were you are able to use
20 ‘that Mr. Barbosa had previously done?
21 ™ Nothing, only the windows that were probably
22 cited.
23 Q Did Mr. Barbosa ever send you any money for

24 materials?

25 A No.

Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
75

Q Did Mr. Barbosa send you any money for the

laborers?

A No, not me.

Datel Miers Barbosa pay for restaurant plans?

A Blueprints?

Q Yeah, blueprints.

A He paid a little bit because it went to -- I

have the same -- same contract and I think he paid for

the blueprints and the electricity, and I paid for the

10 rest.

11 Q Did Mr. Barbosa pay for rebar for the parking

12 AOE

13 A Not with me, no.

14 @- All right. Who
construction
supervised of
eS

Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
76

Q. Can you tell me how much you paid for all of
your expenses to complete construction of the DeSoto
Regio restaurant?
About
430,000, and more.
Q Did Mr. Barbosa -- pardon me. Did you ever

ask Mr. Barbosa tO Pay. tom Nalin Of hose expenses,

A Yes.

Q When did you ask Mr. Barbosa to pay for half

of those expenses?

10 A When I had spent $150,000, I spoke to him and

11 T told him that we had reached an even amount, and now

12 we had to start paying, boeh Or us:

13 Q Did Mr. Barbosa pay you after that point?

14 A No.

> Q Did Mr. Barbosa tell you whether he intended

16 EO pay, Vole

17 A No. Because he said he had no money because

18 he had been spending money on his attorney about his

19 case and to wait for him is what he said.

20 Q Did he tell you which case he was talking

21 about?

22 A Bem one We had. been ln gai for.

23 Q Sir, are you asking the Jury in this trial to

24 give you all $430,000 you spent to build the

25 restaurant?

Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
104

restaurant between July the 20th of this year and

today?

A No.

@- Do you remember being asked in your
deposition how much it cost to construct the
restaurant?
A Currently or? On 2

Q Well, in July of this year, you were asked

how much did it cost to build the restaurant. Do you

10 remember that question?

11 A No.

12 Q Vou dOnwe. remember hat.

13 Do you remember your answer being I don't

14 remember?

eS A Okay.

16 ‘& 0 Okay. And then you were asked to tell
17 approximately how much it was and you said, maybe 390
18 something, like 400?
19 ‘& Only
construction
the and nothing else. And
20 the prices have increased a lot, everything's more
21 expensive now.
22 Q So, between July of this year and today, you

23 determined that the actual cost of construction was 40

24 to $30,000 higher?

25 A No.

Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
121

ANSWER: Yes, sir.

MR. BRASSFIELD: Let's go to page 56.

Pardon me -- page 54, line 20.

QUESTION: And if you were to review all

of the receipts that Mr. Del Bosque has produced in

this case, could you come to a calculation as to the

amounts you believe were not contributed to the DeSoto

Const Elction,

ANSWER: Yes, sir.

10 QUESTION: Go to line 56 -- oh, sorry.

11 Page 56, line 21.

12 Sorry -- line 15.

13 QUESTION: I think you just testified
14 ‘that you could perform a calculation after reviewing
eS ‘the receipts provided in this case based on what would
16 be required to finish restaurant; do I have that right?
17 ANSWER: Yes. Iunderstand that
18 question now.
19 QUESTION: Okay. Do you -- okay. Go
20 ahead and answer it, if you can.
21 ANSWER: I really at this point -- I
22 mean, I don't remember why but, I mean,
23 approximately -- probably between 200 and $300,000 to
24 finish it.
25 MR. BRASSFIELD: Pass the witness, MOjlaa

Tenesa J. Shaw
192nd District Court - Dallas, Texas
214 653-7766
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Gregory Brassfield on behalf of Gregory Brassfield
Bar No. 24079900
gbrassfield@lynnllp.com
Envelope ID: 61739580
Status as of 2/15/2022 9:32 AM CST

Associated Case Party: EDUARDO DEL BOSQUE

Name BarNumber | Email TimestampSubmitted | Status
Christopher W.Patton cpatton@lynnilp.com 2/14/2022 7:18:54 PM | SENT

Gregory Brassfield gbrassfield@lynnllp.com | 2/14/2022 7:18:54 PM | SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

David M.O'Dens odens@settlepou.com 2/14/2022 7:18:54 PM SENT

April Sandefur asandefur@lynnllp.com 2/14/2022 7:18:54 PM SENT
Jordan Whiddon jwhiddon@tailimsong.com 2/14/2022 7:18:54 PM SENT

Yuliana Ramirez yuliana@tailimsong.com 2/14/2022 7:18:54 PM SENT

Daniel Polese 24102364 dpolese@lynnllp.com 2/14/2022 7:18:54 PM SENT
Tailim Song tsong@tailimsong.com 2/14/2022 7:18:54 PM SENT

Debra Camacho dcamacho@settlepou.com 2/14/2022 7:18:54 PM SENT

Pam Oakley poakley@lynnllp.com 2/14/2022 7:18:54 PM SENT

Case Info

Judge

WILLIAMS, KRISTINA M Track Judge’s New Case

Case No.

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Document Filed Date

February 16, 2022

Case Filing Date

December 18, 2018

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Motion,Ex Parte: EDUARDO DEL BOSQUE vs. JUAN BARBOSA

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